Assault-Family Violence Frequently Asked Questions

Domestic violence – also known as assault-family violence in Texas – is one of the most frequently charged criminal offenses in the Greater Houston area. The offense of assault-family violence (which is used interchangeably with domestic violence in this article) is committed when a person commits an assault against someone with whom the person is in a dating relationship with, or a member of the person’s household or family. Assault-family violence cases present many unique issues and this article addresses many of the most frequently asked questions regarding these types of cases. The below information is for information purposes only and should not be construed as legal advice. Always consult with an experienced criminal defense attorney regarding your domestic violence case. 

What are the different types of Assault-Family Violence?

Most assault-family violence cases in Texas are filed as Class “A” misdemeanors. However, there are other ways that a domestic violence case can be upgraded to a felony based on the criminal history of the defendant or the manner that the offense was allegedly committed. 

If a defendant has a prior domestic violence conviction, a second charge for assault-family violence will be a third-degree felony. If there are two or more instances of family violence alleged to have been committed within a 12-month period (not necessarily convictions), a domestic violence case can be filed as Continuous Abuse Against the Family, which is a third-degree felony. If the defendant is accused of causing serious bodily injury to the domestic violence victim, then the offense will be charged as a second-degree felony. An assault committed against a pregnant woman will be charged as a third-degree felony.

How long will my case take?

It is difficult for any criminal defense attorney to say exactly how long a domestic violence case will take to defend. The first step to defending any criminal accusation is to gather the evidence. In a typical domestic violence case, this will include the offense report, videos, 911 call, witness statements, photographs and in some cases, medical records.  

It generally takes at least three or four months to obtain all of the evidence in cases filed in the Houston area. Many agencies, like the Houston Police Department, are especially slow at providing body camera evidence. Once the evidence has been received, then your attorney will be able to evaluate your case and do his own investigation. An experienced criminal defense attorney should attempt to conduct his own witness interviews. 

How do I get assault-family violence case dismissed?

In general, domestic violence cases are dismissed for two reasons: legal and factual. Legal reasons for dismissal can include an illegal arrest or the illegal collection of evidence, like a custodial interrogation made without Miranda warnings (if the illegally obtained confession was an essential part of the State’s case). If a judge rules that certain items of evidence are not admissible, this could lead to the dismissal of the case. 

Factual dismissals have to do with the strength of the State’s case against you. If your criminal defense attorney has obtained statements from the complaining witness that truthfully explains the conduct in a way that is favorable to you, that might cause the prosecutor to conclude that the case against you is weak and cannot be proved beyond a reasonable doubt. To increase the chances of a favorable result, it is critical that your criminal defense lawyer take a proactive approach in defending your domestic violence case and do his own investigation. In addition to challenging evidence provided by the prosecutor, this includes contacting witnesses either personally or through an investigator and subpoenaing records that might be helpful to the defense. 

In felony assault-family violence cases, a grand jury packet might provide a way to get your case dismissed under certain circumstances. A grand jury is a group of citizens from the community that listen to evidence in felony cases and decide whether probable cause exists. If the grand jury find that probable cause exists, that results in an indictment, which can be thought of as a formal charge. However, if the grand jury find no probable cause (also called a “no bill”), then that will usually lead to a dismissal of the charge against you. In any assault family violence case charged as a felony, your criminal defense lawyer could provide information to the grand jury to attempt to persuade it to find no probable cause and “no bill” the case. For strategic reasons, a grand jury packet should only be submitted in certain cases. More information on grand jury packets can be found here.

Lastly, with a misdemeanor or first-time domestic violence offender, sometimes the District Attorney will offer a pre-trial diversion. A pre-trial diversion is a contract with the District Attorney’s Office that the case will be dismissed if certain conditions are met. In assault-family violence cases, this can include completing “batterer’s” counseling (sometimes referred to as BIPP) and community service. The terms and availability of pre-trial diversions vary from county to county. In Houston, the Harris County District Attorney’s Office usually will only consider a pre-trial diversion where a defendant has no criminal history and there were no serious injuries. In general, it is even more difficult still to obtain a pre-trial diversion in Montgomery County or Fort Bend County. 

What is a Magistrate’s Order for Emergency Protection (MOEP)?

In most domestic violence cases, a magistrate will issue an order prohibiting the defendant committing further acts of family violence or communicating with the protected person (or in some cases the entire family) in a threatening or harassing manner, or when the magistrate finds good cause, communicating with the complainant at all. The statute controlling MOEPs can be found in Texas Code of Criminal Procedure 17.292, which states that the order will either be for 60 or 90 days, depending on the facts of the case. 

A MOEP will often result in an accused person having to move, if he or she shares a residence with the protected person. It is possible to ask the magistrate or judge to lift the MOEP before it expires. In order to do this, it will usually be necessary to go to court with the complaining witness to ask the judge to lift the order. The judge will usually ask the complaining witness if he or she wishes the order to be lifted, if there is a history of violence, if there are guns in the home, etc. Some judges are not willing to lift a MOEP, if at all, until several weeks have passed. It is critical to consult with an experienced domestic violence attorney before attempting to go to court and have the order removed as you may risk an accusation of having violated it, and it is unlikely the judge would talk to a defendant on this issue without an attorney. 

