Assault Bodily Injury Family Member

Assault causing bodily injury against a family member is a Class A misdemeanor in Texas under Texas Penal Code § 22.01, punishable by up to one year in county jail and a $4,000 fine. But the “family member” label does far more than classify the charge. It rewrites the rules of evidence, triggers lifetime collateral consequences, and gives prosecutors tools that are unavailable in any other type of assault case.

If you or a loved one is facing an assault family violence charge in Texas, the stakes are higher than you may realize. A conviction, or even an affirmative finding of family violence without a formal conviction, can strip your firearm rights, derail custody proceedings, trigger deportation, and follow you for the rest of your life. Understanding what the State must prove, what evidence prosecutors can use against you, and how this charge differs from every other assault prosecution is the first step toward protecting yourself.

Varghese Summersett is a team of over 70 attorneys, investigators, and legal professionals with four offices across Texas. Our criminal defense attorneys include former prosecutors and board-certified specialists who have secured more than 1,600 dismissals and 800 charge reductions. We have handled thousands of family violence cases at every level, from misdemeanor assault to felony continuous violence against the family. We know how prosecutors build these cases, and we know how to dismantle them.

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Who Qualifies as a “Family Member” Under Texas Law?

Texas does not limit the family violence designation to traditional family units. The statutory definitions cast a wide net, and the State routinely relies on these broad categories to bring charges under the family violence umbrella.

“Family” includes individuals related by blood or marriage, former spouses, and parents of the same child, as defined under Texas Family Code § 71.003. The relationship does not have to be current. A former spouse from decades ago still qualifies.

“Household member” encompasses anyone who has lived together in the same dwelling, regardless of whether the relationship is romantic. Under Texas Family Code § 71.005, this includes current and former roommates. Texas courts have applied this definition to college roommates, platonic cohabitants, and people who briefly shared a living space.

“Dating relationship” is determined by the length, nature, frequency, and type of interaction between the parties, as set out in Texas Family Code § 71.0021. This is distinguished from ordinary fraternization in a business or social context, and the determination is highly fact-specific. A casual acquaintanceship does not qualify, but courts have interpreted the standard broadly enough to capture relatively short-lived relationships.

The breadth of these definitions means the family violence designation can apply to situations defendants do not expect: altercations between former roommates, brief dating partners, or even biological parents who never had a romantic relationship.

What Must the State Prove in an Assault Family Violence Case?

To convict a defendant of assault causing bodily injury against a family member under Texas Penal Code § 22.01(a)(1), the prosecution must prove every element of the offense beyond a reasonable doubt. This is the highest burden of proof in the American legal system. The defendant has no obligation to prove innocence.

The State must establish that the defendant:

1. Intentionally, knowingly, or recklessly committed the act (the mental state, or mens rea)
2. Caused bodily injury to another person (“bodily injury” is defined as physical pain, illness, or any impairment of physical condition under Texas Penal Code § 1.07(a)(8))
3. The alleged victim was a family member, household member, or person in a dating relationship with the defendant (as defined above)

Each element is a potential point of attack for the defense. If the State cannot prove any single element, the jury must acquit. Common defense strategies challenge whether an injury actually occurred, whether the defendant acted with the required mental state, or whether the relationship between the parties meets the statutory definition. In cases involving false accusations of domestic violence, the defense may also challenge the credibility and motives of the complainant.

How Does the Family Member Designation Change the Charge?

Enhancement: From Misdemeanor to Felony

A standard assault causing bodily injury between strangers remains a Class A misdemeanor regardless of how many prior offenses the defendant has. The family violence designation introduces a fundamentally different enhancement structure.

Under Texas Penal Code § 22.01(b)(2), a second assault against a family member is elevated to a third-degree felony, carrying a sentencing range of two to ten years in the Texas Department of Criminal Justice. This applies even if the prior offense resulted only in deferred adjudication. Deferred adjudication, which ordinarily does not constitute a “conviction” for most purposes, is explicitly treated as a prior conviction for family violence enhancement under § 22.01(b)(2)(A). This catches many defendants off guard. Prior convictions used for enhancement must be pled in the indictment and proven by the State.

