Most people facing a domestic violence charge believe there's one person who can make it go away: the complaining witness. If she calls the district attorney's office and says she doesn't want to prosecute, the assumption is that the case ends there.
It doesn't work that way in Texas. The complaining witness reports what happened, but the decision to prosecute belongs to the state, which can move forward with or without her cooperation depending on what else it has to work with. We asked Eric Durojaiye, Associate Attorney at Law Office of Patrick J. McLain, PLLC and a former City of Dallas prosecutor, to walk through what that looks like using a case he recently resolved.
The Most Common Misconception We Hear
Eric hears a version of the same assumption from nearly every new client.
"The most common misassumption is that the reporting party can unilaterally decide not to prosecute the case, when in fact, the state can proceed with prosecution depending on the circumstances surrounding the alleged event," Eric says.
Even when a complaining witness won't cooperate, prosecutors can still build a case on evidence that doesn't depend on her testimony:
- A 911 call recording
- Police body-camera footage
- Photos or medical records taken at the time
- Statements made at the scene
- Text messages or recorded calls
- Testimony from a third-party witness, like a neighbor
That last one is exactly what happened in a case Eric recently resolved.
The Case: A Fight, a Weapon, and a Neighbor Who Called Police
The case Eric describes started the way many family violence cases do, inside the couple's own home.
"A complaining witness and her spouse got into an argument in the apartment complex where they lived together," Eric says. "It escalated to a physical altercation, and she produced a weapon to protect herself. A neighbor overheard the fight and called the police. Once officers arrived, my client was arrested and charged with a felony assault family violence."
The case was complicated by something that had nothing to do with what actually happened between the two of them.
"She wasn't the one who called the police, which made the case more challenging to navigate," Eric says. "It introduced a third-party witness who had no interest in either person involved. She told me she wanted to drop the charges and lift the stay-away order the court had put in place, but that order was its own problem. He was the main source of income for the household, and they had two children together."
Someone Usually Gets Arrested Once Police Are Called
Eric points to a pattern that explains why an arrest happens in cases like this one, even when it isn't obvious going in who should be facing charges.
"Once police are called into a domestic disturbance, someone usually has to go to jail," Eric says. "Officers would rather separate the people involved as a precaution, to defuse a potentially volatile situation. There are plenty of times a complaining witness will say, ‘I called the police to scare him.’ Police shouldn't be used as pawns in personal disputes. Filing a false report has consequences for the complaining witness as well as the accused."
What an Affidavit of Non-Prosecution Actually Does
After talking with both his client and the complaining witness, Eric identified the tool that would end up shaping the case.
"After speaking with both of them, I learned pretty quickly that the state was going to have a hard time prosecuting this case," Eric says. "She told me she refused to communicate with the DA's office and wanted to sign an affidavit of non-prosecution."
An affidavit of non-prosecution is a legal document, usually prepared by the defense, in which the complaining witness states in writing that she no longer wants the case to move forward and asks the court to end the prosecution. Eric uses it often when a complaining witness is willing to cooperate.
"This document alone will not get the case dismissed, but it gives great leverage to the defense when negotiating," Eric says.
Pairing the Affidavit With Proof of Rehabilitation
"I also advise that my client complete anger management classes approved by the county, along with some life-skills courses," Eric says. "It shows the client is proactive about rehabilitation and accepts responsibility by putting in a good-faith effort."
"With the affidavit and proof that my client had completed the courses, I was able to secure a conditional dismissal," Eric says. "A conditional dismissal is a way to avoid probation while still getting the case dismissed. You agree to complete certain tasks ordered by the court, and once you do, the case is dismissed with no conviction. I use this strategy often to bypass lengthy probation. Instead of years of probation, you complete a few classes in a fraction of the time."
As with any case, this result reflects the specific facts and evidence involved. A complaining witness unwilling to cooperate, or a different set of facts, can produce a different outcome.
Reading the Relationship Before Building the Strategy
Eric says the case above isn't an exception to how he approaches these charges. It's the method.
"When I'm defending an assault family violence case or something similar, I always analyze the relationship between the complaining witness and the client first," Eric says. "It tells me everything I need to know and lets me adjust my strategy from there. If the relationship is good, I know I'll likely get an affidavit signed and weaken the state's case almost instantly. If the relationship is bad, I know I need to get my client on the rehabilitation track immediately so I can start humanizing him to the court."
