Defendant was arrested in January for ABI Family Violence, and an EPO was put in place. Defendant bonds out and is arrested within a week or two inside the victim's house in violation of his EPO. early February, he takes a plea in jail to the ABI F/V and the violation of EPO is 12.45'd. Within a few days (before the expiration of the EPO) he is found AGAIN inside of the victim's house in violation of the EPO.
Does Section 12.45's bar on further prosecution for the first prohibited act limit prosecution under §25.072?
I don't see why it wouldn't. 12.45 explicitly bars prosecution for offenses handled under that section. Unless there was some kind of specific wording in 25.072 overcoming it, 12.45 would seem to control.
Also, wouldn't this run afoul of 25.072(d)? It sounds like it's multiple violations of a single court order.
25.072(d) state that we can only charge them with one third degree felony, no matter how many violations of the same order, which is what we are doing. we took into consideration one offense under 25.07, a class "A" misdemeanor.
So my question is, does taking into consideration of a Class A Violation of Protective order preclude us from prosecuting a third degree felony for repeated Violation of Protective order. Similarly, had we convicted the defendant of the prior Class A, we could still use that conduct for the higher charge.
Obviously, we have 2 separate sections for this under repeated Family Violence Assault (one for prior convictions and 2 within a year), and this seems the same.
Thanks!This message has been edited. Last edited by: VZADAW,
What seems plain to me is that you can prove that the defendant two times engaged in conduct that constituted an offense under Section 25.07. That your proof is based in part on conduct for which he has already been held accountable under Section 12.45 does not mean he has any claim of multiple punishments for the same offense. The felony offense was not committed until the second violation of the court order. This should work just like the DWI law does for repeat offenders. The language of Section 12.45(c) would bar any later prosecution under 25.07 for the conduct admitted in connection with the assault case, but not for conduct that had not yet occurred. See also Section 12.46, PC.
|Powered by Social Strata|
© TDCAA, 2001. All Rights Reserved.