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  • Writer's picturemdmercer

How to Drop Assault Charges Against a Family Member

Updated: Apr 25

I get calls every day from spouses asking how to drop assault charges against a family member. In Texas, the victim in an assault family violence case can't simply drop the charges. Only the prosecutor has that power.

Tips on how to drop assault charges

What’s the next step for an alleged victim who wants nothing to do with the case and never pressed charges in the first place? The easy answer is to hire a good lawyer. At Mercer & Keirnan, we have been fighting assault family member charges for over 40 years. Request a free consultation or call 713-236-9700.

Consult with an Experienced Assault Attorney

Once the state has picked up assault charges and an arrest has been made, the only way to drop assault charges against a family member is to hire an experienced assault attorney to fight the case. This is the best piece of advice I can give to anyone fighting a family violence or assault on a family member charge in Houston.

Don't Go it Alone

Never approach the state of Texas, a police officer or a prosecutor involved in the case without first speaking with an experienced assault lawyer. Anything you say can be used against you in court. This goes for both the accused and the victim in an assault case.

Look Over the Evidence

Look over the evidence with your assault attorney and ask him whether the state can prove their case. Without the knowledge and experience of a seasoned criminal defense attorney, you may end up unintentionally ruining your chances of ever getting the assault charges dropped in your case.

Free Consultations

Most lawyers will offer free consultations before even signing on to a case. Take advantage of this opportunity to learn about the criminal justice system in Houston and meet with as many assault defense attorneys as you can. Weed out those lawyers who are just out to get your money and focus on those lawyers who truly care about the outcome of your assault case and getting your family's life back to normal.

If you are the victim of family violence or in fear for your safety, visit the domestic abuse hotline for your own safety. The hotline is a wonderful resource for men and women stuck in violent relationships.

Should I contact the District Attorney?

Simply calling the district attorney or going in person to speak with a victim assistance coordinator is a good idea if you are truly in a dangerous relationship and need help.

In situations where the police get it wrong and there truly is no danger, it may not be the best idea to contact a prosecutor. The DA’s Office, at least in my experience with Harris County, gives little weight to a spouse’s desire to drop assault charges against a family member.

You should call the district attorney if:

  • you are truly a victim of domestic violence and fear for your safety

  • you have consulted with an attorney

  • you want to amend a previous statement you gave

You should avoid calling the district attorney if:

  • you have not consulted with an attorney

  • you filed a false report and may subject yourself to prosecution

  • you simply do not wish to cooperate

The prosecutor's only concern is whether they can prove their case. Anything you say to them could be used against you or your loved one. Consult with an experienced assault defense attorney to develop the right strategy in approaching the prosecutor.

Do I have to talk to the district attorney?

No. In fact, in many cases, the district attorney needs to make contact with an alleged victim in order to prove an assault case. If they cannot locate a victim, the prosecutor may decide that they cannot prove their case and ultimately drop the charges.

There are cases, however, in which the district attorney does not need to contact a complaining witness and has enough evidence to prove an assault without the cooperation of the victim. An experienced assault defense attorney knows what the state needs to prove an assault-family member case and can advise you the best way to proceed.

Only the Prosecutor can Drop Assault Charges

Once someone has been arrested or charged with assault on a family member, family violence, or Assault on a Family Member by Impeding Breath, the only person with the power to dismiss or drop those assault charges is the state of Texas. This means the prosecutor or district attorney.

Why would the prosecutor dismiss an assault charge?

Dismissal Order in an Assault Family Member Case
Order of Dismissal in an Assault Family Member Case
  • Court found no probable cause

  • Defendant convicted in another case

  • Insufficient evidence of defendant's guilt

  • Request of complaining witness

  • Missing witness

  • Pretrial Diversion program completed

  • No probable cause exists

It is very difficult for a spouse or alleged victim in a family violence case to convince a prosecutor to drop assault charges, particularly without consulting an assault attorney. Some Prosecutors develop a fixation to win the case at all costs, including those incurred by the family members themselves. These prosecutors only speak in terms of evidence and will use an alleged victim’s words against them shamelessly later on in the case. A prosecutor could hang on to a case for years, until he or she becomes the only person who wants anything to do with it anymore. That sounds ridiculous but it is true.

Drop Assault Family Violence Charges in Houston
Assault family violence charges can cause tremendous stress for spouses who just wish to move on with their lives.

Focus on the Evidence

Prosecutors obsess over the facts of the case and focus on the evidence. The prosecutor's main concern is whether they can prove the case, NOT whether the victim wants to drop the charges. Experienced assault defense attorneys focus on the evidence.

Types of Evidence in an Assault Family Member Case

  • 911 calls

  • photos

  • body-cams

  • dash-cams

  • eye-witness testimony and statements

  • medical records

Often times, the prosecutor's mind is made up before even speaking with the complaining witness or victim and nothing you say will ever convince the state to drop the charges. Neither the prosecutor nor the police actually witnessed the altercation, yet they are convinced an assault occurred and that they can prove it. Learning to negotiate with these prosecutors is an art form that requires extensive knowledge and understanding of the evidence in an assault case.

Affidavits of Non-Prosecution Don‘t Work

Affidavit of Non-Prosecution Example
Affidavit of Non-Prosecution Example

In my experience as a criminal defense attorney in Houston, affidavits of non-prosecution have little to no impact on a prosecutor’s decision to dismiss an assault-family member case. Beating an assault charge will require more than a blank form and a signature. The state's only concern is whether they can prove their case, not whether spouses have forgiven each other and wish to move on.

An affidavit of non-prosecution does next to nothing to convince the state that they can't win their case and will rarely have anything to do with the actual evidence of the underlying case.

A weakness in the state's case against you, pointed out by your defense lawyer, will do exponentially more to win your case than any affidavit of non-prosecution. The wishes of the victim or complaining witness in an assault case stand little chance against a prosecutor who feels confident about their ability to actually prove the case. A good assault attorney knows how to chip away at a prosecutor's confidence in their case. After enough chipping and hacking away, your lawyer will have much greater success at getting the assault charges dropped.

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