Throughout Texas, policing agencies take acts of domestic violence very seriously, often dedicating a specific task force or division to only handles these types of calls. The officers in these divisions will many times make a quick arrest, without doing a full or complete investigation, leaving it for the lawyers to figure out somewhere down the line. The result of this is that many people are arrested and detained based on false accusations and malicious lies.
While the penalty range for a misdemeanor charge of domestic violence are severe, it is the collateral consequences of a plea of guilty that will follow you for the rest of your life. An affirmative finding of family violence will be a mark on your permanent record as a crime of moral turpitude, being able to be seen on a background check. This finding can also be used against you in family matters such as divorce or custody proceedings, which is many times the basis for false accusations.
When being investigated or charged with assault of a family member, it’s important to have an experienced criminal justice attorney reviewing your case, as the initial investigation is many times where the police have made mistakes. If you’ve been charged with domestic violence, review our Case Results and contact our firm at 713-228-4607 immediately so that we can review your case.
Texas Law & Assaults on Family Members
The Texas Penal Code states that a person will be charged with assault against a family member if they:
- Intentionally, knowingly, or recklessly cause bodily injury to a “family member”;
- Intentionally or knowingly threatens a “family member” with imminent bodily injury; OR
- Intentionally or knowingly causes physical contact with a “family member” when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative
The Texas Family Code also defines family violence as an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault.
How is a “Family Member” Defined in Texas Law?
The Texas Penal Code utilizes the Texas Family Code to determine what does and what does not qualify as a “Family Member” when it comes to charging someone with domestic violence. The Penal Code outlines three specific provisions where someone may qualify as a Family Member:
- “Family Member”
- The family code specifies that a “family” includes individuals related by consanguinity or affinity, including individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.
- “Dating Relationship”
- The family code specifies that a dating relationship is a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. A casual acquaintance or ordinary fraternization in a business or social context does not constitute a dating relationship. The existence of such a relationship shall be determined based on consideration of:
- Length or relationship;
- Nature of relationship; and
- The frequency and type of interaction between the persons involved in the relationship
- The family code specifies that a dating relationship is a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. A casual acquaintance or ordinary fraternization in a business or social context does not constitute a dating relationship. The existence of such a relationship shall be determined based on consideration of:
- “Household Relationship”
- The family code specifies that you can be charged with family violence if you are a member of the same household as the complainant. “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. This definition includes a wider variety of qualifications that many people may not consider, including roommates, dorm-mates, or even something as simple as someone you are sharing a hotel room with for work.
Family Assault Cases & Bond Conditions
When you are arrested for domestic violence, the District Attorney’s Office will immediately file a motion to have Protective Order’s placed against you while the case is pending. The length and severity of these orders will differ, but some common restrictions that will be requested are:
-
- No contact with the alleged victim;
- No contact with the alleged victim’s family;
- Not to come within 200 yards of the alleged victim’s home, school, or place of employment;
- No alcohol or drug use;
- A curfew;
- No access to firearms or ammunition;
- A GPS monitor to track movement;
- And anything else the court deems reasonable.
A violation of these orders can have serious results on the pending case. A defendant violating these orders could have their bond revoked and be placed back in County Jail where they will remain until either a new bond is set or their case is disposed of. A defendant could be charged with contempt of court, being fined or placed in jail for a violation of the order. A defendant could also be charged with a new crime, Violating a Protective Order. This new charge is also a misdemeanor, but if violated more than once, can be increased to a felony.
Range of Punishment
If this is your first time being charged with assault against a family member, the charge will be a Class A Misdemeanor. A Class A Misdemeanor carries a range of punishment of up to a year in the county jail and up to a $4,000 fine.
If this is not your first time being charged with assault against a family member, you may be charged with a felony. It depends if there was an affirmative finding of family violence on your previous case.
Affirmative Defenses
Each individual case carries a different set of circumstances and facts, and because of this, different defenses may be available. The most common defense is innocence, that the person accused of the crime did not actually commit the crime. This defense is why it is so important to hire an experienced attorney to help defend your case. Police reports and charging documents are going to be written against the accused, the facts and circumstances are going to be stated so as to give the District Attorney as much ammunition as possible to obtain a conviction. An experienced attorney can find ways to challenge the admissibility and accuracy of this evidence, so as to best defend your case.
As with other assaultive offenses, the Texas Penal Code does allow for self-defense as a possible defense to the charge of assaulting a family member. Under the code, a person is justified in using force against another when and to the degree the person reasonably believes the force is immediately necessary to protect the person against the other’s use or attempted use of unlawful force. Plainly stated, your resulting force must be a reasonable retaliation to the force used against you.
Deferred Adjudication & Probation
Consequences
Both Deferred Adjudication and Probation are available for many Domestic Assault and Family Violence cases, but often times they are not a good option.
A Deferred Adjudication allows a Defendant to plead guilty to an offense but not be convicted or found guilty of the offense. They are placed on a probation for a prescribed period of time and if they complete the probation successfully, the case against them is dismissed. For many charges this is a fair and equitable option, as it allows the Defendant to prove to the Court they deserve another chance, and upon the completion of their case, apply for a Petition for Nondisclosure to have their record sealed.
However, the Texas Penal Code does not allow for those charged with an offense involving family violence to apply to have their record sealed. This exception specifically noted in the Texas Penal Code states that any person who has an affirmative finding of domestic violence on their record shall be precluded from having their record non-disclosed or sealed. So even though the charges are dismissed after successfully completing deferred adjudication, the charge can be never be expunged or hidden from public view via an expungement-expunction or certificate of nondisclosure. It’s best to fight these charges at trial or work on getting the case dismissed.
Lastly, any plea of guilty to an offense involving family violence involves an Affirmative Finding of Family Violence being placed on your permanent record. This finding can never be removed from your record and has can have serious consequences on the rest of your life. If you are ever charged with another crime involving family violence, it automatically becomes a felony. An affirmative finding of family violence also prevents you from being able to own or transport firearms or ammunition (under both Federal and State Law), can prevent you from being named a managing conservator of a child, or prevent you from being able to adopt children. These consequences are why it is so important to hire an experienced attorney to fight these charges.
Encumbered by Family Assault Charges?
Call Jack B. Carroll & Associates for Relief Today!
If you were charged or are being investigated for domestic violence, it’s important to hire an experienced criminal defense attorney to combat these charges.
After handling hundreds of these cases over the past several decades, I understand how important it is to aggressively defend these charges. Take a look at our Case Results and contact our firm for a full case review today.