Have you been charged with domestic violence in Houston?
Assault Against a Family Member—historically referred to as Domestic Violence—in the state of Texas is a serious crime with serious penalties. While a first conviction of assault against a family member is a class A misdemeanor, after your first conviction or deferred adjudication for assault against a family member, any subsequent charges for the same will result in a felony. Unfortunately, when a domestic relationship is in turmoil, law enforcement is generally quick to make an arrest, often without having all the facts.
Even if there is no conviction, merely being charged with Assault Against a Family Member/Domestic Violence can haunt you in the court of public opinion. Attorney Nathaniel Pitoniak understands what a difficult time this is and will be in your corner from start to finish. When you retain the Law Office of Nathaniel Pitoniak, you will have experience and skill on your side, as well as an attorney who will do everything in his power to have your charges dropped or reduced. Call former prosecutor Nathaniel Pitoniak today for a free consultation.
What Is Assault Against a Family Member?
A 2011 study conducted at the University of Texas at Austin found that almost one-third (32 percent) of all Texans have experienced violence from an intimate partner. Assault Against a Family Member/Domestic Violence in the state of Texas covers:
- An assault act that is perpetrated against any person who lives with you, related to you by blood, or with whom you are romantically involved. This does not include defensive measures taken to protect yourself, but does include threats that place a household member or family member in fear of imminent assault, bodily injury, physical harm, or sexual assault.
- Any abuse toward a child in the family or household by a member of the family or household.
- Any act of dating violence; an act by an individual against another with whom the person has or had a dating relationship when this act can be expected to cause bodily injury or physical harm, or in the case of a sexual assault between two individuals with a dating relationship. This can also include threats that would cause an individual to fear that physical harm, bodily injury, or sexual assault is imminent—but, again, does not include any defensive measures taken by an individual to protect herself or himself.
What is a Family Violence Relationship in Texas?
To explain further, “family” includes any individuals related by blood or marriage, as well as former spouses, parents of the same child, foster parents, and foster children. “Household” covers those who live together in the same home or those who have lived together in the past. There is no requirement that you be related by blood or marriage under the term “household.” A “dating relationship,” covers relationships that are intimate or romantic.
It can be difficult to determine whether a relationship falls within the definition of a “dating relationship.” That determination will be made based on the length of the dating relationship, the nature of the dating relationship, and the frequency and type of interaction between the parties. Since this definition can be a little fuzzy, it is essential to have an experienced Houston criminal law attorney to help determine whether such a relationship existed at the time of the alleged assault.
Family violence (including domestic abuse and dating violence), as defined under Texas law, requires the existence of one of several types of relationships between the parties. Those relationships are defined in Section 71.004 of the Texas Family Code. They include the following:
- Family members;
- Household members;
- Those with a “dating relationship.”
The definition of the above terms is broad. It covers those with a current or former dating or romantic relationship, those who are or were married, those who live or lived in the same household, children (including foster children) in the household, foster parents, and more.
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What is a “Dating Relationship”?
In order to be charged with dating violence under section 71.0021 of the Family Code, a “dating relationship” must be established. Although it includes those people who are dating (or who have dated), whether a particular relationship falls within the definition is not always easy to determine. It will depend upon:
- the length of the dating relationship;
- the “nature” of that relationship; and
- the “frequency and type” of interaction between the parties.
The definition is vague, and this is all the more reason why you need an experienced attorney by your side if you are facing a domestic violence charge.
What is Family Violence?
The definition of family violence is contained in section 71.004 of the Family Code. It includes, where a family or dating relationship exists:
- Assault – Family Violence;
- Sexual assault;
- Threats that reasonably place the other person in fear of imminent physical harm, including terroristic threats;
- Child abuse; and
- Dating violence.
How is Assault Defined Under Texas Law?
Under Section 22.01 of the Texas Penal Code, “assault” is defined as:
- Intentionally, knowingly, or recklessly causing injury to another person
- Intentionally, knowingly, or recklessly threatening another person with injury
- Intentionally, knowingly, or recklessly causing physical contact with another person—when it is known such contact will be considered offensive and unwanted
What sets Assault Against a Family Member—historically referred to as Domestic Violence—apart from other types of assault, is that the crime is committed against family members, those who reside together in a household, or those who are in a dating relationship. It is important to recognize just how serious Assault Against a Family Member/Domestic Violence charges really are. Assuming you have no prior convictions for Assault Against a Family Member/Domestic Violence, you will be charged with a Class A misdemeanor, however, that charge can be elevated in the event there are specific aggravating factors.
