By Rene Perras Host of Subject Matter Experts
Coffee With Q is a unique platform that educates the public around the world by bringing experts in the field to educate. In this episode Rene Perras interviewed Best rated Dallas Criminal Defense Attorney John Helms
Rene Perras: You are now listening to your host, Renee Perra, on the Subject Matter Expert podcast powered by Coffee with Q. Welcome to the Subject Matter Expert Experts interview. Again. Today we have the privilege of speaking with Dallas domestic violence defense lawyer John M. Helms. Mr. Helms is a distinguished criminal defense lawyer who specialized in crimes against family members and loved ones. On average, one in three women and one in four men have experienced some form of physical violence by an intimate partner in America. Our guest brings a wealth of knowledge and experience in navigating the complexities of this intriguing field of criminal defense law. And without any further ado, let’s dive into the discussion and uncover John’s valuable insights into domestic violence crimes. Welcome, John, and thanks for being part of this subject. Experts discussion on crimes against family members and loved ones. How are you doing today?
John M. Helms: I’m great, thanks. Thanks for having me.
Rene Perras: It’s going to be insightful, like always. I’m sure. We have a number of different questions that I’m going to ask you, and I’m looking forward to your answers. I guess the first one is can you provide an overview of how Texas law defines domestic violence and its classifications?
John M. Helms: Sure. We call it family violence in the Texas Penal Code, and it means some sort of violence involving a family member. And that is defined to include someone that you’re in a dating relationship with. And as far as family members, it’s defined pretty broadly. So if anyone is arguably in your family, or if you’re in a dating relationship with someone, or if you are engaged or something like that, it’s going to come within the definition of family. So we define family broadly. And then you also asked about the different types of family violence, and that basically depends on how serious any injury is or what kind of violence was involved. If there was no actual injury, then it’s going to be a class C misdemeanor, which is basically the same thing as a traffic ticket. If there was some injury, then it’s going to be a class A misdemeanor where you can get up to a year in jail. And if there was choking involved, it’s going to be a felony. And if there was serious bodily injury involved or death, then it’s also going to be a felony.
Rene Perras: Okay, well, that clarifies. I didn’t realize it was classified as family violence in the penal code. It’s good to know what are the key factors that determine the severity of domestic violence charges in Texas?
John M. Helms: Well, again, that’s going to be the nature of the injury and the violence in particular. One thing that the police are looking for a lot is whether there was something that might be called choking, because even just the smallest inhibition of someone’s breath can bump it up from a class a misdemeanor to a felony. And so the police will ask the person they think is the victim whether the other person’s hands were ever around their throat or their arm was around their neck or something like that. And then they’ll ask them, well, at any point, did you have any trouble breathing? And if they say that they did, then, boom, it’s a felony charge. And then, like I said, if it’s serious bodily injury or death, then it’s going to be a felony.
Rene Perras: I don’t know if this is a myth or if it’s actual reality, but in the criminal penal code, domestic or family violence is probably one of the number one categories of crimes. Would that be accurate?
John M. Helms: Yeah. I mean, as far as the number of crimes committed, yes. Unfortunately, it’s just very common, and it can happen to all different kinds of people. And, you know, I talk to a lot of people who are accused of family violence, and the fact that you have an accusation of family violence doesn’t mean that you’re a bad person, but it is a serious charge, and it’s something that prosecutors take very seriously.
Rene Perras: You’re not a bad person, but you possibly had a bad day. Could you explain the legal process for someone accused of domestic violent crimes and what might happen when going through the Texas criminal justice system?
John M. Helms: Sure. One of the things that normally happens is that the police are called by someone. It could be by the person who claims to be a victim, it could be by a neighbor. But the police are called, and they will typically arrest someone who they think was the aggressor. And the reason they’re doing that is because they want to separate the people for a period of time so that they can cool down. They don’t want to just leave them together so that it might happen again or get worse. So someone’s usually going to be arrested. They will be taken to the county courthouse, where they will get bonds set, and then it should be something that is feasible for the person to make, and then they’ll be released. But there’s probably going to be a condition of their bond that they not have direct contact with the person. And then as soon as the state can do it, they will usually try to seek a protective order where a judge orders someone not to be around the other person for 60 days. And that can be very difficult if there are children involved or if there are reasons why the people need to see each other. And so sometimes those things have to be worked out. Sometimes you may have to try to ask a judge to modify the protective order. But while that’s going on, there’ll be a criminal case, and the criminal case will be just like any other criminal case where at the end of the day, if the case is not dismissed, then you’re going to have to make a decision about whether to go to trial or to accept a plea bargain. And of course, the results are going to depend on the facts of the individual case, but that’s the general process.
