UPDATED 7/1/2021, Original Post: April 13, 2018 Domestic Violence
There are three types of domestic violence that are recognized under Texas law. In this post we will explain each law and the associated penalties, and let you know what to do next if you are facing 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 act 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.
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.