What are the Penalties for Domestic Violence?
A class A misdemeanor is punishable by up to a year in county jail, a fine as large as $4,000—or both. Further, this is not a crime that can be sealed if it is not dismissed, so has the potential to follow you for the rest of your life. You could find yourself unable to own a firearm, unable to get a job, unable to receive a loan, unable to find housing, and could even face having your visitation rights or the ability to gain custody adversely impacted.
What are the Penalties for Aggravated Domestic Assault and Continuous Violence Against the Family?
There are two more types of Assault Against a Family Member/Domestic Violence under Texas law. When serious bodily injury results from an assault, or when the perpetrator of the assault used or displayed a deadly weapon in the process of the assault or during the threat of an assault, then Aggravated Assault Against a Family Member will be charged.
Read: Can I drop assault charges against my partner?
As opposed to bodily injury—which can include physical pain, illness, or any impairment of physical condition, “serious bodily injury” involves more damage, such as disfigurement, broken bones, brain injuries or other injuries to the head, loss of limbs, damage to an organ, an injury that causes loss of vision or hearing, or other similar injuries.
While we generally think of a “deadly weapon” as a firearm, this term also covers any type of object that could potentially result in death to the victim. A knife, brass knuckles, rope, baseball bat, or any number of other objects which could be used in a manner that would cause serious injury or death to another human being are considered deadly weapons under Texas law. Aggravated Assault Against a Family Member/Domestic Violence brings second-degree felony charges.
A conviction for this offense when the victim has been put at risk of death, suffered disfigurement, or has the normal function of a body part impaired could lead to imprisonment for not more than twenty years, and not less than two years, as well as fines as large as $10,000. When a weapon is used in the commission of the offense, and serious bodily injury was caused, a first-degree felony will be charged. Under Texas law, this is the second most serious felony, bringing penalties which range from five years to life in prison, and fines up to $10,000.
Continuous Violence Against the Family can be charged when the defendant in question has committed two or more assaults within twelve calendar months. This charge disregards whether the prior crimes resulted in arrests or convictions and can cover multiple victims. Further, while the majority of criminal offenses require that jurors reach a unanimous verdict, for the charge of Continuous Violence Against the Family, jurors must only agree that the alleged offender engaged in conduct that reached a level of domestic violence two or more times within twelve months.
Jurors do not have to unanimously agree on the specific conduct that constitutes domestic assault. As with other types of Assault Against a Family Member/Domestic Violence, the victim of Continuous Violence Against the Family can be an individual in a dating relationship with the alleged abuser, a family member—by blood or marriage—or a member of the same household, regardless of whether they are related to one another. Continuous Violence Against the Family (unless the violence results in serious bodily injury or a weapon is used), is a third-degree felony. A conviction for Continuous Violence Against the Family can result in fines up to $10,000, and up to ten years in prison.
Defenses to Family Violence Charges
If you are being charged with Assault Against a Family Member/Domestic Violence, you are likely facing some very unique challenges that you might not face with other criminal charges. These challenges include:
- In most instances of Assault Against a Family Member, there are no witnesses to the alleged assault. Of course, this is not always true. An altercation between parties could occur with one or more family members or household members witnessing the event, but it is more likely that only the participants were present for the alleged assault. This means that such a case is likely to come down to one person’s word against the word of another. If neither party has a history of telling lies, it can be difficult to determine who is telling the truth. When the police arrive at a domestic violence call, it is likely that someone will be arrested. The police will attempt to determine who the “primary physical aggressor” was, which usually involves comparing the extent of the visible injuries for each party. Because women are statistically more likely to experience domestic violence, a man is more likely to be arrested in the event of conflicting stories. An attorney for the individual accused of Assault Against a Family Member will work hard to determine whether the accuser had a reason for making such an accusation (retaliation, to get the upper hand in a divorce or child custody case) and whether the accuser is known to be less than truthful. So, while the lack of a witness does bring additional challenges, these challenges can be overcome by an experienced, highly skilled Houston, Texas criminal defense attorney.
