Updated September 29, 2021; Original Post: July 26, 2018
If you have been charged with a Domestic violence crime in Texas, you need to know your legal rights and defenses available to you so that you can fight your case. Domestic abuse is often more than just a one-time occurrence, with many abusers continuously assaulting or otherwise abusing domestic partners, children, or other household members.
Ongoing abuse tends to be more traumatic to the victims of domestic violence than a single instance, causing them to feel as if they deserve the abuse or cannot escape the situation. Further, domestic violence often escalates over time, with assaults becoming more severe and posing more of a threat to family members’ safety.
To help remedy these situations, Texas enacted the Continuous Family Violence Law, which mandates enhanced sentencing for repeated domestic violence offenses.
If you are facing domestic violence charges or think that this could be a concern, it is important to understand the Texas Continuous Family Violence Law to know what you’re up against. Below we cover the basics of the law, what could lead to this charge, and penalties you could face if convicted.
The Continuous Family Violence Law in Texas
Depending on the circumstances of the alleged assault, domestic violence is typically charged as a Class C misdemeanor or Class A misdemeanor in Texas. Offenders typically face a short jail sentence for misdemeanor-level offenses or may be placed on probation without serving time behind bars.
Because lawmakers believed these penalties were often not sufficient to deter habitual domestic violence offenders, Texas passed the Continuous Family Violence Law in 2009.
Under the law, domestic violence offenders who commit repeated misdemeanor-level domestic assaults may be charged with a single felony-level offense, which would presumably deter repeat offenders from continued domestic violence.
What Leads to a Charge of Continuous Family Violence in Texas?
How does this work?
Under the Continuous Family Violence law, any two misdemeanor domestic assaults committed within the same 12 months are considered continuous family violence, and you may be brought up on felony-level charges.
Let’s remember that to prove domestic violence assault, the State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly contacted the alleged victim and that it caused them bodily injury. Bodily injury does not necessarily require proof of injury, only that the alleged victim felt pain because of the contact. However, a domestic violence assault where there is no proof of visible injury creates a very weak case for the State of Texas and may provide you leverage in your negotiations.
For example, multiple Class A misdemeanor assaults committed within a 12-month period are prosecuted as a single Third-degree felony.
The consequences of a felony-level domestic violence conviction are much more severe, carrying a lengthy prison sentence. Moreover, offenders are left with the lifelong consequences of being a convicted felon, such as having restrictions on firearm possession, the right to vote and the ability to find meaningful employment.
Importantly, even two relatively minor incidents could result in being charged under the law, leaving you with a very damaging criminal record.
Domestic violence (or claims of domestic violence) fall under a broad spectrum, ranging from minor domestic disturbances to quite-severe assaults that result in grievous bodily harm to the victim. Unfortunately, domestic violence sentencing and penalties in Texas do not account for these enormous differences in the relative severity of the alleged abuse.
Conviction on Continuous Family Violence in Texas Does not Require a Unanimous Verdict
Texas requires a unanimous guilty verdict to convict a defendant of a felony-level offense. However, things are a bit different for Continuous Family Violence trials.
In 2015, the Sixth Court of Appeals ruled that in a case where three or more assaults allegedly occurred, the jury does not have to agree upon which specific assaults occurred to convict a defendant of Continuous Family Violence, so long as all jurors agree that at least two assaults took place within the 12-month period.
This means that if some jurors cannot find sufficient evidence for one alleged assault and some jurors cannot find sufficient evidence for another assault, you will still be convicted so long as there is unanimous agreement that at least two assaults occurred.
Because the evidence for domestic assault is often limited, it is common for jurors to disagree on whether a specific offense occurred. However, if you have more than two misdemeanor-level charges against you, a conviction becomes much more likely, as complete agreement among jurors is no longer necessary.
Penalties for Continuous Violence Against the Family in Texas
In the State of Texas, Continuous Violence Against the Family is considered a Third-degree felony and is punishable by up to 10 years in prison and fines of up to $10,000. Additionally, you may be required complete a rehabilitation program designed to rehabilitate domestic violence offenders, and as a convicted felon you will face lifelong restrictions on your freedoms and privileges.
Any domestic violence conviction can have significant civil consequences. For example, interfering with child custody, or requiring that the defendant find alternative housing but continue to pay for the victims’ housing under a protective order. However, these consequences become much more severe if you are considered a repeat offender, as family courts will often deem that you present a continued threat to your family.
A conviction for Continuous Violence Against the family could be life-changing in many ways. It’s therefore essential to fight back against these charges to avoid significant criminal penalties and the inability to see the people you love most.
Possible Defense To Continuous Family Violence Charges
If you are facing a Continuous Violence Against the Family charge, it is critical to not only know and understand the criminal law, but you must also have a good grasp on the possible criminal defenses you have to this prosecution. Below, we have listed some common strategies your criminal defense attorney may use to help get your continuous family violence charge dismissed.