Impeding Breath or Circulation

Assaults involving strangulation, or any obstruction of the nose or mouth, are charged as third-degree felonies even on a first offense under Texas Penal Code § 22.01(b)(2)(B). These charges do not require proof of visible injury. The allegation alone that the defendant impeded the complainant’s breathing or blood circulation is sufficient to support the elevated charge.

Continuous Violence Against the Family

Texas Penal Code § 25.11 creates a standalone third-degree felony for committing two or more acts of family violence within a twelve-month period. The acts can involve different victims and can have occurred in different counties. The jury does not have to agree unanimously on which specific acts occurred, only that at least two acts took place within the statutory window.

What Are Typical Bond Amounts for Assault Family Violence in Tarrant County?

Based on an analysis Varghese Summersett completed of over 52,320 bonds in Tarrant County:

Charge	Cases	Typical Bond Range	Most Common Bond
Assault Bodily Injury – Family Member (Class A Misdemeanor)	3,184	$1,000 – $5,000	$1,000
Assault Family Member – Impede Breath/Circulation (3rd Degree Felony)	717	$5,000 – $25,000	$10,000
Assault Family Member with Previous Conviction (3rd Degree Felony)	403	$5,000 – $30,000	$10,000
Assault Impede Breath/Circulation – Previous Conviction (2nd Degree Felony)	72	$10,000 – $50,000	$10,000

Bond amounts vary depending on the circumstances of the case, the defendant’s criminal history, and the magistrate’s assessment of flight risk and community safety. Bond conditions in family violence cases typically include a no-contact order with the alleged victim.

What Is the Affirmative Finding and Why Does It Matter?

If the court determines the offense involved family violence, it is required to enter an affirmative finding of family violence in the judgment under Texas Code of Criminal Procedure Article 42.013. This finding is not optional. It functions as the trigger for nearly every collateral consequence that follows. A conviction, or even an affirmative finding without a formal conviction, can affect a defendant’s rights, relationships, and liberty for a lifetime.

Federal Firearms Disability

Under 18 U.S.C. § 922(g)(9), any person convicted of a “misdemeanor crime of domestic violence” is permanently prohibited from possessing firearms or ammunition. This is a federal prohibition that applies for life unless the conviction is expunged or set aside, which is exceedingly rare. There is no sunset provision. Texas law adds a separate state-level prohibition under Texas Penal Code § 46.04, barring firearm possession for five years following the defendant’s release from confinement or community supervision for a family violence offense.

The firearms prohibition extends even further: under federal law, a person subject to a qualifying protective order is prohibited from possessing firearms while the order is in effect. This means a defendant can lose firearm rights before any conviction occurs, simply by virtue of a protective order entered at the time of arrest.

Emergency and Permanent Protective Orders

Under Texas Code of Criminal Procedure Article 17.292, magistrates may issue emergency protective orders lasting 31 to 91 days immediately upon arrest. These orders can prohibit the defendant from communicating with the complainant, approaching the complainant’s residence or workplace, and possessing a handgun license. Permanent protective orders can extend for two years or longer and impose additional restrictions. A violation of a protective order is itself a criminal offense carrying additional penalties.

Child Custody and Conservatorship

A finding of a “history of domestic violence” under Texas Family Code § 153.004 can prevent a parent from being appointed a Joint Managing Conservator, removing the presumption of equal parenting rights. A judge may further restrict access to children to supervised visitation if credible evidence of a history or pattern of family violence exists. In concurrent family law proceedings, such as a divorce involving domestic violence, the defendant faces a strategic dilemma discussed in detail below.

Spousal Maintenance

A conviction for family violence committed during the marriage, or within two years of filing for divorce, can make the victim eligible for spousal maintenance under Texas Family Code § 8.051, even if the marriage lasted fewer than ten years. Without the family violence finding, spousal maintenance eligibility generally requires a marriage of at least ten years. This consequence alone can have a significant financial impact on the defendant for years after the criminal case concludes.

Immigration Consequences

Crimes of domestic violence and protective order violations are deportable offenses under federal immigration law. Deferred adjudication is treated as a “conviction” for immigration purposes, meaning a plea deal that a defendant accepted specifically to avoid a formal conviction can still result in removal proceedings. For non-citizen defendants, the immigration consequences of a family violence finding can be more severe than the criminal sentence itself.

