ASSAULT FAMILY VIOLENCE Charge in Texas: Steps to Take
Many spouses and couples fight. Sometimes–most of the time, the fighting is verbal. Unfortunately, some couples physically fight, or abuse each other.
We at Cook & Cook feel that assault in any form is wrong. Assault on a loved one is especially wrong. Yet, there are countless victims of assault each year that pay thousands of dollars to lawyers get their alleged abuser out of trouble. This article does not regard the resources for victims, or the ways to get out of an abusive relationship. The article is about people that are wrongly charged with assault, and need to know the best steps to take following the criminal charge.
When a couple physically fights, and the event is reported to police, then generally one of the two is charged with “assault family violence.” Assault on a family member is treated more seriously in Texas than assault on a none family member. But, what must happen in order for the physical altercation to amount to an assault?
In Texas, Assault is defined as:
a person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse;
This means that if you put your spouse/girlfriend/boyfriend/husband in fear that he or she is about to be injured, THAT IS CRIMINAL FAMILY ASSAULT! This also means that if you cause pain to your significant other, and you caused the pain intentionally, or recklessly, THAT IS CRIMINAL FAMILY ASSAULT! Without being very familiar with the definition of assault family violence in Texas, a spouse might commit assault without knowing the act was a crime at all. I heard a prosecutor in Bexar County, Texas tell a jury panel that if your spouse pinches you, and it hurts, then that is assault under Texas law.
When a person is charged with assault, it isn’t merely a hurtful accusation. When a spouse is charged with assault, this means the spouse is physically arrested and taken to jail for at least a short period of time, until he/she bonds out of jail. Then the accused criminal will wait for a court date, and will begin the process of fighting the case.
Here are the steps Cook & Cook advises if you have been charged with Assault Family Violence in Texas (these steps are GENERAL steps for someone who has been WRONGLY accused of assault–if you committed assault, the below steps are NOT advised. Call a lawyer).
1. The police show up to take a police report regarding the domestic disturbance that your neighbor reported. You and your spouse were yelling, but were not physically fighting and neither of you were in imminent fear of bodily harm. TELL THE POLICE THAT NO ONE WAS PHYSICALLY HURT, AND NO ONE WAS IN FEAR OF BODILY HARM. Give your identification but SAY NOTHING MORE THAN THAT.
2. AFTER STEP 1, if the police want to ask more questions, say you want to call your lawyer, and you are PLEADING THE FIFTH. why would I advise you to do this if you are INNOCENT? Because you did step 1 and if the police are still asking questions, they don’t believe you and are looking to build evidence against you. Anything you say at this point can damn your defense.
3. TRY TO AVOID GETTING YOUR PICTURE TAKEN. (perhaps you have an old bruise from gardening, and they want to prove that it is a new bruise from your spouse). State that you do not want your picture taken.
4. Take your own pictures or videos showing that you and your spouse are composed, healthy and fine. These pictures are going to be used for your defense later if the police decide to charge one of you with assault family violence. If you are wondering whether police ever charge people with assault when both spouses are claiming nothing happened, the answer is YES. People are charged with assault often, even when the alleged victim is asking the police NOT to press charges.
5. If the police arrests one of the family members for assault, call a criminal defense lawyer immediately. Many criminal defense lawyers are available 24/7 to answer emergency calls. The lawyer may be able to help get the person through a fast process called a satellite bond and help the accused avoid spending the night in jail.
6. Stop talking. Do not describe the events of the night to anyone. Do not answer questions from the prosecutor if he/she calls. Do not answer any more questions at all. Your lawyer will guide you through the rest.
How much trouble can the assault of a family member result in? a $4000 fine and a year in jail! If the assault was on a none family member, then the punishment is up to $2000 in fines and 6 months in jail. If the assault involves choking, the punishment is up to 10 years in prison.
In case you are curious about this blog’s accuracy on the above information, please refer to the below cited primary source. If you looked at the actual law on assault in Texas– I am talking about the legislated law, the true primary source on assault, you would find the following:
Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:
(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or
(B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;
(3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14), Family Code, or an employee of that person:
(A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or
(B) in retaliation for or on account of the person’s or employee’s performance of a service within the scope of the contract;
(4) a person the actor knows is a security officer while the officer is performing a duty as a security officer; or
(5) a person the actor knows is emergency services personnel while the person is providing emergency services.
(b-1) Notwithstanding Subsection (b)(2), an offense under Subsection (a)(1) is a felony of the second degree if:
(1) the offense is committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;
(2) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; and
(3) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.
(c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the offense is:
(1) a Class A misdemeanor if the offense is committed under Subsection (a)(3) against an elderly individual or disabled individual, as those terms are defined by Section 22.04; or
(2) a Class B misdemeanor if the offense is committed by a person who is not a sports participant against a person the actor knows is a sports participant either:
(A) while the participant is performing duties or responsibilities in the participant’s capacity as a sports participant; or
(B) in retaliation for or on account of the participant’s performance of a duty or responsibility within the participant’s capacity as a sports participant.
(d) For purposes of Subsection (b), the actor is presumed to have known the person assaulted was a public servant, a security officer, or emergency services personnel if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant or status as a security officer or emergency services personnel.
(e) In this section:
(1) “Emergency services personnel” includes firefighters, emergency medical services personnel as defined by Section 773.003, Health and Safety Code, and other individuals who, in the course and scope of employment or as a volunteer, provide services for the benefit of the general public during emergency situations.
(3) “Security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.
(4) “Sports participant” means a person who participates in any official capacity with respect to an interscholastic, intercollegiate, or other organized amateur or professional athletic competition and includes an athlete, referee, umpire, linesman, coach, instructor, administrator, or staff member.
(f) For the purposes of Subsections (b)(2)(A) and (b-1)(2):
(1) a defendant has been previously convicted of an offense listed in those subsections committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and
(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in those subsections is a conviction of the offense listed.
(g) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections.
http://www.statutes.legis.state.tx.us/docs/pe/htm/pe.22.htm
Now this is the law in TEXAS, not in Michigan or New York, etc. Every other state has its own law that was written by its own legislators regarding what assault is and what the punishment will be. This of course means that in some states, you might face a longer jail/prison sentence for assault than in others.
