Possibly, but it mainly depends on the prosecutor.
A criminal assault or family violence charge in Texas is a proceeding between the State of Texas and the accused. The victim is mainly treated as a witness. The decision to prosecute is squarely on the prosecuting attorney.
This is typically a policy driven area with prosecutors. The Collin County District Attorney’s office has a no dismissal policy.
Many criminal defense attorneys or prosecutors ask that alleged victims that wish to drop charges fill out an “affidavit of non-prosecution.” That is a statement under oath which gives the alleged victims reasons for not wanting to prosecute. An affidavit of non-prosecution does not bind the prosecutor or the judge to dismiss the case.
If the alleged victim is considering filing an affidavit of non-prosecution, that statement is a statement under the penalty of perjury. If the alleged victim gives an inconsistent account in the affidavit as she did to the police — she may be charged with giving a false statement to a police officer. It is crucial for the alleged victim to know that defendant’s lawyer is not their lawyer. In fact, that lawyer has a direct conflict of interest in advising them. It is not imprudent, improper, or uncommon for the alleged victim to have their own attorney in these situations.
Jeremy F. Rosenthal, Esq.