UPDATED 8/18/2021, Original Post: June 20, 2019
Facing a Domestic Violence charge in Texas is a scary and intimidating situation. What do you do? How do you fight back? We are going to examine some specific strategies and defenses that can be used to protect you from the State of Texas and provide you the best opportunity to obtain a favorable result.
Despite the toughest round of Texas Domestic Violence reform yet in the Texas Legislature, the criminal courts understand the nature of these cases is usually complex. Judges maintain wide discretion when evaluating domestic violence charges, and often consider the impact their decisions can have upon the entire family unit.
An experienced Fort Worth domestic violence defense attorney can review your case, provide a clear understanding of your options, and develop a sound defense against the charges you face. In today’s post, we’re going to share some of the most common approaches we take when helping our clients fight back.
When examining Domestic Violence charges, we are usually speaking about Domestic Violence Assault or a Violation of a Protective Order.
Domestic Violence assault can include the following crimes:
Assault By Contact – Family Member
- The State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly contacted the alleged victim in a manner that was “offensive.”
- Assault By Contact – Family Member is a Class C Misdemeanor punishable by fine only of up to $500. However, the State of Texas now requires each person charged with Assault By Contact – Family Member to be fingerprinted and entered into the State’s database for domestic violence offenders. As a result, it is critical that your case be dismissed so that you can have the records expunged from your criminal record
Assault Bodily Injury – Family Member
- The State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly contacted the alleged victim in a manner that caused “pain.” Technically, proof of injury is not required in order to prove this charge but failure to provide proof of an injury makes the State’s case much more difficult to prove and may provide more leverage for your criminal defense attorney in negotiations.
- Assault Bodily Injury – Family Member is a Class A Misdemeanor punishable by up to 1 year in the county jail and up to a $4,000 fine.
Assault Impeding Breath – Family Member
- The State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly contacted the alleged victim in a manner that impeded the circulation of breath. Many people refer to this crime as Assault-choking. It is important to remember that if the State of Texas cannot prove that the alleged victim was unable to breathe as a result of the contact, this charge will not be supported in court.
- Assault Impeding Breath is a 3rd degree felony punishable by up to 10 years in prison and up to a $10,000 fine.
Continuous Family Violence
- The State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly assaulted the alleged victim 2 or more times in a 12 month period. Failure to prove both assault allegations will result in the charge being dropped to the lesser charge of Class A Misdemeanor Assault Bodily Injury – Family Member.
- Continuous Family Violence is a 3rd degree felony punishable by up to 10 years in prison and up to a $10,000 fine.
Aggravated Assault – Family Member
- The State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly contacted the alleged victim in such a manner that caused serious bodily injury or a deadly weapon was used in the commission of the crime.
- Aggravated assault – Family member is a 2nd degree felony punishable by up to 20 years in prison and up to a $10,000 fine.
I Didn’t Commit Domestic Violence
This is a common phrase we hear from clients regarding their domestic violence cases. Although we completely believe our clients, it is important to remember the two scenarios in which telling the court “I didn’t do it” can be a valid defense: either the victim has made a mistake, or someone’s deliberately making false accusations.
Defense of Mistake
Generally, a victim of domestic violence is fully aware of who has committed the crime against them. However, there are some situations where a victim has made a mistake.
When the accuser is very young, for instance, there may be some confusion about who was present and/or who actually committed the act against them. Another scenario that sometimes presents itself is when there is an element which can conceal the identity of the offender (such as darkness).
Perhaps the most common example of the defense of mistake is the situation where the family member victim was extremely upset, not thinking clearly and gave information to the police officer that may not fairly represent what took place. It is human nature for us to perceive things in an exaggerated manner when we are upset and controlled by our emotions. After all, how many of us have said things in our life that someone misunderstood us? How many of us have said things in anger or fear or sadness that we later regretted and wanted to take back? All of us!! Although the alleged victim was not intentionally giving unclear information, the mistaken information can be relied upon by the State of Texas to seek a conviction for a domestic violence charge.
What can be done if your case is based upon mistaken evidence? If the alleged victim family member is willing to come forward and reveal that he or she was not thinking clearly at the time and want to clarify what took place now that they are calm and thinking clearly, they can provide this information through an affidavit of non-prosecution.
An Affidavit of Non-Prosecution is a form that allows the alleged victim in a case to provide evidence to the State of Texas. It is a valid piece of evidence and is just as usable in court as a police report or video. If the alleged victim is eager to provide this information, they should contact your criminal defense attorney to prepare the affidavit so that it can be used in your defense.
