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, most of the time, 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. There are two kinds of family violence. This page is about criminal charge Assault bodily injury - Family Member. There is also family violence in family law courts. These are civil issues involving protective orders. if a family law judge rules that family violence has occurred, then a protective order will be issued. This does not carry criminal penalties, but if violated can result in criminal charges. Let's examine Assault Bodily Injury - Family Violence. Here is an example of a scenario involving a family violence arrest.
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. There are three kinds of assault considered by the assault statute. 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
The kind of assault that we are usually concerned with for these charges is the first one that deals with bodily injury. 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 has occurred and an arrest will be made. Police agencies throughout Texas are trained to ask the victim if they felt 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.If the answer is yes, an arrest will more than likely get made. Really, if a phone call is made to police, someone is going to get arrested. Usually alcohol is involved and if nothing else a person will get arrested for public intoxication or disorderly conduct. This is a criminal justice reality. However, getting back to the point, what pain means is a completely subjective standard. That means it is a matter that is up to the alleged victim. There is no objective definition for what pain means in the Texas Penal Code. There is no objective threshold to measure levels of pain. A person getting their arm broken feels pain. A person who gets their nose broken feels pain. And when a person gets their arm squeezed and the squeezing leaves no bruise or scrape, this can also mean the same kind of pain if the person says they felt pain.
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. Here is the definition from Chapter 71 of the Texas Family Code:
"Family" includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, 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.
This is a very broad and encompassing definition. So, when in doubt, if the parties have any relationship, they are probably family members.
Can You Get an Assault Family Violence Conviction Off Your Record?
It has become difficult to get an assault family violence off of your record. Even with deferred adjudication, you cannot get family violence off of your record. 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. It is important to get the finding of family violence dismissed before any plea is entered. Pleading to a finding of family violence can mean bad things for your future.
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. These cases arise easily with little evidence, they are sometimes not dismissed easily by prosecutors. If you plead guilty to family violence, this can have negative implications for different aspects of your life. You may find it difficult to find employment because employers do criminal background checks. You may find it difficult to find a place to live because landlords often conduct criminal background searches as well. 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, the victim cannot drop the charges. The wishes of the victim will certainly be important in how the prosecutor proceeds with the case. If the victim does not want to go forward, this will be important. In cases that I defend in which the victim does not want anything to do with prosecuting the defendant, I have them come into the office and sign a sworn statement to that effect. This sworn statement is called an affidavit of non-prosecution. In reality, whether or not a case will get dismissed depends on the facts of the case. What kind of evidence does the state have? How serious are the injuries? It will be up to an assistant district attorney to pursue charges or dismiss the case. The criminal defense attorney can only fight the charge.
In many family violence cases, the victim does not want to prosecute. This is because the victim and the defendant often live together. These cases often arise during fights between spouses or dating partners. Although these cases come in many forms, a frequent scenario is two people who are dating or married have an argument that turns physical. Often times, alcohol is involved. Then someone calls the police and that person may not have any idea what will flow from this 911 call. They think, my boyfriend or my girlfriend is being aggressive and I want him or her to stop. They think that if they call the police, the police will come and stop the situation. It is an emotionally charged event. In the fog of conflict, the person only wants it to stop. They may or may not anticipate that the person will get arrested. Often they think that the case will stop there if they want it to, but find out that this is not always the situation.
How Will The Case Go?
In a felony assault charge, the case must be indicted to then go forward. This means that it must be presented to grand jury who will either decide to indict or “no bill” the case. Even though the vast majority of cases do get indicted, felonies still have to go through a grand jury. However, for a misdemeanor, there is no indictment process. In a misdemeanor case, charges proceed by information. There is a lot of discretion for prosecutors to dismiss a case or proceed with it.
In Tarrant County, the misdemeanor assault family violence cases are handled primarily in County Criminal Court 5, although they are also in County Criminal Court 1, and some other courts. 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.
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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.