There are several different Texas criminal charges that fall under the umbrella of domestic violence. However, there is no crime that is actually called domestic violence in the Texas Penal Code. Crimes that penalize domestic violence are all versions of assault and other crimes that are committed against a family member (spouse or child) or household member. Although there are a number of other crimes that can overlap with domestic violence, there are three separate crimes of domestic violence in the Texas Penal Code that this page will discuss: assault family violence, aggravated assault, and continuous violence against the family. Family member and household member are very inclusive and broad terms. These terms are defined by Chapter 71 of the Texas Family Code and they include:
- your married partner (current or former spouse)
- your girlfriend or boyfriend or any person with whom you have an ongoing romantic or dating relationship
- a person with whom you have children
- a person who lives with you (this includes people with whom you do not have a relationship, such as roommates or people that sleep on your couch)
- someone who is a family member by marriage or by blood
- a child you have adopted
- your child from a current spouse or a former spouse
- your foster child
- your foster parent
What Can a Domestic Violence Charge Mean for You?
If you are facing a domestic violence charge, or someone you love or care about is facing a domestic violence charge, there are certain steps you need to take at the outset of your case. Before anything else, it is crucially important to consult with and retain a criminal defense attorney who knows how to work these cases. At a minimum, you need the guidance of an attorney who knows the justice system and can steer you in the right way. Domestic violence cases are often complex criminal cases that require experience, skill, and finesse to defend. One reason for this is because the consequences of domestic violence charges, especially a conviction, can be severe and lasting. Often a conviction cannot be washed away. Even if you receive deferred adjudication and your charge can eventually be non-disclosed, this will take some time. The outcome of your case may impact your ability to own a gun. If you plead guilty to an assault charge involving a family member in a Texas court, this will implicate your federal constitutional right to own a gun. If convicted, under Federal Law you can again never own a firearm or transport a firearm or ammunition. This is despite any Texas rights to own a firearm that you may have, and under the Supremacy Clause, Federal law overrides Texas law. This prohibition against gun rights will even includes an assault family violence charge reduced to a Class C misdemeanor. Furthermore, you cannot take a domestic violence charge off of your record, even if you receive deferred adjudication.
What is Assault Domestic Violence?
The definition of assault is found in Section 22.01 of the Texas Penal Code. Assault domestic violence is also called assault family violence. This is an assault that is committed against a family member, household member, or either a current dating partner or someone you have dated in the past. Here is what assault means:
Section 22.01. Assault.
Assault involves causing actual physical injury to another person. This is referred to as assault bodily injury, or ABI. ABI means inflicting an injury or pain on someone. This is the most common and basic kind of assault, although there are two other kinds: one involving imminent threats and one involving offensive physical contact.
Causing bodily injury to a family member or household member under Texas Penal Code 22.01 (a)(1) is the domestic violence charge that probably arises most often in Fort Worth, and all across Texas for that matter. Other than DWI, it is something that gets charged more than anything else. Assault family violence with bodily injury is a Class A misdemeanor. This means that it carries a punishment of up to a year in jail and a $4,000 fine. If you are facing this charge in a bigger Texas County such as Tarrant or Dallas, your case will end up in a County Criminal Court. If you are in a smaller Texas County, your case will end up in a County Criminal at Law.
However, the stakes get higher if you’ve been convicted of an assault family violence before. If you have one previous 22.01(a)(1) conviction and you get charged with the same offense again, your charge will be enhanced and you will be facing a third degree felony. This repetition charge carries a potential penalty of between two and ten years in prison and up to a $10,000 fine. Assault family violence is a charge that can escalate rather quickly.
If you are accused of choking a family member or household member by impeding their breathing, that is also a third degree felony. Impeding breath means any contact with the neck or mouth or nose of a family member. This charge is always a felony, and does not need to be enhanced with a prior conviction. Felonies across Texas are handled in District Courts.
Offenses that are charged under 22.01(a)(2) and (3) are class C misdemeanors, unless the person who is threatened is an elderly or disabled person. In that case, it jumps to a class A misdemeanor. Or if you are accused of threatening a participant (player, coach, referee) in a sports competition or game, then it is a class B misdemeanor.
What is Aggravated Assault Domestic Violence?
Aggravated Assault against a family member is a more serious version of domestic violence. It is an assault, but with increasingly serious penalties. The term “aggravated” indicates an element that goes beyond simple assault. The statute is found in Section 22.02 in the Texas Penal Code.
Section 22.02. Aggravated Assault
Aggravated Assault means simple assault with bodily injury (ABI), but also results in serious bodily injury, or a deadly weapon is used.
An allegation of serious bodily injury or a deadly weapon will worsen the situation. If the state of Texas alleges that you did something that falls into either of these categories, you will be charged with a second degree felony. A second degree felony carries a span of punishment between two and twenty years in Texas prison and a $10,000 fine. When defending a felony, the process works its way through the justice system a little bit differently. This is because of the indictment process. Felonies need to be indicted and must go through the grand jury. Sometimes, during the grand jury process, cases can be won before they actually go into a District Court. When this happens, it is called getting a case "no billed," which means a grand jury gives it a thumbs down and the cases goes away at this juncture.
What is serious bodily injury? Texas Penal Code Section 1.07 (46) defines it as bodily injury that creates a serious risk of death or that actually causes a death, or disfigurement of any part of the human body, or the lasting impairment of any organ or limb or other part of the body.
