The Texas Department of Public Safety reports that family violence is a commonly reported crime with an estimated 194,000 family violence incidents in 2015. There is an estimate that 1 in 3 Texans have been a victim of domestic violence in their lifetime. An estimated 71.6% of family violence victims were female. Whereas 28.4% of family violence victims were male.
How does the Penal Code describe family violence?
Family violence is an act that is committed by a member of the 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. This includes a threat that reasonably places other members in fear of imminent harm, but does not include defensive measures to protect oneself.
Family is defined as individuals sharing kinship by blood or marriage, individuals who are ex-spouses or individuals who foster a child or are considered a foster parent without regard if they reside together. A household means a unit of people living together in the same dwelling, regardless if they are related to each or not.
What are the three main types of family violence?
Domestic violence (assault) is any type of violence that is committed against someone who has or has had a relationship with the person. Relationships classified are as current or ex-partners, parent of your child, a child from a previous partner or foster child. You can also include other blood and adoptive relatives and even roommates. An example of this could be, you are in the grocery store and an ex-partner confronts you and threatens to see you in the parking lot, so he can deal with you in private. The penalty for this type of charge is a Class A misdemeanor, which would consist of a fine of up to $4,000 or up to a year in jail and sometimes might consist of both.
Another type is continuous violence against the family. To receive this charge, there must be at least two arrests for domestic assault in the span of 12 months. Also, if there were alleged assaults but none have led to a charge, it will still be considered continuous family violence. According to a law passed called Rachel’s Law, you can still be convicted of continuous family violence even if the two alleged assaults happened in different counties. The penalty for continuous family violence is 2-10 years in prison with a fine of up to $10,000, as it is considered a felony of the third degree.
And the last type is aggravated domesticated violence (assault). This crime is committed against a “Family” member. This is a type of assault that happens while being armed with a weapon to cause extensive harm to someone. It can also include threatening a member of the “Family” while being armed. For example, getting into a screaming match with a partner and they grab a kitchen knife to threaten you. This would classify as a second-degree felony with 2-20 years in prison and up to a $10,000 fine.
Are there limitations on family violence?
In the State of Texas, you have about two years to report a domestic violence case, since this is classified as a misdemeanor. Although, if there is very little evidence, you might not be able to bring a case to court and the assailant might not be prosecuted. For continuous family violence, there is a statute of limitation of three years, as this is a felony charge.
Some evidence that can be helpful to your case is documentation of abuse; this includes emails or text messages. Photos of marks and other images of maltreatment can be beneficial. Eyewitness statements and people that can testify on your behalf are good to have. And lastly, voice recordings, but these are not often admitted because the other party didn’t know they were being recorded.
Some defense strategies against Family Violence charges
A common defense stance used for this charge is self-defense. Every case is different and unique and this defense stance might work for your case. An example of this could be a son or daughter protecting one of the parental figures and accidentally injuring the assailant.
Duress can be claimed as a defense if an assault was engaged because you felt compelled to by the imminent death or serious bodily injury that could happen to you or another.
There have also been instances of being falsely accused of family violence. It can be common that during a heated argument, one party may overreact and call the police, stating that they were harmed during the argument. A good lie to couple with that statement is a hair-pulling, as there are no visible marks that can prove or disprove the incident did or did not occur.
Another defense that can be used but isn’t as common is self-inflicted wounds or injury. When someone is injured, it is good to see when that injury got there. It could be an old injury that the other party might try to blame on you. There have been cases where people commit self-injury like slamming themselves into a door frame or even intentionally hitting themselves to frame the other person. And it can look bad when the police arrive and you have no injuries, but the other person is hurt.
What are the penalties for family violence?
To review domestic violence as a Class A misdemeanor means it is punishable by up to a year in jail and/or a $4,000 fine. Aggravated domestic violence is a felony of the first degree, this offense has the potential of 5-99 years in prison with a fine of up to $10,000. And lastly, continuous family violence holds the highest penalty as a second-degree felony with 2-20 years in prison and up to a $10,000 fine. Also, there could be more penalties for this one as it can tie into a protection order violation.
This type of protection order is meant to protect the victim from further harm. Protection orders do have their penalties if violated, such as up to a year in jail or probation for up to two years. There may also be a fine of up to $4,000. This is attainable only if the prosecutor goes to court and asks for one.