Talk to a Lawyer Before You Speak to Police. The consequences of a family violence finding reach far beyond jail time. If you are facing an assault family violence charge, call Varghese Summersett at (817) 203-2220 for a free consultation.

How Does the Family Violence Designation Change the Rules of Evidence?

This is the section that matters most for trial preparation, because the family violence designation does not just change the charge classification. It rewrites the evidentiary rules in ways that fundamentally disadvantage the defense.

The General Rule: Texas Rule of Evidence 404(b)

Under the baseline evidentiary framework, the State cannot introduce evidence of a defendant’s other crimes, wrongs, or acts to prove that the defendant acted in conformity with a particular character trait. Rule 404(b) permits such evidence only for limited purposes: proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or to rebut a defensive theory. Outside those narrow exceptions, the State cannot tell the jury “he did it before, so he probably did it again.”

Article 38.371: The Family Violence Exception

Article 38.371 of the Texas Code of Criminal Procedure creates a sweeping exception to this rule in family violence cases. It allows the State to offer evidence of “all relevant facts and circumstances” that would assist the trier of fact in determining whether the defendant committed the charged offense, including evidence of other acts of family violence, whether committed against the same victim or a different one.

The stated purpose is to show the “nature of the relationship” between the defendant and the complainant. In practice, however, it functions as precisely the kind of character conformity evidence that Rule 404(b) was designed to exclude. The jury hears about a pattern of violence, prior incidents that may never have resulted in charges, and the defendant’s general propensity for abusive behavior within intimate relationships. This “contextual evidence” can include prior assaults, threats, verbal abuse, and controlling behavior that never resulted in so much as a police report.

What Does This Look Like at Trial?

The practical impact of Article 38.371 cannot be overstated. Under this provision, the State can call witnesses to testify about prior uncharged acts of violence: a shove two years ago, a screaming match where the defendant grabbed the complainant’s arm, an incident with a prior partner that was never reported to police. The jury hears a narrative of escalating or repeated violence that would be completely off-limits in any other criminal prosecution.

This evidence does not have to meet the threshold for a criminal charge. The prior acts do not have to have resulted in arrest, indictment, or conviction. The State need only establish by a preponderance of the evidence that the prior acts occurred and that they constitute family violence.

A case that might look defensible in isolation (conflicting accounts, minor injuries, a recanting complainant) becomes exponentially harder to defend when the jury hears about three or four prior incidents they would otherwise never have known about.

Expert Testimony on Family Violence Dynamics

Article 38.371(b) also permits expert testimony regarding the dynamics of family violence, including the “nature and dynamics of battering” and why victims commonly recant, delay reporting, return to their abusers, or provide inconsistent statements. Prosecutors use these experts to teach the jury about the “Cycle of Violence” and the “Power and Control Wheel,” reframing a victim’s lack of cooperation as a symptom of the abuse itself rather than evidence of innocence.

This testimony is designed to preemptively neutralize what would otherwise be the defense’s strongest arguments: that the complainant’s inconsistent behavior suggests fabrication. The State’s expert can explain to the jury that recantation is a predictable stage in the cycle of domestic violence, that delayed outcry is normal, and that a victim’s decision to remain in the relationship does not mean the abuse did not occur.

Extraneous Offenses Beyond Article 38.371

Even apart from Article 38.371, evidence of prior bad acts is admissible in family violence cases to prove intent, motive, or to rebut specific defensive theories. If the defense raises self-defense, the State can introduce the defendant’s history of violent acts within the relationship to establish who was the “first aggressor.” If the defense argues fabrication, the State can use prior acts to show motive and intent. Under Texas Rule of Evidence 404(b), this door-opening effect can be devastating. Raising self-defense in a family violence case can invite the jury to hear the defendant’s entire history of alleged violence within the relationship.

Download: Practitioner’s Guide to Family Violence Offenses in Texas

How Do Prosecutors Build Family Violence Cases Without Victim Cooperation?

Evidence-Based (“Victimless”) Prosecution

Prosecutors in family violence cases are trained to build cases that do not depend on the complainant’s cooperation. This “victimless prosecution” model relies on 911 recordings, body camera footage from responding officers, medical records documenting injuries, photographs taken at the scene, and jail call recordings. The complainant’s live testimony is treated as helpful but not essential. Prosecutors prepare every family violence case with the assumption that the complainant will either refuse to appear or will testify favorably for the defense.

