What is an “Assault”?
“Assault” is defined by the Texas Penal Code as:
- Knowingly or recklessly causing bodily injury to another person in which there is a relationship defined by the Family Code.
- Threatening another person with bodily injury, including the defendant’s spouse.
- Causing physical contact with another person while knowing that they may take the contact as offensive.
What is considered a “Family Member”?
The State of Texas defines family members as people who are:
Anyone related by blood or marriage
- Former spouses
- Two parents of the same child
- Foster parents
- People who reside in the same home, even if not related by blood or marriage
- Persons with a dating relationship
- Former spouse’s significant other
- and others
Some things to note are you do not need to be married to have a family violence case. Family violence can occur between roommates, your ex-wife’s new husband, your child, or even your brother / sister.
What are the possible penalties?
There are a few different ways a charge of this nature can be punished. The first is a simple assault, in which a defendant can face a Class A misdemeanor and up to a year in county jail and an affirmative finding of family violence. If a person has a repeat offense whether it is a false allegation or not, this charge is enhanced to a third-degree felony a possible sentence between 2 to 10 years in prison. It can also be bumped to a third-degree felony if there is an allegation of impeding breath, choking, or strangulation.
Another type is aggravated assault on a family member. This is by far the more severe of the two and involves serious bodily injury or the use of a weapon. The two charges for this crime are:
- Second-degree felony: This is most often the charge when a weapon is used during the assault without serious bodily injury. The charge carries a punishment of 2-20 years in the penitentiary and up to a $10,000 fine.
- First-degree felony: This is most often the charge when a weapon is used during the assault and serious bodily injury is caused. The sentencing associated with this crime is 5 years to life in prison and up to a $10,000 fine.
Perhaps the most important aspect of a Assault on a Family Member charge is that, whether you do a deferred adjudication or accept another type of plea, there will likely be a affirmative finding of family violence on your record. If so, the next time anyone that fits the definition above of a “family member”, even alleges you touched them (i.e. pushed, slapped, or hit) it will be a third degree felony. That means you could be facing 2-10 years in the penitentiary for pushing your brother. Additionally, an affirmative finding of family violence on your record will eliminate your right to ever purchase a firearm or be in possession of one. For many, defending yourself and your family is an extremely important right that can be stripped from you based on this type of charge.
How do you defend against these charges?
Just as there are many ways of prosecuting these cases, there are many ways to defend against these cases as well. It is very important to move quickly and hire an family violence attorney as soon as possible. If you do not hire an attorney immediately and wait until after you go to Court, you put yourself as a serious disadvantage. It is very important to beat these types of cases.
These cases are very difficult to defend. The parties typically involved in a messy split up, divorce, moving out, allegations of cheating, or other underlying situations that fill the case with emotion. We remove the emotion out of the case by looking at the facts objectively. We look at all the evidence the State has in their case. We look at any evidence of injuries, photos, videos, the 911 call, any statements to police, and many others. We find discrepancies and inconsistencies in the State’s evidence and we oftentimes preserve our own evidence to present defenses such as mutual combat or self defense. We talk to witnesses on both sides which many times wanted to talk to the police but were never given a chance. We look to find what really happened and how things played out versus what an officer believes happened after talking only with who they believed was the victim in the case.
What if the victim tells the prosecutor to dismiss the case or will not cooperate?
Cases of domestic abuse in the state of Texas are taken very seriously and have special aspects that are only applicable to these types of cases. There is typically an entire division at the District Attorney’s office that handles just family violence cases. These divisions are trained to handle family violence cases in which the complainant or victim does not wish to proceed with the case. This means that once an investigation of domestic abuse has been initiated, the charges cannot simply be dropped by the accuser. This can create a whole host of problems if a false accusation is made and cannot later be retracted. It is important to find a experienced assault family member attorney to represent you.
Even without the cooperation of the accuser, the State can still proceed with their case. The District Attorney’s Office can do do by filing a subpoena for the accuser to appear for trial. If the accuser doesn’t comply, the District Attorney can file a writ of attachment and the Sheriff’s office will find the accuser, put them into custody and keep them there until they testify at trial. If the accuser doesn’t answer questioning at trial, they can be held in contempt and put in jail. The State can possibly introduce what the officer was told by the accuser when they arrived onto the scene and introduce the 911 emergency call made to dispatchers.
What if I’m the one who called the police and want the case to go away?
Many times, the complainant or victim wants to help and will try and talk to the prosecutor to dismiss the case. The prosecutors will also call victims very early on, typically a few days after the arrest. Talking with a prosecutor can possibly have a detrimental effect on the case and make it more difficult to get dismissed later. If you actually started the fight and the prosecutor doesn’t ask you or you don’t tell them some other important facts, raising that issue or facts later will make it look like you made it up just to get the case dismissed if you don’t mention it early on. As a witness and citizen of the United States of America, you have a right to talk to anyone you would like to. You also have a right NOT to talk to anyone if you so choose. Always contact an attorney before talking with an officer or prosecutor to understand what they will be asking you and why.
Contact a Houston Domestic Violence Lawyer
Houston assault on a family member attorney Henry K. Nguyen has been handling these cases and has the experience and knowledge on how to defend them. He works personally with clients to make sure they receive the best possible defense.
Speak to Henry K. Nguyen today at 713-222-1800 to schedule a free legal consultation.