No close family relationships are exempt from periods of turbulence. But when arguments or misunderstandings escalate into violence or threats of violence family disputes can turn into domestic violence. The reality is that when the police are called to a domestic disturbance, the chances are extremely high that someone will be taken to jail and criminal charges will be filed. In Texas, there are many types of offenses that are considered domestic violence.
If you have been charged with any offense involving domestic violence it is critical that you consult with a knowledgeable criminal defense attorney. A conviction for domestic violence could not only result in harsh legal penalties and a damaged reputation, it could also remain on your record for the remainder of your life. If you have been charged with domestic violence in Houston or the surrounding area, you should reach out to Ceja Law Firm PLLC, a premier criminal defense practice.
Do I Need an Attorney if I Have Been Arrested for Domestic Violence?
If you have been arrested for domestic violence, having an experienced criminal defense attorney by your side is critical to get you through the process with as little disruption to your life as possible, while maximizing your chances of a dismissal or acquittal. In addition to working to keep a charge off your record, an experienced attorney should guide you and advise you during every stage of the case and assist with modifying protective orders or bond conditions, gathering evidence, conducting an investigation, negotiating with prosecutors and going to trial.
Attorney Jose Ceja is a former prosecutor who has obtained verdicts of “not guilty” in misdemeanor and felony domestic violence cases and well as grand jury “no bills.” He regularly obtains dismissals of domestic violence charges throughout the Houston area. Jose Ceja has been recognized as a “Top 100 Trial Lawyer” by the National Trial Lawyers Association and has earned a perfect 10.0 rating by Avvo. He is eminently qualified to guide you through the criminal justice system and provide you with the very best outcome.
Domestic violence cases are very fact-specific and the best defense in a domestic violence case will depend on the facts and circumstances of the allegation. Domestic violence cases can vary greatly in the strength and nature of the evidence (for example, whether there are third-party witnesses or other proof) and the severity of the alleged injuries. No matter what the charge and the allegation, a criminal defense attorney should first obtain the full evidence and conduct his own investigation.
It is the job of a criminal defense attorney to aggressively challenge the prosecutor’s case. A common mistake that inexperienced defense attorneys make is treating the police officer’s report as if it contained an accurate version of what allegedly occurred. In a domestic violence case – and most criminal cases – a police report is written by an officer whose main goal is to justify an arrest decision, not to present both sides fairly. Whatever the facts of a domestic violence case, an effective criminal defense attorney should aggressively challenge the assumptions and statements contained in the police report.
The most common defense in domestic violence cases is self-defense. Under Texas law, a person has a right to use reasonable force to defend oneself against an unlawful use of force. Building a strong self-defense claim requires an attorney intimately familiar with the law on self-defense who is able to effectively present the facts of the case. At Ceja Law Firm, we frequently work with investigators and medical professionals (who can interpret injuries) to help establish a winning self-defense claim.
In other cases, the strongest defense may be proving that the assault never took place or that it was fabricated by an alleged victim with a motive to lie. Again, it is the job of a criminal defense attorney to develop this defense and find the most effective way to present it in court, including investigating a possible motive to fabricate an assault and exposing inconsistencies in statements, photographs or injuries. In order to develop a strong defense, an attorney should always be proactive in gathering evidence and conducting his own investigation.
Types of Domestic Violence in Texas
Under Texas law, there are multiple offenses that would fit under the category of “domestic violence.” The most common domestic violence charge is assault-family violence, which is normally filed as a Class “A” misdemeanor, punishable by up to a year in jail and a $4000 fine. Other charges relating to domestic violence can include:
- Continuous violence against the family
- Terroristic threat against the family
- Aggravated assault against a family member
- Domestic violence by choking or strangulation
Although it is possible to commit any of these offenses against non-family members, under Texas law, the punishment range is increased when committed against a person who meets the definition of family member. Also, as discussed below, the definition of “family member” is very broad in Texas and includes housemates (even if not related), current and former dating partners and foster children in addition to family members.
What Are the Secondary Consequences of a Domestic Violence Conviction?
Apart from the direct legal consequences of a conviction for any domestic violence-related offense, there can be a variety of “secondary” consequences of a conviction or deferred adjudication. This can include trouble finding work, obtaining a professional license or even housing, as many landlords run criminal background checks and may reject people with violent a violent history. Under Texas and Federal law, a person convicted of a domestic violence offense could lose their right to own a firearm. Anyone convicted of a felony could lose their right to own a firearm and vote.
Who Can Lodge a Domestic Violence Charge Against You?
While the term “family violence” usually brings to mind a situation involving a husband and wife, in fact, a domestic violence charge can be based on acts committed against a wider group of people listed in the Texas Family Code. This can include:
- A family member by blood, marriage, or adoption
- A member of the accused’s household
- Anyone with whom the accused has a child or children
- A current or former spouse
- A current or former romantic partner
- A foster child or a foster parent
- A child of a former spouse or partner
It is important to note that the law also includes non-relatives with whom you live, such as roommates, in this list.
Throughout Texas and the Houston area, the most common domestic violence charge is for Class “A” misdemeanor assault-family violence. However, there are multiple instances where a domestic violence incident could be charged as a felony. This includes the following offenses:
- Assault-Family Violence Second Offense: If the defendant has previously been convicted of assault-family violence, a subsequent offense is charged as a third-degree felony, punishable by 2-10 years in prison.
- Continuous violence against the family: If two or more instances of domestic violence are committed during a 12-month period, domestic violence can be charged as continuous violence against the family, which is a third-degree felony, punishable by 2-10 years in prison and a $10,000 fine.
- Assault-Family Violence by Impeding Breath: If an assault is committed against a family member by “impeding the normal breathing or circulation” by applying pressure to the person’s neck, assault-family violence can be charged as a third-degree felony, punishable by 2-10 years in prison and a $10,000 fine.