Jail Calls and Social Media Monitoring

Prosecutors routinely monitor recorded jail calls for admissions, apologies, or violations of no-contact orders. A defendant who calls the complainant from jail and says “I’m sorry for what happened” has handed the State an admission. Any communication that could be characterized as attempting to influence the complainant’s testimony, or that violates a no-contact condition of bond, can form the basis for additional witness tampering charges or bond revocation. Prosecutors also monitor social media activity for statements, posts, or messages relevant to the case.

Handling Affidavits of Non-Prosecution

Defense attorneys frequently obtain affidavits of non-prosecution from complainants who do not wish to pursue charges. Prosecutors generally disregard these affidavits, viewing them as products of coercion or the predictable dynamics of the abuse cycle. The affidavit does not bind the prosecutor and does not automatically result in dismissal. More critically, the State may use the affidavit itself as evidence that the defendant is manipulating the complainant, turning what the defense intended as exculpatory evidence into an exhibit supporting the prosecution’s narrative of power and control.

Forfeiture by Wrongdoing Under Article 38.49

If the State can demonstrate that the defendant procured the complainant’s absence through intimidation, bribery, or coercion, the prosecution can invoke the doctrine of forfeiture by wrongdoing under Texas Code of Criminal Procedure Article 38.49. This is one of the most powerful tools in the family violence prosecutor’s arsenal.

The procedure works as follows. The State requests a hearing outside the jury’s presence. At that hearing, the prosecution must prove by a preponderance of the evidence (a significantly lower standard than beyond a reasonable doubt) that the defendant caused the witness’s unavailability. Prosecutors use jail calls, prior history of abuse, the defendant’s own statements, and the pattern of the relationship to establish that the defendant intimidated the witness into silence.

If the judge finds that forfeiture occurred, the complainant’s out-of-court statements, including those that would otherwise be barred by the Confrontation Clause under Crawford v. Washington, are admitted into evidence. The defendant’s own conduct in suppressing the witness’s testimony is deemed to have forfeited his constitutional right to confront that witness. The jury hears the complainant’s 911 call, her statements to officers, and her medical records, all without the defense ever having the opportunity to cross-examine her.

The Recanting Complainant

When a complainant recants, the State does not simply lose the case. Prosecutors can call the recanting witness to the stand and impeach her with her own prior inconsistent statements: the 911 call, the statement to the responding officer, the medical records. The jury then hears both versions and decides which one to believe, with the benefit of the State’s expert testimony explaining why recantation is a predictable feature of family violence cases rather than evidence that the original allegation was false.

How Do the Confrontation Clause and Hearsay Rules Apply?

The evidentiary landscape in family violence cases is further shaped by specific hearsay exceptions and Confrontation Clause jurisprudence that tend to favor the prosecution.

Crawford and the Testimonial/Non-Testimonial Distinction

Under Crawford v. Washington, “testimonial” statements, those made for the primary purpose of establishing or proving facts for future prosecution, are inadmissible unless the declarant testifies at trial. However, statements made during an “ongoing emergency” are typically classified as non-testimonial. In family violence cases, frantic 911 calls and initial statements to responding officers who are securing a volatile scene frequently clear this hurdle, making them admissible even if the complainant refuses to testify.

Excited Utterances

Statements made while the declarant is under the stress of a startling event are admissible under Texas Rule of Evidence 803(2). In family violence cases, statements made to police at the scene, while the complainant is still visibly upset, crying, or in obvious distress, are routinely admitted under this exception. Similarly, 911 calls made during or immediately after the incident are frequently admitted as both excited utterances and present sense impressions.

Statements for Medical Diagnosis

Statements made to medical personnel for purposes of diagnosis or treatment, including statements identifying the cause of an injury, are admissible under Texas Rule of Evidence 803(4). When a complainant tells an emergency room nurse “he hit me,” that statement comes in regardless of whether the complainant later recants or refuses to cooperate.

Spousal Privilege

The spousal privilege to refuse to testify generally does not apply in cases where the spouse is the alleged victim of the crime. This eliminates what might otherwise be a significant barrier to prosecution in cases between married partners.

