Top 10 Blog PostsHarris County Criminal Lawyers AssociationBoard Certified Texas Board of Legal SpecializationThe college of the State Bar of Texas - Professionalism Through EducationAmerican Bar Association - Defending Liberty Pursuing JusticeNational Association of Criminal Defense LawyersCNNClick 2 HoustonABC 13Avvo choice awardsAvvo choice awards 2018

Brett Podolsky Talks with Houston Matters About Domestic Abuse Victims and Legal Trouble

Posted on by

A Florida woman was recently arrested for giving her estranged husband’s guns to police. Courtney Irby, after filing a restraining order against her husband, did not believe he would give up his guns. He had been charged with aggravated battery against her, and Irby feared for her life. She entered the apartment to retrieve the guns before handing them over to the police. However, because she did not live in the apartment, she was charged with burglary.

The state attorney prosecuting her case, Brian Haas, says Irby took the guns and other items from the apartment with the intent to sell them, but the Florida State Attorney’s Office reduced the charge to a misdemeanor trespass.

Houston Matters, a public affairs show airing weekdays Houston Public Media News, picked up this story to discuss how victims of domestic violence sometimes face legal issues themselves. Host Craig Cohen interviews HPD Commander James Bryant and Houston Area Women’s Center’s Emilee Whitehurst to discuss how domestic violence cases are handled.

Cohen also interviews local attorney Brett Podolsky to talk about his interpretation of the case, as well as its implications for other domestic violence victims.

Check out the episode and transcript below:

Craig Cohen: This is Houston matters. I’m Craig Cohen. A recent story out of Florida caught the Houston matters’ teams attention recently, in the midst of complicated divorce proceedings, Courtney Irby was arrested after giving her estranged husband’s guns to police. Joseph had been charged with aggravated battery against her. She sought and received a restraining order requiring him to turn in his firearms. She feared for her life and was convinced he wouldn’t give the weapons up. But since the guns were in his apartment that she did not live in. She was arrested on burglary charges.

Bryant Haas, the state attorney prosecuting her case pushed back against this narrative. Haas says Irby took the guns and a number of other items with the intent upon them, and that it was at the urging of friend that she turned the guns in. Ultimately, the Florida State Attorney’s Office reduced the charge to misdemeanor trespass instead of burglary.
This unfortunate set of circumstances raises a lot of questions about options for domestic violence survivors, what protections resources do they have, under circumstances like this? How might the same scenario play out in Texas? Houston Matters’ Joshua has been digging into some of this and joins us now. Hi, Josh.

Joshua: Hi, Greg.

Craig Cohen: Who did you talk with? Well, first, I chatted with local criminal defense attorney Brett Podolsky, I wanted to hear his interpretation of the Florida case, and what he saw as its implications

Brett Poldosky: In the general gist of it, should they charge someone whether it’s a man or a woman for, you know, taking guns away from someone that they’re afraid of, because they may have to violate a different law to protect themselves, I think that there needs to be an equitable resolution of that meeting. Just because you can charge someone doesn’t mean you should. That really goes both ways. I understand that most of the time, we’re talking from the victim’s perspective, but individuals charged as well can get sort of dragged into the rather broad dragnet of domestic violence investigations, and get arrested and charged for domestic-related offenses that maybe they shouldn’t. The one thing as a defense lawyer, we are always preaching to the prosecution and the police to think twice before you charge people. Just because you can charge on doesn’t mean that you should, if you look at the bigger picture, and that’s one of the issues that we’re always talking about is, you know, the black letter versus what is the equitable outcome. You know, sometimes you’re violating one law, to protect yourself from the condition of a far greater offense. You know, I’ll say, hey, you know, break into that home to take those guns all day long if you think that it’s going to prevent you from getting shot in the face by an estranged ex-husband or boyfriend, you know, I would make the duress argument. I mean, there is a legal defense of duress, the only reason I committed this crime is because I was under a serious threat of harm. I was, you know, forced, coerced, threatened, and that’s why I did this crime, And that’s the argument that I would make it was either do this, or being subject to even greater harm. I mean, you know, pick up any paper, go to any news website, any day, any hour of any day, and you’re going to find an article about a murder suicide, or just a murder between domestic partners, or, you know, romantic partners, happens multiple times a day, every day. In the biggest and the most glaring loophole in domestic violence law in our country, is the reporting of domestic violence convictions amongst interagency, to prevent, so that there’s one repository, so that all law enforcement, all firearms dealers know if an individual has a record with regard to domestic violence to prevent them from purchasing or obtaining a firearm. I think that, you know, not to bring the gun lobby into it. But I think that they consistently fight against having the actual electronic reporting of domestic violence convictions. So literally, they keep things in the technological Stone Age as far as having access to that type of information when purchasing or selling or providing firearms individuals with those kind of records.

