I am Board Certified in Criminal Law as a specialist by the Texas Board of Legal Specialization.
Should I fight my family violence case?
Family violence has evolved dramatically through time, most of it in the
last few decades. At common law, a wife and children were property that the
husband/father could deal with as he pleased for the most part. The world
has grown up, and we now have very strict family violence statutes. Many men
(and some women) are often falsely accused of family violence resulting lifelong
disabilities and loss of civil rights. Domestic violence is a serious issue,
but many uncscrupulous people take advantage of our lack of tolerance for
Few accusations come easier than one partner claiming that their other partner
slapped/punched/kicked/kneed/elbowed/body slammed/suplexed the other during
a domestic confrontation. Husband (or better yet, ex husband or soon to be
ex-boyfriend) isn’t doing what you want, so what better to do than call
911 and see if you can get him arrested, right? The worst you face is a false
report to a police officer, right, and how is he going to prove that? These
thoughts often run through the heat of a nasty argument, but the position
you are putting the police and another human being in is very horrible.
First of all, you make the officer make an arrest decision. Many police departments
have policies regarding an arrest at a family violence scene. If the officer
has probable cause to believe family violence has occurred, he will likely
arrest the accused. Probably cause is among the lowest standards in the law,
requiring only that there be some evidence that a crime was committed and
the person accused committed it. Some evidence, not much. If the officer believes
your story, that is enough. Your estranged is now under arrest for one of
the most serious misdemeanors, which in some ways is more serious than DWI.
If he has a prior family violence conviction, he is under arrest for a third
degree felony. Paying bond and hiring an attorney may be the least of his
Under Texas law, assault causing bodily injury is a Class A misdemeanor,
but assault family violence (assault plus a judicial finding of family violence)
has special consequences. Public records (including employment background
searches) now show him arrested for assault family violence. A person under
indictment for a felony cannot possess a firearm under Federal law. If you
have been convicted of family violence, you cannot possess a firearm under
These consequences mean the only way to argue with one’s loved one
is to leave. One does not have to be married to the person to be charged with
family violence under Texas law. You can be in a dating or past dating relationship
or living together. Yes, you can be charged with committing asault family
violence against anyone living in your household.
Assault is broadly defined under Texas law. Under Section 22.01 of the Penal
Code, one commits an assault if he (1) intentionally, knowingly or recklessly
causing bodily injury to another, including the person’s spouse; or
(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. Non-bodily
injury assault (by threat or contact under (2) or (3) are normally Class C
misdemeanors). You must be very careful with these two charges as well, for
even Class C misdemeanor assaults appear to allow family violence findings
that result in an enhancement to a third degree family if a later family violence
assault is charged.
Juries can be very skeptical of domestic assault allegations for the reasons
mentioned here. Like fraud, it is very easy to accuse, but very hard to prove.
You certainly should NEVER make the decision to assault anyone, especially
a loved one, but you should also take extra caution not to put yourself in
a situation where a loved one/ex/household member can falsely charge you.
False assault allegations are one of the few instances where it may be better
to talk to the police officer about what happened, and what motive your loved
one has for falsely accusing you, unless you have already been arrested or
charged. If someone has threatened to get you arrested, avoid them at all
costs. An enemy can find a way to make your life miserable, including having
you thrown in jail. Be extra careful in divorce/separation situations, and
bring a witness along if you expect a confrontation with an estranged love
Additionally, Section 22.07 of the Penal Code outlaws “terroristic
threats,” i.e. threateningi to commit any offense involving violence
to any person or property with intent to: 1) cause emergency or volunteer
agencies to respond, 2) place any person in fear of imminent serious bodily
injury, 3) prevent/interrupt use of public building/place/aircraft/automobile
etc. 4) impair or interrupt public communications/transportation/water/gas/power
supply or other public service, 5) place the public or substantial group of
public in fear of serious bodily injury, or 6) influence the conduct or activities
of a branch of government of the United States or Texas (including subdivisions).
This offense is normally a class B misdemeanor, with exceptions that range
up to the felony level. Never miss a good opportunity to keep your mouth shut.
If you are falsely accused and arrested on assault family violence, call
an attorney. The consequences are too severe and permanent to not fight back,
and assault cases are too winnable to roll over and take a plea – especially
if you are innocent.