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Assault Involving Family Violence Charges AKA Domestic Violence

On Behalf of | Nov 17, 2021 | Domestic Violence |

He said she said cases can be complicated, but our office is ready to fight for you every step of the way. A conviction for Assault with a Family Violence finding could result in a permanent scar on your record and could impact your ability to own a weapon, adopt a child, or keep your employment. Call our office now at 210-417-4590 to calculate your next move.

What happens if I have a prior Assault against family/household?

If it is shown on the trial of the offense that the defendant has been previously convicted of an offense involving family violence then the offense is classified as a Third-Degree Felony.

Who is considered my “family”?

71.0021(b), 71.003, and 71.005, of the Texas Family Code defines “family” as individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

How to get my Domestic Violence Charge dismissed?

The State must prove to a jury BEYOND ALL REASONABLE DOUBT that you intentionally, knowingly, or recklessly caused bodily injury to another, including the person’s spouse. This offense is a Class A misdemeanor. Domestic Violence charges bundle both civil and criminal implications. Your charge may negatively impact your divorce or child custody case. The Assault arrest could also lead to CPS being involved in your life and could result in the termination of your parental rights. The charge could very well be motivated by a child custody dispute, domestic partner dispute, or roommate disagreement. There are almost no consequences for lying to a peace officer about a domestic violence incident. Therefore, some “victim’s” use the system to their favor.

To increase your chances of a dismissal:

  1. Look for threatening text messages, photos, communication in the past from any witnesses in your case
  2. Record conversations between the two of you if you are allowed contact through your pretrial bond conditions (this is Legal, Texas is a One-Party Consent State)
  3. Look for old social media posts and photos that could help your cases where she/he mentions seeking custody/divorce/revenge/threats. This helps to show the jury or Judge that the complaining witness is attempting to use the system to their advantage. This is a real shame, because domestic violence does occur and people who take advantage of the criminal justice system make it harder for real victims to find justice.
  4. Hire a private investigator: our office works with expert private investigators all over the State of Texas and have caught many individuals in lies and deceit.
  5. Hire an expert: our office regularly employees forensic accountants, electronic communication experts, GPS tracking expert, Cellular Data experts, and many others to assist in criminal defense cases.

Which legal defenses might apply to my case?

Consent: The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to prosecution under Section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if:

(1) the conduct did not threaten or inflict serious bodily injury;  or

(2) the victim knew the conduct was a risk of:

(A) his occupation;

(B) recognized medical treatment;  or

(C) a scientific experiment conducted by recognized methods.

The defense to prosecution provided by Subsection (a) is not available to a defendant who commits an offense described by Subsection (a) as a condition of the defendant’s or the victim’s initiation or continued membership in a criminal street gang, as defined by Section 71.01 .

Mutual Combat: this is not technically a legal defense, but likely to fall in the category of consent.

Self-Defense: The legal text in the Texas Penal Code is convoluted, but generally if you believed that your life was in danger, you can use self-defense unless you started the fight and were not already violating the law. Importantly, self-defense does not apply to verbal provocation alone.

(a)  a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.  The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment;  or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used;  and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter;  and

(B) the other nevertheless continues or attempts to use unlawful force against the actor;  or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02 ;  or

(B) possessing or transporting a weapon in violation of Section 46.05 .

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search;  and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32 , 9.33 , and 9.34 .

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat. (Texas Penal Code § 9.31)

Defense of Third Person/Others

A person is justified in using force or deadly force against another to protect a third person if:

(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect;  and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person. (Texas Penal Code § 9.33).

Defense of Property

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Deadly Force to Protect Property

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Protection of Third Person’s Property

A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person’s land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor’s spouse, parent, or child, resides with the actor, or is under the actor’s care.

If you have any further questions about defense in your case, call Clarissa Fernandez Pratt, Attorney at Law at 210-417-4590.