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When an individual is arrested for family violence in Texas, he or she can be charged with a misdemeanor or a felony depending on a number of factors. A misdemeanor domestic assault case can be elevated to a felony family violence charge if you displayed a weapon, have a history of violence towards family members, or if the alleged victim sustained serious bodily injury. Here’s an overview of family violence charges in Texas and what kind of defenses may be raised by our Fort Worth felony family violence attorneys.
We have seen a spike in Tarrant County felony family violence cases since the beginning of the year. For example, in January 2020, 80 felony family violence cases were filed in Tarrant County, compared to 139 in September 2020, according to statistics from the Office of Court Administration.That’s a 74 percent increase. Although we can’t say for certain, the reason for the increase could be attributed, in part, to the COVID-19 pandemic. Families in lockdown coupled with financial stress can certainly increase tensions in a household.
Domestic assault, also referred to as assault family violence in Texas, is a threat or act of violence towards a family member or someone with whom the defendant lives. This includes:
Under Texas Penal Code § 22.01, a defendant commits the offense of assault – or in this case, domestic assault – if he or she:
Domestic assault is a misdemeanor, however, it is a gateway into a number of felony family violence offenses that occur after an altercation with a family member, someone with whom they live with, or someone with whom they are dating.
There are a number of offenses that would fall under the category of Fort Worth felony family violence cases, including:
To charge an individual with assault family violence with priors, the defendant must have been previously convicted of a domestic violence offense under Texas Penal Code § 22.01(b)(2)(A) and (b-3)(2). Possible convictions against family members that could result in an assault family violence with prior convictions charge include, but are not limited to kidnapping, aggravated kidnapping, continuous family violence, indecency with a child, assault, or homicide.
Continuous Violence Against the Family is codified in § 25.11 of the Texas Penal Code. An individual commits this offense if he or she — two or more times — within a 12-month period:
When a defendant is facing a continuous family violence charge, the jury does not have to unanimously agree on what the alleged underlying offense was, when the offenses occurred, or even whether the two or more underlying offenses happened in the same county. Additionally, the alleged underlying offenses are not required to be convictions.
When charging a defendant with continuous family violence, the State must be cautious to not charge the defendant twice for the same crime, which would violate his or her Fifth Amendment rights. For example, if an individual is arrested for domestic assault for hitting her spouse, a prosecutor cannot charge that individual with both assault against a family member and continuous family violence. An individual’s right to not be prosecuted twice for the same crime is referred to as his or her right against double jeopardy.
Aggravated assault, or aggravated domestic assault, is codified in § 22.02 of the Texas Penal Code. A defendant commits assault if he or she intentionally, knowingly, or recklessly causes bodily injury to another person or persons. In Texas an assault is considered aggravated if the defendant:
The Texas Penal Code defines serious bodily injury as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
The victim does not need visible injuries for a defendant to be charged with aggravated assault. If the defendant exhibited a weapon or threatened the victim while simply holding a weapon, a defendant can be charged with aggravated assault. Weapons under this statute include but are not limited to, knives, clubs, bats, bricks, guns, and tire irons. In some circumstances, a defendant’s hands can be considered a weapon under this statute.
Family violence strangulation or suffocation is also sometimes referred to as assault by choking. An individual commits this offense by:
Classic examples of strangulation include, but are not limited to:
Since 2009 when the Texas Legislature made family violence strangulations a felony, more individuals have been prosecuted for this offense. The belief is that an individual who has endured strangulation in the past runs a higher risk of being killed in the future.
The penalties for family violence charges range from a Class A misdemeanor to up to a first-degree felony. Here’s the breakdown.
Domestic Assault → Class A Misdemeanor
Domestic assault is a class A misdemeanor. In Texas the punishment for a class A misdemeanor is a sentence of no more than one year in county jail, a fine of no more than $4,000, or both.
Assault Family Violence with Priors/Continuous Family Violence → Third Degree Felony
Assault family violence with prior convictions and continuous family violence are both third-degree felonies. The punishment for a third-degree felony ranges from two to ten years in prison and a fine of no more than $10,000.
Aggravated Assault → Second Degree Felony/First Degree Felony
Aggravated assault against a family member is typically a second-degree felony. The punishment for a second-degree felony ranges from two to 20 years in the Texas Department of Criminal Justice and a fine of no more than $10,000. (In certain situations, if the aggravated assault resulted in serious bodily injury and a weapon was displayed, the defendant could face a first-degree felony charge. The punishment for a first-degree felony ranges from five to 99 years in prison and a fine of no more than $10,000.
