Domestic Violence Defense

While Domestic Violence occurs in Texas, that is not how Texas law enforcement and the criminal justice system labels such crimes.  Rather, Texas relies upon its Assault, Aggravated Assault, and related statutes, coupled with a definition in the Family Code, to define such crimes.  What differentiates these types of cases from a simple assault case is the nature of the relationship between the individuals. Additionally, depending upon the severity of the injury, charges range from Class A Misdemeanors all the way up to First Degree Felonies.  While it is possible to have a simple Assault – Family Violence charge, they are not that frequent as the definition of “bodily injury” is quite broad.

In Texas, if the “victim” is related to you as a spouse, sibling, parent, child, former spouse, or you are or were in an ongoing romantic relationship (this means your exes are covered in Texas), you are in the family violence realm. What makes the “family violence” designation a bit different in Texas is that it also includes those folks living together in the same dwelling, regardless of blood relation, or dating relationship. So, that friend that you are sharing an apartment with, or the individual that answered the Craigs List add to rent a room in your two-room condo, they fall within the domestic violence definition.

In Texas, An Assault Is Defined As:

1. They intentionally, knowingly, or recklessly cause bodily injury to another;
2. They intentionally, or knowingly threaten another with imminent bodily injury;
3. Intentionally or knowingly cause physical contact with another when the person knows, or should reasonably believe that the other will regard the contact as offensive or provocative.

Most domestic violence cases in Texas focus on an action that falls with the first definition set forth above, and a lot of the cases that go to trial end up focusing on the reckless part of that definition – throwing a glass at someone, grabbing a necklace off of their neck, or grabbing a phone out of their hand. The key is did the physical act result in a “bodily injury” occur. While this seems pretty straightforward, it is not.

Most folks consider “bodily injury” to be an injury that resulted in a broken bone, a sprain, stitches, or possibly a broken nose. Unfortunately, Texas Courts expanded the definition to such an extent, that “bodily injury” is nowhere near that severe.  If you cause “pain” when you hit/strike/touch the person, you caused “bodily injury.”

This means that the slap that stings, but doesn’t leave a red mark, if it is against a family member, or roommate, it is a Class A Misdemeanor. That red mark you left and went away in 10 seconds because you squeezed the arm too tightly, is a “bodily injury” and if against family, as widely as that is defined, is a Class A Misdemeanor.

If you have a prior conviction for Assault Causing Bodily Injury, Family Violence, a second charge is treated as a Third Degree Felony – even if it is a different victim. This means you are now looking at 2-10 years in prison, as opposed to 0-365 days in jail as a Class A misdemeanor.  To say nothing of the fines.

If you impede someone’s breath or circulation, and it is someone that falls within the family or household definition, a first offense results in a Third Degree Felony charge.  If you put your arm across their neck to restrain them and they say you are choking me, it is now a Third Degree felony, just like if you sit on their chest or cover their mouth and they say they cannot breath.

With that said, if you were previously convicted of a Class A Misdemeanor Assault Causing Bodily Injury, Family Violence, and you then restrict the breathing or circulation of a family member, it is now a Second Degree Felony, which means the penalty goes from 2-10 to 2-20 years in prison.

Similarly, if you commit an assault that causes “serious bodily injury”, this is where broken bones, internal injuries, an injury that creates a substantial risk of death, or serious permanent disfigurement, and that person is a family or household member, you are looking at a Second Degree Felony.  While one would hope common sense would prevail if the injury was a broken finger – alas, that is a broken bone and you are looking at 2-20 years in prison.

However, if you cause serious bodily injury to a family or household member and used a deadly weapon, you are now looking at a First Degree Felony. This means that the punishment went from 2-20 years to 5-99 years. Now, you may be thinking, hey, I just hit them with a two-by-four, or my closed fist, not a knife or police baton, so no “weapon” was involved – think again. Yes, a knife, firearm, or “anything manifestly designed, made or adapted for the purposes of inflicting death or serious bodily injury” is a deadly weapon. Additionally, anything that “in the manner of its use or intended use” that is capable of causing death or serious bodily injury, is also a deadly weapon. Think of your car or truck, your closed fists, or that bottle of wine used as a club, or even the corkscrew for that bottle of wine  – all of those are deadly weapons.

While the criminal penalties for such crimes are severe, it is the so called collateral consequences, those hidden side effects, that really add punch to the punitive nature of domestic violence cases.

In addition to the normal things that occur with a criminal conviction, you have to now check the box when an application asks if you were ever convicted of a crime, domestic violence cases carry some other consequences that other crimes do not possess. In fact, these consequences apply to Misdemeanor domestic violence convictions, not just felony convictions. As such, don’t take the attitude that hey, it’s just a misdemeanor, it’s not big deal. If family violence is alleged, it is a very big deal.

The Three Biggest Collateral Consequences In Texas Related To Domestic/Family Violence Involve:

1. Possession of weapons
2. Child custody presumptions
3. The potential for spousal support.

Generally speaking a misdemeanor assault conviction would not infringe upon your right to possess a firearm on a long-term basis. While it may make it harder to buy one in the short term, it would not necessarily impede your ability to posses one. That all changes if the misdemeanor conviction involves domestic violence. Federal law prohibits anyone convicted of a domestic violence crime from possessing a firearm or ammunition. This means no hunting rifle, no home defense shotgun, no firearm period. Possession of a firearm under these circumstances means that you could face a federal felony – something that no one wants to deal with – along with other state crimes – such as unlawful possession of a firearm.

The second and third consequences – child custody and spousal support – are presumptions that come into play during family law cases. Often times allegations of domestic violence are made to the police department soon after, or right before, a divorce petition is filed. Sometimes you end up with dueling allegations of domestic violence made to law enforcement by folks going through a divorce or a very bad breakup.

Such Allegations Lead To Two Presumptions Being Made In The Family Law Case:

1. The person accused of the domestic violence crime is no longer considered a viable custodial parent; and
2. The victim may be entitled to spousal support because of the domestic violence inflicted upon them.

Lastly, allegations of domestic violence can lead to the issuance of an ex-parte protective order, meaning you cannot go by your own house until after a hearing or the order expires, to not being able to communicate with the other person. While the protective order provisions are civil in nature, it is important to understand how such an order can impact you in your defense against these charges.  For instance, let’s say you are out on bond and an ex-parte order was entered and the complaining witness bonds you out of jail and brings you home, only for nosey neighbor to see you come back.  Nosey calls the police claiming they hear arguing, and lo and behold, back to jail you go with a new charge – violation of protective order/bond condition – even though they bonded you out and drove you home.

Because a Domestic Violence/Family Violence charge carries such significant penalties from a pure criminal law standpoint, coupled with the significant collateral consequences, you need someone that understands these issues, and can help guide you around these issues should you face such a charge.  Don’t wait to contact us after being accused of such a crime because valuable evidence can easily be destroyed, or compromised, that could make proving your innocence harder.