In the past, it was not uncommon for many domestic violence charges in Texas to be – and often were – dropped altogether. That changed with the latest round of Texas criminal justice reforms, which automatically charge repeat domestic violence offenders with a felony, making it more important than ever to fight back.
Today’s post provides the basics about domestic violence, what penalties convictions carry, and how the criminal courts currently view these cases.
If you are facing domestic violence charges in Texas and need help negotiating reduced charges and getting back on the right track, an experienced Texas family violence attorney can help. The Fulgham Law Firm is in Fort Worth, Texas and we have extensive experience helping wrongfully charged citizens navigate the North Texas criminal court system and have a track record of achieving favorable results for our clients using some of the techniques and methods discussed in this article.
Domestic Violence Defined and Punishment
Texas recognizes four different crimes of domestic violence: domestic assault, aggravated domestic assault, domestic assault impeding breath and continuous violence against the family. These charges may be brought when an act of violence is committed against a family or household member, or someone the alleged offender is dating or has dated.
Domestic Violence Assault is committed when a person intentionally, knowingly, or recklessly comes into physical contact with a family or household member which a) causes bodily injury, or b) the offender knows or should reasonably know the victim would find provocative or offensive.
Specifically, if the State of Texas alleges that you intentionally or knowingly contacted the alleged victim, the alleged victim was a family/household member or in a current or prior dating relationship, and it caused them pain, you could face the crime of Assault Bodily Injury – Family Member. Under Texas criminal law, Assault Bodily Injury – Family Member is a Class A misdemeanor, punishable by up to 1 year in a Texas county jail and up to a $4,000 fine.
If the State of Texas alleges that you intentionally or knowingly contacted the alleged victim and it cause them to be “offended,” you could be charged with the crime of a Class C Assault by Contact. Once again, for there to be a domestic violence allegation attached to the charged, the State of Texas must be able to prove that the alleged victim is a family or household member or in a current or prior dating relationship with you. Failure to prove this element would require the judge to make an affirmative finding of no family violence on the court’s record.
Under certain circumstances, even the threat of imminent bodily injury can incite domestic assault charges. For example: what if you are in a dating relationship with someone and it is alleged that you exchanged words with her in a manner that made her fear imminently serious bodily injury or death? If you are in a current or prior dating relationship with her, the State of Texas may attempt to charge you with terroristic threat of a family member, a domestic violence crime, punishable by up to 1 year in county jail and up to a $4,000 fine.
For a first-time offense, domestic assault is considered a Class A misdemeanor. What if this is not the first offense? If you have been previously convicted or placed on a probation or deferred adjudication for domestic violence assault, you will be charged with the crime of Assault Bodily Injury – Family Member with prior. This domestic violence crime is a third-degree felony, punishable by a sentence of a minimum of 2 years up to 10 years in prison and up to a $10,000 fine.
Aggravated Domestic Assault is where someone intentionally or knowingly takes an action that results in serious bodily injury or where the offender used a weapon while committing the assault in a manner that caused the alleged victim to be in fear of serious bodily injury or death. It is a felony in the first degree. Alternatively, you could be charged with Aggravated Domestic Assault by Threat. If you used a Deadly Weapon in a manner that the alleged victim believed placed them in fear of serious bodily injury or death and that belief by the victim was reasonable considering the circumstances, you could be facing an Aggravated Assault by Threat charge.
First-degree felonies are punishable in Texas by a life-term or between five and 99 years, and a maximum fine of $10,000.
Domestic Assault Impeding Breath, or otherwise known as Assault Bodily Injury – Family Member Impeding Breath, is where someone intentionally or knowingly contacts another and in the course of the conduct they impede their breath. Many people refer to this crime as Assault – Choking. Assault by Choking is a 3rd degree felony punishable by a minimum of 2 years in prison up to 10 years in prison and a fine of up to $10,000. The State of Texas must prove beyond a reasonable doubt that the alleged victim was unable to breath because of the accused conduct. Merely fearing being choked or offended that someone had their hand by their neck does not suffice to prove domestic assault by choking.
We have seen many instances where a husband and wife or girlfriend and boyfriend get into a disagreement that becomes violent and one party pins the other against the wall near the chest or neck area. This can make the alleged victim become extremely offended and jump to conclusions believing that their significant other was trying to choke them. In the heat of the moment, you are being controlled by your emotions and you may not perceive the events as they really happened. Being offended or panicking in a way that leads to hyperventilating does not constitute domestic assault by choking. It is important that your aggressive and experienced domestic violence assault lawyer investigate this further so that you are not convicted for something that you did not do.
Continuous Violence will be the charge if a Texan is charged with committing two domestic assaults in 12 months against someone with whom they are in a domestic relationship. To be clear, the prosecutor must prove beyond a reasonable doubt that two separate assaults took place. They most prove two separate incidents where you intentionally or knowingly contacted the victim in a manner than caused bodily injury (physical pain).
