Family Violence/Domestic Violence
Texas Family Violence Charges
What is Family Violence in Texas? / What is Domestic Violence in Texas?
Chapter 71 of the Texas Family Code defines family violence generally as an assault by a person upon a spouse, former spouse, girlfriend/boyfriend or member of the same family or household. Family violence and domestic violence are synonymous for purposes of Texas law.
No two family violence cases are the same. The dynamic that the love relationship brings to a criminal case should never be underestimated. People who are charged with domestic violence assault or family violence assault come from all walks of life. Many folks, never in a million years, thought they would need a criminal lawyer. In fact, in my experience, most, have never been in trouble before. Some people find themselves charged with a family violence charge because they momentarily lost their cool on a single occasion in a stressful situation. Some people have significant anger management problems that need to be addressed. Other people are falsely accused and are flat out not guilty. It is not at all uncommon for a spouse to make up these charges to "get back at" their spouse for what ever reason. It is also not uncommon for a spouse to use a false charge of domestic violence to gain the upper hand in a divorce case or child custody case.
In Texas, police officers are very quick to arrest a person for domestic assault or family violence. They often make the arrest with little, if any, substantive investigation. It takes little more than a mere accusation of spousal abuse to cause a domestic violence or family violence criminal case to be filed. Once the police are called to the scene of a possible family violence situation it is almost a guaranteed lock that somebody is going to jail. It is a rare occasion that the police do not arrest somebody when it appears to them that the spouses have been fighting. It is typical "CYA." The officers do not want to leave the scene of a suspected domestic violence assault with both spouses still at the scene for fear that one of the spouses will end up dead later on after they leave. I understand their motivation but not their actions. This is still America. What happened to the Presumption of Innocence and Proof Beyond a Reasonable Doubt?
Is Family Violence Assault / Domestic Violence Assault a Felony or a Misdemeanor?
Generally speaking, an allegation of family violence will not impact the criminal classification of the underlying assault or aggravated assault charge. That is, if the charge alleges bodily injury, the charge will be a misdemeanor. If the charge alleges serious bodily injury or alleges the use of a deadly weapon, the charge will be a felony (see Assault / Aggravated Assault page). However, if the defendant has a prior conviction for a family violence charge, an assault which would normally be a misdemeanor will be enhanced to a felony charge.
In addition, an allegation of assault by causing bodily injury to a family member where the manner and means of the bodily injury is by "choking" the complainant, the assault charge will be a felony assault charge.
Can my spouse "Drop the Charges?"
No. The decision as to whether family violence charges will be dropped lies solely with the prosecutor. Today, the state will prosecute family violence or domestic assault cases with or without the cooperation of the alleged victim. Many jurisdictions, including Harris County, have a special section of aggressive prosecutors who prosecute people charged with domestic assault or family violence. These prosecutors often try to force a reluctant spouse to testify for the prosecution.
Not too long ago, spouses could drop family violence assault charges if they changed their mind. A reluctant spouse could refuse to testify in court in family violence cases. If the prosecutor was left with insufficient evidence, he or she would be forced to dismiss the case. Texas law has changed. The General Rule is now that a prosecutor can compel a reluctant spouse to testify in court in a family violence or domestic violence assault case. However, there are exceptions to the general rule. There are some circumstances where the spouse can not be forced to testify. A solid criminal lawyer will have a good understanding of this complicated area of the law. In any event, a prosecutor can never force a reluctant spouse or any witness to talk to them outside of court. To compel a reluctant spouse to give them information, the prosecutor must subpoena the witness to court and ask them questions in an official proceeding.
Violation of Protective Order
In Harris County and the surrounding counties it is common practice for the prosecutor to ask courts to put protective orders in place when family violence or domestic violence assault charges have been filed. An allegation that a person violated a protective order is serious business. That is because if true, it is a violation of bond on the original underlying family violence assault charge and a separate distinct crime in and of itself. Protective orders require the defendant to not commit an act of family violence, not threaten the protected person, not go near the home of the protected person (that is often the home of the defendant as well), not go near the protected person's place of work and not possess a firearm. Once in place, the protected person cannot decide to not enforce the protective order. Only a court can modify or remove a protective order. Do not fall into this trap, "Honey, come on home. I am sorry. I should never have called the police." If you go home, you may go to jail as well.
I'm R. Todd Bennett, a Houston board certified criminal defense lawyer. If you have been charged with domestic violence assault or family violence assault, you should contact a good criminal lawyer as soon as possible. I represent people throughout the Houston area who face this very serious accusation.
Consequences of a family violence arrest in Texas
You may be subject to a no-contact or restraining order that bars you from going home or even speaking to your spouse.
For a first offense, class A misdemeanor, the punishment range goes up to one year in county jail.
For a second offense, you will be charged with a felony, punishable by up to a term of years in Texas state prison.
If you are convicted, you will have a lifelong criminal record that will make it more difficult for you to get a job. Additionally, it will be more difficult to own a firearm.
Given the consequences of a domestic assault or family violence arrest, you should think long and hard before you give up without a fight. Contact me, Houston criminal defense lawyer R. Todd Bennett, for a initial consultation about your case.