Episode 147

In the latest episode of the Texas Family Law Insiders Podcast, Holly sits down to talk with criminal defense attorney Hunter Biederman of Biederman and Burleson, PLLC in Frisco, TX to discuss the all-too-common intersection of family law and criminal law.

A former prosecutor with 20 years of experience in Collin and Denton Counties, Hunter walks through what a family lawyer should do the moment a client gets arrested — getting them out of jail quickly through a bail bondsman rather than a cash bond, then slowing down to loop in a criminal defense attorney. Both agree that every family lawyer should cultivate a go-to relationship with a criminal defense attorney, since the crossover between the two practice areas, often driven by alcohol, stress, and the emotional toll of divorce, is constant.

The two also cover the cardinal rule of criminal defense — never talk to the police — and why that advice holds true even in emotionally charged domestic violence calls where both parties are pointing fingers. The conversation turns to the mechanics of domestic violence cases: why a “complaining witness” can never unilaterally drop criminal charges once police are involved, how affidavits of non-prosecution work differently depending on whether a prosecutor or a defense attorney prepares them, and how this dynamic can badly undercut a family law case when a client who once claimed abuse later recants. Hunter and Holly discuss how prior domestic violence allegations, or the lack of any paper trail, can become a weapon in custody disputes and protective order hearings, and how differently individual judges weigh an arrest or a protective order that was issued on thin evidence.

Hunter and Holly close with practical guidance for family lawyers whose clients have a criminal case running alongside a divorce or custody matter: the real timeline of a criminal case (often nine months to a year and a half, far longer than a family law case), the competing interests at play when deciding whether a client with pending charges should testify, and the practical reality that prosecutors rarely go looking for family court transcripts. They wrap up with an overview of expunctions and non-disclosures — how a dismissed or resolved criminal case can still show up and hurt a client in front of a judge or jury unless that extra step is taken to clear the record.

In This Episode You’ll Discover:

• What to do the moment a client gets arrested

• The number one rule from every criminal defense attorney.

• Why a complaining witness can’t just “drop the charges”

• The difference between bond conditions and a protective order

• How a criminal case timeline collides with a family law case

• What expunctions and non-disclosures can (and can’t) erase

Mentioned in this episode:

• Criminal Law
• Expunction
• Non-Disclosure
• Domestic Violence
• DWI
• Allegations
• Complaining Witness
• Defense
• Bond
• Protective Orders

Transcript

Episode 147 | Hunter Biederman: Stop Talking!

Texas Family Law Insiders Podcast | Host: Holly Draper | Guest: Hunter Biederman

Hunter Biederman: The officers aren’t always there to help you. Sometimes they’re there to gain evidence to literally do the opposite, to try to harm your personal rights or your criminal case. So any time you talk, generally speaking, you’re not going to talk your way out of it. All you’re going to do is give them more evidence. So the one advice that holds true for all criminal offense attorneys across all boards is stop talking.

Announcer: You’re listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, Attorney Holly Draper

Holly Draper: Welcome back everyone to the Texas Family Law Insiders podcast. I am Holly Draper, the CEO and managing partner at the Draper Law Firm, and today I am joined by Hunter Biederman. Hunter is a criminal defense and DWI attorney and founding partner of Biederman and Burleson PLLC in Frisco, Texas. A former prosecutor with 20 years of experience in Collin and Denton Counties, Hunter defends everything from DWIs to serious felonies. More recently, he started a campaign to help Texans clear their records through expunctions and non-disclosures. Thank you so much for joining me today.

Hunter Biederman: Thank you for having me, Holly. I can’t wait.

Holly Draper: So why don’t you start and just tell us a little bit about yourself.

Hunter Biederman: So, like most criminal defense lawyers, I started out at the DA’s office. So, uh, first job right out of law school was working for the Collin County District Attorney’s office. I was there for about two and a half years. Started out working misdemeanor cases, DWIs, you know, assaults, things like that. Moved my way up until I was doing murder trials, even a couple of capital murder cases.

Eventually left, went out on my own, started my own practice, and not long after, I teamed up with my partner Troy Burleson, and ever since then, we’ve done exclusively criminal defense work with a major focus on DWI defense and other misdemeanor cases. And like you said, more recently, we’ve started to move in towards more record clearing stuff. But that’s basically the arc of my journey and my career right now.

Holly Draper: Well, it’s nice to meet you. For years, I’ve always heard whenever somebody needs a DWI lawyer, send them to Hunter Biederman…

Hunter Biederman: I appreciate that, yes.

Holly Draper: And one of the things I think that surprised me, and probably surprised a lot of other family lawyers when they first got into this line of work, is just how much overlap we see between criminal and family law. So that’s what we’re going to do today is kind of talk about where some of these issues intersect.

Hunter Biederman: Absolutely. We get a ton of it

Holly Draper: So, the first topic I wanted to dive into, and if you, as a family lawyer listening to this, haven’t had this happen yet, you probably will, and that is, what should we do if our client gets arrested?

Hunter Biederman: Yep. So anytime somebody gets arrested, they’re going to need to see a judge, and a judge will set what they call the bond or the bail in the case. And then once that bond or bail is set, you can post that bond to get them out. So, generally speaking, if you get that midnight call from… your number one client calls you, or their kid got arrested, they’re going to call you. They don’t know the difference between family law, criminal law, whatever. Obviously, they’re going to call the first lawyer that they know.

So, step one is just getting them out of jail, right? And so typically speaking, there’s two ways to do that. The first is through what’s called a cash bond. So once the judge sees the person, they review their criminal record, they review the severity of whatever it is they were arrested for, and they’ll set a number bond. So just for ease of conversation, let’s call it $1,000. So, one way to get them out of jail is to take $1,000 cash, go down to the jail, find the right place, pay the guy behind the counter, and they’re going to release some paperwork, and then the person’s eventually going to get released.

