"Domestic violence" is physical or threatened violence and abuse occurring within a relationship between married or cohabiting couples, couples who have a child in common, persons who were formerly married to one another or basically any couple who are in a relationship or who have had a former relationship.
A domestic violence charge in the state of Texas is extremely serious; it often carries a restraining order which may require you to
leave your house immediately and stay away from the person who accused
you of domestic violence. Even if you own the house or pay for it, you
will have to leave. In addition, you will likely face jail time,
probation, counseling and more.
There are graduated penalties for these types of offenses depending on
the particular circumstances of the event and the history of the
individuals involved. Many, if not most, of the penalties are severe.
Even sentences of Probation can, and often do, come with special
conditions that make successful completion more expensive, time
consuming and difficult.
In addition to the criminal charge itself, Domestic Violence cases carry
many far-reaching collateral consequences, which, in many cases, may be
more severe than the criminal penalty itself. The consequences include
but are not limited to: your ability to own and possess a firearm, serve
in the military, your ability to live in your home or maintain contact
with your children.
The potential consequences for non-U.S.
citizens are of particular importance; federal law can characterize these offenses as “Aggravated
Felonies”, “Crimes of Violence” and “Crimes of Moral Turpitude” even
when the criminal charge itself is only a misdemeanor. As a result,
these charges can and often do result in deportation, denial of
naturalization and exclusion from admission to the United States. A
person charged with these types of offenses may be subject to these
collateral consequences even where they received deferred adjudication, a
petition for non-disclosure, or an expunction.
Being charged with domestic violence does not mean you are
automatically convicted. Many domestic assault cases rely solely on an
accusation from the victim with no corroborating witnesses, and we may
be able to challenge the accuser’s credibility. Contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form.
Depending on the circumstances, we have many options in mounting a strong defense for you.
Medical records have an unusual legal status in that they are not only a physicians’ primary business records, but also confidential information that is at least partially controlled by the patient. Unlike the traditional lawyer–client privilege, there is no common law physician–patient privilege.
Medical ethics has always demanded that physicians respect their patient’s confidences, and in recent years many states have enacted medical privacy laws. These laws usually limit the dissemination of medical information without the patient’s consent, but provide certain exceptions such as allowing for the discovery of medical information when the patient has made a legal claimed based on that information, or if the patient poses a threat to the public health.
These privacy laws modify the presumption that
medical records, as a business record, are subject to discovery in cases against medical care practitioners. In cases where
medical records are at issue in litigation against a medical practitioner (other than cases brought by a patient), medical records are protected from discovery unless the plaintiff can show a
compelling reason why the records are necessary to prove the case. Even
then, the court supervises the discovery and generally requires that
all patient- identifying information be removed.
If the case is brought
in federal court, such as in an antitrust or false
claims case, then the state law protections do not apply. Although
federal judges try to protect patients’ confidential information when
possible, there are many situations, such as a Medicare fraud
prosecution, where the complete records will be
discoverable.
The federal government does not provide a general protection for medical privacy outside of federal institutions, but there is a federal law that protects records dealing with treatment for alcoholism and substance abuse.
The Federal Confidentiality of Substance Abuse Patient Records Statute,
section 543 of the Public Health Service Act (42 U.S.C.A. § 290dd-2) establishes confidentiality
requirements for patient records maintained in connection with
the performance of any federally-assisted alcohol or drug
abuse program providing alcohol or drug abuse treatment, diagnosis, or
referral for treatment. The term "federally-assisted" is broadly
defined to include federally conducted or funded programs, federally
licensed or certified programs, and programs that are tax exempt.
Certain exceptions apply to information held by the Veterans
Administration and the Armed Forces.
As part of the Conditions of Participation for Medicare/Medicaid and Joint Commission requirements, providers must protect patient confidentiality.
Rule 509 of the Texas Rules of Evidence states that:
"There is no physician-patient privilege in criminal proceedings.
