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Can you be charged with assault even if the alleged victim does not want to press charges? Can you be charged with assault bodily injury even if there are no visible injuries? Can someone’s words justifiably provoke an assault?
Let’s use Will Smith slapping Chris Rock at the 2022 Academy Awards to answer these questions if this were to have occurred in Texas.
Assault Bodily Injury in Texas is an allegation that one person caused another person physical injury. Here, the threshold for “injury” is merely an alleged victim saying they felt pain.
Misdemeanor assaults are commonly filed as ABI (assault causing bodily injury) or ABI-FM (assault causing bodily injury – family member charge). Both ABI and ABI-FM are Class A misdemeanor assault charges in Texas and carry a punishment range of up to a year in jail and up to a $4,000 fine.
We don’t have “battery” as an assault charge in Texas.
A Class A misdemeanor assault in Texas only requires the alleged victim to say they felt pain. There’s no requirement to show or allege visible injuries.
Moreover, officers who respond to assault calls are generally trained that it is best to arrest at least one of the people involved in the alleged altercation rather than risk leaving both of them in a volatile situation. As a result, officers generally make arrests even when the alleged victim asks them not to. Once an arrest has been made, prosecution quickly follows.
That’s an incredibly low threshold for prosecutors to meet, so how do we go about finding weaknesses in assault cases and getting them dismissed?
In Texas, the most common type of assault is Assault Bodily Injury. According to the Texas Penal Code, “bodily injury” means physical pain, illness, or any impairment of physical condition. If a person alleges they are hurt, no matter how slight, or received a visible or non-visible injury, that is sufficient to establish bodily injury for purposes of filing an assault charge against you. Alleged victims claiming discomfort or annoyance will not establish bodily injury sufficient for you to be convicted of ABI.
After a criminal investigation and arrest for assault bodily injury, a case will be forwarded to a local district attorney’s office for review by a criminal prosecutor. Prosecutors can accept a case immediately upon intake, send the case back for additional information and then accept it at a later date, or reject it outright. If a case is accepted, the person would be formally charged with assault bodily injury and required to make an appearance in court, be represented by counsel (or go pro se) and dispose of the case. Before your first appearance, it’s important to contact an experienced assault bodily injury lawyer in Fort Worth.
Assault Bodily Injury is a Class A Misdemeanor punishable by up to one year in jail and up to a $4,000 fine. This punishment range can be enhanced depending upon prior convictions. Depending on a person’s criminal history, they may also be eligible for probation. There are two types of probation: Straight Probation and Deferred Adjudication Probation. While these types of probations generally have the same conditions, they do not have the same consequences or exposure to jail time. You will need the best Fort Worth assault attorneys to challenge any enhanced penalties, negotiate the best resolution and, when all else fails, fight your assault case in a jury trial.
Prosecutors are going to be inclined to believe you committed the alleged offense. You were arrested and the police are the boots on the ground they can trust, right? Wrong. Police officers make arrests based on probable cause, not proof beyond a reasonable doubt. More importantly, officers primary duty is to protect the peace and public safety. So, when they come out to the scene of an alleged assault they make an arrest to defuse the situation and then “let the prosecutors sort it out.” You see what’s happening? Even good police officers and prosecutors can make a lot of bad assumptions.
Prosecutors are skeptical of affidavits of non-prosecution. In their mind, ANPs can be completed for a number of reasons: love, reconciliation, a desire for the accused not to go to jail, remorse, and monetary dependence, just to name a few – none of which are reasons to dismiss a case. It’s not uncommon for prosecutors to move forward with a case or even go to trial against the alleged victim’s wishes. Navigating the troubled water to get a prosecutor to dismiss a case takes experience and skill.
In most cases, in the guilt-innocence phase it is irrelevant what a person’s history (for better or worse) is. In assault cases involving allegations of family violence, however, Texas law says, “each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense.” Most people (especially prosecutors) think this is a way to backdoor in character-conformity evidence that increases the chances a defendant is convicted. The reality is that the law says “either party” can do this, so things that happened in the relationship before and after the alleged offense can be brought in to fight the accusation.
While it is true you are presumed innocent, once you’re arrested you are going to be bound by certain bond conditions, including not having any contact with the alleged victim. A common mistake is trying to take matters in your own hands to circumvent bond conditions. There’s a proper way to get bond conditions changed. It takes time, but you cannot afford to have any missteps while the case is pending.
Just because you may not have done anything wrong, doesn’t mean you shouldn’t mount an aggressive defense. Mitigation materials and doing work to set yourself apart from others charged with the same offense may make the difference between getting a dismissal or not.
Some cases are resolved quickly, but overall in Tarrant County, it generally takes over a year to resolve a misdemeanor assault case. Understand, however, often time is on your side. Generally the State’s case is not going to get any better with the passage of time. If you’re willing to stay the course, you can often leverage the outcome you’re looking for – assuming you are following your attorney’s advice in the meantime.
Being charged with an assault crime in Fort Worth is one of the most difficult challenges an individual can face. If you have been arrested on an assault charge in the Fort Worth area, you will want an experienced attorney at your side through the entire litigation process. Discuss the facts of your case today with one of our Fort Worth assault attorneys to begin the process of moving on from this difficult time.
By: Ben D.
Rating: ★★★★★5 / 5 stars