What is a deadly weapon? Section 1.07 (17) defines it. Here is what it means:
A gun or it could also be anything that is either made or employed for the purpose of causing death or inflicting serious bodily injury. It could literally be anything that could inflict critical damage to another person.
If it is alleged that you caused both serious bodily injury and used a deadly weapon against a family member, romantic partner, the charge can become a first degree felony. This carries a possible range of punishment between five and ninety nine years, and up to a $10,000 fine.
What is Continuous Violence Against the Family?
This domestic violence statute was created in an effort to try to stop individuals who have more than one incident or contact of alleged abuse within a short period of time. This charge is about persons who commit two or more assaults within one year against a family member, romantic partner, or household member.
For the law, click here: Sec. 25.11. Continuous Violence Against the Family.
Continuous violence encompasses a period of one year. During this time, if there is an allegation that someone commits an assault with bodily injury either two or more than two times, instead of being charged with the lesser crime of assault family violence, they can also be charged with this offense. This is a derivative crime, meaning that it is a crime that stems from other individual crimes. Here, multiple assaults against a family member or multiple family members. A person cannot be convicted twice of the same assault. That is, if someone is charged under 25.11, they cannot also be convicted of one of the two or more underlying assaults.What is provocative and unique about this domestic violence statute is that a person does not have to be arrested or convicted of either of the underlying assault charges. In addition, there is no requirement that the offenses be committed against the same victim.
This charge is a third degree felony.
Defending Domestic Assault Charges
If you or someone you love are charged with any kind of domestic violence, the importance of hiring an attorney who knows what to look for in these cases and how to fight them can mean everything. There can be dangerous implications for your future if you get convicted. Sometimes, this can be a life-changing dilemma. The Negotiation of these cases is a crucially important skill for any criminal defense lawyer. Assault charges are often complex, regardless of the severity of the charge, and regardless if it is a misdemeanor or a felony. Why are assault cases complex? The lives of the defendant and the victim in family assault cases are often intertwined emotionally and otherwise, and this complicates matters. Generally, the victim and the defendant are involved romantically and often have children together. Furthermore, many times they are still together and live together. If the victim does not want to go forward with the charges, this causes more trouble with prosecuting the case. Situations in which the victim does not want to prosecute will not result in a dismissal automatically. However, this will create problems for the state.
The involved relationships between the victim and the defendant are one reason these cases are complex. Another reason these cases are complex is the nature of the evidence in assault cases. Although sometimes there are pictures and videos of injuries, there is not always this evidence. Many times, the evidence could be largely testimonial. This means that the only evidence is what the victim says happened, and this can create reasonable doubt if there is conflicting testimony about what actually happened. This is compounded further if the victim does not want to testify against the defendant. For these reasons, assault domestic violence charges are unique and require a certain approach to defense.
How Do These Charges Take Shape?
Many times on a domestic violence call, the victim does not understand the implications of calling the police. Obviously, domestic violence is a serious crime that should be taken seriously. However, because of how seriously it is taken, police are trained to make arrests The implications of calling the police for a domestic violence charge is that there will almost always be an arrest. Sometimes the victim calls the police, sometimes friends or neighbors call the police, and sometimes the defendant calls the police. If police are called, and this is especially true is alcohol is involved, there is almost always an arrest.
From the beginning, when police are called on a domestic violence charge, they will begin to build the case against you. What does this mean? This means that the 911 call will be recorded. When police officers show up, they will begin recording with body cameras if they have them. If they do not have body cameras, they will take photographs of the injury and anything else that is relevant. They will be taking statements from everyone present. They will get specific statements from the victim and the defendant and anyone else who is present who has witnessed the event. These detailed statements, from the victim especially, will make up the most powerful evidence in the case. If there are photographs or video depicting injuries, this will be the most powerful evidence in the case. However, many domestic violence cases have photographs that either do not show injuries, or show very minor injuries or red marks that are unclear in nature.
Call My Office to Discuss Your Charge
You need an attorney who knows how to present these cases, frame them the right way, and pursue great results, for you and for your family. As outlined and discussed above, these cases can have serious consequences for you. Call my office and we will set up an appointment to talk about your case, how your case will take shape, and what to expect. I love talking to my clients and I love helping my clients. If you are facing an assault family violence charge, an aggravated assault charge, or a continuous violence against the family charge, I'm happy to sit down with you for a consultation. We can sit down and go over your case from all angles, and we will talk about how your case will work through the criminal justice system. If your case is a misdemeanor domestic violence charge, we will discuss how the case will unfold and develop. If your case is a felony domestic violence charge, either aggravated assault or impeding breath or circulation, we will discuss how your case will go through the grand jury process and will be either indicted or no-billed. If indicted, your case will end up in a Criminal District Court or a District Court, depending on the County. In Tarrant County, for instance, there are ten Criminal District Courts. In Parker County, there are two District Courts. Defending a felony means the lingering possibility of prison time so of course that increases the stakes.
Every Case is Different and Each Case Requires a Unique Approach
Every case is different and the goals of each case differ slightly. The approach is always unique to the given facts of the case. The general goals of some cases are almost always the same. For instance, the goals of every felony case will obviously be to avoid going to prison and to avoid a felony conviction. If you are facing a misdemeanor family violence charge, this does not feel any less serious. Regardless of what you are facing, the defense will need to fit the facts of the case. This is especially true in cases involving domestic violence. Talking about your case and developing a plan to defend the charge will give you and your family peace of mind.