The second way is to use what’s called a bail bondsman. Bail bondsmans, basically their only job in life is getting people out of jail. So, I think they’re very good at it. Generally speaking, that’s the way I would advise family lawyers, is to get the person in touch with a bail bondsman. And a bail bondsman is going to handle all of the bonding-out process for you or for them. Now, you’d pay them a fee in order to do that. So if the bond is $1,000, most bail bondsmen are going to charge between, like, 10 and 20%. So, they’ll charge you 150, $200, something in that range. They’ll go down there. In theory, they put the money up. They don’t actually put the money up, but in theory, they’re putting that money up for you. And at the end of the case, they keep that fee that you gave them, because that was their fee.

With a cash bond, you get that money back at the end, but it’s held throughout the process. But by far, the fastest way to do it is to use a bail bondsman. So, generally speaking, step one is to get them with a bail bondsman so that they can just get out of jail. After that, you can kind of pump the brakes a little bit, have them come in, talk to them about what happened, get them set up with a criminal lawyer, like ourselves or somebody else, and then kind of go from there.

Holly Draper: Yeah, for all the family lawyers out there, most of us don’t want to also do criminal law. I’m sure there are a few that do. Right. But I cannot stress enough how important it is to develop relationships with criminal lawyers in your area so that you have someone to tell that client to call or to connect them with so that you’re not the one that’s dealing with this.

Hunter Biederman: That’s right. So criminal law moves fast because with family, family law certainly you have plenty of emergencies, or at least your clients think everything’s an emergency, right? Right. But with criminal law, objectively emergency when one of these things happens. So I’ve got plenty of relationships with different family lawyers, certain plenty of family lawyers call me. One, it’s just good to have somebody that you can call or text and say, “Hey, what do I do here?” Without having a whole long conversation about it.

But number two is, like you said, that crossover, and we’re going to dig into that some more today hopefully, but that crossover is there a- and it’s constant, and I think that’s for a variety of reasons. I’m sure we’re going to get into assaults seem to go with divorce cases, but any of the other cases we get often have divorce, too, because alcohol is often used as a stress reliever or an anxiety reliever. So if you have somebody freshly divorced or going through that process, maybe they’re going out more often now than they used to, they’re not so used to it. They haven’t drank a lot since college, and now they’re experiencing more of those things. So we certainly see it all the time, and I love having family lawyers to be able to call just to ask a question, and I’m sure they, they, they enjoy having us as a resource for that, too.

Holly Draper: Yeah, absolutely. So, one of the points that I know we hear from criminal lawyers a lot, and that as family lawyers we probably should be advising our clients of this, is not to talk to the police.

Hunter Biederman: That’s right.

Holly Draper: Can you explain why that’s the advice and under what circumstances that should be the advice?

Hunter Biederman: So the, the big difference is… the difference between what you deal with in civil law and what we deal with in criminal law… So when you’re arguing in front of a judge, and, and obviously I’m oversimplifying this here, but generally speaking, you’re going to put on your case, the other side’s going to put on their case, the judge is going to weigh, and if they decide that this person’s 51% has the better argument, we’re going to go with that. In criminal law, it’s entirely different. 100%, the state has to prove your client guilty, not us prove them innocent.

So, because they have the burden of proof, and obviously we have the right to remain silent and not incriminate ourselves, we don’t want to help them. Our job is not to help the police, and it’s tough because we teach our kids respect authority. My dad told me, the, the second I got my driver’s license, “If you get pulled over, it’s yes sir, no sir. If he asks you to do something, do it. Whatever. They’re the boss. Respect them. Back the blue,” all that kind of stuff. And we want that, but the problem is the officers aren’t always there to help you. Sometimes they’re there to gain evidence to literally do the opposite, to try to harm your personal rights or your criminal case. So any time you talk, generally speaking, you’re not going to talk your way out of it. All you’re going to do is give them more evidence.

So, the one advice that holds true for all criminal offense attorneys across all boards is stop talking. You are not going to talk your way out of it. You are not going to make it any better. Overwhelming odds are the more you talk, the more you’re going to contradict yourself or say something that can be twisted to be used against you. Because remember, you’re not trying to prove yourself innocent. You’re just trying to not allow them to prove you guilty Does that make sense?

Holly Draper: Yes. But so one of the things where our clients, or our future clients in family law, often find themselves interacting with police is when one person or the other calls 911 because there is a domestic violence situation or the people are fighting. And a lot of times they’re both pointing the finger at the other person.

Hunter Biederman: Yeah.

Holly Draper: So, what advice would you give to the client in that situation about talking to the police?

Hunter Biederman: That, that’s hard, right? So if you—If one person calls the cops and the cops show up and one guy says, “I ain’t talking to you,” and the other one’s like…

Holly Draper: “Look,I got a scratch over here,”

Hunter Biederman: Whatever, that’s going to be a difficult situation. The best advice is to know exactly what you’re saying and why you’re saying it, and realize that you’re being recorded on every single thing that you say. So while you’re talking to that police officer, picture yourself sitting in a courtroom and a judge listening to that evidence and deciding whether or not to use that against you because, listen, obviously, there is domestic violence in this world, right?

There’s assault cases that happen and they’re legitimate, and we don’t want to detract from that. But there’s a lot of times where people are just calling the police. One could be cultural. Some cultures think you call the police, they’re going to just break it up. That’s all they really wanted, right? Or they’re just going to separate you. Or the neighbor called. We have cases that when these police officers come out, virtually every time they’re going to arrest somebody.

It might be the, the husband, it might be the wife, it might be whoever, and it doesn’t even always matter who called. We have plenty of people that call the police saying they’re assaulted, and then all of a sudden they’re going to go. The police, though, what’s important to remember is they’re working—We were just talking burden of proof a second ago, right? Police officers only need to have probable cause to arrest you.