However, a
communication to any person involved in the treatment or examination of
alcohol or drug abuse by a person being treated voluntarily
or being examined for admission to treatment for alcohol or drug abuse
is not admissible in a criminal proceeding."
In Texas civil proceedings, confidential communications between a physician and a patient relative to any professional services
are considered privileged and may not be disclosed. Any records of the identity, diagnosis, evaluation, or treatment of a
patient that are maintained by a
physician are also considered confidential. The provisions rule 509 apply even if the patient received
the services of a physician prior to the enactment of the Medical
Liability and Insurance Improvement Act. Exceptions may be made in cases when the proceedings are brought by the patient against a physician, such as cases involving malpractice, or
in license revocation proceedings when the patient is a complaining witness and disclosure is relevant to the
claims (or defense) of the physician. Additionally, exceptions may be made in the following situations:
the patient or someone authorized to act on the patient's behalf submits a written consent;
to substantiate claims for medical services rendered, if the records are relevant to an issue of the physical, mental or emotional condition of a patient when that condition is a part of the party's claim or defense,
in disciplinary investigations or proceedings against a physician provided that the identity of the patient is protected,
in certain involuntary civil commitment proceedings, proceedings for court-ordered treatment or probable cause hearings,
in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution"
If you have been accused of a crime, please contact us today for a
free consultation with an aggressive and resourceful criminal defense
attorney.
We will work tirelessly to ensure the best possible outcome for
your case. Call (713) 224-3967 for a free consultation or click here for our convenient online submission form.
Amendment VIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Amendment XIV (Section 1): "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
From November 1981 through January 1982 the US Supreme Court argued the case of Eddings v. Oklahoma (455 U.S. 104).
Eddings, a 16-year-old youth, was driving a car on the Oklahoma Turnpike when he momentarily lost control of the vehicle. He was signaled to pull over by an Oklahoma Highway Patrol officer; when the officer approached the car Eddings stuck a loaded shotgun out of the window and fired, killing the officer.
The State moved to have Eddings certified to stand trial as an adult, where he was charged with murder in the first degree: the District Court found him guilty upon his plea of nolo contendere.
The Oklahoma death penalty statute provides in pertinent part that
"In the sentencing proceeding, evidence may be presented as to any mitigating circumstances or as to any of the aggravating circumstances enumerated in this act." However, even though the Oklahoma Statutes list seven separate aggravating circumstances; the statute nowhere defines what is meant by "any mitigating circumstances."
At the sentencing hearing, the State alleged three of the aggravating circumstances. In mitigation, Eddings also presented substantial evidence of his troubled youth. Psychological reports stated that Eddings had a sociopathic or antisocial personality, was treatable, and could be rehabilitated by intensive therapy
At the conclusion of all the evidence, the trial judge weighed the evidence of aggravating and mitigating circumstances. He found that the State had proved each of the three alleged aggravating circumstances beyond a reasonable doubt, but he would not consider in mitigation the circumstances of Eddings' unhappy upbringing and emotional disturbance. Finding that the only mitigating circumstance was Eddings' youth and finding further that this circumstance could not outweigh the aggravating circumstances present, the judge sentenced Eddings to death.
In this case, the Supreme Court held that the death sentence must be vacated as it was imposed without "the type
of individualized consideration of mitigating factors . . . required by
the Eighth and Fourteenth Amendments in capital cases (as per Lockett v. Ohio,
438
U.S. 586, 606).
Further, they stated that:
"The Eighth and Fourteenth Amendments require that the sentencer... not be precluded from considering, as a mitigating factor, any
aspect of a defendant's character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sentence
less than death."
Another case with similar repercussions was Miller v. Alabama, in which the Court held that mandatory sentences of life without the
possibility of parole are unconstitutional for juvenile offenders. The decision of the court was based on two consolidated cases, Jackson v. Hobbs, (10-9647) and Miller v. Alabama, (10-9646).
