If you’re being charged with assault on a family member, you should usually fight that case. Family violence cases are different than other types of cases. They come with harsher penalties, are harder for the state to win, and police are more likely to arrest innocent people in these cases.
Affirmative Finding of Family Violence
In Texas, if you’re found guilty at trial or take a plea agreement, the judge will likely find that you committed an act of family violence. A judge doesn’t have to make that finding if you receive deferred adjudication, but they can. Only one judge in San Antonio is not making that finding in every case.
Who Counts as a Family Member
A family member includes anyone related to you by blood or marriage, anyone you’ve been in a dating relationship with, and even includes roommates.
Consequences of a Family Violence Finding
When a judge makes that finding, there are several consequences besides jail time or probation. You’ll never be able to have your record cleaned up, even if you receive deferred adjudication. If you’re ever charged with a family violence case in the future, it will be enhanced to a felony. You’ll never be able to own or possess a firearm. If you ever have a custody issue, the judge can look at the finding when deciding if you get custody or visitation with your kids. These consequences mean that family violence cases have some of the strictest penalties, especially if you compare them to other misdemeanors.
74% Were Dismissed Last Year
Family violence cases are also more challenging for the state to win. Last year, 8,811 family violence cases were closed in Bexar County. Of those, 6,576 were dismissed. That means 74% of misdemeanor assault family violence cases were dismissed last year. Felonies are less likely to be dismissed than misdemeanors, but many are still winnable.
Why They’re Hard for the State to Win
There are several reasons that there are so many that get dismissed. They are usually he-said-she-said cases. There aren’t usually any other witnesses that were around at the time of the alleged assault. The alleged victim often wants the case dismissed. Even after an arrest, most couples stay together. It’s up to the prosecutor to decide when to dismiss a case, but if a victim is not cooperating with the district attorney’s office and isn’t going to testify, the state will have a harder time winning at trial.
Lastly, the police often arrest the wrong person in these cases. Usually, there’s no assault happening when the police get there, and they’re left to rely on what people say happened and what injuries they see. I’ve seen many times where someone was being assaulted and acted in self-defense, which they have the right to do. Police show up and see scratch marks on the person who started the assault and arrest the victim, who was acting in self-defense. I often have a hard time figuring out why officers ended up arresting one person and not arresting another.
What Charges are Family Violence Charges
The most common charges that are classified as family violence cases include assault – family violence, assault – married, terroristic threat, assault – family choking, and assault family 2nd. Other cases can result in a finding of family violence if the alleged victim in the case is a family member.
If you’re being charged with a family violence case, it’s important to hire an attorney to represent you who knows how to handle family violence cases and has a track record of getting them dismissed or winning them at trial. Schedule a free strategy session with our office if you’re being charged with a family violence charge or any other charge in San Antonio. We’ll discuss your case, what you can expect to happen, and how we can help you out. You can use the link below or call us at 210-900-2806.
The Law
Texas Code of Criminal Procedure
Art. 42.013. FINDING OF FAMILY VIOLENCE. In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.
Texas Family Code
Sec. 71.004. FAMILY VIOLENCE. “Family violence” means:
(1) an act by a member of a family or household against another member of the family or household that is 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 defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
(3) dating violence, as that term is defined by Section 71.0021.
Sec. 261.001. DEFINITIONS. In this chapter:
(1) “Abuse” includes the following acts or omissions by a person:
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;
(E) sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of young child or disabled individual under Section 21.02, Penal Code, indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code;
(G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code, including compelling or encouraging the child in a manner that constitutes an offense of trafficking of persons under Section 20A.02(a)(7) or (8), Penal Code, solicitation of prostitution under Section 43.021, Penal Code, or compelling prostitution under Section 43.05(a)(2), Penal Code;
(H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic;
(I) the current use by a person of a controlled substance as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child;
(J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481, Health and Safety Code;
(K) causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by Section 43.25, Penal Code;
(M) forcing or coercing a child to enter into a marriage.
Sec. 71.0021. DATING VIOLENCE. (a) “Dating violence” means an act, other than a defensive measure to protect oneself, by an actor that:
(1) is committed against a victim or applicant for a protective order:
(A) with whom the actor has or has had a dating relationship; or
(B) because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and
(2) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
(b) For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.
(c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under Subsection (b).
Sean Henricksen
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- Why You Should Fight Your Assault Family Violence Case - September 15, 2023