So if I wanted to make something up and say, “Holly hit me,” I could self-inflict something, start crying, say, “Holly hit me.” They come out. Honestly, generally speaking, that’s enough probable cause for somebody to get arrested. But you’re not always just trying to avoid the arrest. The arrest is really just the start for our case and our clients. What you’re really looking towards is the end goal of not being convicted of it, and it’s hard to navigate that sometimes because we want that short-term success of not being arrested or not being charged or not being thought poorly of or whatever it is.

But we’ve always have to kind of keep our eye on the end game, which is making sure not to do anything that’s going to permanently harm your situation.

Holly Draper: A lot of times when we have clients involved in these type of DV situations, somebody call the police, police come out, maybe somebody gets arrested, then the victim decides, “I don’t want to press charges…I don’t want to do this.”

Hunter Biederman: Complaining witness.

Holly Draper: Yes.

Hunter Biederman: Us defense attorneys prefer complaining witness over victim. But yes, um, if you’re a prosecutor or you’re anybody else, it’s all about the victim. So yeah, great question.

Holly Draper: So can you set the record straight about what happens when that complaining witness isn’t going to press charges anymore?

Hunter Biederman: Happens all the time. And again, I hate to keep going back to it, but these are the differences between civil law and criminal law. So in a civil case, if I’m suing somebody else and I decide, what, maybe this isn’t worth it anymore, I’m just going to give up, I can dismiss the case and not go forward anymore. With criminal cases, it’s always the state versus you. It’s not the individual. Think about it like a drug charge, right? There’s nobody to just drop charges in that situation or a theft case or whatever. Even if I say, “Well, I don’t care that he stole from me, he seems like he’s a nice guy,” he still stole. There’s still evidence of that. They can still go forward.

So a complaining witness or a victim in the case does not have the right to drop a case, period. And you could say that there’s good reasons for that, right? We think of the worst case scenarios, right? And I always use OJ just ’cause everybody knows that situation, right? Police came out five times, they complain, they never did anything, and then all of a sudden somebody turns up dead, right? That’s what’s in the back of everybody’s mind is, oh my God, it’s going to escalate. But they don’t have the right to drop the case because they’re not the ones that are even bringing the case.

So number one, that could theoretically protect somebody that’s too scared or they’re getting bullied, right, into saying they don’t want to press charges anymore. Now, from a criminal defense attorney standpoint, we’re going to take that, utilize that in the case against us, take that perhaps to the district attorney saying, “Hey, look, your one and only witness sucks,” right? “She’s on our team, and if you want to talk to her, I’m going to be in the room. Guess what? We’re one team here. Good luck with your case,” right?

So you could use it as a negotiating tactic or in trial, right? When the DA calls them to talk to them about the case and says, “Hey, when we’re going to call you to testify, what do you think?” “I think you should call Hunter Biederman. He’s my lawyer also. Give him a call,” or whatever. Maybe he’s not my lawyer, but he’s representing my husband and I don’t want anything to do with you. So it can certainly help the criminal case, but you never have the right to drop it because that’s 100% in the purview of the state

Holly Draper: Oftentimes we will see, usually after it’s already been done, an affidavit of non-prosecution—

Hunter Biederman: Yep.

Holly Draper: Signed by the complaining witness. From your perspective, do those typically result in non-prosecution, or what usually happens?

Hunter Biederman: So an affidavit of non-prosecution is essentially a victim or a complaining witness saying, “Look, I don’t want to prosecute this case.” So I used to be a prosecutor, so I have to get in the mindset of the prosecutor. What do they want to see? ‘Cause that’s really who I’m pitching to, right? The State of Texas sounds massive, but eventually it’s going to be one or two people. In fact, you have one of them, a rockstar district, prior district attorney, Emily Doran, who works for you, and she was in the DVU section. So she was, she would’ve been one of those people that I’m going in there to pitch.

So I have to think, what do they care about, right? And so every prosecutor’s going to be a little different, but a lot of people are worried, number one, the OJ situation, right? How can I be sure that they’re not being forced into this, and somebody’s standing behind them while they write this affidavit of non-prosecution? So number one, we might also offer them up to the state to talk to them. But number two is the affidavits of non-prosecution, they really need to have a good eye done by a criminal defense lawyer because it serves two purposes.

Number one, it can be, like, for negotiating, right? Hey They’re not going to want to testify. They’re going to be a horrible witness. You might as well drop this case. It’s going nowhere, right? That’s number one. But number two is to actually use it in trial, and there’s two different types of affidavits of non-prosecution. There’s the type that we as defense attorneys are going to create, and then there’s the type that the district attorney’s going to create.

And so a lot of times what’ll happen is, is if a prosecutor from the DA’s office gets ahold of a complaining witness or a victim, they’ll say to them, “Hey, do you want to fill out an affidavit of non-prosecution?” They do that for a few reasons. Number one, they’re trained to allow a victim to be able to do that so that they can say to their abuser, “Hey, I already did everything I could.” Right? So right. What’s, what’s, what’s in the back of their mind? They think everybody’s guilty, right? So they’re thinking that there’s some sort of abuser that has got some sort of hold on this victim, and they’re forcing them to do this, and if they say, “No, I’m not going to do it,” then the abuse or something’s going to get worse.

So number one, they’re giving them an outlet to be able to say to the, the defendant in the case, “Hey, I’m doing everything I can to try to stop this from happening.” But the prosecutors are typically going to word it in a much different fashion than a defense attorney would word it. A prosecutor’s going to word it and it’s going to say, “Hey, everything happened exactly like I said, however, I really don’t want this person prosecuted because of X, Y, and Z. They’re the sole breadwinner. They take care of our kids. He’s already gone through counseling,” whatever it is. It happened exactly like I said, but I don’t want it to go forward, versus the defense attorney who’s preparing one is going to prepare it in anticipation of a trial. Hey, I realize that this whole thing happened, but it all got blown out of proportion. It wasn’t exactly the way it’s being purported. I’m not in fear of this person. I’m not scared of them. I’m not going to disparage the state, the prosecutor, the whoever.

