Many people in Austin 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 APD even arrests the person who called 9-1-1 in the first place!
This page contains general answers to the most common questions about how family violence assault cases are handled in Travis County, Texas. Regular assault and aggravated assault cases are handled differently and are discussed here.
- Should I hire a lawyer immediately?
- Where will I go to court for a family violence case?
- What if the alleged victim wasn’t actually injured?
- What are “conditions of bond” in family violence assault cases?
- What is the Batterer Intervention and Prevention Program?
- What are the collateral consequences of a family violence conviction?
- Can I drop the charges in a family violence case?
- Is Project Options really necessary for a dismissal?
- What is the role of victim services counselors?
- Do I have to testify at trial in a family violence case?
- What if the alleged victim is not actually a family member?
- What does “bodily injury” mean in an assault case?
- What is a “choking allegation” in a family violence case?
- What is the penalty range for assault with family violence?
- How can I determine if the charge is regular assault or family violence?
- What is wrong with Deferred Adjudication for family violence cases?
- What if the affirmative finding of family violence is waived?
This page contains only general information. Every case is different. If you have specific questions about your case, you should consult a criminal defense attorney. For a quote, call (512) 480-9020 or email firstname.lastname@example.org.
I am a Criminal Defense Attorney in Austin, Texas
I defend people accused of both misdemeanor and felony assault with family violence in Travis County. In these cases, it’s especially important to have an excellent criminal defense attorney working to protect your rights and tell your side of the story from the very beginning. The sooner I’m brought into a case, the more procedural opportunities I’m likely to have to investigate witness claims and get the case thrown out (sometimes before you ever have to appear in court), thereby avoiding a tremendous amount of stress and embarrassment without sacrificing your criminal history.
If you’ve been charged with family violence assault, please contact me immediately at (512) 480-9020 or email@example.com to determine whether I can help you with your case.
If someone I love was arrested for domestic assault, should I hire a lawyer immediately?
Perhaps. If the person is still in jail, then the urgency is obvious. But if he or she has already been released, you should be wary of high pressure sales or scare tactics. While it is definitely more convenient to have a lawyer before your first court appearance, asking
a Travis County judge for more time to hire the right attorney will not harm your case.
Where will I go to court for a family violence case?
In Austin, most family violence cases are assigned to Travis County Court at Law #4, which is presided over by Judge Mike Denton (pictured below). In addition to class A misdemeanors, most third degree felonies are also assigned to Court 4.
The most serious felony cases, however, are assigned to one of the Travis County Criminal District Courts. All of these courts are located in the Blackwell/Thurman Criminal Justice Center (CJC), which is located at 509 West 11th Street, Austin TX 78701. Here’s a map of the courthouse complex.
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. A bond condition in some family violence cases requires the defendant to stay away from the home and workplace of the alleged victim.
Another common bond condition in family violence cases is to obtain an evaluation from the Travis County Counseling and Education Services (TCCES). The family violence assessment fee is $55 and must be paid by cashier’s check or money order. The evaluation takes at least two hours and the first available appointment times are often several weeks away and may fall outside of normal business hours.
The TCCES recommendation for a family violence case usually includes 18 plus weeks of the Batterer Intervention and Prevention Program (BIPP). The recommendation may also include substance abuse counseling, especially if the defendant has ever been arrested for an alcohol or drug-related offense and law enforcement alleges that intoxication played a role in the assault.
The BIPP is not the same as anger management classes. The program requires the defendant to “accept responsibility,” which amounts to a confession of guilt. But a defendant in a pending criminal case is presumed innocent by law and cannot be compelled to incriminate himself. As a result, when TCCES recommends the BIPP, the defendant is not required to begin the program while the case is pending. Instead, the prosecution usually includes the TCCES recommendation as a condition of any plea bargain or dismissal agreement or the judge imposes it as a condition of probation at sentencing.
Other examples of bond conditions include supervision by a Travis County Pretrial Services officer, wearing an electronic monitoring device, and observing an evening curfew. Felonies typically have more onerous conditions than misdemeanors and personal bonds usually have more conditions than surety bonds.
What is the Batterer Intervention and Prevention Program?
The Batterer Intervention and Prevention Program (BIPP) is an education and rehabilitation program for domestic violence offenders. The group sessions are conducted at local social service organizations and the curriculum was designed by the Texas Department of Criminal Justice, which also operates the state prison system. The program starts from the premise that the defendant is an “offender.” Participants must admit that they are batterers and accept responsibility for allegations of cruelty, abuse, or violence.
In most cases, the defendant must attend 18, 24, or 36 weekly sessions. Participants typically pay an initial fee for intake and initiation and then a per-session fee for each week of the program that they attend. Some host organizations offer a sliding scale fee based on the defendant’s ability to pay. For example, as of August 7, 2014, the per session BIPP fee at Lifeworks in Austin ranges from $25 to $80.
The BIPP is obviously not appropriate for some people. When the BIPP is not the best approach for a client, I can sometimes persuade the prosecution to allow private counseling instead. This type of substitution allows the client to seek services from the provider of his or her choice.
The prosecutors in Court 4, Travis County’s dedicated court for family violence cases, are not always willing to allow substitution, but there seems to be a better chance when my client has an established relationship with a private therapist and is already attending one-on-one sessions and addressing issues related to the alleged assault. When substitution is allowed, the defendant must typically attend at least as many private sessions as the number of BIPP sessions recommended by TCCES. Contrary to popular belief, couple’s counseling is not generally encouraged. The prosecutors’ reasoning appears to be that they don’t want to require an alleged victim to help his or her abuser.
