Criminal Defense

Assault and Family Violence (also called Domestic Violence)

Texas Penal Code Section 22.01 assault:

  1. cause bodily injury
  2. threaten imminent bodily injury or
  3. cause physical contact that another finds offensive.

Assault is a misdemeanor A: up to one year in jail, maximum of 2 years probation, up to $4,000 fine.

You can get deferred adjudication and later get an assault off of your record.

Assault and assault family violence have one big difference: assault family violence cannot come off of your record.

It is possible to plead to family violence and not be convicted. But, the record of the arrest will not come off.

What is considered family?:

  • spouse, ex-spouse,
  • dating relationship,
  • have a child together (married or not),
  • related (mom, dad, cousin).

If someone who can be seen as “family” files an assault case, this can cause a lifetime of problems.

The court can enter a finding of family violence. This means the court will make sure the record reflects that the assault was against a family member. Why would the court do that.

  1. No matter what kind of probation you get, you cannot get a family violence off of your record.
  2. Also, if you have children with the other person who accused you of family violence, the assault will haunt you if you ever get into a custody battle with them. The Texas Family Code says that the court can assume that you should not make decisions regarding your child if you pled to or are found guilty of family violence assault.
  3. You cannot own firearms, purchase firearms or even possess them for hunting.
  4. Even a hint of family violence on your record can make it difficult to get an apartment or a job.

So, a family violence charge carries with it somewhat of a stench. So, even though a person can get probation for family violence and not be convicted, this should be done as a last resort.

Problems with deferred probation on a family violence case:

  1. Should there be a problem, and they revoke your probation, you could be convicted AND start over on probation.
  2. Your probation could be revoked and you could go to jail for up to a year.
  3. Your gun rights will be taken away even with deferred.
  4. The plea itself can count against you in a Texas custody case.
  5. Federal law considers deferred adjudication a conviction. So, citizenship could be a problem as well as remaining in this country for a non-citizen.
Affidavit of Non Prosecution

It is common in a family violence case for the complaining witness to want to “drop the case.” Sometimes someone will call the police just because they were mad. Another situation can be the neighbors dialed 911 out of concern.

People hear about an affidavit of non prosecution. This is an affidavit where the victim, complaining witness, person who called the police, swears under oath that they do not wish to prosecute the accused.

Problem with the Affidavit of Non Prosecution

In the past, at least in Dallas, defense attorneys could take the affidavit of non prosecution to the district attorney’s office in an effort to get the case dropped. Prosecutors in Dallas and surely many other counties no longer accept an affidavit from defense attorneys. So, how does this get done?

The district attorney’s office will have the complaining witness come in and they will help fill out the affidavit of non prosecution.

First, the complaining witness will get calls from the victim advocacy unit. The victim advocacy unit is made up of investigators and counselors who have the job of getting detailed information from the complaining witness. They will call the complaining witness to offer services and to offer help. Their job is to also lock the complaining witness into the reported facts. It is common in family violence situations that someone who called the police will be talked into taking the case back by saying it never happened. Victims of family violence can get caught in a cycle of violence, where the abuser hurts a loved one, then apologizes and promises to never do it again. Then, the abuser does it again. The victim’s advocate helps the abused person fight through the temptation to get the abuser out of trouble so he or she can just do it all over again.

This can have a bad effect on someone who really jumped the gun and called the police, then the police put someone in jail just to be on the safe side. Then, the victim’s advocate can end up manipulating the person into keeping the case going.

When the complainant goes to the DA’s office to fill out an affidavit of non-prosecution, the victim’s unit is there with the prosecutor. They will tell the complainant that they will be happy to fill out a paper that says they do not want the accused to be prosecuted for family violence.

What that paper also says is that any facts they gave the victim’s unit and prosecutor, is true. So, the affidavit is worthless. It only gives the prosecutors more of a reason to keep the family violence case going. Although what the complaining witness says in the affidavit is hearsay, it makes it more difficult to get the case handled outside of court.

Bottom line: read any statements written out by the government before you sign it. This is good advice for life in general. Read everything before you sign your name.

How to Deal With a Family Violence Case

So, the best way to beat a family violence case is to head it off before it is filed. This means rounding up witnesses and witness statements. If calling 911 was a mistake, you must convince the prosecutors that dismissing the case will not come back to haunt them. Plus, that statement has to be true. Otherwise, if the complaining witness wants to go forward with the case, then it’s perhaps time to prepare for trial.

In first offense situations, in Dallas, the prosecutors can offer to allow the accused to do classes which will lead to a dismissal. This is a fine result. The case gets dismissed and possibly get your record expunged.

Again, if you are not a United States citizen, you must consult with an immigration attorney before taking any kind of deal. Even the family violence classes and a dismissal can lead to deportation and denial of citizenship.

One last word, police can issue a ticket for some assaults. Whatever you do, do not just pay the fine. This is a conviction and will remain on your record. Hire an attorney even for a ticket assault.