So I’m building in all of the type of roadblocks. I don’t know what the right word is. I can’t think of the top word. But I’m building in all of, trying to get rid of all of the objections of why somebody would want to not dismiss the case by putting those in there, right? ‘Cause a lot of times we get younger prosecutors, they’re scared of losing their job. Everybody’s just scared of doing the wrong thing, and they’re trying to just do the right thing. So by putting in there, “Hey, look, I’m not going to blame you for anything. You did everything you’re supposed to do. It’s all on me if this thing goes south.”

So there’s a, just a big difference between finding one online and filling it out or doing one that the prosecutor then locks them into that story now, ’cause now they have it twice, right? They have it one off the body cam of them saying it happened. Now they have a signed notarized affidavit. How are you going to defend against that, right? They’re trying to bolster their case. We’re trying to do the exact same thing. Hey, it didn’t really happen like that, and by the way, if you call me to testify, I’m going to say it didn’t, and he didn’t actually assault me. Those are just two diametrically opposed things that all end up under the same umbrella of an affidavit of non-prosecution.

Holly Draper: Well, and as family lawyers, I mean, it is, it can be devastating to someone’s family law case when they have repeatedly called the police on someone and then not pressed charges or signed these affidavits of non-prosecution, and now they want to go into court and tell a judge that this person is dangerous and can’t be around the kids. Well, you said over here that you lied about the fact that he was abusing you. What are we going to believe? So I, I think that People in that situation, obviously it’s a very difficult choice because a lot of them, particularly victims of domestic violence, are stuck in that relationship and they-

Hunter Biederman: And it does. There’s legitimate, like this is a legitimate thing, right? There are absolutely, positively people stuck in these relationships, don’t leave for a variety of reasons. It’s easy for us on the side to be like, “Well, why won’t you just leave,” right? But y- you’re not that person. You, you can never truly empathize with their situation. It could be financial, it could be kid tied, all that kind of stuff.

But there’s abuse of it, too, and that’s one of the questions I really wanted to ask you. How often do you see or do you suspect that a person before making that phone call either had the idea in their head that they were going to get a divorce and this was going to help them later on down the road, or even got that advice from an attorney saying, “Hey, before we file, one of the ways where we might have a leg up is if there was an allegation. You just told me he’s abusive, but we have no record of it, and if there was a record of it, things would change.” That’s have to exist out there, Holly, right?

Holly Draper: It definitely does. I would say most often what we see is the people who say it happened and they never did anything about it. Mm-hmm. They never called the police. They, or if they did call the police, then they would recant—

Hunter Biederman: Right.

Holly Draper: —their story. Usually the advice we’ll give is, “If that happens, call the police—”

Hunter Biederman: Right.

Holly Draper: —and press charges,” because it’s, it’s just not… A, it’s going to be stronger for your family law case, assuming that it’s actually happening. We would never tell someone to make it up, but if this is really happening, then you need to have a paper trail to show that this was happening. Another factor that we want people to consider is if you are in an abusive situation and you do nothing, CPS could come in and say, “You’re not protective of your kids,” and neither one of you are going to have the kids.

Hunter Biederman: Yeah. Yeah. And do you… And, and I assume your firm deals with CPS cases as well.

Holly Draper: Yes.

Hunter Biederman: Yeah. And so that’s the third factor, right? So most of the time where I see it pop up is the kids were home, right, during whatever abusive event occurred. Is that usually the trigger?

Holly Draper: We’ll see that a lot. We’ll also see people who they’re, they’re not going to call the police, they’re not going to press charges because he’s the one making the money.

Hunter Biederman: Right.

Holly Draper: And how am I going to support myself? How… He can’t pay child support if he goes to jail.

Hunter Biederman: Mm-hmm.

Holly Draper: Things like that. And okay, well, you said he’s not dangerous, so he’s going to get the kids 42%

Hunter Biederman: Yeah.

Holly Draper: —of the time, which, and then all of a sudden he’s dangerous again. So there’s a lot, a- and we, kind of getting back to your original question about using it as a weapon essentially to make claims. I’ll see it more often used as a weapon in a protective order stance where people will try to get protective orders claiming there’s domestic violence without really much to back that up.

Hunter Biederman: Mm-hmm.

Holly Draper: If you didn’t call the police, if you didn’t go to the doctor for your injuries, if you don’t have photos. He said, she said usually, where are, where are we going to land? Sometimes there is a history of people get mad and call. And it depends on which person we’re representing as to what story we’re getting about the-

Hunter Biederman: Right.

Holly Draper: Yeah… veracity of those claims. Right, right. But it, it’s definitely an issue out there, and can become a weapon, whether a criminal or a protective order Again, that people will try to use to gain leverage in their family law case.

Hunter Biederman: Yeah. Yeah. And, and what do you think, I mean, obviously it’s a case by case kind of thing, but what do you think the judges generally feel when they see these cases pop up either immediately f- prior to filing or during the process where it’s obviously not going well for one side or the other, and then these cases pop up? I mean, is it take it with a grain of salt, or is it, well, the cops arrested him, he’s have to be guilty, we have to protect everybody?

Holly Draper: It can vary dramatically from judge to judge, in my experience. I mean, I’ve seen protective orders where, like one I just took to the Texas Supreme Court where there was very little evidence of anything, and the judge handed her a lifetime protective order from ever seeing her kids. And then I’ll see cases where, I mean, there clearly was evidence that there was some violence between these parents, and the judges take the position of it didn’t happen to the kids, or the kids weren’t around, so yes, he was abusive or she was abusive, but we’re still doing managing conservators, we’re still doing standard possession, things like that.

