UPDATED 7/29/2021, Original Post: February 7, 2018
A Texas domestic violence charge is something that you need to take incredibly seriously, because our state definitely does. Texas recognizes three different crimes related to domestic violence, and all of them come with the potential of incredibly severe penalties.
- If you are charged with class A misdemeanor domestic violence, you face up to a year in jail and/or up to $4,000 in fines.
- If you are charged with third degree felony domestic violence, you face up between 2 and 10 years in prison and/or up to $10,000 in fines.
- If you are charged with second degree felony domestic violence, you face up between 2 and 20 years in prison and/or up to $10,000 in fines.
- If you are charged with first degree felony domestic violence, you face up between 5 and 99 years in prison and/or up to $10,000 in fines.
That’s right. Even for the most minor domestic violence offense, you can spend up to a year in jail. Worse, these are only the criminal penalties. It is likely you will also have to deal with a protective order that will saddle you with further limitations and may even keep you from seeing your kids. And then there are the repercussions that come with having a criminal record – particularly one listing domestic violence as your offense.
The best way to combat your charges and avoid getting convicted is to craft the strongest possible defense strategy. Below, we’re going to cover some of the most effective strategies you can use when up against domestic violence accusations.
The main job of an experienced domestic assault criminal defense attorney is to investigate the case and develop defense strategies for the various charges that have been filed. Obviously, every case is different, involving a different set of facts; therefore, not every case requires the same defense strategy. But the sooner you hire a lawyer, the sooner he or she can begin working on the defense plan and make sure you get the full amount of protection the law allows.
Before we discuss possible defense strategies, we have to discuss the concept of confidentiality. Some criminal defendants think they should keep secret certain negative facts because they believe the attorney won’t help them or that no one will find out. But this is wrong-headed thinking. You should be completely honest with your attorney when going over the facts of the case. Do not leave out any detail, even if you think the detail is bad for you and your case. Criminal defense attorneys are covered by a confidentiality law and cannot repeat what you tell them about the case. You can even tell your attorney facts that might prove you are guilty of something, but not necessarily the crimes you are being charged with. The only way your attorney can help create a plan that will combat the negative facts is if they know everything about the case, warts and all.
If the charge is simple assault, there are certain defenses that can be used, though they might not be appropriate in every case.
- Mistaken Identity: One defense is that the victim has accused the wrong person. In some cases, particularly when the assault is between strangers, the defense of mistaken identity can be used. Was the area of the assault dark? Was the area of the assault crowded? Did the victim truly get a good look at the defendant, or is the victim relying on hearsay?
- False Accusation: A victim could be falsely accusing someone to get revenge upon that individual. This could stem from multiple scenarios, ranging from business relationships to personal or romantic relationships. There is no telling what someone could make up if they are feeling angry enough and full of revenge. In other instances, there may be false allegations leveled against someone in order to gain leverage in divorce settlement proceedings or even a child custody matter.
- Assault Was Necessary: This is a rare defense, but sometimes it can be used. With this defense, the accused will claim that the assault was necessary to prevent something else from happening, such as a more serious crime or another assault.
The defenses for a verbal assault or assault by threat focus on what is communicated to the alleged victim, the meaning behind the words, and the manner it was communicated.
- Lack Of Intent: The accused can claim that there was not an actual threat within the communication because there was no actual intent behind what was said. Making potentially ambiguous comments to someone doesn’t mean you are actually threatening them with physical harm. It can be argued that some statement said in the heat of the moment does not rise to the level of an actual verbal threat.
- Vague Statements: Similar to statements lacking intent, a statement may be vague in its meaning. If there was not a clear statement of an intent to injure someone, it could be argued that the statement was too vague to constitute a valid assault by threat.
This type of assault is more troubling, given the sexual nature of many of the charges. There is a stigma to these charges, and in many instances, the accused are considered guilty before they are proven innocent. But there are still solid defenses that can be used with offensive contact assault cases.
- Unintentional Behavior: Under this defense, the accused can claim that whatever contact occurred was accidental and unintentional contact and should not rise to the level of an assault charge. For instance, it could be argued that the criminal defendant did not know that they were doing whatever activity caused the contact. Also, there are instances where someone could have made offensive contact, but the contact was unintentional and incidental, such as if someone was falling and accidentally grabbed onto another person.
- Not Truly Offensive: One defense of an offensive contact assault charge is to argue that the victim is too sensitive and that the contact was not actually offensive to a reasonable person. Was the physical contact actually sexual in nature, or was it more innocent and/or incidental?
There are many defenses that can be used against charges of an assault that caused an alleged injury. Again, which defense to use will be dictated by the facts of each case.
- Self-Defense: In some cases, the accused is the person who was attacked first, and they were just defending themselves. You can use the self-defense argument with a spousal assault charge because everyone, no matter who, has a right to defend themselves against physical attacks.
- Consent: This defense is not used in many cases, but there are instances where it might be appropriate. For example, there are certain intimate relationships where people give consent to have certain physical acts done to them. The defense of consent would be available in those situations.
