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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26460
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Back on April 26 of this year I got off my meds for a few days

Customer Question

Back on April 26 of this year I got off my meds for a few days (my wife and I are both Bipolar-she's just more consistent and submissive to dr's). I haven't done anything physical for over six months at that time but she got scared anyway and called her mom to find a place to stay. I went for a walk and started to calm down though still a bit manic, she was still upset, I reached for the phone so I could talk to her and accidentally pulled her hair (because it's so long). Anyway, her mom freaked out when my wife screamed and called the police. The lead officer made my wife sign a statement even though she insisted it was an accident and he charged me with a Class A misdemeanor Domestic Violence charge w/bodily injury. Apparently if there's pain there's bodily injury in the State of Texas because there wasn't a mark on her. I spent four days in jail because I didn't know that I only needed 10% of $1500 to bond out till court date. So, I found one lawyer online who was supposed to be one of the top lawyers in the State. He was gonna charge me $1000 if it didn't go to trial and he got my wife to sign a nonprosecution agreement that's supposed to be on file with the State. So she can't testify at a trial so I don't see what's supposed to happen at the court on July 12. Either way, I fired him because an old roommate found me a cheaper lawyer who said he could get me cleared of all charges. My roommate knows about our mental problems and the fact that I'm not real stable yet, so for 3 days he was trying to provoke me to lash out and threaten him so he could call the police and get me sent to the state hospital for 3-6 months or longer. He even convinced my wife I need to be there for at least a year. So we got into it (he stole my wife's pain killers) and I threw him out and now I'm stuck without a lawyer 10 days before the court. My bondsman told me I could just show up and explain it and they would put it off another month. I don't know if I'm legally guilty or nonguilty. Both lawyers told me either way. If I plead not guilty what can they do since my wife decline to prosecute? There are no other witnesses. Also if I am guilty and I go ahead and plea I don't know what would happen. It's my first criminal offense so could I still expect jail time? A fine would be obvious. No community service is given on assault charges. I've already spent four days in jail. There was an assault by touch charge which was a Class C misdemeanor from April of '09. I got a $500 fine and worked at the Salvation Army for forty hours. I'm currently in an outpatient program (which I checked myself into voluntarily for the first time-because of that they wouldn't take me inpatient). Hope you can help, I don't knwo where to go from here?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.
Hello Jacustomer,

If you have never entered a plea of not guilty, (or if your first lawyer never did that for you) that's what you have to do on the court date. If you have already done that, you should tell the judge that you are now without counsel having had a problem with your lawyer and ask him for a continuance to have one with you on the next date.

No defendant should EVER take back a plea of not guilty unless they have a deal in hand on the record that they want to take. In your case right now, there is no deal you want and you should continue as "not guilty." But if the DA learns that your wife is really not interested in pressing charges, even if he doesn't want to drop the case because of that and even if you don't want to risk a trial, the DA may be willing to reduce the charges to something that would allow you to get community service.

If your wife is not interested in prosecuting she should go to the DA and make that clear. Then your (next) lawyer can work with her to try to convince the prosecutor to just abandon the case rather than go forward with something that he'd have difficulty winning. As I've indicated, even if he won't agree with that, he may settle for an offer you would be content with. And then you could plead not guilty.
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Customer: replied 5 years ago.
I was wondering if you knew how long a Class C misdemeanor assault charge stayed on your records? I had that one in April of '09. This D/V charge may get reduced to a 2nd. And I'm under investigation for a possible 3rd on some coworker. I was suspended from my job about a month ago pending an investigation. They said they're hoping to deem me mentally incompetent so they can ask me to resign because if they pursue the investigation they have to involve the police because I "accidentally" brushed some kids hand off me when he was trying to make a friendly gesture. I also heard 3 charges make a felony and I could end up in prison for at least 2 years if found guilty. Also my roommate is about to press charges for a 4th. That's 3 in the last 4 months. I don't think I can get out of going to prison this time. I also have a mental health warrant on me and I'm wondering how far the police will go to find me. Do they go outside the county or can they involve the state police? I could check myself into a local hospital but I've been warned that when there's a MHW on you the police have to take you themselves so that wouldn't do any good anyway. Also the courtesy officer got a call saying someone resembling me was on my old apt. complex with a knife and he went ahead and pressed a criminal trespass charge on me. I have no alibi because I was at home by myself. Can't seem to stay out of trouble or get my life together lately. Plus I went to my store that I was suspended from to pick up some prescriptions and didn't know I couldn't be on site while suspended so they pressed criminal trespass charges against me. I'm facing 5-10 in the big house, aren't I?
Expert:  Zoey_ JD replied 5 years ago.
Hello Jacustomer,