Both cases involved 14 year old juveniles; Kuntrell Jackson was involved in a robbery with two
other teenagers, one of whom killed a
store clerk. Jackson was charged as an adult and given a life term with
no parole. In the second case Evan Miller
was convicted of murder after he and another boy set fire to a trailer
where they had bought drugs from a neighbor. He too was given a life
term with no parole.
The United States Supreme Court heard oral arguments in both cases on March 20, 2012. In an opinion delivered by Justice Kagan on June 25, 2012,
the Court held that:
Mandatory life without parole for those under the
age of 18 at the time of their crimes violates the Eighth Amendment's
prohibition on 'cruel and unusual punishments and that a judge or jury
must have the opportunity to consider mitigating circumstances before
imposing the harshest possible penalty for juveniles.
Justice Kagan’s majority opinion stressed “...the evolving standards of decency that mark the progress of a maturing society.”
Although the Supreme Court has ruled that juveniles cannot not be sentenced to life in prison without the possibility of parole, the Texas Penal Code Sec. 12.31 still mandates life without parole in capital murder cases involving adult defendants where the death penalty is not sought. As in the Oklahoma statutes, the judge may be precluded from considering mitigating circumstances such as the psychological condition of the defendant while still considering all of the aggravating circumstances. Due to this inherent imbalance, aggravating circumstances in capital murder cases consistently outweigh any possible mitigation.
Houston attorney George Parnham believes that the impact of mandatory life sentencing in capital cases involving defendants with mental illness violates both the 8th and 14th amendments to the United States Constitution. In March of 2009 George Parnham, along with Texas State Rep. Jessica
Farrar, introduced legislation to modify the penalty phase of trials in
which a mother’s mental illness was a mitigating factor. This legal
modification has been accepted by other countries, but not yet in the
U.S.
Mr. Parnham’s insistence that juries and legislators consider
context and mental capacity will help move focus from verdict to
treatment and catalyze a societal shift from outraged condemnation to
awareness and primary prevention.
The trial is underway for Narjes Modarresi, charged with capital murder in connection with the death of the child in April 2010.
According to HPD, Modarresi initially said the baby was taken in his
stroller in the 8000 block of Woodway by a man in a mid-sized brown or
beige sedan. But after a lengthy interview with investigators, Modarresi led them to a wooded area near Buffalo Bayou where her son was buried alive in a shallow grave.
Defense attorney George Parnham said Modarresi had an extensive history
of mental illness including bipolar disorder and post-partum
depression. Parnham also represented Andrea Yates, the Houston woman who
drowned her five kids in 2001.
While her family says Modarresi has a history of mental illness, it's
unclear whether there was any official diagnosis of post-partum
depression. George Parnham, an expert on post-partum depression, said the public should withhold judgment.
"I understand that the mother's Iranian, and there may be a cultural
issue, whereby she has added pressure not to speak to relatives about
examples of post-partum issues," he said.
"When we're dealing with a mother who's suffering post-partum
psychosis, her reality -- and the reality in which she makes a a
decision -- is different," he said.
"Injury to a child by omission" means that the legal guardian,
or someone with the legal duty to support/protect the child, failed to
take an action they should have taken and the failure to take that
action caused injury to the child. “Injury to a Child” is defined by Texas Penal Code 22.04 which states;
(a) A person commits an offense if he intentionally, knowingly,
recklessly, or with criminal negligence, by act or intentionally,
knowingly, or recklessly by omission, causes to a child, elderly
individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
Child abuse allegations are extremely serious in nature, and Texas law takes these matters so seriously that we are all charged
with an affirmative duty in Texas to report any abuse or neglect of a
child to the authorities. Charges of child abuse can be brought if someone is alleged to have acted
“intentionally” or “knowingly”, or in the case of an
“inchoate” crime; a crime of omission, or failing to act.
While most felony child abuse charges stem from a direct act by a
defendant in the context of an assault, either intentionally or recklessly causing some contact with a
child that results in an injury- child abuse also
applies to omissions or things that a person failed to
do. This is one of the few felony offenses where a person is
punished for not doing something.
