Assault / Family Violence
In recent years, the Texas Legislature and law enforcement has made prosecution of family violence and domestic abuse a major priority. In the DFW area, police take allegations of assault between family members very seriously.
If police are called out to respond to a call for domestic abuse or family violence, the odds are good that at least one person will be arrested. This is true even where the alleged victim declines to press charges and specifically requests the police not to arrest!
The “arrest first, ask questions later” has a price. All too often, the wrong person can be arrested, or the police completely overlook the fact that the alleged assault was legally justifiable self-defense.
Assault family violence charges are incredibly devastating to the law-abiding citizen or resident of the United States. Even a finding of guilt or conviction on even a single misdemeanor domestic abuse or assault charge can permanently impact your life and cause the permanent of important constitutional rights and privileges. The direct and collateral consequences are explained in detail below.
What is Assault?
Texas Penal Code Section 22.01 defines assault as follows:
A person commits an offense if the person:
- intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
- 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.
What is Family Violence?
The State can and will seek a finding of family violence if, the person allegedly assaulted is:
- A family member
- A current member of your household
- A person you are currently married, dating or in an intimate relationship with, or a person you previously were married to, dated, or had an intimate relationship with.
Defending Against an Assault Family Violence Charge
The key to preserving your constitutional rights, reputation and innocence is to retain an experienced criminal defense attorney to defend you as quickly as possible.
In my experience, the sooner you can retain the services of a defense attorney, the more and better options will be available to you.
Remember an arrest is merely an accusation; you remain innocent until you plead guilty or are found guilty before a judge or jury.
A good defense attorney will thoroughly research and investigate your case and explore every potential defense and option to avoid a conviction such as:
- Self-defense: Texas has an extremely liberal law regarding self-defense in which a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.
- Unintentional / mistake: In order for a finding of family violence to be allowed under the law, the State must prove that the defendant acted intentionally. It’s not enough for the State prove that there was an assault, the State must prove the defendant actually intended to cause bodily injury or intended to threaten such injury.
- State Dismissal: As the prosecuting party, the State has the burden of proving its case beyond a reasonable doubt. A defendant has no obligation to present evidence or prove innocence. Innocence is presumed by law and the defendant has the right to trial. Sometimes, the State is simply unable to secure the attendance at trial of a witness of an essential witness or an essential witness is considered so lacking in credibility that the State has no choice but to dismiss the charge.
- Grand Jury Packet / “No Bill”: If you have been charged with a felony, and the complaining witness / alleged victim has changed his or her mind about pressing charges and is willing to sign an affidavit of non prosecution, a good defense attorney may be able to present the affidavit and other evidence to a grand jury before your felony case ever gets set for a first court date. If the grand jury doesn’t have enough evidence to return an indictment in the case, your case can be essentially dismissed before it begins.
- Conditional Dismissal: If it is a first offense and there are problems with the case and/or if the alleged victim / complaining witness does not wish to press charges or is unavailable, the State may be willing to agree to dismiss the charge if the defendant successfully completes an anger management or batterer intervention program class.
- Class C Reduction: Occasionally, the State may agree to dismiss a misdemeanor or felony assault family violence charge in exchange for a defendant’s agreement to plead no contest for deferred adjudication probation on a class C offense such as disorderly conduct or “offensive touching” assault. Class C offenses are fine only offenses not punishable by jail time, but the real value in such a plea deal is that you can completely expunge the record of both the underlying charge and the Class C if you successfully complete the deferred probation. At the end of the day, all charges can get dismissed and expunged from your record.
Severe Negative Consequence of Family Violence Finding
- Firearms: federal offense to own a firearm or ammunition for life
- Under federal firearms laws, it is a criminal offense for any person who has been convicted of even a misdemeanor crime of a domestic violence to ever own a firearm or ammunition. The prohibition on firearms and ammunition is for life.
- Denial or Loss of Occupational Licensing
- For many occupations, an assault with a finding of family violence can result in a loss, suspension, and/or denial of your ability to obtain a license from the State of Texas to practice your profession.
- Divorce / Child Custody: Denial custody
- Allegations of family violence can have serious effects on divorce and child custody litigation. A finding of family violence can prevent you from being the sole or joint managing conservator of a child, and can even prevent you from obtaining access or visitation to minor children.
- See Texas Family Code Section 153.004 for a fuller description of the impact of a family violence finding.
- Enhancement: 2nd offense is a 3rd degree felony, with 2-10 years in prison.
- Under Texas law, if you have any prior criminal conviction or were placed on deferred probation an offense with a finding of family violence, any subsequent offense will be enhanced to a third degree felony.
- No ability to seal your record: Ordinarily, if you are arrested for an offense but the charge is dismissed without a conviction being entered against you, you have the option to seal or expunge your arrest and criminal record. However, the Texas Legislature has created an exception that prevents a person from ever sealing or obtaining an Order of Non Disclosure for an arrest or charge involving family violence.
- Immigration/Deportation: A conviction or deferred adjudication to an offense involving an assault family violence can result in a non-citizen’s deportation or denial of admission to the United States.
Need Help with Assault Family Violence?
If you have been arrested, charged, or have found out that you have a warrant for an assault family violence charge, contact us at (214) 530-2056.