Assaults and Family Violence Offenses
As a category, Assaultive Offenses encompass a wide range of different criminal charges. It includes everything from Class C misdemeanors to first degree felonies, and allegations may be anything from mere threats of violence up to causing serious bodily injury.
Certainly, some allegations are more serious than others, but none should be neglected.
If the charge includes an allegation of family violence, even misdemeanors carry with them severe consequences. A court's affirmative finding of family violence will show up on background checks by employers and the government, potentially impact the outcome of civil family law suits for child possession and divorces, and under Federal Law, it will cause you to lose the right to possess a firearm. With such drastic consequences, don't face an assault charge alone.
The statutes criminalizing assaults in Texas are found in Chapter 22 of the Penal Code titled "Assaultive Offenses." While the chapter has separate provisions for sexual assaults and assaults against minors, it can generally be split into two groups: simple assaults and aggravated assaults.
A simple assault is committed in any of three ways:
when a person intentionally, knowingly, or recklessly causes bodily injury to another;
intentionally or knowingly threatens another with imminent bodily injury; or
intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative
You'll notice that the second and third types of assault don't require any injury at all. A threat, by itself can result in criminal charges. However, the first type is what we typically think of as an assault and is often abbreviated as ABI, Assault causing Bodily Injury. This charge is usually a Class A misdemeanor, punishable by up to one year in County Jail and a $4,000.00 fine. However, if the alleged victim or complaining witness is a public servant performing their duties, if your accused of strangulation or impeding the breath of a family member, or the charge is your second involving family violence, the penalties are increased to that of a 3rd degree felony. That's 2 to 10 years in State prison.
If you are charged with the other type of assault, the penalties are even more severe. An Aggravated Assault is defined as a Simple Assault that causes serious bodily injury to another, or involves the use of a deadly weapon. An aggravated assault is typically punishable as a second degree felony: 2 to 20 years in Texas State prison and a $10,000.00 fine. But, as with simple assaults, the punishment is enhanced to a first degree felony if, among other things, a deadly weapon is alleged to have been used against a family member. A first degree felony is punishable anywhere from 5 to 99 years in State prison.
Assault charges are serious, and should not be taken lightly. But although they carry severe consequences, there are often possible defenses. In most cases, law enforcement is not called until after the fact. Sometimes not till days after the alleged assault. Often they are forced to rely in the word of the complaining witness alone and will overlook or neglect reasons why the complaining witness might fabricate or exaggerate his or her allegations.
If you charged with an assault, an attorney can help you to investigate and discover reasons why the complaining witness may have to lie to the police about what happened. For example, he/she may be seeking leverage in a family law custody or divorce suit or was intoxicated and unable to recount the facts correctly. Another may be that he/she was actually the first aggressor and called 911 to prevent you from speaking to police first. Discovering a complaining witness's bias or motives to lie could be the difference between a guilty and not guilt at trial. Hiring an attorney who knows how to investigate the surrounding circumstances could make all the difference.
Self-Defense and Necessity are two affirmative defenses that, if available, excuse or justify a person's conduct. If you only acted to protect yourself from what you reasonably feared was an imminent attack, you cannot not be held criminally responsible for making harmful or injurious contact with another. However, even if available, raising a self-defense claim can be complicated. Unlike in most other areas of criminal law, the accused actually does have a burden of proof in raising self-defense. An attorney knowledgeable of self-defense law can effectively investigate, organize, and present evidence of self-defense to a jury.
If you or a loved one has been charged with an assault, please feel free to contact us. Consultations are free.
Can Assault Cases be Won at Trial?
There is no single answer to this question. Each case is different and there are never any guarantees at trial. However, depending on the facts, an assault case may very well be winnable at trial. You need an attorney to investigate your case, evaluate its merits, and then consult with you on the best course of action. If you are facing an assault charge do not wait; call us today for a free consultation.
Even if the facts of your facts are against you, a trial may still be your best option. It is common for many people facing a family violence charge to be offered what's called "deferred adjudication." At first glance, deferred adjudication may seem tempting. It is often sold to defendants as a way to avoid a conviction. If placed on deferred adjudication, the judge rules the evidence is sufficient to find you guilty, but does not find you guilty at that time. She instead places you on probation, and if you complete the probation, you are discharged and the case is dismissed.
But avoiding the formal conviction is often a hollow victory. Deferred adjudication may still have a severe impact on your life. For crimes that don't involve family violence, deferred adjudication provides the opportunity to seal the records of the arrest, charge, and disposition. However, Texas Government Code § 411.074(b)(1)(D) prohibits a court from issuing an order of nondisclosure for family violence offenses. Meaning it remains on your record and open to the public forever.
Because a family violence deferred adjudication cannot be sealed, it may be treated exactly like a conviction by employers, prevent you from obtaining government licenses or certifications, impact your ability to obtain loans or mortgages, disqualify you from certain housing applications and college applications.
For immigration purposes, a deferred adjudication will be considered the same as a conviction. So, non-citizens may face severe consequences, including deportation, if they accept a deferred adjudication offer.
For many people, especially those without any criminal history, it is possible, and sometimes likely, that they will be placed on probation even if they choose a trial and are convicted by a jury. You should absolutely consult with an attorney before making this decision, but if you are likely to receive probation anyway, the difference between a conviction and a deferred adjudication for a family violence offense may be nearly non-existent.
If you are facing a family violence accusation, call us for a free consultation. This is not a decision you want to make on your own.