Assault family violence is one of the most frequently charged criminal offenses in Texas. It is something I come across a lot as a criminal defense lawyer. While domestic violence is a very serious crime and should not be taken lightly, even police officers will tell you that all it takes to get charged is one phone call to 911. Simply put, if a married couple get into an argument and someone calls the police, and the police show up, someone is getting arrested. This usually means the male. As a result, many of the charges I see can end up being very thin. Even so, it is crucial to hire a competent attorney who can navigate these cases, because the consequences and penalties for an assault family violence are severe.
For example: a married couple come home after a night of drinking and get into an argument. The incident quickly escalates as both of them begin to shout at each other and increasingly getting upset. The woman threatens to leave and grabs her keys. Her husband grabs her arm in an effort to get her keys from her to prevent her from leaving in an intoxicated state. She is not necessarily hurt, but she is slightly bruised on her arm. She calls the police, not because she wants him arrested necessarily, but mainly in a misguided effort to end the fight. The police arrive and the man gets arrested.
What are the Penalties in Texas?
To understand assault family violence penalties, we have to understand what assault is. Section 22.01 of the Texas Penal Code states that a person commits assault if the person:
- intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; or,
- intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or,
- intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative
For a person’s first offense, assault family violence that causes “bodily injury” is a Class A misdemeanor. This means that a conviction carries a maximum penalty of up to a year in jail and a $4,000 fine. A conviction, a deferred adjudication, or anything other than an outright dismissal will prevent you from owning a firearm under Federal Law for life. Also, if you are convicted and catch the same charge again, the next case for assault family violence causing bodily injury suddenly becomes a third degree felony.
What Does Bodily Injury Mean?
For purposes of the Texas Criminal Justice System, bodily injury is just defined simply as “causing pain.” If the alleged victim experiences pain, that is sufficient to support a finding a bodily injury. It is a totally subjective standard and completely up to the alleged victim. There is no threshold to measure levels of pain. When responding to a 911 call, police are trained to ask, “Did he or she cause you pain?” If the answer is yes, a charge of assault family violence causing bodily injury will flow from the arrest.
Who is a Family Member?
Assault family violence is simply an assault in which the alleged victim of the assault is a family member of the actor. And we all have bigger families than we thought we did, according to the Texas Legislature. “Family member” is a broad legal term. As defined by Chapter 71 of the Texas Family Code, family member signifies any person that is a member of the family or household. The term household encompasses any person that lives with you. This includes not only spouses, but girlfriends, boyfriends, and even roommates.
Can you Get It Off Your Record?
It has become difficult to get an assault family violence off of your record. Even with deferred adjudication. Deferred adjudication is a kind of probation. But it’s better than regular probation for a couple of reasons: 1) it is not a conviction, and 2) successful completion allows a non-disclosure. With a non-disclosure your criminal history can be partially cleared and you can deny the arrest when applying for jobs. Non-disclosure is not available for assault family violence. The only way to get the arrest off of your record is if the charge is dismissed or you prevail at trial.
Defending Assault Family Violence Charges in Fort Worth, Texas
Hiring the right attorney is a very important first step when you are accused and charged with assault. This is especially true when a family member is the alleged victim for the reasons set forth in the previous section. As we have seen, the potential consequences are severe and lasting. When someone comes into my office that has been accused of assault family violence, I try and ascertain how the alleged victim feels about the incident. Often times this is the spouse or significant other, but not always. Their attitude and desires are often the most important evidence in the case, and will have a lot of impact on the outcome of the case.
Can The Victim in an Assault Case Drop Charges?
The answer to this is not as straightforward and it should be and depends on many factors. The simple answer is no. It will be up to an assistant district attorney to pursue charges or dismiss the case. Although in a felony assault charge, the case also must be indicted to proceed. This means that it must be presented to grand jury who will either decide to indict or “no bill” the case.
In a misdemeanor case, the decision to proceed will be a determination that an assistant district attorney will make. No indictment is required. In Tarrant County, the misdemeanor assault family violence cases are handled in CCC5. One of the prosecutors working in that Court will consider many factors. These factors include photographs of the victim taken after the assault, the defendant’s prior criminal history as well as all the other facts in the case. It depends, although as I stated above, the wishes of the alleged victim are very important.
What is an Affidavit of Non-Prosecution?
An affidavit of non-prosecution is simply a statement that I prepare which indicates that the alleged victim does not want to press charges. It comes up after I speak with both the defendant and alleged victim in an assault case it is clear that they are both on the same page and neither wants to go forward with the charges. Once it is signed and notarized, I will deliver it to the prosecutor and use it in negotiations. Sometimes it can be a persuasive and effective tactic in getting the charges dismissed or reduced. However, this depends on the disposition of the prosecutor as well as other facts in the case. However, an affidavit of non-prosecution is just one component of defending these often complex cases.
I Offer Free Consultations
I'm happy to discuss your case with you. If you or a loved one has been arrested and are facing an assault family violence charge, you need to contact a criminal defense attorney who knows how to handle these cases. I offer a free and confidential consultation. I have worked many of these cases. I have obtained great results, and I know how to handle them. Everyone who is accused deserves a great defense. No matter what the facts of your case are, I can help you.