I am sorry to hear that your life is such a jumble these days. I can give you at least one piece of good news here. A C misdemeanor, while classifed as a criminal offense, has a civil penalty only. So while it is on your record, Texas doesn't actually see it as a crime. The Texas penal code makes it clear that a conviction for a Class C misdemeanor "does not impose any legal disability or disadvantage". That means that it cannot be considered to use against you. You can see that for yourself in section 12.03(c)

As far as the other offenses are concerned, you would have to be convicted of all of them to worry about felony time. Only one charge is pending against you presently. The others may or may not come about. And in any case, if there's a mental health warrant out on you and an investigation into your competency, the state may be actually assisting you in a defense. That is, they are at the least recognizing that you may not be responsible for actions you've been taking. And we do not in this country try or extract pleas from those who are not competent to assist in their own defense or to make them. In any case, do not worry about an alibi defense on the possible 4th misdemeanor. Lawyers don't like alibi defenses in general and most would probably want to try that case under another theory of defense such as, for example, mistaken identification.

I don't know much about a Texas mental health warrant. All states have some provision to get someone evaluated, against his will if necessary, if he appears to be of a danger to himself or others. Texas allows any peace officer within the state to pick up someone believed to have these sorts of problems, and they can do so with or without a warrant in an emergency situation. See link.

With everything not quite going on but possibly pending on the horizon you really do need to get yourself a lawyer. If you have one on the domestic violence case, you should be letting him know what else may be likely to come down. And you ought to confer with him about whether, all things considered, it's a good or bad idea for you to voluntarily commit yourself for evaluation, rather than wait for the authorities to find you. He can advise you fo the ups and down sides of both positions and help you to make a decision.

Good luck!
Customer: replied 5 years ago.
Well it worked out pretty good. I only have that one Class A Assault FV charge and they won't prosecute if I can take 24 BIPP classes over six month. But now I'm wondering if I can use my mental illness as well as the fact that I accidentally pulled her hair and it wasn't assault to get the charge dropped pending community service and mandatory mental health counseling/evaluation. I can't go to trial because I can't afford another $800 to give to my lawyer so if that's the only way I'll just have to take the classes. Unless I can get it reduced to a Simple Assault which is only a Class C. I have one of those from exactly two years prior but I can't find it anywhere on my record so it may have fallen off. Would a reduction to a Class C be possible or would it still be Class B or A because the State still probably has a record of it? Hopefully I can find something out soon so I can call my lawyer and work something out. I'm technically homeless and can't get into any shelters because of the charge so I don't know where to go.
Expert:  Zoey_ JD replied 5 years ago.

Glad to hear that this has started to fall into place for you. The DA has the power to reduce a charge to anything he wants. In general, however, the DA will not go down two levels and this present offer may be, given where this started and your background, as good as it will get. It sounds like the state has already accounted for your mental health condition since they are requiring an evaluation and counseling. But there's nothing saying that you can't still try. If you're close to taking the deal and the DA doesn't want to try this any more than you do, sometimes you can get what you want. In any case, if you can't get it down to the C, you may yet get the B.

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