Rene Perras: Well, you’re leading me to my next question, which is how does Texas law handle protective orders and restraining orders in cases of domestic violence?
John M. Helms: Well, again, usually the protective order is going to last about 60 days. The protective order is designed to keep people away from each other so that they have a chance to cool off, so that the victim, the alleged victim, is not in any immediate danger, hopefully, so that things don’t escalate. Again, it is possible to ask a judge to modify protective orders to some extent if there’s a need for it. The judges are not just going to modify a protective order because it’s what you want. They will have to see that there’s some sort of overriding need for some sort of limited contact, such as going to the house and getting certain things from the house. There may have to be arrangements for children to be picked up from school, something like that. But protective orders are taken very seriously. And if you violate a protective order, you can definitely go to jail.
Rene Perras: Can you fight a protective order, and when is the best time to or not fight but challenge a protective order, and when is the best time to challenge one?
John M. Helms: You can. But a protective order is something that a judge can grant without giving you the ability to contest it. They can do it without you or your lawyer present because it’s temporary. If you’re going to fight it, you have to consider whether it’s really worth fighting, and it may not be for a couple of reasons. Number one, fighting it may show that you’re in some sort of denial about the seriousness of what happened, and so it may not look good. Also, fighting it may require you to testify about what happened. And if you’re subject to a criminal case, you don’t want to give up your Fifth Amendment rights for that. So I rarely recommend doing that. What I normally recommend is that once after the protective order has been entered, if there’s some specific reason why there’s a real need to have it modified, then in that situation, we can ask a judge to modify it, but I don’t recommend fighting them in general.
Rene Perras: I’m thinking of one particular instance where if you were working with an individual and you’re at the same place day in and day out, and somebody got a protective order against you, would that be an instance where you might want to fight it? Because.
John M. Helms: Again, I don’t want to call it fighting it fighting. It sounds like you are resisting the whole thing. You don’t want to fight it. That will make you look like you’re belligerent and that you don’t accept the seriousness of the allegations. You can try to have a judge modify it. If it was in a working situation, what I would want to know is what can be done so that the two people can continue to work there without having to have contact with each other. Can they be physically separate? Do they need to work together for some reason? Can that be accommodated? And so I would work with the person and even the employer to see if there can be some sort of modification either to the set up at work or to the protective order or both, to accommodate the need to be able to work with the need to keep the people separate.
Rene Perras: That shows a lot of common sense, how you’re addressing that. Are there any specific defense strategies that are commonly employed in domestic violence cases in Texas?
John M. Helms: Sure. I mean, each case depends on the facts of the case, and so each case is different. But a common defense is self defense. Very often, one person is accused of some sort of violence when what they’re trying to do is defend themselves from the other person. So self defense is one. Another may be just questioning whether it happened at all, whether it’s a false accusation. And so another would be to question whether the alleged injuries are really as serious as the person claims. If they’re not, then it’s going to be a lower level charge. So there are lots of different ways that you can look at it, and it really depends on the facts of the individual case.
Rene Perras: Maybe you can tell the audience about affidavits of non prosecution and their impact and how, when law enforcement comes and takes statements of fact, what can and cannot be due in the future.
John M. Helms: Okay, well, first, let’s talk about affidavits of non prosecution, because that’s really important to understand. It is a myth that the person who claims to have been a victim can simply drop the case. That’s a myth. It’s not true. The decision does not belong to the person who claims to be the victim. The decision about whether the case is going to go forward is up to a prosecutor, not to the alleged victim. And so it’s also common for people to think, well, if the victim, the alleged victim goes down and signs something called an affidavit of non prosecution, well, that means the case will be over. But that’s not true either. And in fact, many, if not most district attorneys offices have a kind of a cynical strategy to actually make the case against the accused stronger by an affidavit of non prosecution. So what often happens is the alleged victim decides that they don’t want the case to go forward, they don’t want it to be prosecuted. And so they call the district attorney’s office and they say, well, why don’t you come on down here and we’ll talk about it? So they go down to the district attorney’s office and they say, look, I really don’t want this prosecution to go forward. I really want the case to be dismissed. And then the prosecutor will say something like, okay, well, you should sign an affidavit of non prosecution. Now, notice the prosecutor didn’t say, if you sign an affidavit of non prosecution, the case will be dismissed. They just said you should sign it. And so they’ll hand you an affidavit, which is a sworn statement which says, everything that I’ve told the police about the accused person committing a crime and behaving horribly and injuring me, all that’s absolutely true. But I just don’t want the case to go forward. And you sign that under oath, and then they have a statement under oath saying that the crime was committed. And legally, the fact that