UPDATED 8/18/2021, Original Post: April 13, 2018 Domestic Violence
Texas law recognizes three types of domestic violence. In this post, we will explain each law and the associated penalties and tell you what to do next if you face domestic violence charges in Texas.
Domestic assault is a threat or an act of violence against a person with whom the defendant has an intimate relationship. These relationships include the following types of people:
- Current or former spouse
- Current or former dating partner
- Parent of the defendant’s child or children
- Child of current or former spouse
- Foster child or foster parent
- Blood relatives or adopted relatives
An act of assault involves bodily injury or the threat of imminent bodily injury to any person in the above categories. The action must be intentional, knowing, or reckless. The act can also involve physical contact, which is reasonably considered offensive or provocative by the victim.
A conviction for first-time domestic assault is a Class A misdemeanor. If prior convictions exist, the punishment is a third-degree felony under Texas law.
Possible Defenses To Domestic Violence Assault
If you or a loved one find yourself facing a charge of domestic violence assault, it is critical to work with a criminal defense attorney that has a proven way to defend against your charges. A few examples of how to attack a Domestic Violence Assault charge include:
- Affidavit of Non-Prosecution – does the alleged victim want to prosecute? Did the alleged victim’s original statement fail to fairly reflect what happened? If so, an Affidavit of Non-Prosecution may provide a means to set the record straight as to what happened and provide clear evidence that may lead a domestic violence assault charge to a dismissal.It is true that merely completing an affidavit of non-prosecution requesting a case be dismissed will not be enough to dismiss the case. However, if the alleged victim has information or evidence that provides new evidence or a new perspective that will make it clear that a crime did not take place, this can be a critical method to assist in dismissing a domestic violence charge in Texas.
- Evidence Fails To Support Allegations – did the alleged victim claim they were seriously injured but there are no visible injuries in the pictures or video? In fairness, Texas criminal law does not require proof of a visible injury to arrest someone for domestic assault in Texas. However, to prove the case beyond a reasonable doubt, the State of Texas will have a difficult time piecing together a case for trial if the claims of the alleged victim do not support the pictures and video that show no injuries.It is critical that your family violence attorney thoroughly review your photos and videos and compare them to the police reports and the claims by the alleged victim.
- 1st Time Offense – is this the first time you or a loved one have been accused of a domestic violence crime in Texas? If so, there may be pre-trial diversion programs that provide for a dismissal of the charges and eligibility for an expunction of your criminal record.
Your criminal attorney must be familiar with the diversion programs in Tarrant County, Dallas County or whichever county in Texas you are facing these criminal charges. When interviewing a criminal lawyer, it is important to discuss these options and make certain your prospective criminal defense lawyer is familiar with these strategies.
Aggravated Domestic Assault
This charge applies for acts of serious bodily injury to a victim or using or exhibiting a deadly weapon while carrying out an assault or the threat of an assault.
“Serious bodily injury” involves more damage than a “bodily injury.” In fact, Texas criminal law defines “serious bodily injury” as the permanent loss of use or protracted loss of use of a bodily member or organ. Examples include serious head injuries, loss of limbs, crippling injuries or disfigurement.
A deadly weapon includes any object that in its intended use can cause death to the victim. Examples include firearms, knives, and brass knuckles, but can also include items like baseball bats and rope depending on the circumstances.
A conviction will result in a second-degree felony charge.
Possible Defenses To Aggravated Domestic Assault
If you have been charged with Aggravated Assault with a Domestic Violence designation, you need to outline your criminal defense strategy to ensure you have the best opportunity to dismiss your criminal charges. An example of a defense to Aggravated Assault include:
No “Use” Of A Deadly Weapon – was your Aggravated Assault charge based upon a threat of the “use” of a Deadly Weapon? Many times, an Aggravated Domestic Violence Assault charge will be based upon a weapon being “used” without any evidence that the weapon was fired, swung or used in any aggressive manner. In other words, the mere presence of the weapon at the scene of a disagreement is many times elevated by the alleged victim into a claim of the weapon being “used” against them.