What Happens When Criminal and Family Court Cases Overlap?

Family violence cases frequently exist at the intersection of criminal and civil proceedings. Divorce, protective order hearings, and child custody disputes often run concurrently with the criminal prosecution. This creates a strategic dilemma that does not arise in other types of criminal cases.

In the criminal case, the standard advice is to invoke the Fifth Amendment and remain silent. Anything the defendant says can be used against him, and the right to silence carries no penalty in a criminal proceeding. The jury may not draw a negative inference from the defendant’s decision not to testify.

In the concurrent civil case, however, silence can be devastating. A civil judge presiding over a divorce or protective order hearing can draw a “negative inference” from the defendant’s invocation of the Fifth Amendment. The practical result is that remaining silent to protect against criminal liability may lead directly to the loss of custody, the granting of a protective order, or an adverse ruling on spousal maintenance.

The alternative is equally dangerous. If the defendant testifies in the civil hearing to preserve custody rights, he creates a sworn record that prosecutors can use to impeach him if he later testifies inconsistently in the criminal trial. Every answer given under oath in the family court proceeding becomes a potential weapon in the criminal prosecution. Defense counsel must coordinate strategy across both proceedings to minimize the damage in either forum.

What Are the Key Defense Strategies in Family Violence Cases?

Self-Defense and Door-Opening

Raising self-defense in a family violence case is a calculated risk. While it may be the strongest substantive defense available, asserting that the defendant acted in self-defense “opens the door” for the State to introduce the defendant’s history of violent acts within the relationship to establish who was the first aggressor. Defense counsel must weigh the strength of the self-defense claim against the damage that prior-acts evidence will inflict on the jury’s perception of the defendant.

Affidavits of Non-Prosecution

As discussed above, affidavits of non-prosecution do not bind the prosecutor and do not automatically result in dismissal. Beyond that, if the State believes the affidavit was obtained through coercion or pressure, it can expose the defendant to witness tampering charges and trigger the forfeiture-by-wrongdoing doctrine. Defense counsel should treat the decision to pursue an affidavit with extreme caution and ensure the complainant’s decision is documented as voluntary and independent.

Pretrial Motions

Given the breadth of Article 38.371, pretrial litigation takes on outsized importance. Defense counsel should pursue motions in limine to limit the scope of relationship evidence, Daubert or Rule 702 challenges to the State’s family violence dynamics expert, and Rule 403 balancing arguments contending that the prejudicial effect of prior-acts evidence substantially outweighs its probative value. While courts tend to give the State wide latitude under 38.371, a well-crafted 403 motion can at least narrow the scope of what the jury ultimately hears.

The Michael Morton Act and Discovery

Discovery in family violence cases is governed by the Michael Morton Act, which entitles the defense to full access to the State’s file: police reports, videos, witness statements, and other materials. However, there is a critical restriction. Defense counsel is legally prohibited from providing physical or digital copies of discovery materials to the client. The client may view the materials but cannot take copies. This restriction also applies to providing copies to the victim or the victim’s family. Defense counsel must ensure the client has adequate opportunity to review the evidence while remaining in compliance with these limitations.

Voir Dire

Jury selection in family violence cases must address deeply held juror biases and preconceptions about domestic violence. Prosecutors will use voir dire to educate jurors about why victims return to their abusers, recant, and provide inconsistent statements, framing these behaviors as consistent with genuine abuse rather than evidence of fabrication. Prosecutors will also ask whether jurors can convict without a cooperating victim, priming the panel for evidence-based prosecution. Defense counsel must identify jurors who can evaluate the evidence without deferring to the prosecution’s narrative framework and who understand that an accusation alone does not establish guilt.

The Punishment Phase

If the defendant is convicted, the punishment phase presents an additional evidentiary danger unique to Texas practice. During punishment, the State may introduce evidence of “bad acts” even if those acts were not proven beyond a reasonable doubt during the guilt-or-innocence phase. This can include unadjudicated extraneous offenses and general reputation evidence, provided the jury believes them by a preponderance of the evidence. The punishment phase effectively gives the State a second opportunity to present the defendant’s history of alleged violence, this time with an even lower evidentiary threshold and with the jury already having found the defendant guilty.

