Domestic violence, known as family violence in Texas, is a serious offense that can result in harsh consequences if convicted. Depending on the nature of the crime and whether you already have a domestic violence conviction, you could face either misdemeanor or felony charges.
It's important to understand what constitutes felony domestic or family violence in Texas and what you can do to defend yourself if you're facing domestic violence charges in Texas. Reach out to an experienced Fort Worth domestic violence attorney for help right away.
The criminal defense attorneys at Fulgham Law Firm in Fort Worth have extensive experience helping wrongfully charged citizens navigate the North Texas criminal court system. We have a track record of achieving favorable results for our clients using some of the techniques and methods discussed in this article, and we promise to fight hard to protect your rights and increase your chances of getting the most favorable outcome possible.
What is Domestic Violence in Texas?
In Texas, domestic violence encompasses various actions, all of which involve an act of harm or threat of harm against a family or household member. According to Texas law, family violence includes physical harm, bodily injury, assault, or sexual assault, or a threat that reasonably places the family member in fear of imminent harm.
Family violence is not limited to just physical actions; it also includes psychological harm, such as threats or acts of intimidation. The victims can be anyone related by blood, marriage, or adoption, those living together, individuals who have a child together, and even those who are in a current or past dating relationship.
Texas law identifies three primary types of family domestic violence offenses, each carrying different levels of severity based on the nature of the act, the relationship between the parties involved, and whether there is a history of violence:
Domestic Assault
Domestic assault is the most basic form of family violence in Texas. It occurs when an individual intentionally, knowingly, or recklessly causes bodily injury to another person, threatens another person with imminent bodily injury, or causes physical contact with another that the individual knows or should reasonably believe the other person will find provocative or offensive.
Aggravated Domestic Assault
Aggravated domestic assault is a more severe form of domestic assault and is always classified as a felony. This offense involves either causing serious bodily injury to a family or household member or using or exhibiting a deadly weapon during the commission of the assault.
Continuous Violence Against the Family
Continuous violence against the family is a unique and particularly severe offense under Texas law. This charge applies when an individual commits two or more acts of domestic assault within a 12-month period against a family or household member. Importantly, the incidents do not need to involve the same victim, and the state does not need to prove which specific acts occurred, only that multiple acts of violence took place.
When Does Domestic Assault Become a Felony in Texas?
For a first-time offense, domestic assault is considered a Class A misdemeanor. But if you have been previously convicted or placed on 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.
Other circumstances that can elevate a domestic violence case to a felony include:
Aggravated Domestic Assault
This 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.
In Texas, first-degree felonies are punishable by a life term or between five and 99 years and a maximum fine of $10,000.
Domestic Assault Impeding Breath
Otherwise known as Assault Bodily Injury – Family Member Impeding Breath, this occurs when 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 breathe 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 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 actually happened. Being offended or panicking in a way that leads to hyperventilating does not constitute domestic assault by choking. Your domestic violence assault lawyer must investigate this further so that you are not convicted for something that you did not do.
Continuous Violence
Continuous Violence is when someone is charged with committing two domestic assaults in a 12-month period 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 must prove two separate incidents where you intentionally or knowingly contacted the victim in a manner that 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 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 dismissed 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.
Possible Defenses To Domestic Violence Crimes
If you have been accused of a domestic violence assault, you need to consider the criminal defense options available to you under the law. It is critical that not only do you understand your legal options but that you work with a domestic violence assault attorney who 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 to 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 not 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 rely on 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 an intentional act? Of course. In fact, it is common for alleged victims to believe someone acted intentionally when they were angry and emotional. Later, after they calmed down, they reflected upon what happened and recognized that they were not being fair to the accused. They 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 for them to provide you with 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, this information must be 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 believe that non-prosecution affidavits 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 you 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 who were present? If not, this allows your criminal lawyer 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.
Other Possible Defense Options
Other possible defense options that may apply to your case include:
- Self-Defense: Your attorney may argue that you acted in self-defense or defense of others. If you reasonably believed that you or someone else was facing imminent harm, you may be justified in using force to protect yourself or others.
- Defense of Property: While not an absolute defense for assault, if your actions were in defense of your property, it may be a factor in your case. Texas law allows the use of force, but not deadly force, to protect property.
- False Accusations or Mistaken Identity: Your lawyer may assert that the allegations against you are false or exaggerated. It's not uncommon for misunderstandings or false accusations to occur in domestic situations, and your attorney can help present evidence to challenge the credibility of the accuser. If there is doubt about your identity as the person who committed the alleged assault, a mistaken identity defense may be applicable.
- Lack of Intent: If your attorney can demonstrate that your actions were unintentional or that you lacked the intent to cause harm, it may be a defense to assault charges.
- Evidence Issues: Your attorney may challenge the evidence presented by the prosecution. This could involve questioning the reliability of witness testimony, surveillance footage, or other evidence.
- Violation of Rights: If law enforcement violated your constitutional rights during the arrest or investigation, your attorney may seek to have evidence suppressed or the charges dismissed.
- Recantation by the Accuser: In some cases, the alleged victim may later recant or withdraw their accusations. While this doesn't automatically result in the dismissal of charges, it can impact the prosecution's case.
It's vital to work closely with your criminal defense lawyer to consider all defense options for your case. Your attorney can gather evidence to support your claim and identify the most appropriate defense strategy for your case.
Contact Fulgham Law Firm Today for Help with Your Domestic Violence Charges
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 with a free consultation to analyze your situation and see if we can be of assistance. Fulgham Hampton Criminal Defense Attorneys is a team of former prosecutors with over 80 years of criminal law experience, and we have handled hundreds of domestic violence assault cases. Contact us 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.
