Domestic Violence Charges: Facts and Questions

Texas Family Code 71.004 defines family violence (also called “domestic violence”) as:

• An act by a member of a family or household against another member of the family/household intended to result in physical harm, bodily injury, assault, or sexual assault, or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include a defensive measure to protect oneself;
• Abuse (as defined in Texas Family Code 261.001) by a member of a family/household toward a child of the family/household; or
• Dating violence.

While it is common to think of family violence occurring between spouses or people who are dating, the following relationships all fall under family violence:

• A family related by blood.
• A family related by marriage.
• A member of your home.
• Somebody who you had a child with.
• Your current spouse.
• Your former spouse.
• A foster child or parent.
• Anyone living in your home.
• A child of a partner/former partner.
• Anyone you have had a dating relationship with (even an ex-partner).

Self-defense is the most common defense to a family violence allegation. You can use force against another when you reasonably believe that force is immediately necessary to protect you against the other’s use or attempted use of unlawful force.

You do not have to wait until the other person uses any force against you to claim self-defense. Your perception that someone is about to use force against you is enough of a defense.

You can legally come to the aid of another to defend them. A person can use force against another person to protect a third person in some circumstances. A person can also use deadly force in some situations.

A person in lawful possession of a property can use force against another person to prevent/terminate trespassing or unlawful interference with the property.

The amount of justifiable force someone can use depends on the case, but it can include deadly force.

It is affirmative to the prosecution that you engaged in the assault because of the fear of imminent death or serious bodily injury to yourself or another person. Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

The law justifies someone’s conduct if:

• The person reasonably believes the conduct is immediately necessary to avoid imminent harm

and

• The desirability/urgency of avoiding the harm outweighs the harm sought to be prevented by the law prescribing the conduct.

(According to ordinary standards of reasonableness.)

Not every assault results in visible injuries. All a person has to state is that the other person did “something” that caused them pain. I have heard people say, “If you touch me, I will call the police,” and when the police arrive, they completely oversell what happened or try to arrest someone. (For example, having your hair pulled can be painful, but it might not leave marks.)

Some police departments have slow response times, and the accuser can claim the marks left from the assault went away because of their slow response.

When injuries are visible, we must determine how they got there, especially when:

• A marriage is deteriorating.
• A relationship is ending.
• There is an upcoming custody battle.

People have intentionally hit themselves or slammed themselves into a door frame to cause visible injuries and blame their spouse when the police arrive. People have accidentally slipped and fallen when arguing after an evening of drinking and injured themselves only to become more irate and blame the other. The police do not know what happened, but they will look for an injury, and when they see one, the other person goes to jail.

In any assault, the person has to either intentionally, knowingly, recklessly, or negligently cause the injury.

Imagine you are in an argument with your significant other. You decide to leave the house and are angry. You hurry for the door and, when you turn the corner, you run into and knock down the other person. You did not know they were there, and it was a total accident. They receive an injury from the contact and fall.

Now imagine that person telling the police that you ran into them and caused the injuries. All of that is true, but you didn’t commit a crime because you did not have one of the required mental states. However, there still is a good chance the police will arrest you and put you in jail.

A person cannot provoke you into an assault and then claim self-defense. If someone provokes you, there must be evidence that:

• The person did some act or used words that provoked the attack;
• The person did the act or used words to provoke the attack; and
• The person did the above so the defendant would have a pretext for inflicting harm upon the other.

First Allegation: Offensive Touching

• Class C misdemeanor
• Up to a $500 fine
• No jail time

Note: A permanent family violence penalty can upgrade any future allegation of a felony.

Note: Even though a Class C misdemeanor is punishable by a fine only, a family violence finding can have devastating effects on any future allegation. Take Class C allegations seriously.

First Allegation: Bodily Injury

• Class A misdemeanor
• County jail: Up to 1 year; or
• Probation: Up to 2-years.
• Fine: Up to $4,000.
• Permanent family violence finding. (You can’t expunge or conceal this charge.)
• Deferred probation is an option, but it can upgrade any future family violence allegation to a felony.

First Allegation: Choking

• Third-degree felony.
• Prison: A sentence of 2-10 years; or
• Probation: A sentence of 2-10 years.
• A fine up to $10,000.
• Permanent family violence finding stays on your record forever.
• Deferred probation is an option from 2 to 10 years.

Second Allegation

• Third-degree felony.
• A prison sentence of 2-10 years; or
• Probation up to 10 years.
• A fine of as much as $10,000.

Continuous Family Violence

• Third-degree felony.
• A prison sentence of 2-10 years; or
• Probation up to 10 years.
• A fine as much as $10,000.

Deadly Weapon Used or Serious Bodily Injury

• First-degree felony.
• A prison sentence of 5-99 years; or
• Probation up to 10 years.
• A fine of as much as $10,000.

Violation of a Protective Order

• Class A misdemeanor.
• A jail sentence of up to a year; or
• Probation for up to 2 years.
• A fine of up to $4,000.

A family violence allegation will not go away on its own, and there is the potential for harsh consequences. When arguing with another, it is common for someone to call the police to get you into trouble. People tell lies, and the fact you were defending yourself becomes misconstrued. There are two sides to every story. Let a family violence lawyer tell your side.