If your domestic violence case is a felony, the affidavit could be presented as a packet of evidence to the grand jury. The grand jury can review this new evidence and weigh it against the other evidence and possibly lower your charge to a lesser misdemeanor domestic violence charge or conclude that there is insufficient evidence to substantiate the charges and No Bill your case. A No Bill is the equivalent of your domestic violence case being dismissed. This would allow you the ability to have your case expunged from your record after the expiration of the statute of limitations.
My Ex Is Lying
Unfortunately, ill will can play a role in accusations, too. Sometimes – especially in divorce cases – former partners can make false allegations in hopes of controlling the outcome of a heated custody battle. Often your defense team must scour an accuser’s story against police reports and eyewitness testimony for inconsistencies to ward off a wrongful conviction.
It is critical to identify the time, place and facts of the allegations against you and investigate text messages, emails and other communications from the alleged victim to provide context to show that the story of the alleged victim does not make sense. Additionally, collecting witness statements from witnesses that were with the alleged victim at or near the time of the alleged assault showing facts that are not consistent with the alleged victim’s claims will provide further proof the alleged victim is lying. This information can be used to create reasonable doubt regarding the credibility of the alleged victim.
I Have An Alibi
Perhaps you can provide hard evidence of an alibi. What do we mean by hard evidence? Pictures, text messages or digital proof of location are examples. Additionally, you may have credible testimony proving you couldn’t have committed the crime because you were with these witnesses. This evidence would provide proof that the alleged victim is lying about the incident and your case may be able to be dismissed or you could be found not guilty at a jury trial.
I Committed Domestic Violence, But Didn’t Mean To
Research shows that domestic violence is often a learned behavior. Perhaps you were abused. Or maybe you grew up in a household where one parent abused the other.
Moreover, domestic violence is frequently a response of passion. In other words, your spouse was standing too close, you couldn’t control your emotions – and then you accidentally exploded.
Although these should never be excuses for violence against a loved one, we should not ignore the role they play. Circumstances like these only demonstrate the complexity of domestic abuse. In other words, even if the facts of the case present a difficult situation to defend, a mitigation packet can be presented to the District Attorney’s Office indicating the background and circumstances that led up to the incident.
If you’re being charged with domestic violence for the very first time, explaining yourself may allow room for correcting your learned behaviors. You may be able to participate in a rehabilitation program, and ultimately have your charges reduced.
My Domestic Violence Was an Act of Self-Defense
On the other hand, when you purposefully committed an act of violence against a family or other household member, but had good reason, you may be able to have the charges completely dismissed.
Self-Defense is known as an affirmative defense under Texas law. This defense requires you to admit that the domestic violence assault took place but that it was justified under the law. In other words, you only assaulted your family member or roommate in response to being placed in fear of imminent serious bodily injury or death. You always have the right to protect and defend yourself if the facts are justified under the law.
In order to use this defense of self-defense, a defendant must prove three things:
- As the accused, you did not make the first move.
- You reasonably perceived an imminent threat against yourself or another family member (i.e. your children).
- You acted purely in response, and responded proportionally to the initial aggression.
There’s No Proof I Committed Domestic Violence
In the unfortunate event you have been falsely accused, the fact remains that there must be proof that a crime has been committed in order to be charged and convicted.
According to Texas law, the burden of proof lies with the accuser and the State of Texas. Prosecutors must prove beyond a reasonable doubt that an act of violence has, in fact, occurred against a family member. They must prove every element of the domestic violence charge – an overt act, criminal intent and injury.
What constitutes evidence admissible in court? Evidence may include photos, police and/or medical records, and witness testimony. When evidence is strictly circumstantial, the intent to abuse must also be established.
When there is no proof of injury, and no intent, there can be no felony domestic violence conviction.
Charges of domestic violence can result in the kind of felony conviction with the potential to affect every aspect of your life, including whether you lose your job, your home, and your kids.
Additionally, a conviction or deferred adjudication probation for a domestic violence charge carries with it a prohibition from being able to own, possess or transport firearms of any kind. If you own, possess or transport a firearm after being convicted of a domestic violence crime, you can be charged with the crime of Unlawful Possession of A Firearm, a 3rd degree felony punishable by a prison sentence of up to 10 years and a $10,000 fine.
With so much on the line, it is imperative you seek experienced legal counsel who will effectively work to have your charges reduced or altogether dismissed. If you hire an experienced criminal defense lawyer, they can work to resolve your case so that you are eligible to have the arrest and records permanently expunged from your criminal record. Get your life back! Call The Fulgham Law Firm for a free case analysis and consultation to discuss your options and what we can do to protect you.
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.