Legal Question in Criminal Law in Texas

assault

A family member of mine had assault with bodily injury/family violence filed on her by her ex. The alleged assault was that her ex would not get out of her car, she pulled him out by his collar, he grabbed her hair, and they did the, ''I'll let go if you let go dance''. Almost 10 days later he files the above charges on her, gets a police officer to take a picture of his injury, (there really were no injuries), this is a tiny scratched pimple. No I am not exaggerating. The criminal district attorney requested the court to dismiss w/o prejudice, for the reason that it be re filed as a class c assault. The county judge signed the order that it be dismissed. This was in Texas on the 15th of Aug. 2007 that the order was signed. The original complaint was files Sept 06. The ex is now trying to refile the case in another court. Since it went through the district attorney, then was lowered to class c and dismissed by county court judge can he do this? If so how? Thanks for taking the time to read this.


Asked on 2/09/09, 9:47 pm

2 Answers from Attorneys
michael palmer Law Office of Michael Palmer

Re: assault

If it was refile as a class C and the family member plead to it, then no it can't be refiled. Otherwise it is within the statute of limitation. However, it would up to the criminal district attorney. It sounds like they would only accept a class c assault.

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Answered on 2/10/09, 12:21 am
Ruben Gonzalez Ruben Gonzalez, P.C.

Re: assault

What do you mean "refile"? The district attorney is the only entity that can file cases in the criminal courts; if the state attempted to refile the case, I would argue it could not because double jeopardy has attached. The United States Fifth Amendment states, "...nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb;..." Once the state dismissed with "out prejudice" (jeopardy did not attach) and then the county court did accept the case and dismissed (jeopardy did attach). A dismissal cannot ocurr with without the prosecution making a motion to dismiss a case, unless it is during a trial before the court or jury. I cannot imagine, based upon the circumstances described the court will allow the prosecution to go forward.

You need to consult with an attorney if the state attempts to prosecute her again, and she may be entitled to have an expunction or a motion to seal her records.

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Answered on 2/10/09, 7:51 am


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