you don’t want the case prosecuted doesn’t mean anything. That’s their decision. So they’ve just locked in your testimony. If they decide to subpoena you for a trial to a statement under oath and you haven’t gotten the case dismissed. So I tell people to be very careful about those. I can’t counsel someone who’s not my client about what to do, but I tell them to be very careful. And I tell them that if they would like for me to draft a sworn statement that will actually have a better chance of getting the case dismissed instead of just locking in their testimony, then I can do that. So I would be very careful with those. The other thing that you asked about is just generally when police officers want to take statements from people, they are going to separate the two or more people who are involved in the incident, and they’re going to ask them each what happened. And they are probably going to be recording those statements with a body cam mic, but not always. So if they’re not, that doesn’t mean that your rights have been violated or anything. It just means they’re not doing it. And they will talk to the people and the one that they think is the victim will be asked to write out a written statement in their own words, in writing about what happened, and then to sign it. If you are being questioned about possible domestic violence by you, you are probably going to be arrested regardless of what you say, unless you can really show it with self defense or really show it didn’t happen. So if there’s any chance that you are going to be arrested, I would say be arrested and tell them you don’t want to talk to them and you want your lawyer present, because what will end up happening is you will give some sort of a statement. You may even think it’s true, but you’re in the heat of the moment there and you’re probably going to say something that can be disproven, and then they’ll say that you were being a dishonest liar or something like that.
Rene Perras: I guess it always comes back to be careful when you’re making any kind of statement with law enforcement present because it can and could be used against you in a court of law.
John M. Helms: Absolutely.
Rene Perras: That’s great advice.
John M. Helms: Don’t think you’re going to be able to talk your way out of it.
Rene Perras: A lot of people think they can. What factors should someone consider when deciding between pleading guilty and fighting a domestic violence charge in court?
John M. Helms: Well, when you say fighting a domestic violence charge in court, that means different things to different people. But if what you mean is having a jury trial about whether you’re guilty or not, then your decision is going to come down to what are the chances that you are going to be found guilty in a trial by a jury based on the evidence that is known at that point, and by the point that you’re making this decision, your lawyer will have gotten most of the evidence that the state’s required to turn over, if not all of it, by that point. And your lawyer will be able to give you a pretty good assessment of what your chances would be at trial. If it looks like you’re going to be found guilty, then you’re going to be better off with a plea bargain that gets you a better sentence, a better result for the punishment part of it. If there’s a weak case by the state, then you may be better off having a trial on it. So it depends on what kind of a case the state could put on and whether it really looks like they could prove you guilty in a trial to a jury. And then also, what is the best plea offer that the state is making. So you have to kind of weigh those and come out to the decision that’s best for you.
Rene Perras: Long term, what could be some of the implications of doing one or the other?
John M. Helms: Well, if you’re found guilty, or if you’re found guilty, a jury is going to decide what your punishment is unless you elect to have a judge do it. And in Texas, you can make that election, and your lawyer is going to need to give you advice on whether a jury or a judge would be the best thing for that. But it’s possible to get prison time, depending on your criminal history and whether you have a history of violence and how serious this violence was. If you’re found guilty, how bad were the victim’s injuries and other factors, like what have you done to try to avoid having those kinds of things happen in the future? Have you taken anger management classes? Have you done things to try to prevent any more incidents like what happened from happening again? So prison time is one, probation is another. And, of course, if you’re on probation and you violate the terms of your probation, like any future incident that even seems like domestic violence, then you could go to prison for that. If you’re convicted of domestic violence, you will not be able to possess a firearm for life, according to federal law. If you get what’s called deferred adjudication in Texas, there is an issue about whether you will be able to possess a firearm if you successfully complete your deferred adjudication, you won’t technically have been convicted under Texas law, but under federal firearm law, that’s a kind of an open question, and I wouldn’t advise somebody to possess a firearm even if they’ve gotten deferred adjudication until there’s more clarity in the law, because you’re just taking a big risk. And so there are a lot of consequences to a domestic violence conviction and even the firearm aspect of a deferred adjudication, possibly.
Rene Perras: Wow, that’s very interesting. Never thought of it. From that standpoint, how does Texas differentiate between misdemeanor and felony family violence charges, and what are the associated consequences? You’ve talked about some of them, but are there more?
John M. Helms: Well, again, the main thing that distinguishes felony from misdemeanor is the degree of injury to the person. If it’s serious bodily injury or death, it’s going to be a felony. And then also the choking part, if there was choking, it bumps it from a class a misdemeanor to a felony.
Rene Perras: Okay. Can you discuss the potential impact of having a prior criminal record on a domestic or family violence case in Texas?