Craig Cohen: That’s Brett Poldosky, Houston area criminal defense attorney, he spoke with Houston matters, Joshua, who’s here in studio with us. Josh, who else did you talk with about this?

Joshua: Well, I spoke with commander James Bryant from the Houston Police Department whose division responds to incidents of family violence. Here’s what he has to say about how officers handle such incidents.

Bryant: Normally, in an instance of family violence, especially if it’s an ongoing, violent event, person now call 911. We dispatch our patrol officers to that location. They come in and they assess the situation. Once it’s been determined that violent act has occurred, they take police action whether if the person is still on the scene, whether we make an arrest, or if the person has left, we get the information and make the report. Once that report is made, it is forwarded to my investigative division, which is the major assault and family violence division. Our family violence investigators investigate the event and if necessary, file charges against the perpetrator.

Joshua: In the moment where the officer is responding to the event and assessing, what are the determinations to decide action needs to be taken against this person? We need to arrest this person remove them from the premises, how do you make that determination?

Bryant: Normally what officer does is they speak to both parties are all parties involved. If there is a witness an independent witness there, get all of their information. Once that information is gathered, we contact the district attorney’s office and present all the facts to the assistant district attorney, who would then determine whether we can pursue charges at that moment.

Joshua: I would feel like that would present some challenges, you know, because the person who commits the act, the violence is not going to be forthcoming about why they what they did or anything. Can you walk through that and what those challenges are?

Bryant: Exactly, we have to take all of the evidence, you know, it’s an evidence-based investigation. So we look at injuries to either parties, either or both parties, make a determination on both statements and present those facts. A lot of times, especially in a spousal relationship, there may be other people in the house, children, talk to them independently away from both parties and just try to get an unbiased assessment of what went on. As I said, present those facts to the district attorney.

Joshua: When it comes to cases of domestic violence and assault, there is that period where you’re having to investigate, you’re having to look into stuff. The person, the victim of the assault might fear for their safety, you know, what, what are some general advice you would offer to somebody who is in that situation where they’re still waiting to be a determination on whether to charge the perpetrator?

Bryant: Yes, so if there is a situation, say, for instance, the perpetrator has gone from the scene, and we do have concern for the victim, every victim is given a pamphlet from our department, we call it a blue form. It’s basically to a Victim Services Unit, and we offer resources to victims of domestic violence, including emergency protective orders. And if necessary, we can refer them to organizations that can help them temporary housing and, you know, put the safety of the victim first and foremost.

Joshua: When somebody does fear for their life is there any leniency if they happen to commit some minor crime compared to the assault or the battery that the perpetrator of the domestic violence would have committed?

Bryant: Well, I won’t say commit a crime, what I’ll say is and our code of Criminal Procedure, now Texas Penal Code, allows people to take steps to avoid imminent bodily injury or death to themselves. So if the action is taken, whatever that may be, is to protect themselves, then that we have protections within our law to help them.

Joshua: So we’ve talked about what happens in the case of an immediate threat, you know, if something has happened at the house, and somebody calls 911. What about if nothing has happened, but a person may be fearing for that, that maybe their spouse might commit some violence against them? Or are they threatened something like what should they do as far as preventative measures?

Bryant: Well, the first thing they should do if they have that fear is to get a protective order. When they have a protective order issued by court, and there’s a difference between a restraining order and a protective order. Their protective order, it has a list of what that perpetrator cannot do, you cannot come with them so many feet, you cannot contact this person and for whatever reason they violate their protective order, our penal code says that we shall arrest them. So they will be placed under risk of breaking any point of their protective order.

Joshua: What should have victim be prepared to have ready, like what kind of information should they have on hand? What should they be prepared to tell officers, if a case happens? Like what do they need to know sort of beforehand? What should they be thinking about if a case does happen like this?

Bryant: If they are a victim, they call the police. Just be prepared to go step by step on the events that occurred. If there has been a previous history, we need to know that as well. From that point, we will give them contact information so we can reach victim services, and we coordinate with nonprofit organizations as well outside of the department, we coordinate with the district attorney’s office and somebody organizations also offer legal assistance and everything else for the victims as well. So just be prepared to just give us the information that they have and just tell us all of the events that happened.

Craig Cohen: That’s commander James Bryant from the major assaults and family violence division of the Houston Police Department talking with Houston matters Josh was in. Joining us now is Emily Whitehurst from the Houston area Women’s Center, which has provided services for domestic and sexual violence survivors since 1977, including counseling, now a residential shelter and a hotline. Emily, welcome to the program.

Emily Whitehurst: Thank you so much. Thank you for having me on.