What are the collateral consequences of a family violence conviction?
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 Travis County 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, limit visitation rights, and eliminate the minimum marriage term required to qualify for spousal support. 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 in Travis County, 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 Travis County 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.
Is Project Options really necessary for a dismissal?
No. Although the County Attorney’s web site claims that Project Options is required before they will consider a dismissal, I have negotiated over 100 dismissal agreements on misdemeanor family violence assault cases and I can’t remember ever having a prosecutor require that an alleged victim complete the Project Options class as a condition for dismissing the case.
This does not mean that the County Attorney would never require Project Options but it is simply not true that the prosecutor will not consider dismissing a case without a certificate from Project Options.
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.
The Austin Police Department, Travis County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County Attorney’s Office all have their own victim services counselors.
Unfortunately, it is not uncommon for alleged victims to report back to me that the victim services counselors with the Travis County Attorney’s Office treated them badly when they were seeking a dismissal or reduction of charges rather than a conviction. The counselors’ behavior has been described as manipulative, threatening, and even dishonest. I have found this to be especially likely to occur when the alleged victim disputes the version of events reported by the police.
Alleged victims have no legal obligation to cooperate with or even talk to a victim services counselor. If you do talk to them, keep in mind that they are supposed to be helping you. Tell them if you want a particular outcome and cut them off if they are unhelpful.
When a victim-witness coordinator, prosecutor, policeman, detective, or any agent of the State advises the alleged victim to not speak with the defense attorney, that is sometimes known as a Gregory violation. If this happens to you, notify the defense attorney about what was said, when, and by whom. See also: United States v. Skilling, 554 F.3d 529, 567 (5th Cir. 2009)
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.
In assault cases involving mutual combat, sometimes the alleged victim would not be able to testify honestly about all the details surrounding the incident without confessing to criminal behavior of their own. In this situation the alleged victim may obey the subpoena to appear in court but still refuse to testify by asserting their right against self-incrimination guaranteed by the Fifth Amendment of the United States Constitution.
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.
What is the penalty range for assault with family violence?
Depending on your prior criminal history and the specific facts alleged by the police, e.g., bodily injury, choking, deadly weapon, or other aggravating circumstances, an assault or aggravated assault with family violence case can be filed as a Class C misdemeanor on up to a 1st degree felony.
The range of possible outcomes at the low end of the spectrum includes deferred dispositions and fine-only convictions, the former of which may qualify for expunction. Higher level misdemeanors that result in convictions may involve probation or even time in the county jail. Depending on the defendant’s criminal history and the severity of the allegations, deferred prosecution is also a possibility and is a very desirable outcome in many cases because it results in a dismissal that is usually eligible for expunction.
How can I determine if the charge is regular assault or family violence?
Find your case on the docket and look on the last column on the right. Some of the most common family violence charges are:
- ASSAULT CAUSES BODILY INJURY FAMILY VIOLENCE
- ASSAULT CAUSES BODILY INJ DATE/FAMILY/HOUSE
- ASSAULT CAUSES BODILY INJ FAMILY VIOLENCE ENH
- ASSAULT FAMILY/HOUSEHOLD MEMBER
- ASSAULT FAMILY/HOUSEHOLD MEMBER W/PREV CONV
- AGG ASSUALT DATE/FAMILY/HOUSE W/WEAPON
- ASSAULT BI FAM/HOUSE MEM 2+ W/IN 12 MONTHS
- ASSAULT FAM/HOUSE MEM IMPEDE BREATH/CIRCULAT
If the charge listed on the docket for your case is not in the list above it may have been be filed as ordinary Assault or Aggravated Assault or as Violation of a Protective Order.
What is wrong with Deferred Adjudication for family violence cases?
Deferred Adjudication is better than straight probation in most criminal cases because it is not a conviction and your criminal history can be partially sealed if an order of non-disclosure is granted after you successfully complete the probationary period. Non-disclosure also allows you to legally deny an arrest on employment applications.
Unfortunately, the non-disclosure law specifically excludes anyone ever convicted of or placed on deferred adjudication probation for a case involving family violence. In other words, entering into a plea bargain agreement for deferred adjudication will make you permanently ineligible for non-disclosure in the future, even for unrelated charges.
In addition, deferred adjudication is treated like a conviction for some purposes, such as federal immigration issues, concealed handgun licenses, and enhancement of future family violence charges. Thus, for family violence cases, deferred adjudication probation has many of the same consequences as straight probation.
That said, you should not automatically reject a plea bargain offer just because it includes the word “deferred.” There are pretrial diversion programs that are sometimes offered in certain Austin courts that are called Deferred Prosecution and Deferred Disposition. Successful completion of pretrial diversion usually results in a complete dismissal and makes it possible to obtain an Expunction. Expunction is even better than non-disclosure because it completely removes a case from your criminal history and causes all records of the arrest and prosecution to be deleted and destroyed.
What if the affirmative finding of family violence is waived?
A prosecutor may offer to waive the family violence finding in hopes of making a plea bargain offer seem like a better deal. Don’t fall for it.
Unlike a deadly weapon finding, almost all of the negative family violence consequences apply without regard to an affirmative finding. This is because most of the enhanced consequences are based on the actual relationship between the defendant and the alleged victim, not on the existence of any judicial finding.