John M. Helms: Sure. I mean, it’s pretty easy to understand how if you have a criminal record and then you commit another crime, the law and a judge and a jury would say, okay, this person has committed crimes before, and then this person has done it again. So obviously, the punishment that they got before wasn’t enough to deter them from committing crimes in the future. So if you have a criminal record that is going to affect what kind of punishment you might get, what kind of plea offers you might get, because you’ve committed crimes before, and then here you are alleged to have committed crime again, so it can have that effect. And then, especially if we’re talking about crimes of violence, if you’re accused of domestic violence and then you’ve committed in the past crimes of violence, whether it’s an assault, whether it’s a robbery, anything like that, if it’s a crime of violence and you continue to commit crimes of violence, then the system is going to look at that very negatively because we don’t want people committing crimes of violence and then doing it again and again and again and it not stopping. And so that can have very serious consequences. So it does depend on what your criminal record is, what kinds of crimes you’ve been convicted of in the past and how long ago. So all those are factors, but any criminal record is going to make things worse for you.
Rene Perras: You previously touched on deferred adjudication. What should someone consider before pleading to a deferred adjudication for a domestic or family violent crime? And what are its implications if it’s successfully completed or not?
John M. Helms: Well, the first thing, and this applies to any deferred adjudication, whether it’s domestic violence or not, some people are maybe not very well suited for deferred adjudication. By that, I mean some people just have a problem staying on the right side of the law. And deferred adjudication gives you an opportunity to avoid having a conviction on your record, because if you complete the process successfully, the case is dismissed. So you don’t actually have a conviction. So it gives you that opportunity. But the problem is if you violate your conditions, if you don’t complete it successfully, then you could have a real problem because all a judge has to do is find that you violated the conditions of your deferred adjudication. Probation, and not beyond a reasonable doubt, just that it’s more likely than not that you violated a term of your conditions. And once that happens, the law says the judge can sentence you to prison for as long as the law allows for the underlying crime. So you could be on deferred adjudication. And then if you violate your conditions, a judge could really hammer you. So that’s a risk that you are taking. If there’s a chance that you may have an issue staying on the right side of the law, and it can be anything. It can be a DWI. If you violate your conditions by having a DWI or something like that, many judges will hammer you. So you have to be really careful if you’re on deferred to avoid something like that happening. If you do complete it successfully, like I said, there’s no conviction and the case is dismissed. And then after a waiting period that depends on the crime, you can ask a court to seal the records of the case. And what that means is that only law enforcement will have access to those records and the public won’t even see that you had this case in the first place. So there are some significant benefits to it. It doesn’t involve jail time unless you violate your conditions. But you have to be really careful because you are taking a big risk if you do anything where it might result in you being hauled in front of a judge and a prosecutor and a probation officer saying that you’ve violated your terms of probation, because then you could get thrown in jail for a long time.
Rene Perras: Well, it sounds like it’s froth with jeopardy, so you should think twice or clearly before taking it.
John M. Helms: Yeah, I mean, it can be a really good thing for people who don’t have a problem avoiding breaking the law. It can be a really good thing. But there are some people who you just know are going to have trouble going years without breaking the law. And so if that’s the case, they are taking a risk.
Rene Perras: And if probation is for a significant amount of time, I mean, you could be on the right side for many years, and then it just takes one incident or bad day and you’re hauled in front of a judge.
John M. Helms: That’s right.
Rene Perras: Well, again, it’s always a pleasure having you on the show, John, and hearing your insights a little bit about John Helms and his law firm. John Helms has been a criminal justice trial defense attorney for more than 30 years. Out of law school, he clerked for the federal chief justice of the Fifth Circuit Court of Appeals. The Fifth Circuit is charged with handling all lower court cases from Texas, Louisiana, and Mississippi, and after completing that, he went into the United States Attorney’s office as an assistant United States Attorney AUSA, and as a AUSA federal criminal prosecutor for the Northern District of Texas. He never lost a trial or an appeal. John is committed to providing the highest level of legal representation and specializes in a wide area of criminal defense areas, from drug crimes to family violence criminal defense cases. You can reach John at 214-666-8010 or the website John Helms, attorney and not Johnhelms attorney. In conclusion, thank you, John, for sharing your valuable insights and expertise in domestic violence crimes. It’s been, again, enlightening conversation, shedding light on the complexities and challenges faced by both defendants and legal professionals in this field. We appreciate your time and look forward to seeing you again in the near future. And don’t forget to subscribe and stay tuned in for more thought-provoking interviews with subject matter experts. Until next time, take care. And John, again, thanks for coming on the show.
John M. Helms: Thank you.
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