It is critical to understand that the State of Texas must prove beyond a reasonable doubt that the weapon was used in a manner that cause the alleged victim to be in fear of imminent serious bodily injury or death. A good criminal lawyer can use this situation to your advantage by presenting this evidence to a grand jury to possibly no-bill your criminal case and clear your name.
Continuous Violence Against a Family Member
The criminal charge of Continuous Violence Against a Family Member requires the State of Texas to prove that an individual committed two or more domestic assaults in the span of twelve months.
The charge of Continuous Violence Against a Family Member can apply whether the previous criminal allegations resulted in arrests or convictions, and it can apply for multiple victims. A conviction for Continuous Violence Against a Family Member is a third-degree felony.
Possible Defenses To Continuous Violence Against A Family Member
If you are facing a charge of Continuous Violence Against A Family member, it is imperative that your criminal defense attorney prepare a thorough criminal defense strategy that places you in the best position to beat your case. Here are a few examples:
- Failure to Prove Two or More Domestic Violence Assaults – Did the allege victim fail to provide any evidence regarding one or more of the alleged assaults? Are the police relying solely upon the word of the alleged victim and one of the alleged assaults was never previously reported to the police? If so, the State of Texas may not be able to prove the case beyond a reasonable doubt.It is critical to remember that the State of Texas must prove that a minimum of two assaults took place to substantiate this felony charge. If your criminal attorney can attack one or more of the assault charges, your case may be able to be dropped to a lesser charge or dismissal altogether.
- Affidavit of Non-Prosecution – similar to domestic violence charges listed above in this article, we must ask the questions: does the alleged victim want to prosecute? Did the alleged victim’s original statement paint an unfair picture? If so, an Affidavit of Non-Prosecution may be an effective tool to provide clear evidence that may lead to a dismissal.
Penalties for Domestic Violence Crimes in Texas
The penalties for convictions of any of these three crimes are harsh. Here is a breakdown.
Class A misdemeanor
Up to $4,000 in fines, up to one year in jail, or both
Third degree felony
Up to $10,000 in fines and a prison sentence of two to 10 years
Second degree felony
Up to $10,000 in fines and a prison sentence of two to 20 years
First degree felony
Up to $10,000 in fines and a prison sentence of five to 99 years
Restitution may be ordered in some cases. The restitution money will cover the victim’s medical expenses, counseling, or damaged property.
Some defendants may qualify for alternatives to incarceration. A guilty plea can result in deferred adjudication, which allows the defendant to serve a probation sentence while completing a treatment program, paying restitution, serving in the community, and committing no new crimes. This option is most likely to be available to first-time offenders of domestic assault with no aggravating factors.
What is the Prevalence of Domestic Violence in Texas?
As you can tell, there’s a lot to know about domestic violence charges in Texas. If you find yourself involved in a domestic violence conviction, it’s essential to understand that domestic disputes between partners and family members are not uncommon in Texas. According to the Texas Council on Family Violence, 1 in 3 Texans will experience domestic violence in their lifetime. Yet, even if things get out of control and you cause harm or threaten to cause damage to someone close to you, this type of mistake shouldn’t ruin your life.
There are several reasons why intimate relationships with partners and family members cause arguments. Financial troubles, stress, or simply being close to someone each day all impact how likely there will be a domestic dispute in a household. If you find yourself being convicted of domestic violence, you must immediately speak to a criminal defense lawyer. If you go to court without proper legal representation, you risk being convicted. Having a domestic abuse conviction can limit your housing and employment opportunities while establishing a permanent criminal record you’ll have to explain for the rest of your life.
