Enhancement for Family Violence
Did you have your family violence charge reduced to a class C assault ticket? While the reduction probably felt good at the time, DO NOT BE TRICKED! Even if the court orders deferred adjudication for the ticket, THEY CAN STILL USE IT TO ENHANCE A FUTURE CHARGE.
Family Violence Enhancement
Normally, a family violence charge is only a Class A Misdemeanor. That can be “enhanced” to a third-degree felony if you have a prior family violence “conviction” on your record. Section 22.01 of the Texas Penal Code states this:
(b) An offense under Subsection (a)(1) (intentionally, knowingly, or recklessly causing bodily injury to another) is a Class A Misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
- (2) a person whose relationship to or association with the defendant is [defined in the 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 . . . against [a family member]
Pay close attention to the “an offense under this chapter” language. This means that ANY OFFENSE under the assault statute can come back to bite you. You are not safe just because the court placed you on deferred adjudication for the assault either. Subsection (f) of Texas Penal Code 22.01 states:
(f) For the purposes of Subsection (b)(2)(A) . . .
- a defendant has been previously convicted of an offense listed in those subsections committed against a [family member] if the defendant was adjudged guilty of the offense or entered a plea of guilty or [no contest] 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 . . .
In short, a deferred Class C assault CAN STILL BE USED to raise any future assault to a third degree felony.
Prior “Bad Act” and Family Violence
Normally, the State cannot use a prior “bad act” against you to prove your “character” for the offense. Texas Rule of Evidence 404(b). There are exceptions for if the prior “bad act” resulted in a conviction. Otherwise, a simple bad act is not admissible. However, there are certain ‘reasons’ that allow for admission of a prior act. This includes demonstrating motive, intent, lack of accident, knowledge, or identity. For example, think of a police drama on television where they discuss the suspect’s ‘MO’. This is information that might be admitted to establish that suspect is ‘probably’ involved in the current crime.
For Family Violence cases, there is an additional rule set out in the Texas Code of Criminal Procedure. Article 38.371 of that code allows the state to use a prior “bad act” to prove the nature of the relationship between you and the alleged victim. For example, if you claim that you and the alleged Family Violence victim had a “good relationship,” the State may offer prior “bad acts” to rebut that claim. Regardless, the evidence must also satisfy the Rules of Evidence (including 404(b) above).
More about Mimi Coffey
When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.
Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.