He also points to a step he says some defense attorneys skip.
"Attorneys will defend these cases without ever attempting to reach out to the complaining witness," Eric says. "If she's willing to speak with you, it can change the whole direction of your case and lead to a favorable result."
A Recent Shift: Courts Want the Affidavit to Come From the DA
"More courts are requiring that the affidavit come from the DA's office rather than the defense attorney," Eric says. "I believe it's a way for the state to discourage the complaining witness from filing it, because of the negative impact it has on their case. When I run into that, I make sure I still file my own version, so the document contains language specific and beneficial to my client's case, not just a blanket, generic form."
The shift Eric describes is already formal policy in some places. Tarrant County, where our firm also has a Fort Worth office, requires anyone submitting an affidavit of non-prosecution to first meet with an assistant district attorney rather than file it directly through defense counsel.
What to Do If You've Been Arrested or Are Under Investigation
Eric's advice to anyone in this position starts before a single word gets said to police.
- Exercise your right to remain silent. Give no statement to police, and contact your attorney as soon as you're able to.
- Don't contact the complaining witness before you've talked to an attorney. Courts routinely issue an emergency protective or stay-away order, and violating it will get you arrested again.
- Don't ask the complaining witness to sign anything or coordinate what she'll say. Even a well-intentioned attempt to influence a witness can create a separate legal problem for your case.
- If officers want to talk, tell them you're remaining silent and want an attorney present. Nothing more.
- Staying silent can only help your case. It cannot hurt it.
- Research any attorney you're considering, and bring questions to the consultation that test their knowledge of this specific charge.
Eric also tells clients directly what he needs from them once he's involved.
"Always be honest with me. The last thing I want is to advocate for you at the top of my lungs, only for the prosecutor to disclose details that hurt your chances of a favorable outcome. We have to embrace the bad facts, not omit them. If you're honest with me, I can prepare for those situations and defend you accordingly," Eric says.
Common Questions About Domestic Violence Charges
If the Complaining Witness Says She Won't Prosecute, Will the Charges Get Dropped?
Not automatically. It can give the defense leverage, especially when it's paired with something like completed rehabilitation courses, but the decision to dismiss belongs to the state.
Can I Go Home During a Stay-Away Order?
No. Even if the complaining witness wants you back, violating a stay-away or protective order is its own arrestable offense. The order has to be lifted or modified by the court first.
What Is an Affirmative Finding of Family Violence, and How Does It Affect My Rights?
It's a separate finding a Texas judge enters on the judgment under Article 42.013 of the Code of Criminal Procedure when the evidence shows family violence was involved, whether the case ends in a conviction or deferred adjudication. It can't be sealed or expunged, and it carries its own consequences, including a lifetime federal firearms prohibition and a presumption against unsupervised custody of a child you share with the other party.
Contact Us Before You Say Anything to Police or the DA's Office
A complaining witness who wants a case to disappear can shift the leverage in negotiations. It doesn't change who has the final say on whether the case moves forward. Building the defense around that fact, rather than around what the complaining witness says she wants, is what resolves cases like this one.
If you or someone in your family is facing a domestic violence charge in Texas, the sooner we're involved, the more options we have to work with. Call (214) 238-9392 or contact us online to talk through your situation.
About Eric Durojaiye
Eric Durojaiye is an Associate Attorney at Law Office of Patrick J. McLain, PLLC. A Dallas native, he started his legal career as a criminal defense attorney before becoming a prosecutor with the City of Dallas, where he handled misdemeanor cases including domestic violence, possession, prostitution, and theft. That time on the other side of these cases now shapes how he evaluates and defends them for our clients.
Social Posts:
#1
Most people think a complaining witness can end a domestic violence case just by saying she doesn't want to prosecute. In Texas, that decision belongs to the state. Attorney Eric Durojaiye, a former Dallas prosecutor, breaks down a case that ended in a dismissal with no conviction, and what actually made the difference.
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#2
An accuser asking to drop a domestic violence case doesn't end it. Attorney Eric Durojaiye walks through a case where the state kept moving forward anyway, and what it took to get it dismissed with no conviction: