Assault Family Violence

Many people in Austin don't realize that calling the police in the heat of a domestic argument will probably result in someone being arrested. Responding officers frequently conduct sloppy investigations, jump to conclusions, and arrest innocent people for assault with family violence. Sometimes APD even arrests the person who called 9-1-1 in the first place!

This page contains general answers the most common questions about how assault with family violence cases are handled in Travis County, Texas. Regular assault and aggravated assault cases are handled differently and are discussed here.

• Where will I go to court for a family violence case?
• What if the alleged victim wasn't really hurt?
• What are the collateral consequences of a family violence conviction?
• Can I drop the charges in a family violence case?
• 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?

Please let me know if you have questions that are not answered on this page. Remember, this page contains only general information. Every case is different so you should consult a criminal defense attorney about the specific details of your case.

I am a Criminal Defense Attorney in Austin, Texas

I defend people accused of both felony and misdemeanor 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 inquiry@pacefirm.com for a confidential consultation to determine whether I can help you with 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. 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 really hurt?

The law does not require the alleged victim to sustain an actual injury in an assault case. Physical contact that merely causes pain can suffice for an assault with "bodily injury," which is a class A misdemeanor, punishable by up to 180 days 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 may not actually spend any time in jail).

Furthermore, a mere verbal threat or "offensive" physical contact can qualify as class C assault 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 a family violence conviction without a fight because it can carry some severe collateral consequences.

What are the collateral consequences of a family violence conviction?

The government considers the assault of a family member to be a much more serious crime than the assault of a stranger. Travis County judges often issue an emergency protective order (EPO) in family violence cases. An EPO can forbid you from returning to your home and can even prevent you from seeing your children.

In divorce court, a family violence conviction can be used to deny child custody and limit your visitation rights. A family violence conviction will also cause you to permanently lose the right to possess a firearm for any reason. If you are in the military, you will be discharged; if you work in law enforcement, you will 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 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 or plead guilty to even the lowest level of family violence assault, any future misdemeanor family violence or stalking charges may be prosecuted and punished as 3rd degree felonies and you become permanently ineligible for an order of non-disclosure if sentenced to deferred adjudication for any type of offense in the future.

Can I drop the charges?

In Texas, the 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 attend a class, even if law enforcement's version of events is flat-out wrong and family violence never actually occurred. Depending on the circumstances, the prosecutor may also threaten to file charges for perjury or making a false report to the police. Once an alleged victim has jumped through the required hoops, the prosecutor may still refuse to drop the charges.

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.

But if you are the alleged victim, you should be aware that the defendant's criminal defense attorney cannot legally represent your interests (even if you were the one who actually hired him or her). The defendant's attorney has an ethical duty to represent the defendant's interests only, which very likely conflict with yours. This is especially important if you want to contradict a previous statement, which might result in you being charged with perjury or filing a false report.

As a result, when you want to recant or change your story in a family violence case, I strongly advise you to hire 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, prepare an Affidavit of Non-Prosecution that minimizes the chances that you will be charged with a crime.

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.

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.

What does "bodily injury" mean in an assault case?

You might think the term "bodily injury" would require some sort of visible injury like a cut or even a bruise but the legal definition includes mere physical pain. As a result, you can be charged with "Assault with Bodily Injury," a class A misdemeanor and jailable offense, when you are accused of merely slapping someone or pulling his or her hair.

What is the significance of a "choking allegation" in a family violence case?

The government considers choking or suffocating a family member to be more serious 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.

The punishment range for a 3rd degree felony is 2 to 10 years in prison. The punishment range for a 2nd degree felony is 2 to 20 years. Either one can carry a fine of up to $10,000

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 may involve probation or 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.

Felony cases may involve probation or time in the penitentiary and the most severe felony cases carry a maximum punishment range of life in prison.

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.