Child abuse charges from omissions only apply to a parent or
another person who has taken over the parenting or caretaking function, such as a nanny or babysitter. Examples could include punishment
techniques involving the deprivation of food or water, or failing to obtain
proper medical treatment for a child, even when the denial of
treatment is based on religious beliefs.
There are several affirmative defenses available to people
accused of injury to a child in Texas. A primary defense is provided by
Texas Penal Code Section 9.61 which allows "the use of force, but not deadly force,
against a child younger than 18 years of age (1) if the actor is the
child’s parent or step-parent acting in loco parentis to the child
(which includes grandparents, guardians, or any person acting by,
through, or under the discretion of a court with jurisdiction over the
child, and anyone that has the express or implied consent of the parent
or parents of the child); and (2) when and to the degree the actor
reasonably believes the force is necessary to discipline the child or to
safeguard or promote his welfare."
This means that if a defendant can show that the injury was the
result of reasonable discipline, then a defendant is allowed to submit
an affirmative defense. The main focus is the reasonableness
of the discipline; if a parent spanks their child with a belt and leaves minimal red marks, they will probably be able to beat a felony child
abuse charge. A spanking with a metal studded belt that
lasted for an extensive period of time would not qualify as reasonable.
It is extremely common for law enforcement, either a local police agency
or Child Protective Services (CPS) to conduct investigations of child
abuse or endangerment without notifying the accused that they are being investigated for a felony. A seemingly innocuous
request to have an in-person interview may be an attempt to
get a confession.
If you have any question about why you’ve been
contacted for an investigation you should speak with a lawyer
immediately. Contact the law offices of Parnham and McWilliams at 713.224.3967 or visit parnhamandmcwilliams.com to schedule a free consultation.
Simple assault in Texas is defined in Tex. Penal Code Ann. §22.01. and consists of intentionally, knowingly or recklessly causing bodily injury to another person; intentionally or knowingly threatening another person with imminent bodily injury, or intentionally or knowingly causing physical contact with another that the offender knows or reasonably should know the victim will find provocative or offensive.
Any injury such as a broken bone, disfigurement or loss of a limb that
requires surgery or hospitalization is a considered “serious bodily injury”; simple assault involves only minor bodily injury like a cut, scrape, or
bruise. In fact, assault does not even require actual physical contact with another individual: simply threatening another person with violence may be considered assault if that person has a reasonable fear that the act will be committed.
In addition, any abusive, violent, coercive, forceful, or threatening act or word
inflicted by one member of a family or household on another can
constitute a domestic assault. In Texas, domestic violence ranges from saying unkind or demeaning words
(verbal assault) to physical actions such as grabbing a person's arm, hitting, kicking or
choking them. Although domestic violence most often refers to
violence between married or cohabiting couples, it may also
refer to violence against other members of a household such as
children or elderly relatives.
An attempted assault is defined as attempting to cause serious physical
harm resulting in significant injury. Examples of this include physical
harm to a person or another person's unborn child and engaging in sexual
conduct as a known carrier of a virus that causes acquired
immunodeficiency syndrome.
In
Texas, Assault can be a Class C Misdemeanor, a Class A Misdemeanor or a
Felony; "Simple Assault" generally falls under the Class C Misdemeanor charge. A
regular Class A Assault is where a person “causes bodily injury to
another”, meaning pain. For example, if someone
pushes you, but it did not hurt, they may be charged with simple
assault. If they push you and it hurts (even if there is no visible
injury) they may be charged with a Class A misdemeanor assault. The Class C Misdemeanor offense of simple
assault is punishable by a
fine only up to $500. It is possible to be charged with a simple assault
involving domestic violence. A Class A Misdemeanor is punishable up to
one year in county jail and a $4,000 fine. Aggravated Assault or an
enhanced domestic violence assault is a second degree felony punishable
by 2 to 20 years in prison and up to a $10,000 fine.