What if the prosecutor has evidence for one alleged domestic violence assault but not the second allegation? The prosecutor must be able to prove BOTH assaults beyond a reasonable doubt for the charge to be a continuous violence against the family charge. Failure to prove both alleged domestic violence assaults will require the case to be dropped to a lower-level misdemeanor charge or dismissal altogether.
This charge can come without either previous assault leading to arrest or conviction, and the two assaults can be committed against different victims. This crime is a third-degree felony and is punishable by a prison sentence of up to ten years and a fine of up to $10,000.
While reforms to Texas domestic violence laws have resulted in greater charges, judges understand the complex nature of family violence, and currently consider the impact on the entire family unit when deciding a case.
As University of Texas School of Social Work Professor Noel Bridget Busch-Armedariz explains, “these are complicated cases, and the truth is many victims and offenders will continue to be connected because of shared children.”
Fortunately, cases are still tried by real people, weighing all circumstances involved. Because the fact remains that often the accused is the primary provider and source of economic stability in the home.
The associate dean for research adds: “It’s not so simple to say, ‘We are going to prosecute them all and put them in jail,’ because these are not just emotional connections, but financial ones.”
Supporting this notion, the Austin American-Statesman analyzed 900+ felony domestic violence cases and found about half the defendants had priors, and 65 percent of the time, felony charges were dropped or reduced. For those facing domestic violence charges right now, this means there is still time to work through the reforms within reason.
Possible Defenses To Domestic Violence Crimes
If you have been accused of a domestic violence assault, you need to become educated on the criminal defense available to you under the law. It is critical that not only you understand your legal options, but that you work with a domestic violence assault attorney that has the training and experience necessary to put these defenses to work for you to protect your freedom and good name.
As we examine these criminal defenses to domestic violence assault, it is important to understand that if your domestic assault is a felony charge, your criminal defense attorney must work quickly to prepare a defense to be presented a grand jury. A persuasive evidence packet to a grand jury could provide you the opportunity to have your domestic violence assault case lowered to a lesser misdemeanor charge or no billed by the grand jury (the equivalent of a dismissal).
No Bodily Injury
If the State of Texas has alleged that you committed the crime of domestic violence assault, they will be required to prove that you contacted the alleged victim in a manner that caused them physical pain. How is this proven? Are there any pictures or medical records? If not, the State of Texas will be relying upon the alleged victim’s word. Although the prosecution is not required to provide photos or medical records, the case becomes very weak for the state if they do not have some objective evidence showing an injury occurred.
No Criminal Intent
If you have been accused of domestic violence assault, the prosecutor will be required to show that you acted intentionally or knowingly. Is it possible that the injury was caused by an accident, rather than by an intentional act? Of course. In fact, it is common for alleged victims to believe someone acted intentionally when they are angry and emotional. Later, after they have calmed down, they reflect upon what happened and they recognize they were not being fair to the accused and want to make it clear they do not believe this was an intentional act. This is known as exculpatory evidence and this information must be conveyed to your criminal defense attorney to provide you the best opportunity to have your domestic violence assault case dismissed.
Affidavit of Non-Prosecution
If your criminal defense attorney determines these criminal defenses are available to you through the statements of the alleged victim, it is critical that this information is gathered using an affidavit of non-prosecution. Most criminal district attorneys have a zero tolerance no drop policy when it comes to domestic violence assault cases. As a result, many people have the misconception that affidavits of non-prosecution are useless when it comes to your criminal defense. This is not the case when the alleged victim has information that shows a crime may not have occurred. Remember, the prosecutor always has the burden to prove the elements of domestic violence assault. If the alleged victim can provide evidence through an affidavit, your criminal attorney may be able to use this to establish reasonable doubt, which provides your more leverage to negotiate a favorable result on your case.
Credibility of Witnesses
Does the statement of the alleged victim make sense? Is the statement consistent with what you find in the police report, digital media evidence and/or the statements of other witnesses that were present? If not, this provides your criminal lawyer the opportunity to establish that the alleged victim’s statement cannot be trusted as being reliable. Did the alleged victim have a motive or reason to lie? Is there a child custody battle or divorce going on? Is the alleged victim seeking immigration status based upon being a victim? These are all critical issues to examine when defending your domestic violence assault case.
If you are facing a domestic violence assault case in Fort Worth, Texas or one of the surrounding cities in Tarrant County or North Texas, we would be happy to provide you a free consultation to analyze your situation and see if we can be of assistance. The Fulgham Law Firm is a team of former prosecutors with over 80 years of criminal law experience and have handled hundreds of domestic violence assault cases. Call now 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.