Another type of penalty that you could face is losing the right to possess firearms, but only for five years after being released from incarceration. These types of restrictions can be lifetime bans, but defendants can regain their right to firearms if the courts expunged or set aside the conviction. Or the defendant can receive a pardon with civil liberties restored.
Even if you are not convicted of family violence, there are social stigmas that can alter the way people view you and follow you during your life. Some other negative social stigmas that can happen are job loss and strained ties with family and friends. This can happen with employers not wanting to employ you regardless if you were convicted or not. And maybe if your extended family does not fully understand what happened and they might shun you. Other negative consequences that can happen can be evictions, immigration status problems, difficulty receiving financial aid for school and maybe even the loss of a professional license.
A criminal procedure run down for family violence
To briefly explain what the procedure would be, there must first be a criminal complaint, most likely a statement from law enforcement. They would then send the charges over to a prosecutor to review them, and then the defendant would be arrested. This would happen if there was a warrant issued for their arrest. The defendant would appear in court and the judge would let them know what their charge was.
Bail would be set after the arrest. Bail for family violence can sometimes be denied based on the defendant. For example, how the injured party is related to the defendant Ie: ex-spouse/spouse, girlfriend/boyfriend, etc. The defendant’s past convictions or maybe lack thereof can play a big role in not only reducing the severity of the sentence, but can also decide if he or she will be eligible for bail.
Although you may not be able to get bail, you might be able to qualify for a bond. A personal bond is a promise made in money and you must hire a bond company to pay the amount in your name. This allows you to get out of jail with the promise that you will be back for your court date. Personal bonds are accepted with conditions intact, such as staying away from the home or workplace of the other party. If the courts deem it unsafe for the injured party or the community, then you could be denied a personal bond as well.
Next you would then go before a grand jury with your case and let them decide if there is enough trial evidence. This step is crucial in trying to get charges dropped or lower the severity of the charge. If there is not enough evidence to prove that, beyond a reasonable doubt, the defendant meant to harm, then the case can be dropped. If this happens, a pretrial will not happen.
If you do go to pretrial, this is where the judge will decide if there will be an arraignment. If you don’t have an attorney, this is the time when the courts will appoint you one. This is also the time the judge will hear the pleadings of the defendant or any special pleas. The judge will also use this time to motion suppression of certain evidence from the jury. And the judge will set a trial date for the defendant to attend.
At the trial, the defendant would stand in front of the grand jury and be sworn in under oath. This is the main part of the trial that news reporters can sit in on, like for example, the infamous Depp vs. Heard case that mainstreamed into everyone’s news outlet in 2022. Here witnesses are presented at the stand to testify against you and the testimonies are received.
You cannot argue with the witness, comment on the testimony they have given or give your testimony at this time. This is the time the witness will answer all questions and you will have the opportunity to cross-examine the witness. When cross-examining the witness, all questions will be formatted into the question form only. The best way to think about these types of questions is in the yes or no answers. For example, is it not true that I work from 9 am to 5 pm, Monday through Friday? They would answer with a yes or no and the goal would be to point out the inconsistency of their testimony.
After the prosecution presented its case, it is now your turn to present your case. This is the time to call on witnesses who know anything about the incident, but just as you cross-examine the prosecutor witness, they can cross-examine yours. You can testify on your behalf but seek legal counsel before doing so, as this can be detrimental to your case. As the prosecutor has the right to cross-examine you, your silence cannot be used against you, and it’s best not to testify on your behalf.
After the testimonies and evidence are heard, both sides can make a closing argument. This is when you explain to the court why you think you are not guilty of the charge presented.
After that, the judge or jury will deliberate for an approximation of 30 minutes up to possibly several hours. During this time period, the judge will decide on the punishment based on the punishment range and other outlying factors. At this time, a verdict of either guilty or not guilty will be given.
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If you find yourself or someone you know who are facing these types of charges, please do not hesitate to call us. It is vital to get ahead of your case to provide you with the best possible outcome.
At the Law Office of Bryan Fagan, we have criminal attorneys with the knowledge and know-how experience in criminal law who can help you navigate through the court system. The Law Office of Bryan Fagan provides free consultations at your convenience via Zoom, phone or in person. We want to provide you with as much information as possible, so you can have the best defense on your side. Call us now at 281-810-9760.