Key Takeaways:
- Assault charges range from Class C misdemeanors up to second-degree felonies.
- Family violence arrests often trigger emergency protective orders and restrictive bond conditions that can be modified by court hearing.
- Once a family violence arrestee posts bond, the jail may continue to hold the arrestee for up to four hours if the magistrate believes probable cause exists that family violence will continue if the jail releases the arrestee immediately.
- Since most alleged domestic violence crimes happen behind closed doors, prosecutors usually need a cooperative victim/complainant to prove their case beyond a reasonable doubt.
- Texas law prohibits the nondisclosure of criminal record information involving family violence accusations. Therefore it is critical to prioritize expunction eligibility.
Texas Penal Code Section 22.01 provides the basis of assault laws in our state. Individuals may commit assault by threat or contact. The penal code treats merely offensive contact less seriously than contact that causes bodily injury. The more serious the bodily injury, the higher level the offense. Texas law treats mere verbal threats of bodily injury less severely than threats of serious bodily injury or threats that involve brandishing a deadly weapon.
Chapter 71 of the Texas Family Code defines the type of conduct that falls under the umbrella of family violence. The chapter also defines the types of relationships that courts may treat as family relationships. Those relationships include married and blood-related family members, dating relationships, and members of the same household. Chapter 71 also indicates when a casual relationship fails to meet the criteria of a dating relationship in the context of family violence.
The most frequently charged allegations of Assault Family Violence include:
Class C Misdemeanor Assault
Sections 22.01(a)(2) and 22.01(a)(3) of the penal code prohibit assault by threatening imminent bodily injury and offensive or provocative contact respectively. Key things to know include:
- An imminent threat is not a conditional or future threat. If the facts alleged include a threat of bodily injury that might take place if the recipient of the threat meets a certain condition or fails to perform a certain act, then the threat is not imminent.
- The defendant must reasonably know the other person would be offended or provoked by the assaultive contact. If no reasonable person would have ever thought a certain type of contact would come across as offensive or provocative under the circumstances, the prosecutors cannot prove their case.
- Police officers may arrest a person accused of Class C Assault Family Violence, or officers can merely issue a citation.
- Municipal and Justice Courts have jurisdiction to hear Class C Assault charges.
- These offenses are punishable by a fine between $0 and $500. Neither jail time nor supervised probation are possible.
- Defendants charged with Class C Assault Family Violence will be eligible to expunge their records so long as the case does not result in a conviction. Since Class C misdemeanors do not trigger supervised probation, defendants may still qualify for an expunction even if they plead no contest and receive a deferred disposition.
Class A Misdemeanor Assault
Texas Penal Code Section 22.01(a)(1) prohibits assault that causes a bodily injury. The penal code defines bodily injury as pain. Key things to know include:
- Class A Assault Family Violence requires that the defendant act intentionally, knowingly, or recklessly. Accidental or negligent contact, even if it causes someone to feel pain, does not constitute Class A Assault.
- Bodily injury covers a wide spectrum of events. In cases that do not involve blood, noticeable bruising or swelling, broken teeth or bones, or trips to the hospital, proving bodily injury typically requires the victim to testify and describe the pain they felt as a result of the defendant’s contact with them.
- In these cases, a victim who cannot convincingly articulate their pain and link it to the acts of the defendant provides the defense an opportunity to win.
- Additionally, an affidavit of non-prosecution in which the affiant swears he or she did not feel pain as a result of the alleged contact can play a vital role in securing a dismissal.
- In cases that do involve visible injuries, third-party witnesses, or trips to the hospital that produce medical records, we have to look to defenses like justifiable self-defense, or we look for ways to exclude medical record evidence if possible.
- Class C Assault Family Violence is not a lesser included offense.
- Class A Assault Family Violence allegations face a punishment range of:
- A fine between $0 and $4,000
- Confinement in the county jail from 0 to 365 days
- Up to 2 years of probation
- Expunction eligibility requires:
- Dismissal
- Reduction to Class C misdemeanor with deferred adjudication
- Successful completion of a pretrial diversion program in counties that offer it
- Acquittal at trial
- Class A Assault Family Violence cases resolved with deferred adjudication and community supervision may not be sealed by nondisclosure.
Third-Degree Felony Assault – Impeding Breath or Blood Flow
Penal Code Section 22.01(b)(2)(B) prohibits intentionally, knowingly, or recklessly causing bodily injury by applying pressure to the neck or throat or covering the nose or mouth in such a manner as to impede normal breathing or blood circulation. Key things to know include:
- These felony allegations almost always trigger emergency protective orders and no-contact bond conditions.
- Felony allegations move through the justice system more slowly because prosecutors must present felony allegations to a grand jury for indictment.
- We can, however, fight the felony indictment by submitting a grand jury defense packet. Grand jury packets may succeed in convincing the grand jury to issue a no-bill or indict the case as a lower-level Class A misdemeanor.
- We look for marks and bruises on the victim/complainant’s neck, petechiae, injury to trachea or vocal cords, or the lack thereof.
- While the allegation states the defendant choked someone, we often find that the victim/complainant describes yelling or screaming during the confrontation. It is very difficult to yell or scream while being choked.
- Affidavits of non-prosecution can be helpful, especially when fighting the impeding breath or blood flow element.
- Class A Assault Family Violence is not a lesser included offense.
- Third-degree Felony Assault Family Violence – Impeding Breath or Blood Flow carries the following punishment range:
- A fine between $0 and $10,000
- Confinement in prison from 2 to 10 years
- Up to 10 years of probation
- Expunction eligibility requires:
- Dismissal
- No-bill by the grand jury
- Acquittal at trial
- Deferred adjudication community supervision is not eligible for nondisclosure.
Other Forms of Assault Family Violence
In addition to the offenses listed above, less common charges involve assault on a pregnant person, aggravated assault with or without a deadly weapon, and continuous family violence in which multiple incidents of assault family violence occur within a 12-month period of time.
If you or someone you know faces Assault Family Violence charges, contact us. Our experienced domestic violence attorneys are ready to fight for you.