After the no-contact order expires, can I communicate with the complaining witness?

Even if the MOEP in an assault-family violence case has expired, or a criminal defense attorney has persuaded a judge to lift it before the expiration date, you should be aware that most defendants in assault-family violence cases are also subject to bond conditions that could also prohibit contact with a protected person. Unlike MOEPs, which expire in 60 or 90 days, a bond condition will remain in place throughout the duration of the case, unless it is modified. You should carefully review all bond conditions in your case and make sure you understand them before contacting the complaining witness in your case. 

What happens if I violate the Magistrate’s Order of Emergency Protection (MOEP) or bond condition? 

Violating a MOEP or bond condition prohibiting contact is a very bad idea and could result in you being back in jail, possibly with no bond. Under Texas Penal Code 25.07, it is a Class “A” misdemeanor to communicate with a protected individual in a way that violates a court order, possess a firearm, harm or threaten to harm a pet owned by the protected individual or tamper with a court-ordered GPS. The offense can be upgraded to a third-degree felony if the order is violated by committing an assault, or if it is shown that a defendant has previously been convicted two or more times of violating a court order. 

Additionally, a violation of a protective order is one of the few situations where a judge is legally permitted to hold a defendant in jail without bond under the Texas Constitution. This means that if you are accused of violating a protective order in a domestic violence case, you could be held without bond until your case is resolved. It is critical that you obey your bond conditions if you are charged with domestic violence. 

Can the victim drop the charges?

Many people believe that a complaining witness in a case can “drop” the charges by picking up the phone and calling the District Attorney’s Office. This is inaccurate. The State of Texas can proceed with charges against a defendant regardless of the wishes of the complaining witness. The reality is that most of the time when a complaining witness calls the District Attorney’s Office, the attorneys for the State of Texas will use the opportunity to try and strengthen the case against the defendant. 

It should be noted that a defendant in a criminal case should never speak to the witness about dropping charges or changing his or her testimony because the defendant could be accused of witness tampering. However, a criminal defense attorney has an obligation to fully investigate a case, and this includes interviewing witnesses to the incident. 

Will my case go to trial?

It is impossible to know whether a case will go to trial until all the evidence has been received and evaluated, a criminal defense lawyer has done his own investigation, and an offer has been received from the State. The goal is always dismissal. But the State will not dismiss certain cases, and if a case is not dismissed, a defendant will typically have to choose between a plea agreement or a trial. 

In misdemeanor cases and many felonies in the Houston area, the State typically offers probation. As discussed below, the direct and indirect consequences of a conviction or a deferred in an assault-family violence case can be more severe than in many other cases. Domestic violence cases are known as “crimes of moral turpitude” which carry repercussions under Federal, Immigration and State law. 

If an acceptable plea agreement is not reached, and the case is not dismissed, then the only option is trial. Trials in Texas criminal cases are discussed more fully here. Your domestic violence case might go to trial if the State does not dismiss your case or offer an acceptable plea. Sometimes, even if a case is not very strong, it might go to trial because a defendant has nothing to lose by going to trial, because he or she feels like he might end up with a similar sentence even if the case is lost. For example, if you are charged with domestic violence and the only offer is to accept probation, you might decide to go to trial, since you are likely to get probation even if you were to be found guilty at trial. Your criminal defense attorney should take the time to thoroughly review the evidence with you, along with any offers from the State before considering whether or not to take your case to trial. 

What are the most common defenses to assault-family violence cases?

Most defenses in assault-family violence cases are that the incident was fabricated and never took place, or that there was mutual combat/self-defense. Where it is argued that the incident never took place, your criminal defense attorney will attempt to show the complaining witness’ motivation for fabricating an accusation, witness statements and lack of evidence supporting the accusation. Similarly, where the defense is mutual combat/self-defense, your criminal defense lawyer attorney will attempt to show that you were not the aggressor or did not initiate the assault. Witness statements, photographs of injuries and proof that the complaining witness was intoxicated can be used to show this.  

Should I accept a deferred adjudication in an assault-family violence case?

For first time domestic violence defendants, one of the most common plea offers made by the State is deferred adjudication probation. Deferred adjudication probation is a special type of probation that in many cases can be preferable to regular probation, because it could allow your records to be sealed (also known as a “non-disclosure”), if the probation is completed successfully. However, under Texas law, a defendant cannot seal a case involving family violence. As a result, although you may not legally have a “final conviction” if you complete the deferred successfully, a deferred adjudication is less attractive than in many other cases. 

What are the consequences of an assault-family violence conviction? 

Domestic violence cases range from Class “A” misdemeanors with a maximum of one year in jail to second-degree felonies with a maximum of twenty years in prison. In addition, if you are convicted of an offense involving family violence, you could be disqualified from owning a firearm. If you are not a US Citizen, being convicted of domestic violence, which is considered a “crime of moral turpitude” under Immigration Law, could result in deportation or denial of naturalization. 

Assault-family violence cases are complex and you should hire a knowledgeable, aggressive attorney if you are charged with this offense. Attorney Jose Ceja is a former prosecutor with extensive experience handling domestic violence cases in the Houston area. Call today to schedule a free consultation.