Can an Ex Testify About Prior Bad Acts?

As a general rule, prosecutors are not allowed to introduce “character evidence” against a defendant at trial. In other words, if you are accused of a particular crime, the prosecution cannot tell the jury about other offenses you may have committed in the past to show you have a “bad character.” Such “extraneous offenses” are irrelevant and inadmissible.

But there is an exception under Texas law for domestic violence cases. When someone is accused of assaulting a family member or dating partner, either the state or the defense may introduce “regarding the nature of the relationship between the actor and the alleged victim.” Such “relationship evidence” can include statements regarding a defendant’s prior bad acts.

Appeals Court Upholds 25-Year Sentence of Bexar County Man Convicted of Strangling Ex-Girlfriend

In a recent decision, Melchor v. State, a Texas appeals court confronted the application of this exception to a defendant convicted of a felony domestic violence charge. The defendant, in this case, a man from Bexar County, was accused by his ex-girlfriend of choking her during a fight outside of a bar.

Before the trial began, the defense filed a motion to prohibit the prosecution from introducing or eliciting any testimony regarding “any extraneous offenses, wrongs, or acts” that may have been previously committed by the defendant. The judge granted the motion and the trial began.

But during her testimony, the ex-girlfriend made two statements regarding prior bad acts. First, she implied the defendant belonged to a “gang.” Second, she said it wasn’t “the first time” that the defendant had assaulted her.

Based on these statements, the defense asked for a mistrial, arguing the prosecution had violated the judge’s prior order. The judge declined to order a mistrial. Instead, he simply instructed the jury to disregard the ex-girlfriend’s statements.

The jury proceeded to convict the defendant of family assault by choking or strangulation, which is a third-degree felony under Texas law. The court imposed a 25-year prison sentence based on the defendant’s prior criminal history. On appeal, the defense argued the trial judge erred in not granting the requested mistrial due to the prosecution’s “misconduct.”

The Court of Appeals affirmed the conviction and sentence. The appeals court noted that with respect to the “gangs” statement, the judge’s instruction to disregard was sufficient to “cure any harm or prejudice” towards the defense. As for the statement suggesting this was not the “first time” that the defendant had attacked his ex-girlfriend, the appeals court pointed to the “relationship evidence” exception described above. And once again, the judge instructed the jury to disregard the statement, and the appeals court said there was no evidence suggesting the jury “failed to follow” that instruction.

Speak with a Houston Domestic Violence Defense Lawyer Today

Domestic violence is not like other criminal cases. Prosecutors are often given additional leeway to try and convict a defendant. That is why it is imperative that if you are the one on trial, you work with an experienced criminal defense attorney who will zealously represent your interests. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today if you need to speak with a lawyer right away. Call (281) 280-0100.