Assault/Family Violence Frequently Asked Questions (FAQ) Criminal Charges
1. What constitutes Assault Causing Bodily Injury – Family Violence?
Texas refers to domestic violence cases as Assault – Family Violence, or Assault Causing Bodily Injury – Family Violence, or Assault Causing Serious Bodily Injury – Family Violence. There are similar versions related to Terrorist Threatening crimes as well. Family violence means that it the offense targeted someone that you are related to by blood or marriage, are in a dating relationship with, or were in a dating relationship, or share a dwelling – for instance folks residing with each other at a half-way house or renting a room to someone.
2. What should I do if I am falsely accused of domestic violence?
Remain calm, avoid contact with the accuser, document any evidence or witnesses supporting your innocence, and contact an experienced defense attorney immediately. You may not be able to avoid being arrested, as a growing number of jurisdictions have an unstated policy that when called to a domestic incident, someone is going to jail. Should you be arrested for a domestic violence crime, do NOT contact the complaining witness, especially if you are in jail as calls from the jail are recorded and will be used against you. Further, such a call could result in additional charges.
3. What are the potential penalties for a domestic violence conviction?
Penalties can include fines, jail or prison time, probation, mandatory counseling, restraining orders, and loss of child custody or visitation rights. Additionally, if you are convicted of a family violence crime of any sort, under current federal law, you lose the right to possess any type of firearm or explosive. This holds true to folks that agree to go on deferred adjudication community supervision, where the case is eventually dismissed because federal law will look past the dismissal and at your plea.
4. Can domestic violence charges be dropped if the victim recants their statement?
The decision to drop charges is up to the prosecutor, not the complaining witness. Even if the complaining witness signs an affidavit of non-prosecution, or even recants, the prosecutor can proceed with prosecution.
5. What is a protective order and how does it affect me?
A protective order is a court order that restricts you from contacting or approaching the victim. Violating the order can lead to additional criminal charges. In Texas it is fairly common for an Emergency Protective Order to be issued where there is an allegation of bodily injury, and that Emergency Protective Order can be extended after the initial time period expires. What makes matters even more complicated, a complaining witness can file for a protective order in whatever county they are residing, even if the alleged criminal offense, and the alleged offender, live several hours and counties away.
6. Can I still see my children if I am charged with domestic violence?
A domestic violence charge can impact child custody and visitation rights. The criminal court will balance keeping the community safe, the best interests of the child, and your rights as a parent when deciding what limits to place on being around the child while the case is pending. If you are convicted, under Texas law you would lose any right to being the primary custodial parent should the other spouse seek a modification of custody. If a minor child was not the victim in an assault, and it did not result in any type of serious bodily injury, it would be the family court that would decide any limits on visitation and custody after a conviction.
7. What are my rights if I am arrested for family violence?
You have the same rights when facing family violence charges that you have for any other criminal offense. The most important right is that to remain silent, and the right to an attorney. You do NOT have to answer anyone’s questions at the scene, just be polite about it. When the officer says, hey tell me your side, simply say that you want to consult with an attorney before answering any questions. While the officer will continually try to get you to answer questions, don’t rise to the bait. Police do NOT have to tell the truth when questioning a suspect, but they expect you to be truthful. Just politely repeat your desire to talk with an attorney before answering any questions. While you may get arrested, it does preserve any type of defenses you may have as the police, and more importantly the prosecutor, don’t know what your side and cannot prepare to discredit it.
8. What should I do if a protective order is issued against me?
In Texas you can seek to modify an emergency protective order, and have a right to a hearing on the merits relating to a request for the extension of a protective order. While some retained defense attorneys will NOT include representing you at a protective order hearing, others will. It is important to find out what is, and is not, included when you hire someone. Additionally, it is very important that you follow the terms of the protective order strictly. If the protective order says no contact of any type with the protected person, and their family, then do NOT contact them or their family. If it says not harassing or threatening contact, the do NOT contact them repeatedly, as that could be harassing. Most of all, do NOT visit with them about what happened.
9. How can I defend against family violence charges?
Defense strategies to family violence charges cover a wide range of possibilities. Some options include demonstrating a lack of evidence, self-defense, a possible mental health episode, or other options depending upon the nature of the allegation. It is important to consult with experienced attorney can help develop the best defense for your situation.
10. What happens during a family violence investigation?
The investigation may include interviews with the complaining witness (the alleged victim), other witnesses to the incident, and the accused, as well as the collection of physical evidence, such as photos. Law enforcement may also review medical records and previous incidents. If you are the one being accused, do NOT volunteer anything in terms of evidence, unless you happen to have a video of the incident and it shows you NOT doing anything. Too often folks faced with an allegation will say, yea we were arguing, and I pushed them. In Texas, a push in an assault. Throwing something at them that hits them is also an assault. So again, you have the right to remain silent, so please use it.
11. Can a family violence conviction be expunged from my record?
Expunging a family violence charge in Texas is quite tricky. The Texas legislature has made no-disclosing an expunging such cases very tricky, and absent the successful completion of Veterans Treatment Court where you are on the dismissal track, or an acquittal, do not be surprised if you are unable to expunge or non-disclose such a charge. completing all court requirements and a waiting period.
12. How does a family violence charge affect my employment?
A conviction can lead to job loss or difficulty finding employment, especially in fields requiring background checks or involving vulnerable populations.
13. Will I have to attend counseling or anger management classes?
Court-mandated counseling or anger management classes are common conditions of probation or sentencing in domestic violence cases.
14. Can a victim refuse to testify in a family violence case?
While a victim can refuse to testify, they may be compelled to do so through a subpoena. The prosecution can also use other evidence to proceed with the case. No matter what, if you are the accused, you CANNOT suggest that the alleged victim refuse to testify or go on a trip. If you do, you could face additional charges, and open the door to allow the prosecutor to introduce the video of the alleged victim even though they are not present.
Conclusion
Facing family violence charges is a serious matter with significant legal and personal consequences. Understanding your rights, the legal process, and seeking experienced legal counsel is crucial for navigating these challenges effectively.