Forms of Physical Domestic Abuse
Earlier, we stated that domestic violence is any form of abuse in a domestic setting. Texas includes domestic violence, family violence, and dating violence in the onset of laws referred to as Texas assault statutes. Therefore, domestic violence can consist of any of the following acts:
- Physical violence
Physical violence includes acts of physical contact, regardless of whether there’s bodily injury. Acts of physical violence include hitting, kicking, grabbing, pushing, and several other physical actions which can harm another individual.
- Threats of violence
Not all forms of domestic abuse result in acts of physical harm. Sometimes, simply threatening someone or using physical intimidation is enough to proceed with domestic assault charges in Texas. Using a weapon as intimidation or threatening to use a weapon also falls in this category.
- Making physical contact with another individual
Now, in most cases, there’s nothing wrong with physical contact between two people. Yet, it becomes an offense when someone physically contacts another person to provoke or offend them. This act must be done knowingly, or at the very minimum, requires that the individual should reasonably have known that the physical contact would be offensive or provocative to the other party.
Now, what was just explained are the different forms of assault in Texas. While these offenses have their punishments, the severity of the charges depends on the parties involved. When there’s a special relationship between family, household members, or partners, the offense becomes domestic assault.
Connection Between Domestic Violence and Family Violence
So, what should those being accused of domestic violence know about the penalties for abuse in Texas? Texas, like many other states, consider domestic assault to be a form of family violence. The legal system in Texas uses these two terms interchangeably. The charges and penalties for family violence depend on several factors, including how severe someone was harmed or intimidated and whether there’s a history of previous domestic assault.
Above, we spoke of some penalties for domestic violence in Texas. Those figures are generally the highest form of punishment that someone can experience. However, you can either get these charges dismissed or walk away with a lesser sentence with a good legal council and a solid defense. Here are some potential penalties that the Texas court has given to those found guilty of domestic assault:
- First, when a victim does not suffer lasting physical pain or harm, an offender can walk away with a Class C misdemeanor.
Although this might result in a $500 fine, that fact does not make it ideal. Winning your case and avoiding conviction is essential. Paying the fine alone is an admission of guilt. It has long-term consequences which can change anyone’s life forever.
While this misdemeanor class is less severe than the rest, and there’s no jail time, employers, landlords, and government agencies can perform background checks to uncover criminal history. And these parties are also able to perform adverse actions against those with recently discovered criminal offenses.
Now, in some instances, Class C misdemeanors enhance, which makes the penalties worse for offenders. Therefore, it’s essential to hire an exceptional domestic abuse attorney to build a defense for your case. And if there’s undeniable evidence, then an attorney can help complete the expungement process. Having your record expunged hides it from public view and reduces the likelihood that other parties like employers and landlords take adverse action.
- Second, if a domestic assault causes pain, leaves physical marks, or causes an injury, it becomes a Class A misdemeanor.
Class A misdemeanors are less severe than felonies but more severe than any other type of misdemeanor. Unlike Class C misdemeanors, Class A offenses carry jail time of up to a year and a fine of $4,000.
However, like Class C offenses, the severity of punishment can escalate in certain circumstances. For example, suppose controlled substances are provided or administered to a victim to initiate an act of assault. In that case, the defendant will receive a mandatory jail sentence of 180-days. Therefore, the circumstances of each case can impact the severity of charges that an individual gets.
- Finally, if the domestic assault results in strangulation or choking of a victim, then this act of violence might come with a third-degree felony charge.
Sometimes, repeat offenders with prior domestic violence convictions in Texas can also receive a charge as severe as a third-degree felony. But if the event escalates to strangulation the punishments are more significant. This is even the case for first-time offenders. Those who receive third-degree felonies should expect a sentence of 2 to 10 years in the Texas state prison.
Legal Assistance for Texas Domestic Violence Charges
The penalties for domestic violence crimes in Texas are significant. If convicted, you could face consequences for many years. It’s essential that you contact a skilled criminal defense attorney as soon as charges are filed against you. Call today for a free consultation.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.