Varghese Summersett Results in Family Violence Cases

In a recent case, attorney Alex Thornton represented a client charged with Assault Family/Household Member with Previous Conviction (Case No. 1839896), a third-degree felony carrying two to ten years in prison. Despite the enhanced felony charge, Thornton secured a complete dismissal. This case illustrates why having an experienced family violence defense attorney matters. Enhanced charges carry severe penalties, but they can be challenged when the defense team understands how to expose weaknesses in the State’s case.

In another case, attorney Audrey Hatcher negotiated a Continuous Family Violence charge (Case No. 1855388) in Tarrant County down from a third-degree felony to a Class C Assault by Contact with six months of deferred adjudication, avoiding a felony conviction entirely.

Overall, Varghese Summersett has secured 43 dismissals in Assault Bodily Injury–Family Member cases, 9 dismissals or no-bills in felony family violence with prior conviction cases, and 12 dismissals or no-bills in strangulation cases.

Past results do not guarantee future outcomes.

Protect Your Rights and Your Record. Every family violence case is different, but every defendant deserves an aggressive, informed defense. Call Varghese Summersett at (817) 203-2220 for a free consultation.

What to Expect From Varghese Summersett

When you hire Varghese Summersett for a family violence case, you get a defense team, not a single attorney. Our approach includes an immediate case evaluation by a senior attorney, a thorough review of all discovery materials including body camera footage, 911 recordings, and jail calls, strategic coordination with any concurrent family court proceedings, aggressive pretrial motions to limit the State’s use of extraneous offense evidence under Article 38.371, and preparation for trial from day one.

Our criminal defense team includes former prosecutors who have handled family violence cases from the other side. We know how these cases are built, and we know where they break down. With more than 1,600 dismissals and 800 charge reductions, we have a proven record of results in cases just like yours.

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Watch: Consequences of a Family Violence Finding in a Misdemeanor Assault Case

Frequently Asked Questions About Assault Family Violence in Texas

Can an assault family violence charge be dropped if the alleged victim doesn’t want to press charges?

No. In Texas, the decision to prosecute lies entirely with the district attorney or county attorney, not the alleged victim. Prosecutors routinely pursue family violence cases even when the complainant does not wish to cooperate. They use 911 calls, body camera footage, medical records, and other evidence to build cases without the victim’s testimony. An affidavit of non-prosecution may be filed, but prosecutors are not bound by it and often view it as evidence of manipulation by the defendant.

Will I lose my gun rights if convicted of assault family violence?

Yes. Under federal law (18 U.S.C. § 922(g)(9)), a conviction for a misdemeanor crime of domestic violence results in a permanent, lifetime prohibition on possessing firearms or ammunition. Texas law adds a separate five-year ban under Penal Code § 46.04. Even a protective order entered without a conviction can trigger a federal firearms prohibition while the order is in effect.

What is an affirmative finding of family violence?

Under Texas Code of Criminal Procedure Article 42.013, the court must enter an affirmative finding of family violence in the judgment if it determines the offense involved family violence. This finding triggers federal firearms prohibitions, affects child custody determinations, can establish eligibility for spousal maintenance, and can serve as a deportable offense for non-citizens. It attaches even in cases resolved through plea agreements.

Can prior incidents be used against me in a family violence trial?

Yes. Article 38.371 of the Texas Code of Criminal Procedure allows prosecutors to introduce evidence of prior acts of family violence, including uncharged incidents against any family member or dating partner, to show the nature of the relationship. The State can also bring in expert witnesses to explain family violence dynamics, including why victims recant. This makes family violence cases fundamentally different from all other assault prosecutions.

How does a family violence charge affect my divorce or custody case?

A family violence finding can prevent a parent from being named a Joint Managing Conservator and can lead to supervised visitation. The criminal case creates a Fifth Amendment dilemma: remaining silent in the civil case can result in negative inferences that harm your custody position, but testifying in the civil case creates a record prosecutors can use against you in the criminal case. Coordinated legal strategy across both proceedings is essential.

Don’t Wait. Get a Free Consultation. The family member designation in a Texas assault case is not merely a label. It is a structural transformation that changes the charge, the evidence, the trial strategy, and the consequences. If you are facing a family violence accusation in Texas, call Varghese Summersett today at (817) 203-2220.