- As noted, law enforcement will attempt to determine who the “primary aggressor” of the incident was by comparing injuries. In some cases, this may not provide a clear picture, as one of the parties may have acted in self-defense. The court will also take into consideration whether there have been threats of harm by either party in the past, whether there is a history of domestic violence on the part of either party and whether either party acted defensively—to protect themselves from the other party. Law enforcement is currently under tremendous pressure regarding cases of domestic violence, which explains why an arrest is often made.
The prosecutor in the case must prove every element of the crime beyond a reasonable doubt, or the defendant must plead guilty for a conviction to occur. Since being convicted of Assault Against a Family Member has such far-reaching effects, those facing such charges need the assistance of an experienced Houston criminal defense lawyer like former prosecutor, Nathaniel Pitoniak.
Depending on the circumstances surrounding the charges, it may be shown that the person bringing charges is not a family member, household member, or dating partner, that the accuser acted out of anger, spite, or jealousy, or that the accused was simply defending himself or herself. Whatever the situation, attorney Nathaniel Pitoniak will work hard to build the best defense against the accusations of Assault Against a Family Member/Domestic Violence.
Defending Domestic Violence Cases in Houston
The defense your Houston assault defense lawyer will use on your behalf will depend on the specific circumstances surrounding your charges of Assault Against a Family Member/Domestic Violence. One or more of the following may be a viable defense against your charges:
- The allegations of Assault Against a Family member/Domestic Violence are false. You may truly be innocent of the charges, in which case your attorney will have to determine why the accuser lied. Perhaps you are involved in a child custody matter or are in the middle of a divorce, and the accuser is attempting to gain an advantage. Or, perhaps this is simple revenge on the part of the accuser—an attempt to retaliate for a real or imagined action. When the determination of the charges lies in one person’s word against the other’s, it is crucial for the attorney of the accused to call into issue any character flaws of the accuser. Perhaps the accuser has lied before or has a strong motivation to tell the lie. In a “he said, she said,” case, the character of the accused will also come strongly into play. Your attorney could call in character witnesses on your behalf and show that you have no prior history of violence
- There were witnesses to corroborate your version of the events. If there were witnesses to the incident, they will be asked to confirm the fact that you were not the aggressor in the situation. Perhaps a witness heard the accuser make a statement that indicated they wanted to hurt you by provoking physical violence.
- You acted in self–defense. The fact that there was physical contact between you and your accuser does not necessarily mean you are guilty of domestic violence. The stronger or bigger party—usually the man—is typically arrested for domestic violence, even if he or she was acting in self-defense. Many people are unaware that men can also be victims of domestic violence. In some instances, a man may allow a woman to physically abuse him because he was taught never to hit a girl, but in the act of protecting himself, may shove the other party to stop the assault. Then, when the police show up, he is the one arrested, even though he was only defending himself. This can also be true for women—they may simply be defending against an attack from a family member or partner, and end up being charged with Domestic Violence.
Defending Houston, Texas Charges for Assault Against a Family Member
Given the severe consequences of a conviction for Assault Against a Family member, it is essential that you have the right attorney in your corner from start to finish. Attorney Nathaniel Pitoniak has the experience and skills necessary for those charged with Assault Against a Family member/Domestic Violence in Houston, Texas.
Nathaniel Pitoniak is a former Felony Prosecutor and Chief Prosecutor with the Harris County District Attorney’s Office, giving him a valuable perspective on the inner workings of the criminal justice system. With more than 15 years in practice, Nathaniel is dedicated to helping Texans from all walks of life, devoting his law practice exclusively to the zealous defense of those accused of criminal charges. If you have been charged with Assault Against a Family Member in Harris County, your first call should be to the Law Office of Nathaniel Pitoniak. Get a free consultation now.
Domestic Violence FAQ’s
Domestic violence (or family violence) may appear to be a relatively simple subject, usually involving a domestic quarrel that’s gotten out of control. But the truth is that domestic violence can involve a host of issues and situations, some of which may not even involve a physical confrontation. As a result, many people have questions about domestic violence and its relation to criminal laws; what situations may constitute domestic violence; and what penalties you might face if convicted in a domestic violence case. Here are some examples.