Announcer: This episode of the Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non-parent custody cases, jurisdiction issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access. For more information, visit draperfirm.com or call 469-715-6801.

Hunter Biederman: What advice do you usually give your clients about testifying when they also have a companion case?

Holly Draper: Right, and that, that kind of ties me into the question I was just about to ask with We don’t often know the timeline of that criminal case.

Hunter Biederman: Yeah.

Holly Draper: And I’m never going to tell a client to testify when there’s a criminal case. I want to talk to their defense lawyer. I want- My gut is you absolutely, I cannot put you on the stand. We’re not going to let the other side put you on the stand. You must take the Fifth. And so can you tell us a little bit about what that timeline looks like when maybe we’re not going to put them on the timeline?

Hunter Biederman: Okay, remind me because we got two things here. Let’s start first with timeline. I- That one I can give you pretty easily. So if an arrest happens, let’s just call it today. Somebody gets arrested for… And the charge we’re talking about is assault family violence. That’s the number one, one that I’m seeing. I’m assuming it’s the number one you’re seeing.

So an assault, Class A assault, bodily injury, which has a very loose, a loose definition, is if you intentionally or knowingly touch another person without their consent and cause bodily injury. The, the, the bar for bodily injury is very, very low. That’s why when you look at these handwritten statements by the complaining witnesses, they’ll say, “He pushed me. He did this. Da, da, da, da. I ran to the other room. Da, da, da.” And then you’ll see the last line and it’ll say, “And it hurt.” Because the officer can’t arrest the guy unless they say, “It hurt. It caused bodily injury.” So usually they’ll read it, and then they’ll slide it back over that table and go, “We can’t arrest him unless it hurt. Did it hurt?” “Yeah.” “Well, you have to write it in there.” So, “and it hurt.” So that’s an assault bodily injury if they have a family relationship, which means dating, even prior dating, roommate, family member, that kind of stuff So day one is arrest. They’re going to get bonded out within another day or two.

The first time they’re going to have an actual criminal court date in court is probably going to be at least three to six months out. So, they get arrested and they’re sitting around with nothing going on at all, often for three to six months. The state has up to three years in order to charge that person.

So, they could sit on that case theoretically for two and a half years and then charge them way down the road. Now, we don’t usually see that. Usually, it’s going to come up faster, but within three to six months they’re going to have their first court date. So first court date, what we tell clients, nothing to be scared about. Literally all you do is show up. We take care of everything else. What we’ll do is just reset that court date for about a month in order to give the state enough time to give us what we call the discovery.

So, discovery from a criminal standpoint is videos, police reports, statements. Basically, anything the state wants to use against you, they’ve have to give to us. Once we have it, we’ll have the client come into the office, we’ll go over it all with them, and then we’ll help them decide which way do they want to go. As a general premise, they get two options. It’s going to be to either plead guilty or plead not guilty. If they’re pleading guilty, we’re saying we want to work out some sort of deal which would also include maybe we’re doing some conditions in advance for like a conditional dismissal or something like that. If we’re pleading not guilty, we’re saying we want to have a trial.

So, if somebody goes the route where they’re pleading guilty, typically I’ve got experience in our counties, Collin and Denton County is primarily where I practice. We’re probably looking about six to nine months from the day they were arrested to the time that it’s over. For a trial, we’re going to be looking anywhere from nine months to a year and a half before everything’s all done. So often our case is going to go way longer than yours.Exactly.

Holly Draper: And with the time crunch that some higher power is putting on courts for family law cases, you know, we’re usually forced to try to wrap it up in about six months. So if, if we’re looking at an 18-month timeline to get to a criminal trial, there is a very low Sometimes zero chance that we can actually push the family law case out to the other side of that criminal case. And when it’s your client that has the criminal charge pending, that’s a really big problem. Um, I personally never want to put someone on the stand thinking, oh yeah, if you get asked about this incident, plead the Fifth, but otherwise you’re going to testify. I’m afraid to put them on the stand at all.

Hunter Biederman: And it’s tough. And so, this is the question we get virtually with every assault case when we have a family law case. Like, okay, I got a protective order hearing coming up. My lawyer wants to know should I testify on it, should I not testify on it? Sometimes that phone call comes from you, sometimes it comes from the client. And generally speaking, I say, look, we’ve got competing interests here, right? And there’s no perfect right answer. Competing interest number one is you want to be able to testify in that family court to, number one, either say, this is all BS or I am safe or whatever it is that your end goal is to try to get custody of the kids or the house or whatever. So that’s competing interest number… Competing interest number two is I don’t want to do anything that’s going to screw up my criminal case, right?

Holly Draper: Right.

Hunter Biederman: And we already talked about the number one advice from every defense attorney is always don’t talk, right? Our, our clients never take the stand. So that’s the, the weight. So, when I talk to people, they’re like, “Look, I’m going to lose my kids if I don’t tell this judge this is all bullshit. Like, nothing really happened. I wasn’t drinking. By the way, she’s been arrested three times for this in the past. This is the fourth time the cops came out, and I called the police, and then they arrested me, and I have no idea why.” So, whatever their story is, which they’re always in the right, right?

Holly Draper: Of course.

Hunter Biederman: They, they want to tell, they want to tell their side of it. You have to decide. They’ve got to decide. I think, I mean, testifying or not testifying is always going to be the final choice of the client, but obviously we’re going to be advising on, them on that. And some of them will say, “This is more important to me.” Now, some of them might look a little bit more long-term and say, “Hey, I think this is going to get resolved. They’re going to be able to see the police report. I don’t know. Judge might not believe me anyway. Then let’s sacrifice this one for the next.” But you’re going to be making a sacrifice on one of those sides of the ball. You just have to decide which one it is. Now, with that said, I do have to say that generally speaking, I think family lawyers are more scared of their client messing up their criminal case than the actual criminal defense attorneys are.