- Aggravated assault against a family member: If an assault is committed against a family member resulting in serious injury or involves a deadly weapon, domestic violence can be charged as a second-degree felony punishable by 2-10 years in prison and a $10,000 fine.
- Aggravated assault against a family member with a deadly weapon and serious injury: If an assault is committed against a family member resulting in serious injury and involves a deadly weapon, domestic violence can be charged as a first-degree felony punishable by 5 years to life in years in prison and a $10,000 fine.
As noted above, a domestic violence conviction can carry severe consequences in addition to the potential penalties under the sentencing range. The secondary consequences of a felony domestic violence conviction can be significantly worse.
Are There Immigration Consequences From a Texas Domestic Violence Case?
There can be severe immigration consequences as a result of a domestic violence conviction. Even a conviction or deferred adjudication for misdemeanor assault-family violence can result in major immigration problems like denial of citizenship or residency.
If you are not a United States citizen and have been charged with a crime involving domestic violence, obtaining a dismissal or an acquittal of any domestic violence charge is critical. Additionally, it is highly advisable that you consult with an experienced immigration attorney while your case is pending so that you can be sure that you fully understand the immigration consequences of any resolution of your case. At Ceja Law Firm, we regularly work with some of the best immigration attorneys in Houston to ensure that our clients make informed decisions regarding the handling and resolution of their cases.
Protective Orders and Bond Conditions in a Domestic Violence Case
In any domestic violence case, it is highly likely that the court will issue bond conditions that could restrict or limit contact with the complaining witness, the complaining witness’ family, or prohibit going near certain locations like the complaining witness’ home, work or school. Although bond conditions and protective orders are similar, they function differently in a domestic violence case and it is important to be clear about what is required of each. As explained below, violating a protective order or bond condition in a domestic violence case could be disastrous.
A protective order is known as a Magistrate’s Order of Emergency Protection (MOEP) and will typically be issued by a magistrate judge when bond is set in a case. The MOEP will prohibit or restrict contact and usually prevent the defendant from going to the complaining witness’ home, work or school. Unlike bond conditions, which remain in effect throughout the duration of the case, a MOEP will expire in 60 or 90 days, depending on whether a deadly weapon is alleged to have been used.
In a domestic violence case, bond conditions are separate orders issued by a judge but typically include similar conditions (bond conditions could also include additional restrictions, such as no drinking or travel restrictions). Unlike a MOEP, bond conditions in a criminal case do not automatically expire and will remain in effect until the case is resolved or the bond conditions are modified.
It is possible for a criminal defense attorney to ask a judge to modify bond conditions or a MOEP. In many domestic violence cases, the defendant will be forced to leave the home after being arrested. In order to allow a defendant to return home (or modify some other problematic condition) a criminal defense attorney will need to ask the judge to make the change. The best way to accomplish this will vary depending on the facts of the case and the particular judge, but typically the complaining witness will need to cooperate.
Whatever conditions are applicable to a case it is critical that they be strictly obeyed. If it is alleged that you violated a MOEP or condition of bond in a domestic violence case (for example, by contacting the complaining witness when it was prohibited), your bond could be revoked and you could be held in jail without bond. Additionally, you could face a new criminal charge for violation of a protective order.
How Can You Get a Domestic Violence Case Dismissed?
There is no guaranteed way to obtain a dismissal in a domestic violence case. However, an experienced criminal defense attorney can make a dismissal more likely by building an aggressive defense to show that, for example, the defendant was justified in using self-defense or that the allegation was false. It can often be helpful for an attorney to obtain a truthful statement from a complaining witness explaining what really happened and clarifying that the defendant was not at fault in the incident. Whatever the facts of the case, a dismissal is always more likely when a criminal defense lawyer takes a proactive approach to investigating a case.
For misdemeanor assault-family violence cases, it is sometimes possible for a criminal defense attorney to negotiate a dismissal of charges where the complaining witness is on the defendant’s side, the injuries are minor, and the defendant has minimal criminal history. Occasionally, prosecutors in the Greater Houston area are willing to offer programs that result in the dismissal of a domestic violence case.
How Can I Keep a Domestic Violence Charge Off of My Record?
Under Texas law, the only way to keep a domestic violence charge off of your record is by obtaining an expunction of the arrest. It is very important to understand that in order to obtain an expunction of a domestic violence case, the case must be dismissed, or you must be found “not guilty at trial.
Unlike most offenses, you cannot get your records sealed (also known as a non-disclosure), if you complete a deferred adjudication probation. In Texas, a deferred adjudication probation is a type of probation that does not leave a “final” conviction on your record if completed successfully. For most offenses, successfully completing a deferred adjudication probation would entitle you to get your records sealed, but unfortunately, cases involving findings of family violence are not eligible to be sealed.
This is another reason why it is critical to do everything possible to obtain a dismissal or acquittal. If your domestic violence case is dismissed, or you are found “not guilty” at trial, then you will be entitled to obtain an expunction of your arrest. In Texas an expunction of a domestic violence arrest is considered to be the best result as it deletes all records of the arrest and even allows you to deny the existence of the arrest for most purposes. Obtaining an expunction of a domestic violence charge should always be the ultimate goal.
Contact Our Houston Domestic Violence Lawyer Today
Whatever the facts of your case, Ceja Law Firm will work to find the best strategy for you and maximize your chances of an excellent result. As an accomplished domestic violence attorney, Mr. Ceja knows precisely which legal tool to use and when. If you have been arrested for domestic violence, contact Ceja Law. Get in touch with us as soon as possible so we can begin by filling out the contact form or giving us call for a FREE consultation.