Arlington, TX asked in Criminal Law for Texas

Q: I was arrested for assault on the elderly , my wife has filled out an affidavit of non prosecution do I need a lawyer

This was in October and epo allowed us to live together

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2 Lawyer Answers
Kiele Linroth Pace
Kiele Linroth Pace
Answered
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: An affidavit of nonprosecution expresses the alleged victim's WISH that the case be dismissed but the alleged victim does not have the standing to actually require a dismissal. The prosecuting attorney has the duty and responsibility to decide whether seeking a conviction ANYWAY would be in the best interest of justice. We can't predict what the prosecutor will do in any specific case. However, we can say that, in general, cases involving domestic violence are the types of cases where prosecutors are most likely to seek a conviction against the wishes of the alleged victim. I have seen numerous cases where the alleged victim is begging for a dismissal and the prosecutor moves forward anyway and even gets her served with a subpoena to force her to testify at trial or be sent to jail. That said, I have also seen numerous cases where a prosecutor dismissed the case in response to an affidavit of non-prosecution.

So anyway, back to the question of whether you need a lawyer... You are charged with a felony crime and you are facing the potential of time in the state penitentiary. YES, you need a lawyer unless the case has already been dismissed. Having a great lawyer greatly increases the chances that it will be dismissed because the prosecutor will understand that the defense attorney will make the case difficult to prosecute by asserting all of your constitutional and statutory rights and not simply accepting law enforcement's version of events at face value. Your attorney will also consider legal justifications that could complicate the case while simultaneously looking for mitigating factors for you and impeachment material to use against the state's witnesses. This type of defense is not cheap or easy, but it can be extremely effective... which is crucial for a defendant facing the possibility of a prison sentence.

Grant St Julian III
Grant St Julian III
Answered
  • Criminal Law Lawyer
  • Dallas, TX
  • Licensed in Texas

A: The State can proceed with prosecution of a case even if thee complaining witness files an affidavit of prosecution. I suggest you contact the intake division of the District Attorney's office in the county where the event occurred and ask if the case is going to be presented to a Grand Jury. If yes, then you need and attorney. Good luck.

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