Holly Draper: Well, and I think I, 100%, I-

Hunter Biederman: Because I get the call all the time, and they’re freaked out. They’re like, “He shouldn’t testify, should he? He, he’s got to plead the Fifth. He’s got to plead the Fifth.” And I was like, well, let’s talk realistic what could happen and what- usually happens. So keep in mind, an assault case, even though this is the biggest thing in the world to that client, right? They’ve probably never been arrested before. They’re, in theory, facing up to a year in jail. They’re worried about losing their kids, all that stuff. This is devastating. This is the most important thing in the world. In the criminal justice world It’s like the lowest level crime there is that you can get arrested for, right? It’s a misdemeanor case. Generally speaking, nobody’s going to jail over it. At worst, we’re looking at some sort of probation, right? Nobody’s really hurt. And we’re not talking about cases where somebody’s beating the crap out of their spouse, right? Like—

Holly Draper: Right.

Hunter Biederman: —this is the, “He pushed me, I have a red mark on my arm,” kind of case, which is most of the cases. The practical effect is these cases on the criminal justice scale are pretty low. Just like every other government worker in the world, the prosecutor’s office is overworked and understaffed, and that’s just all governmental agencies. Prosecutors don’t have the time to devote to find out whether or not there’s a family law case pending, whether or not there was a hearing on that family law case, whether or not that guy testified, whether or not that’s any use to them at all, whether or not they can then go to the court reporter, order a transcript, get a transcript, then compare that to whatever happened earlier, and then use that against the person in a trial a year to a year and a half later. The practical effect is most of the time, no matter what they say, it’s never going to be seen by a real prosecutor. And I don’t want to give that advice for a family law lawyer to think, “Oh, they can always testify, it’s never going to be a big deal,” but the odds are they’re never going to see it. The only time that a prosecutor’s probably going to see it is when somebody like you, Holly, gets that transcript of the other party. They want that person to be charged more. They order the transcript themselves. They call up the prosecutor. You probably ask Emily, “Hey, who’s still working over there that I need to talk to,” right? You email them, and then you just try to put it on a silver platter for them. That’s the only time that they’re going to get it. When you talk about government being overworked and underpaid and understaffed, that’s the reality of the situation.

Holly Draper: And that’s certainly when we’re representing the victim, absolutely in our mind. Uh, if that guy gets on the stand and testifies and we think he’s lying or he admits to something, we either tell our client to get the transcript and get, tell the prosecutor or we do it.

Hunter Biederman: Right.

Holly Draper: And so I, when I’m representing the other side, the person who has the criminal charges pending, then I’m, it’s always in the back of my mind that the other side could do that too.

Hunter Biederman: Yeah, exactly. And so it’s just kind of, like I said, you’ve got this competing interest. You’ve got to just decide it, but when you’re deciding that, I think it is fair to look at the practical aspect of the odds are they’re not going to see it anyway. It’s the same question I get all the time with accident cases and our DWIs. So if somebody gets arrested for a DWI, they’re in an accident, they might be getting sued by the other party that they hit. Same kind of thing. Well, should I talk to the insurance company? I need to talk to them, otherwise they’re not going to pay the claim. But, but you told me, “Don’t talk to anybody because that’s going to be used against you.” And it’s the same conversation I have. We got competing interests. You want them to pay for the car and pay for this other guy’s damage, which is just morally the right thing to do, plus you’ve been paying insurance premiums for 30 years. Let them pay it. I mean, that’s their job. But while you’re talking to them, keep in mind anything that I’m using could be used against me. You want to know in the last 20 years how many times I’ve seen a prosecutor in a DWI case pull a transcript from a civil action about a lawsuit? It’s a big fat zero. So same kind of thing. We’ve got in theory, and then we’ve got the practical effect

Holly Draper: So, I want to switch gears a little bit and talk about another thing that we often will see in our cases where there are criminal charges at issue, and that is bond conditions.

Hunter Biederman: Yeah.

Holly Draper: Talk a little bit about what kind of bond conditions we might see that would be relevant to a family law case and the process for changing them.

Hunter Biederman: Yeah. So bond we talked about a second ago. Anytime somebody gets arrested and they bond out, technically they’re on bond, and the number one condition of bond is just to show back up to court. That’s the whole point of the bond, is to make sure that person shows back up to court. But the judge can add any additional conditions of bond on there that they want. For like a DWI case, for example, an ignition interlock device might be thrown on there. For the assault cases, it’s typically it’s no contact with the victim or no contact with the victim’s family or to stay away from certain places. So the check boxes that we’re going to see on those standard forms, because remember 50 people are getting arrested every night, the judge is running through all of them. They’re not deep diving into any of this. They’re going to be checking off those boxes, don’t contact this person. Or what we see a lot is no contact in a threatening or harassing manner. And so those are the two main ones where the next day the client’s going to come to me and be like, “Look, we’re not getting divorced over this. This is not a big deal. I need to go back home. I can’t afford a hotel for the next 90 days or six months,” or whatever it is. We need to try to get that changed. So those are the main conditions on there, or stay away from the family or the kids as well. So the problem is, is getting those modified is extremely tedious and difficult because generally speaking, you need to get back before that same judge or magistrate, and the game they like to play is, “Sure, we’ve got a, a 60-day protective order. We’ll give you a hearing in four weeks,” right? Or something like that. So you have to file a motion to modify it, get before the judge. The judge is usually going to want to hear from the complaining witness in the case, right? Because that’s what they care about. If the person’s saying, “I don’t want this person around me. They beat me up once, I don’t want them around again,” every magistrate or judge in the world’s going to say, “Okay, I’m going to honor that.” So we have to route the witness, try to get them there. I have to ride that tightrope of not witness tampering, but talking to the guy’s wife who he’s been married to for 20 years, who’s calling us constantly saying, “I want him home,” and try to coordinate all of that. So even though it happens so often as these protective orders get put on there, they’re very, very difficult to modify or, or get changed.

