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Suddenly Winner Takes All:

Family Violence Strangulation Cases Post Ortiz/Barret

James M. Yanney, 3/12/2021


        A divided Court of Criminal Appeals (the highest criminal court in the State of Texas) recently issued a decision that seemingly purports to limit the government’s ability to hedge its bets in a trial for felony family violence impeding breath cases. 

        How has the government typically hedged its bets in these cases?  Quite often, at jury trial in a felony assault family violence impeding breath case, the government will not be able to prove that the defendant actually choked or strangled the complaining witness.  To prove the felony charge, the government has to actually prove that the normal breath or blood circulation of the complaining witness was restricted by the defendant’s actions and that those actions were not justified by an an affirmative defense such as self-defense or defense of a third person.  This is often very difficult to prove because these sorts of alleged assaults quite often leave no physical marks or because the complaining witness tends to become uncooperative or perhaps more truthful with the prosecution over time.  Without great testimony at trial from the complaining witness or physical markings, the government’s ability to prove the felony charge to the jury is often severely weakened. 

        However, very often, the government or defendant will ask for what is known as a “lesser included offense” instruction to the jury.  This instruction would allow the jury the option to find the defendant not guilty on the felony strangulation charge but to find the defendant guilty on a lesser included charge:  misdemeanor assault family violence.  In this way, the jury both gives the government a conviction and acquits the defendant of the more serious charge.  In this case, both sides win some and lose some.  The government gets a conviction, albeit not the one it wanted, and the defendant is only convicted of a misdemeanor instead of the original felony charge.

The decision in Ortiz/Barret seems to make this outcome significantly less likely in certain cases.  In the absence of evidence of another distinct assault, ie hitting or kicking or some other non-strangulation type action, the jury will not have the option of choosing to acquit on the felony charge and convict on a misdemeanor assault.  The jury will be forced to choose between a guilty or not guilty verdict on the felony charge alone.  This results in a much more “winner take all” scenario on these cases. If the government wins, it is a felony conviction, if the defendant is acquitted, they may walk free and clear from the courtroom.

         If you or a loved one is accused of a felony strangulation charge, you need to contact an experienced criminal defense attorney right away.  These charges carry up to ten years in prison and a felony conviction will follow you the rest of your life. A family violence conviction even more so than many regular felony convictions.  With this new decision, the pressure on the government to prove a difficult case or risk total defeat may be ratcheted up.  Risk for the government often equals leverage for you in the resolution of your case.

"Who Set My Bond Anyways?"

James M. Yanney, 2/23/2021

Dollar Bill in Jar
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       A set of questions I get quite frequently during my practice are “who set the bond in my case?” and “can the bond amount in my case be lowered?”.  Both of these are important questions to my clients and so therefor are important questions to me.  Let’s take them in turn:


       The bond in a criminal case is usually set by whatever judge is on duty at the time the suspect is arrested.  For example, let us say Mr. John Smith is pulled over at 10:30 P.M. on Saturday night by a police officer who suspects he has committed the offense of DWI.  Mr. Smith is arrested for DWI at 10:50 PM this night and placed in a police cruiser.  He is then taken to the county jail.  If there is a judge who is assigned to be on duty, it will be that judge who decides at what amount Mr. Smith’s is set.  Also, it will be that judge who determines any “conditions of bond”.  These conditions often require a person arrested to do or not do certain things upon their release from the county jail.  In a DWI case, this may include having a breathalyzer type device installed in the person’s car or the obligation to not visit bars while the case pending.


       In regards to the second question, the answer depends on several different factors. The 4th Court of Appeals (the appellate court with authority over the  criminal courts of San Antonio and many surrounding counties) recently laid out the factors in its opinion in the case Ex Parte David Delgado.  I’ll list them here and then offer a brief explanation below.


         Some of the factors come directly from the Code of Criminal Procedure.  They can be found in Article 17.15.  These are them:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be taken upon this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.


        Beyond these factors, the court may also consider some additional reasons that it finds in its previous decisions:

 (1) the nature of the charged offense and length of the potential sentence;

(2) the defendant’s ties to the community, including  family ties;

(3) the defendant’s length of residency;

(4) the defendant’s employment history;

(5) the defendant’s criminal history;

(6) the existence of previous bonds against the defendant and his compliance with conditions of those bonds; and

(7) any aggravating circumstances involved in the

Ex parte Rubac, 622 S.W.3d at 849-50; Gonzalez, 383 S.W.3d at 162.


         So, as you can see, there is a lot to legalese break down here.  The upshot of all of these factors can be distilled into this:

  1. In most case, a person is entitled to a bond but is not entitled to a specific bond amount.

  2. The bond must be high enough to ensure the person shows up for court but it is not to be so high the person has no possibility of posting it.

  3. The court will weigh the seriousness of the alleged crime and the alleged danger to the community against the person’s ability to pay the money required to secure their release.


       There may be many things an attorney can do to help you or a loved one secure a personal or “signature bond” in a criminal case.  An attorney can also help by attempting to get the amount of money required to make the bond lowered.  Furthermore, an attorney may, in some situations, be able to file a Writ of Habeas Corpus to compel a court to release the defendant.  In many cases, achieving any of these objectives will require the defense attorney to go before the judge and make the appropriate arguments.