When an assault is charged under the misdemeanor category, a law enforcement
officer cannot arrest an individual without seeing them actually commit
the assault. This does not mean you cannot be prosecuted for the
assault. An officer can arrest an individual without seeing the
assault, if the assault involves domestic violence. Every arrest does not
necessarily mean that the individual is guilty of committing simple
assault; every case has its own facts and circumstances. The required
intent can be met based upon recklessness; if the defendant is aware of
some risk, but disregards the risk, they can still be liable for
assault.
If an
individual believed that an act is necessary to prevent harm to themselves or to protect their property from being stolen, they could be found to not have committed an assault: this self-defense
argument can sometimes overlap and be used if an individual was
defending/protecting another individual. Another defense against assault charges is that the actions were accidental if they were not intentional, knowing, or
reckless. When the assault charge arises from threats, arguments can be
raised that the complainant misinterpreted the actions of the accused.
If you have been accused of Assault, please contact Parnham & McWilliams today
for a free consultation with an aggressive and resourceful criminal
defense attorney. We will work tirelessly to ensure the best possible
outcome for your case.
"Assault" charges in Texas can range from a simple threats or fistfights to violent attacks with dangerous weapons. Under Texas law, you can be charged with assault resulting from an incident with no physical contact.
An act of assault can include intentionally, knowingly, or recklessly causing bodily injury to another person, threatening someone with bodily injury or causing physical contact in a manner considered offensive or provocative.
For a threat to rise to the level of a criminal assault, the threat has to put the person in reasonable fear of injury.
For the police to actually arrest you on the spot on an assault charge, they
have to actually witness the act. If the police are not there to
witness the assault, then they can write you a complaint (citation) or
notice to appear in court, or they can seek an arrest warrant from a
judge.
The exception to this is with domestic assault or domestic violence
accusations, in which case the police in Texas are authorized to arrest
you and remove you from the premises.
Under Texas Penal Code Section 22.02. an assault is considered an aggravated assault if serious bodily injury is caused, and/or a deadly weapon is used or exhibited in committing the assault.
"Bodily injury" does not necessarily require some sort of visible injury
like a cut or bruise: in fact the legal definition includes mere physical pain.
As a result, you can be charged with "Assault with Bodily Injury," if you are accused of merely slapping another
person or pulling their hair.
The definition of "serious bodily injury" is more intuitive, meaning that the bodily injury "creates a substantial risk of death or causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any bodily member
or organ."
In Texas, assault and battery laws carry penalties ranging from a "Class C" misdemeanor (monetary fine of up to $500) to a
second degree felony (two to twenty years in prison and a fine of no
more than $10,000). The primary factors influencing which type of
penalty is likely to be imposed.
Aggravated assault, on the other hand, is always classified as either a
first or second degree felony; generally it is prosecuted as a second
degree felony, except in the
following circumstances:
The victim is either someone living in the household of the
defendant, related to the defendant by blood or affinity (including
foster parents or foster children), or in a "dating relationship" with
the defendant;
The defendant is a public servant acting under his/her office as a public servant;
The victim is a public servant and was acting under his/her duties at the time of the crime;
The victim is a security officer on duty at the time of the crime;
The defendant was in a motor vehicle at the time of the crime and
recklessly discharges a firearm in the direction of a building, vehicle
or habitation without knowledge of whether it was inhabited and causes
serious bodily injury to a victim;
A conviction of second degree felony carries a penalty of two to twenty
years in state prison and/or a fine of no more than $10,000.
If the
conviction is for first degree felony, the penalty imposed may be
between 5 to 99 years in state prison and/or a fine of no more than
$10,000.
If you have been charged with criminal assault, including misdemeanor
assault or felony aggravated assault, or if you are being investigated
for state or federal assault charges, it is important to seek counsel
from an experienced criminal defense attorney. For more information visit www.texasassaultattorney.com or contact Parnham and McWilliams at 713.224.3967 to schedule a free consultation.