- Questioning The Injury: This defense can be used when you can question whether an injury even existed, or question the cause of the injury. It is very difficult to prove a physical injury from assault if there is no medical testimony or medical proof. If there are no photographs of bruises or medical records to prove an injury, then the case merely turns into a “he said, she said” type of case. When this happens, charges would most likely not even be filed against the accused for lack of evidence. Also, if it can be shown that the alleged victim has motive to fake an injury, this defense can be very helpful.
Defenses to a family violence assault charge focus mainly on technicalities related to definitions in the law.
- Type Of Relationship: With obvious family members, this defense is hard to use. But when it comes to an informal relationship or a dating relationship, it could be argued that there was not a relationship that meets the definition contained in the statute. The facts surrounding the extent of any relationship would be relevant when using this defense (e.g., the accuser and defendant only went on a few dates, or there was no sexual contact between the accuser and defendant).
- Not A Household Member: If the alleged victim is not a family member and was no longer a household member of the accused at the time the assault occurred, an argument can be made that the assault was not family violence as defined under the law.
- Questioning Strangulation: In the absence of medical evidence that corroborates the testimony of the alleged victim, whether the breathing or blood flow of the alleged victim was actually impeded may be a question of fact for a jury to decide. As that may rest on the credibility of the alleged victim, attacking the credibility of that witness may offer the best defense. Also, if the alleged victim does not have medical or other evidence showing a strangulation, this could be a valid defense.
- Child Discipline: With some cases involving a child or foster child, it could be argued that the alleged assault was actually discipline that was being doled out by the parent or guardian. You have to be careful with this defense, though: it has to be confirmed that the physical discipline was not excessive as believed by a reasonable parent.
Many of the above defenses can be used with this charge. But there is also a time aspect to this charge, so that defense could be exploited as per the definition of the crime in the statute.
- Timeframe: Being found guilty of this crime requires multiple acts of assault against a family member over a 12-month period. If it can be shown that there were not multiple acts of assault during that period, this charge can be dismissed.
- Nature Of The Injury: In addition to the defenses for a charge of assault causing bodily injury as described above, only a limited range of injuries meets the legal definition of serious bodily injury. This narrow definition can be used to argue that the alleged victim’s injuries are not “serious” as defined under the law.
- No True Use Of A Deadly Weapon: Whether the accused exhibited a deadly weapon might be disputable, such as if the weapon fell out of the accused’s pocket but they did not handle it, or if it is an item not designed as a weapon (e.g., a hammer) and may only have been present for a non-criminal purpose.
While it is always important to take all allegations of domestic violence seriously, those who deal with these types of cases on a regular basis know that – sadly – some claims of domestic violence are complete fabrications made with the intent of causing harm to the person being accused. This is particularly common if the two parties are getting divorced or battling over child custody, because a record of domestic violence can have a huge impact on the outcome of both of those situations.
If you are the victim of a false allegation, you owe it to yourself and your family to fight back. Depending on the circumstances, there are a number of ways to do this. Have an alibi? Use it, and back it up with as much evidence as possible. Were there witnesses? See if they will vouch for you. If not, look for inconsistencies in their stories – as well as the account of the alleged victim. One good place to look for discrepancies is the police report.
Texas law says that one of the following must be true for domestic violence to be committed:
- It must be intentional.
- It must be done knowingly.
- It must be done recklessly.
In other words, you either had to actively try to hurt someone or engage in reckless behavior that led to the incident in question. Because of this, it is quite possible to claim that an injury occurred due to an accident rather than actual domestic violence.
For example, imagine that someone is bouncing a baseball against a wall hard. Their significant other approaches and begins arguing with them. Heated words are exchanged, but the first person keeps bouncing the ball. Annoyed, the significant other steps into the path of the ball and gets hit in the head. Angry and hurt, they claim domestic violence – even though there was no intent and they were the ones who acted recklessly.
Often, when domestic violence is reported, it’s far from a one-sided affair. Rather, it’s two people who get into an altercation and one or both of them takes it too far. In these types of cases, police have to make a judgment call on who to charge – and with what.
If this sounds like your situation, a self-defense strategy may apply. The argument is that you believed that the alleged victim posed an imminent threat to either you or others and you acted in a protective manner. Even if you can show evidence to support this, you will also need to argue that your response was a proportional one (for example, it would be hard to argue that shooting someone for waving their fists at you was a proportional response even if you felt you were in danger). It can also help your case if you are able to show that the other party instigated the situation.
Other, less common defenses may include things such as consent, diminished capacity, and even insanity. These, however, should only be used in specific situations.
Knowing Which Defense Is Most Likely to Help
How do you know which defense is right for your “specific situation”? That’s what a skilled Texas criminal lawyer is for.
It takes an experienced legal professional to look at the details of your case and put together the best possible strategy, because so many factors are involved. The best thing you can do is reach out to a knowledgeable attorney as early on in the process as you can so that they have time to craft your defense and come up with ways to poke holes in the argument of the prosecutor.
Get started right now by contacting our office and setting up a free initial consultation where we can go over the facts of your case and talk about the options that are available to you.
About the Author:
After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.