Q: What is the definition of “domestic violence” or “family violence” under Texas law?
A:
Domestic violence (family violence) in Texas may consist of assault, child abuse or certain other acts by a person against a family member, a household member, or a person with whom the actor has (or had) a dating relationship. Penalties can run from probation to years in prison, depending upon the nature of the underlying offense.
Q: Can a woman be charged with domestic violence?
A:
Yes. There is absolutely nothing under Texas law that prohibits a woman from being charged with domestic violence. And domestic violence by women is not particularly unusual. In fact, a quarter of the men in the United States (and one in every three women) have experienced some form of violence at the hands of an intimate partner.
Q: What will the police do at the scene?
A:
If the police come to your home, believing there is an assault against a family member taking place, they may ask the accuser whether they want the alleged abuser arrested. In many cases, the state files charges irrespective of whether the alleged victim wants them. The police will take statements from those involved, as well as from witnesses, if there were any present. They will assess the scene and the apparent injuries to each party. If one party is seriously injured, an ambulance will be called. Officers on the scene will prepare a domestic incident report to describe what happened, and the accuser will make their own statement and sign the report.
Q: What should I do if my spouse calls the police on me?
A:
If the police are called to your home or another place because your spouse called and claimed he or she was the victim of domestic violence, there are certain things you should and should not do. First, obey the commands of the police; if they tell you to leave the premises, then leave. Second, if you have bruises, cuts or other evidence tending to show you were the victim, show them if asked. And if you are arrested, say nothing further to the police. Speak to a Houston domestic violence lawyer.
Q: What is a domestic violence “protective order”?
A:
If you are accused of family violence, an order may be entered (called a “protective order”) that limits contact between you and the alleged victim or other members of your family or household. It may also prohibit you from entering your home or being within a certain distance from the alleged victim and/or other family or household members. A protective order may in some cases require you to perform certain acts. Protective orders may be (1) emergency protective orders, (2) temporary ex parte protective orders, or (3) final protective orders.
Q: I was arrested for domestic assault. It was my wife’s word against mine. Why was I the one who was arrested?
A:
There are a number of reasons why you might have been charged. In some cases, there may have been additional evidence, including marks on your wife’s body, which might be indicative of physical violence. In others, there may be witnesses who side with your wife. Whatever the situation may be in your case, remember that there is a tremendous amount of pressure on the police to diffuse a domestic violence situation. This means that decisions as to whether to arrest someone – and whom to arrest – are often made very quickly, before the facts are in. As a result, many times the person arrested should not have been, and an experienced attorney may be able to develop a case showing that the police, in their haste, made a mistake.
Q: I never hurt my spouse. How can I be charged with family violence?
A:
A physical injury is not necessary in order to establish family violence. Indeed, in some cases, there need not even be physical contact between any of the members of the family, household, or those in a dating relationship. In that regard, a threat that puts another family member, for example, in reasonable fear that he or she will be physically harmed, may constitute family violence.
Q: My spouse wants to drop the domestic assault case against me, but the prosecutor won’t go along. Is this legal?
A:
A domestic assault charge is a criminal case. Criminal cases are brought by the state, not by an individual. The prosecutor is responsible for making the decision as to whether to move forward with a case or to drop it. So the answer is, it is legal for the prosecutor to pursue a family violence case even when that decision goes against the wishes of the complaining witness.
Q: I was arrested for alleged family violence against a person I used to live with, but we haven’t lived together for some time. Since we don’t live together, how can I be charged with family violence?
A:
Family violence is defined as one of a number of offenses committed against, among others, a member of one’s family or household. “Household” is defined as persons who live together in a dwelling. And household members include those who previously lived in that household unit. So the fact that the person who alleges a domestic or family violence offense no longer lives in the same dwelling is not, in and of itself, a defense to family violence charge.
Get Help From an Attorney Right Now
If you are facing a domestic violence charge, speak to an experienced Houston criminal lawyer. Call the Law Office of Nathaniel Pitoniak today.