Holly Draper: So sometimes we’ll see bond conditions that contradict a possession order. So now this person isn’t allowed to go to the location where the exchanges are supposed to happen, or this person is not allowed to be around their children or whatever. What are the consequences on the criminal side if a person violates those bond conditions because their possession order said something?

Hunter Biederman: They’re huge. They’re drastic. So violating a protective order is a criminal charge in and of itself. So it’s not like contempt in civil court where the judge can say, “Okay, I’m putting you in jail for a week.” You can go to jail for up to a year, and your chance of beating that original assault case have just gone down drastically as well, and the punishment’s going up on everything. So they’re both important, and honestly, I don’t think one necessarily outweighs the other. I think whatever conditions you have is going to be equal on both of them. They’re both orders from a judge. But if you violate a protective order, even if the person is okay with it, and that’s the big key. What’ll happen is, is the wife will call and they’ll say, “Look, I know there’s a protective order, but come on home. I mean, we’re good. Like this happened, whatever. I’m going to help you with it. That’s it.” And then the person feels safe to go home. Now, one of two things are going to happen. Number one, nobody’s going to ever know, right? And I’m sure that happens plenty. Or number two, it could be a setup, and then all of a sudden when the cops come out the second time, now you’re really screwed and in trouble. You’ve got a new charge that’s going to hate. And then you’re, you, you’re taking that one, of course, and saying, “Hey, Judge, not only did he get arrested for assault, he’s already violating the protective orders. Like, this is not a good dude. We need to get him more.” But those protective orders have a lot of strength behind them, and unfortunately, they’re issued very, very loosely because the judges are Again, we’re going back to think like the judge. Why are they putting these in place? If a judge puts a protective order in place and it’s a burden to them and their family, what is the poor ramifications for the judge? Probably nothing. They might’ve lost a vote in the next uncontested election, right? Right. That’s it. I mean, that’s the worst that happens. Now, so the easy move for the judge is to go ahead and issue a protective order. The harder move is to say, “No, we don’t need one here.” And the reason is what happens if that guy goes back and then OJ Simpson scenario, right? The woman ends up dead. That judge is probably not going to be a judge for much longer, right? It’s going to be on the front page of the paper, and now in today’s social media world, it’s going to blow up, go viral. Why is this judge protecting wife beaters, right? So the easy move is for them to just go ahead and issue it and it be a burden to one person. I’m not, I’m not saying every judge thinks like this, but that’s going, that’s what’s in the back of their mind is, we have to protect this person. I’d rather just give them a cool off period. And in their head, okay, it’s only 60 days. It’s a cool off period. Let them cool off, and if they want to get back together after that, that’s fine. But the problem is, is I’ve got two little kids. We have to go man on man with them when it comes to their sports and, and stuff like that, right? They’re- anybody that’s got- anybody that’s outflanked three kids to two parents, then I, I don’t know how they do it.

Holly Draper: No, me neither.

Hunter Biederman: But my wife and I, it’s like we’ve got our schedule. We’ve have to figure all that out. We happen to be a two-income family, but if we weren’t and the one person’s not able to work or come home. And by the way, add on the extra expense of you have to go live somewhere too, right? Plus all your stuff’s over there, right? So you can’t just swing by and go pick up a suit or whatever. These just throw your life into a tailspin, but they’re issued so easily because with the emergency protective order, the complaining witness doesn’t even have to ask for it. A lot of times it’s the officer that asks for it or the judge does it on their own, and those can be issued even if the complaining witness says, “I don’t want it,” they’ll still issue it anyway.

Holly Draper: So, is there a distinction between bond conditions saying you can’t be around your kids and a temporary protective order?

Hunter Biederman: Yes, and that’s a big one we get all the time because that’s a big trap. Because listen, when you get out of jail, they give you some of the paperwork sometimes, some of not the paperwork sometimes. You get out, you get this really nice plastic bag. You’ve probably never seen the plastic bag, but we know when somebody walks in with the plastic bag and it’s like—

Holly Draper: Only on TV.

Hunter Biederman: Their keys. Yeah, they get their keys, their phone, which is dead of course, and a couple of sheets of paper. And they might read one or the other or, I mean, listen, they’re not attorneys. They don’t dig into the legal verbiage of it and yeah, a lot of times the bond conditions will be less than the protective order or the other way around. The protective order will say, “Hey, no contact in an harassing or threatening manner,” which I always tell the clients, “Well, that’s fine. You’re not allowed to do that anyway.” I mean, that’s like them writing no, no, no stealing or murder. That’s already against the law. It’s not- shouldn’t really be changing your life any, versus no contact at all. And yeah, we get it all the time where it’s a bond condition or a protective order condition and not both, and both of those can land you in hot water if you’re just reading one of them and not looking at both

Holly Draper: If there are bond conditions saying you can’t go around your spouse or you can’t go around your kids, is there always also going to be a protective order?

Hunter Biederman: No. No. And, and they’re just, you know, I’m not going to say it’s just flip a coin, but it sure feels like that sometimes, that, you know, there’s not a lot of correlation between how bad the alleged offense was, um, the person’s prior history, which almost always is going to be none, um, and whether or not they have a protective order and whether or not they just can’t go to protected spaces. So, a lot of times a protective order isn’t to stay away from the person, it’s to stay away from the places. So, they’ll list work, school, and the house. Well, I don’t know about you, Holly, but, like, those are, like, the only three places I ever go. Like—

Holly Draper: Right.

Hunter Biederman: —not to say I’m, like, the most boring guy in the world, but, I mean, like, that’s 90% of my life right there. And so, if you restrict me from those three places, what have you got left of what is normally your typical day?

Holly Draper: So, we’re just about out of time, but I wanted to hit real quick on one last topic, and that is expunctions and non-disclosures. Talk about what those are, who qualifies, the thing, anything on those pieces that family lawyers should know.