Family Violence Strangulation → Third Degree Felony/Second Degree Felony
Family violence strangulation is a third-degree felony the first time. The punishment for a third-degree felony ranges from two to 10 years in prison and a fine of no more than $10,000. Subsequent convictions are second degree felonies. The punishment for a second-degree felony ranges from two to 20 years in prison a fine of no more than $10,000.
When facing a felony family violence offense in Fort Worth, it is crucial to have an experienced and skilled defense attorney representing you. Domestic violence convictions come with negative stigma and steep prison time, and past convictions can be used to enhance new offenses you might face in the future. An experienced criminal defense attorney will seek an outcome that does not result in a conviction or that results in being charged with a lesser offense. For example, if you are charged with continuous family violence, a third-degree felony, a good defense attorney might advocate for the charge to be reduced to domestic assault, which would be a class A misdemeanor.
The exceptional lawyers at Varghese Summersett understand the importance of keeping family violence offenses off an individual’s criminal record and strive to do just that. A few strategies that have been used in the past and have resulted in favorable outcomes include:
→ Self- Defense: if it can be shown that the victim initiated, or provoked, the confrontation and the defendant was solely protecting him or herself, there is a possibility of winning the case. Claiming self-defense requires a showing that the defendant was threatened with unlawful force or harm, the victim initiated the first punch or displayed a weapon during the altercation, and that the defendant truly responded appropriately. The defendant must show he or she used a reasonable amount of force in defending him or herself. A self-defense claim will not prevail if the defendant had the opportunity to run, call for help, escape, or end the altercation without the use of violence.
→ Factual Innocence: sometimes the allegations are outright false. The police might have arrested the wrong person, the victim could have lied, or eyewitnesses might have described the wrong culprit. Mistakes happen often, and with the help of a good defense attorney, a factual innocence defense could lead to a dismissal of the case. When using this defense, it is important to include any corroborating evidence, or lack thereof. For example, if a weapon was alleged to have been used, was it found at the crime scene or were the bruises consistent to where the victim alleged being hit?
→ Defense of Others: in certain situations, a defendant might be under the reasonable belief force is necessary to defend another person. In Texas, bystanders have the right to interfere to defend a person if he or she sees that something is wrong. The requirements necessary to establish a successful defense of others claim vary from jurisdiction to jurisdiction. The rule of thumb for this type of defense, however, is that the defendant has no more right to defend the third party than the third party would to defend him or herself.
→ Defense of Property: in limited circumstances, a defendant may claim he or she acted in defense of his or her property if the property was being invalidated or illegally withheld. In Texas, this is known as the “stand your ground” law. A defense of property claim is most successful when the defendant can show he or she was using reasonable force in defending his or her home or vehicle.
→ Lack of Intent: if the alleged assault was an accident or unintentional the defendant has a good chance of winning the case with the help of an experienced criminal defense attorney.
→ Credibility of the Victim: attacking the credibility of a victim, while not always the appropriate tactic, can be successful in cases where the victim has made false accusations of assault. In these types of cases, a defense attorney must investigate whether the victim has pending criminal charges or a criminal record, is the victim in other cases of assault that have been dismissed or no-billed, is currently under CPS investigation, or is currently going through a divorce.
→ Affidavit of Non-Prosecution: sometimes having a victim sign an affidavit of non-prosecution can result in a dismissal of the case. An affidavit of non-prosecution is simply a notarized statement which states the victim no longer wishes to prosecute the defendant. While in certain jurisdictions this document is sufficient to result in a dismissal, in others an affidavit of non-prosecution is just a tool a defense attorney can use when advocating for his or her client.
It’s estimated that one in three Texans will fall victim to family violence at some point in their lifetime. Nationwide, more than 20,000 individuals call into domestic violence hotlines daily. With these kind of numbers, it’s no surprise that Texas and Tarrant County make it a point to prosecute family violence cases more severely.
If you have been charged with a felony family violence offense it is important to hire a seasoned attorney who has significant experience handling these highly emotional cases. Our team has handled hundreds of felony family violence cases – first as prosecutors and now as highly-respected defense attorneys. The best defense lawyers are those who understand the other side. The knowledge and experienced we gained as prosecutors enable us to anticipate the opposing counsel’s next move and stay one step ahead of them. Call today for a free consultation.