Craig Cohen: Glad to have you with us. So you’ve been listening to what we heard from attorney Brett Podolsky, and then also we heard from commander James Bryant, what’s your immediate reaction to kind of hearing what people who find themselves within the criminal justice system, helping to work people through it or to investigate incidents of domestic violence? What stuck out to you?

Emily Whitehurst: Well, I do want to say here in Houston, in Harris County, we are very, very lucky, we have a wonderful leadership, people who are really committed to responding in a trauma-informed way to survivors, their inclination is to believe survivors and to work with survivors, that’s been our experience. We work closely with HDD, with the sheriff’s office, with the DA’s office. But it’s also important for listeners to know that community organizations are independent of the criminal justice system, and we are available for confidential conversations, and we’re there 24 hours a day, and we’re free. So it is important that we are there as advocates for survivors, and that they know they can come to us, whether or not they go to the police or the sheriff or the DA. Because sometimes that may feel like not their safest option or not their first option or not there it what they want to do. I want people to know that we are there, as advocates to help them safety plan to help them assess their options get support, they can come to our shelter, they can call us for counseling, and they may or may not decide to do that through the criminal justice process. I also want to go back to this case, because I really appreciate you using it as an opportunity to have this broader conversation. But something that really struck me here was this is a situation where this abuser had run her off the road, and yet he gets out after one night in jail. She spends six nights in jail for … There’s all kinds of allegations about what her intent was. But then to the day, what we know is if you have guns and you’re an abuser, you’re 500% more likely to kill, and she took those guns and protected herself and spent six nights in jail. So those are the kinds of inequities that we see, those are the kinds of disparities that people survivors often confront, or feel like they’re going to confront when they encounter the criminal justice system. It may not be the case. And again, I just want to say here in Harris County, and in Houston, we are so lucky for the leadership that we have. But it is also why community-based advocates like the Houston Area Women’s Center are so important.

Craig Cohen: We heard commander Bryant talk about the importance of getting a protective order. In the case out of Florida, there was a judge’s order for the husband to turn over his weapons. Clearly, there had been a finding by that court that he represented some sort of threat, or they wouldn’t have gone to that length. Yet, it was his responsibility to turn those guns over. So in that context, certainly, most anyone could understand and sympathize, and see why the wife wanted to get those weapons if she was convinced, one, that there was imminent harm to her a real threat, and two, that he was not going to turn those weapons over himself. I don’t want to fixate just on this one particular circumstance. But does that undercut and all the notion of the value of protective orders, of judges’ orders. If there’s a lag time, or if somebody is simply going to ignore that order?

Emily Whitehurst: Yeah, it can be very challenging to actually implement what one finds on a piece of paper, right? We don’t actually have foolproof methods for implementing the process for perpetrators to relinquish their guns, and we don’t have the process for … or the authority, police don’t often have the authority to require the removal of firearms when there has been an incident of domestic violence. It does mean that people are much more vulnerable and at risk of death. We saw in 2018 according to Chief Acevedo a 38% increase in domestic violence homicides. The homicide rate in Houston one out of five homicides are domestic violence-related. So we were not talking about a trivial matter when we’re talking about the legality that is associated with this type of violence.

Craig Cohen: Do you see loopholes in the system? Are there exceptions to rules or any procedures that you wish were just handled a little bit differently?

Emily Whitehurst: Well, like we were just discussing, I mean, it would be great if police had the authority to remove firearms when they’re on-site, and there’s been an incident of domestic violence. We do need a way to ensure that firearms are relinquished when somebody has a protective order.

Craig Cohen: So you heard what commander Bryant had to say about how police investigate domestic violence. You heard what defense attorney Brett Podolsky says the implications of the Florida case that we’ve been discussing, what didn’t you hear that you would like to hear, either from attorneys or law enforcement or even district attorneys that might pursue prosecutions?

Emily Whitehurst: Well, again, I think that gets to where this collaborative community-wide effort. The DA, the police, and the criminal justice system at large has an important role to play at holding perpetrators accountable and making sure that the legal system is working on behalf of survivors and victims. Actually, I thought, Bryant, he mentioned they work effectively with community-based advocates, and that’s so critical because it’s going to take a community-wide response. And everybody has a different part to play. And the presence of community-based advocates who are confidential again, that’s so important for survivors to know they have a place to go where they can talk, and that information is not divulged and made available as part of your police record. It’s so important. What we say how we support you isn’t part of your criminal justice story.

Craig Cohen: Emily Whitehurst is president and CEO of the Houston Area Women’s Center. Emily, thanks very much for talking.

Emily Whitehurst: Thank you so much for having me. I’m really committed to making Houston a safer place.”

Discuss your case


Download Our Free Ebook Today

The New, Free Ebook From the Law Office of Brett A. Podolsky

Law Office of Brett A. Podolsky
917 Franklin St. Ste 510
Houston, TX 77002