Hunter Biederman: Yeah, and this is, this started out kind of as a new pet project of mine. And so, one of the things that I always hated from the criminal law standpoint is no matter what result you get in a criminal case, so we’re talking about assault cases here. So let’s say a client comes into my office and I get them a killer result to their case. Their case is dismissed, right? Most people are going to be patting me on the back at the end of the case. We get them found not guilty, or we get them a deferred adjudication where they’re not actually convicted, but they do have some sort of probationary period, or it’s dismissed or whatever. No matter what result I end up getting them, it’s always still going to be on their record unless they file something to get it either sealed or wiped from their record all the way. And most people don’t realize that. I talk to people all the time. I always say, “Have you ever been arrested before?” Stuff like that. They’re like, “Yeah, but it’s off my record.” And 99% of the time it’s not because you have to take this extra step.

And so, what kind of cases can be expunged or sealed through what’s called a petition for non-disclosure? It’s a wide variety, and it’s a lot wider than most people realize. It’s dismissals obviously, acquittals obviously, but also if you’re placed on certain types of probation, if you’re placed on deferred probation, all those kinds of things we can get it off their records often after a waiting period. So- That’s been kind of the mission that I’ve been on lately, is trying to get the millions of people who are eligible to get these things off their record to actually get it done and off their record. But the converse side to it is I would ask you, is in family law cases, how bad does that hurt people in front of a judge or a jury if they had a prior DWI or a prior assault or things like that that you can use as opposed to it was all expunged and you don’t even have access to that anymore?

Holly Draper: Right. It’s definitely looks bad even if it was dismissed that someone was arrested for anything.

Hunter Biederman: Right.

Holly Draper: And one of the things—We actually were having a discussion about this just within our team the other day about, all right, so the opposing side was arrested for X, but it’s been expunged. Can we bring it up? I recall one of the judges saying, telling a person on the stand who had a crime that had been expunged, telling him, “You can say it never happened.”

Hunter Biederman: Yeah. And that’s the effect of an expunction. There’s, there’s very, very limited exceptions to that. But generally speaking, you can say, “I have never been arrested, charged, or obviously convicted.” There are certain times under oath that that wouldn’t hold true, but generally speaking, you can deny it ever happening, and theoretically, the judge or the jury’s not supposed to give it any weight. If you’ve got a jury, it’s great because you’re going to have that conversation with the judge before they hear it, and they’re never going to hear it at all. A judge, it’s kind of the un-ringing of the bell kind of situation. Right. Like, I know it’s there and I’m not going to hold it against you, but you’ve been arrested four times and maybe you just had Hunter and he’s really good and he’s able to figure out a way around all of that kind of stuff. So, so yeah. So that’s the other piece of it. People aren’t getting these things off their record because they’re like, “Well, it doesn’t matter. I’ve been in a job for 30 years. I’m self-employed. What, what difference does it make, right? I could have a criminal record and nobody’s going to ever know about it. I’m old. I’m 50. What difference is it?” But here’s another situation where they can’t get it off, and the whole process can take six to nine months to get it off your record, a divorce or a custody hearing or a thing like that. Those are all kind of the same kind of reasons why it kills me that you can be eligible for it and still not have it done, right? Because a lot of times when people come in to hire me, the first thing they say to me is, “I don’t care about the probation, I don’t care about the fines, I just want it off my record.” And the criminal defense attorney’s job isn’t to get it off their record, it’s to get them eligible to get it off their record. And unless they do that last step, it’s going to be there forever haunting them.

Holly Draper: Well, we’re just about out of time, but there’s one last question I like to ask everybody who comes onto the podcast. If you could give one piece of advice to family lawyers, what would it be?

Hunter Biederman: If I could… Wow, I’m going to think about that one. You’re going to have to cut out my long thinking because-… I probably should have thought about that. One piece of advice to family lawyers. I would say one piece of family, one piece of advice I would give to family lawyers is create a good relationship with a couple of criminal defense attorneys. A relationship that’s good enough where you could just text them to ask them a quick question, a quick phone call, things like that. I’m not talking about dig into the case and rip into this and that, but there’s always going to be questions.

And I have family attorneys that I will call on when I’ve got a question, and they have me as a resource. So, I think having a criminal defense attorney that you’ve got that relationship with that you could just ask a quick question of, I think can be very useful in a wide variety of situations. Even if you’re about to go meet with somebody, you got somebody coming in, they’ve got an assault case with it, “Hey, I’m really not sure about this part, but before I meet with them, I want to make sure to have that answer. Let me just give this guy a text.” So, I would say best advice I can give to a family attorney is get a good criminal defense attorney with a good relationship. Make that relationship with them. They’re going to be happy to do it because there’s plenty of business and cross-referrals to make, obviously. And they’re going to be able to answer the questions that you’re going to be pondering within about 10 seconds.

Holly Draper: Exactly. So where can our listeners go if they want to find out more about you?

Hunter Biederman: So, my name’s Hunter Biederman. You can just Google me. It’s biedermanandburleson.com is our criminal defense firm. But the new project we’re working on is texasrecordclearing.com. You can go on that website, fill out a five-minute form. Once that comes in to us, I personally check it myself, and for free, we’re going to tell you whether or not you’re eligible for an expunction, if you’re eligible to get your record sealed, or if you’re just not eligible yet. And that’s totally free. That’s our way of giving back to the community to at least let people know if you are eligible, you can get this off your record if you so choose to take that next step.

Holly Draper: Perfect. Well, thank you so much for joining me today. Thank you. For—

Hunter Biederman: It’s been a pleasure.

Holly Draper: For our listeners, if you enjoyed this episode, go leave us a review and subscribe to enjoy future episodes.

Announcer: The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law and appellate matters.

For more information, visit our website at www.draperfirm.com.