The Prosecutor Can Not Prove That Two Or More Assaults Occurred
The State of Texas must prove beyond a reasonable doubt that two or more assaults occurred in a twelve-month period for them to convict you of Continuous Violence Against the Family. What if the alleged victim gave brief and non-specific information about the other assault? What if the statement of prior alleged abuse was made by the alleged victim in passing and little to no physical evidence was gathered? What if the prosecutor is relying solely upon the alleged victim’s word?
Your criminal defense attorney needs to review your evidence and determine the credibility of the alleged victim and determine what evidence is being relied upon by the State of Texas in claiming multiple domestic assaults took place. It is not uncommon that the best domestic violence attorneys can locate inaccuracies or flat-out lies made by an alleged victim regarding past conduct. This information could be used early in the criminal defense to attempt to dismiss or lower the case to a lesser charge. This can be done through the grand jury process.
Under Texas criminal law, every felony in Texas must be presented to a grand jury. The grand jury determines if there was probable cause for a felony case. Many criminal lawyers do not aggressively attack a felony charge at the grand jury, and they lose out on the opportunity to resolve a case quickly with a dismissal. If your criminal attorney has evidence favorable to you, they can present an evidence packet to the grand jury to potentially lower the charge to a lesser misdemeanor case or no bill the case, the equivalent of a dismissal. This will make you eligible for an expunction to have your Continuous Violence Against the Family arrest and case records permanently deleted from your criminal record.
Affidavit Of Non-Prosecution
Most District Attorney’s offices in Texas have a strict, zero tolerance policy on domestic violence. In fact, many prosecutors state that they have a “no drop” policy on all felony and misdemeanor domestic violence cases. As a result, it can be frustrating to an alleged victim that has had a change of heart and wants to make certain that the truth of what happened is made known so that someone is not wrongfully convicted of a domestic violence charge.
An Affidavit of Non-Prosecution is an affidavit that can be completed by an alleged victim that indicates their preference regarding prosecution and the opportunity to clarify any facts that may not have been fairly represented in the police reports or other evidence.
What happens if an alleged victim completes an Affidavit of Non-Prosecution? Will it result in a dismissal of Continuous Violence Against the Family charges? Not necessarily. It will depend upon what the alleged victim says in their affidavit. If the affidavit merely states that the alleged victim wants the case dismissed and they don’t want to cooperate further, the case will not be dismissed. However, if the alleged victim provides evidence that clarifies or further explains facts originally dictated by the police, it may provide a solid defense to Continuous Violence Against the Family charges.
State of Texas Can Not Meet Their Burden Of Proof
In all criminal proceedings in Texas and the United States, the prosecutor always has the burden to prove each and every element of the crime beyond a reasonable doubt. If your criminal defense attorney can establish a reasonable doubt regarding any element of Continuous Violence Against the Family, you will be found not guilty by a jury and exonerated.
Most police reports are written after you have been arrested and they are designed to make you look bad. The police always look to substantiate an arrest decision, even if they did not witness anything. The story of what took place in your case may not always play out in a criminal jury trial like the police reports claim. In other words, sometimes after a witness or alleged victim is cross examined under oath, the truth regarding what transpired is revealed and your name can be cleared. It is important to remember that you have no burden to prove anything; the State of Texas must prove everything.
No Proof Of Injuries
If the alleged victim is claiming they have been assaulted multiple times in a twelve-month period, yet there is no physical proof of bodily injury, it may be much easier for your criminal defense attorney to establish reasonable doubt regarding your Continuous Violence Against the Family case. This is especially effective if your criminal attorney can show that the alleged victim had a motive to lie or fabricate when claiming the domestic violence. It is not uncommon for a party to a divorce or child custody proceeding to claim domestic violence to get the upper hand in a family court proceeding. Exposing this motive to lie can be a powerful defense if your Continuous Violence Against the Family case goes to trial.
Mistake Or Accident
A critical element the State of Texas must prove beyond a reasonable doubt on Continuous Violence Against the Family charges is the element of criminal intent. What evidence does the prosecutor have showing your actions were intentional? Even if there was contact involving bodily injury, if the contact was accidental or mistaken, the state of Texas will not be able to prove a crime has been committed.
For example: if someone is walking behind me and I do not know they are there and I slam my door behind me and it breaks their nose, that is not a crime. It was an accident because I had no knowledge of their presence and I lacked criminal intent to commit assault. However, if I know the person is directly behind me and I time the slamming of my door to hit them, I now had the criminal intent to commit the crime of assault.
These are only a few of the examples of criminal defense to the crime of Continuous Violence Against the Family. If you are facing Continuous Violence Against the Family charges in the North Texas area, don’t hesitate to contact The Hampton Law Firm for a free consultation and case analysis. One of our team of 5 Former Prosecutors will be happy to listen to your story and provide a custom defense strategy to help put these criminal charges behind 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.