Take assault and family violence arrests in Texas seriously. Many Texans don’t realize that calling the police in the heat of a domestic dispute will probably result in someone being arrested. Responding officers frequently conduct sloppy investigations, jump to conclusions, and arrest innocent people for Assault / Family Violence. Sometimes even the person who called 9-1-1 in the first place is arrested.
Here are some frequently asked questions about the consequences of being arrested for assault family violence.
Where will I go to court for a family violence case?
Depends on the kind of case but will be a court in the community where you are arrested.
What if the alleged victim wasn’t actually injured?
The law does not require the alleged victim to sustain an actual injury in an assault case. A mere verbal threat or “offensive” physical contact that does not cause pain can qualify as class C assault by contact under Texas law. This lesser assault is the equivalent of a traffic ticket except that it can be charged and prosecuted as a third degree felony if you have a previous conviction for family violence.
With speeding tickets and most other class C misdemeanors, many people choose to simply plead “no contest” and pay the fine to avoid the hassle of going to court and the expense of hiring a lawyer. But you should think twice about accepting any level of family violence conviction or plea deal without a fight because it can result in collateral consequences that are severely disproportionate to the severity of the offense.
It’s also important to understand that physical contact that merely causes pain and doesn’t leave a mark qualifies as “bodily injury” under Texas law. Assault with bodily injury is a Class A misdemeanor, punishable by up to one year in the county jail and/or a fine of up to $4,000 (note that a jail sentence may also be probated, depending on various factors, in which case a defendant might not actually spend any time in jail).
What are “conditions of bond” in family violence assault cases?
Broadly speaking, conditions of bond are things that a defendant must agree to do (or not do) to be released from custody while his or her case is pending. For example, an agreement to appear in court is a condition of almost every bond. Bond conditions in some family violence cases require the defendant to stay away from the home and workplace of the alleged victim.
What are some other bad things that can happen when you are convicted of family violence?
Overall, when one considers collateral consequences, the government treats the assault of a family member as a more serious crime than the assault of a stranger. It isn’t uncommon for judges to issue emergency protective orders (EPOs) in family violence cases that forbid defendants from returning to their homes and sometimes even prevents them from seeing their children. If children were present at the time of the incident then Texas CPS (Child Protective Services) may also investigate.
In divorce court, a family violence conviction can be used to deny child custody and limit visitation rights. A family violence conviction can also cause you to permanently lose the right to possess a firearm for any reason. If you are in the military, you may be discharged; if you work in law enforcement, you may be reassigned or fired.
A family violence conviction could cost you a professional license or, if you are a skilled tradesman, make it impossible for you to be bonded. It will appear in your criminal record and will show up in pre-employment and pre-leasing background checks.
Non-citizens convicted of family violence may be denied a green card or deported and denied re-entry.
If you are convicted of even the lowest level of family violence assault, any future misdemeanor family violence or stalking charges may be prosecuted and punished as third degree felonies and you are permanently disqualified for an order of non-disclosure if you successfully complete deferred adjudication probation for any type of offense in the future.
Can I drop the charges?
In Texas, the complainant or alleged victim of a criminal offense does not have the right to drop the charges. Only the prosecutor has that power.
When alleged victims of family violence seek to drop charges, prosecutors routinely require them to jump through various hoops, even if law enforcement’s version of events is flat-out wrong and family violence didn’t actually occur. Even when an alleged victim is willing to jump through all the usual hoops, a prosecutor may still refuse to drop the charges. Depending on the circumstances, a prosecutor may also have the power to file charges against the alleged victim for perjury or making a false report to the police.
It is not uncommon for an alleged victim who wants the charges dropped to ask the defendant’s criminal defense attorney for assistance. I have worked with many alleged victims in these circumstances to prepare an “Affidavit of Non-Prosecution,” which expresses his or her wish that the case be dismissed and, when appropriate, corrects the record regarding allegations that are inaccurate or untrue. Such affidavit can be very powerful tools and have frequently helped me to get cases thrown out.
If you are the alleged victim, you should be aware that a criminal defense attorney who is representing the defendant cannot legally represent your interests (even if you were the one who actually hired him or her). His or her duty is to represent the defendant’s interests, which very well may conflict with yours. An ethical defense attorney will warn you if he or she determines that such a conflict exists but cannot give you legal advice. This is especially important to understand if you want to contradict a previous statement, which might result in criminal liability for perjury or filing a false report.
As a result, if you want to recant or change your story in a family violence case, you should consider hiring your own private lawyer with experience in the criminal justice system to advise you regarding the possible consequences and, if you choose to persist, to prepare an Affidavit of Non-Prosecution that accomplishes your goals while minimizing the risk of being charged with a crime.
What is the role of victim services counselors?
Victim services counselors are a special type of social worker. Their purpose is to help crime victims recover and protect their rights. They offer many different types of assistance, such as helping an alleged victim apply for compensation from the Crime Victim’s Compensation Program, helping an alleged victim get over a fear of testifying, and assisting with travel arrangements when the alleged victim must appear in court.
Do I have to testify at trial?
When you are charged with a criminal offense, you have an absolute right under both the U.S. and Texas Constitutions to choose whether or not to testify.
Unlike most other types of criminal cases, when you are the alleged victim in a case of family violence assault that the government has brought against your husband or wife, traditional spousal immunity or spousal privilege does not apply, which means that the government can force you to testify against your spouse at trial.
What if the alleged victim is not actually a family member?
Texas law allows prosecutors to seek a “family violence” conviction even when the defendant and alleged victim are not what one might ordinarily consider family. In addition to blood relatives, a family violence allegation can be made against a foster child or parent, former spouse, domestic partner, roommate, boyfriend, girlfriend, and even a former boyfriend or girlfriend. Depending on the relationship, the term “dating violence” is sometimes used in place of “family violence.”
What does “bodily injury” mean in an assault case?
Many people understandably assume that the term “bodily injury” requires some sort of visible injury, like a cut, a bruise, or even a red mark, but the legal definition includes simple physical pain. As a result, you can be charged with Assault with “Bodily Injury,” which is a class A misdemeanor and a jailable offense, when you are accused of merely slapping someone or pulling his or her hair.
What is a “choking allegation” in a family violence case?
The government treats choking or suffocating a family member as a more serious offense than most other forms of assault that don’t involve a weapon. As a result, an accusation of choking allows the government to charge you with a 3rd degree felony on the first offense or a 2nd degree felony if you have any prior convictions for family violence.
The punishment range for a 3rd degree felony is 2 to 10 years in prison. The punishment range for a 2nd degree felony is 2 to 20 years. Either one can carry a fine of up to $10,000.
Take assault and family violence arrests in Texas seriously.