Some people get their family violence charge reduced to a class C assault ticket. While the reduction probably felt good at the time, WATCH OUT! Even if the court orders deferred adjudication for the ticket, THEY CAN STILL USE IT TO ENHANCE A FUTURE CHARGE. Similar to the Fake DWI Deferred Adjudication, even placement on deferred adjudication for an assault counts as a “conviction” under the law.  That is why it important to know all your options before deciding what you want to do with your case.  While a plea may seem like a quicker and easier route, trial may be your BEST option.  Our job as attorneys is to explain your options after reviewing your evidence. Here at The Coffey Firm, Mimi reviews all evidence with clients prior to them making any decisions on their case.

Beware Of The Family Violence Enhancement

Normally, a family violence charge is a Class A Misdemeanor. The law allows “enhancement” 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 person commits the offense is against:

• (2) a person whose relationship to or association with the defendant is [defined in the Family Code], if:
  • (A) [The State shows] on the trial of the offense that the defendant has a previous conviction for 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 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 [a previous conviction for] an offense listed in those subsections committed against a [family member] if the defendant [received a guilty verdict] for the offense or entered a plea of guilty or [no contest] in return for a grant of deferred adjudication, regardless of whether [defendant served the sentence or received probation] and the defendant [received a discharge] from community supervision . . .

In short, a deferred Class C assault CAN raise any future assault to a third degree felony.

Who Is A Family Member?

The definition of a “family member” for family violence purposes is defined by Sections 71.0021(b) , 71.003 , or 71.005, of the Texas Family Code.

Section 71.0021(b): For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.  The existence of such a relationship shall be determined based on consideration of:

(1) the length of the relationship; (2) the nature of the relationship;  and (3) the frequency and type of interaction between the persons involved in the relationship

Section 71.003: “Family” includes . . . individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

Section 71.005: “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

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 the state might admit to establish the suspect’s likely involvement 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, a claim that alleged Family Violence victim and you had a “good relationship”. Such a claim may lead the state to 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.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

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.

Are you kidding me? She called the police because she was mad. Now the police arrested me for Family Violence. Do I need an assault lawyer? (to simplify, I use “she” as an example, but this applies to “he” all the same)

Sometimes, calling the police to settle a relationship dispute can lead to bigger problems down the road. Call the police when you encounter a real issue such as burglary or assault. AVOID CALLING THE POLICE BECAUSE YOU ARE UPSET AND ONLY WANT THE POLICE TO INTERVENE. If there is an allegation of assault, the chances of jail time are very often very high.  Family violence is a very serious crime that courts and law enforcement take very seriously. Finding a way to fight the charge is essential. Mimi will provide a full case evaluation with you to determine the best options to fight a family violence allegation.

What is “Family Violence?”

Before getting into some of the common questions, you should understand some of the definitions involved in family violence.

Family Code Definitions

Sec. 71.003 of the Texas Family Code defines FAMILY as: “Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

Sec. 71.005. of the Texas Family Code defines HOUSEHOLD as: “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

Sec. 71.006 of the Texas Family Code defines  MEMBER OF A HOUSEHOLD as: “Member of a household” includes a person who previously lived in a household.

Can the police arrest me for assault based on word alone, without any evidence?

The law requires probable cause for the police to make an arrest. For an assault, this means “offensive contact that causes pain.” (Texas Penal Code § 22.01). For example, a police officer may arrest someone based on an allegation that they were hit or slapped without any evidence of bruises or marks on the skin. They consider a person’s statement or “word” as evidence. The law does not require corroboration. An arrest is ultimately the discretion of the police officer. It is not uncommon for a discovery packet to have pictures that do not show any evidence of injury. An arrest may not be avoidable, but a conviction may be. It boils down to what the state can prove in a court of law.  Are the statements believable? Are there credibility issues? Is there reasonable doubt?

The victim does not want to prosecute.  Can the State of Texas still prosecute me?

Yes, this happens all the time. There is no law that states that if a victim does not want to prosecute, the case must be dropped.  In North Texas counties, the opposite is generally true. Once submitted by the police department to the district attorney’s office, prosecutors generally move forward with the case. Courts want Assault cases to move fast, so contact us ASAP so we can help you fight the charge. The victim can call the prosecutor every day and beg to dismiss the case and the prosecutor can (and often does) still move forward.

There are many reasons why this can happen. A prosecutor has an ethical duty to act in the interest of justice. The prosecutor may feel that despite the victim not wanting to prosecute, it is in society’s best interest to move forward. Does the defendant have a past? Have there been previous 911 calls to the police? Are there witnesses? Did the event involve children? The prosecutor may believe the victim is seeking dismissal out of fear. The prosecutor may not believe the victim when the victim seeks dismissal.

THE VICTIM DOES NOT CONTROL WHETHER OR NOT PROSECUTORS GO FORWARD. Prosecutors sometimes proceed to try cases even when the victim refuses to testify. What really matters is what an experienced assault lawyer like Mimi can accomplish with the prosecutor in discussions and negotiations. This often rests on the viability of going to trial.  Trying a family violence or assault case is far less technical than a forensic evidence DWI case.

In 25 years as a criminal lawyer, Mimi has tried over 300 cases (from misdemeanor assault up to first-degree aggravated assault with a deadly weapon on a public servant (5-99 years in prison)).  She brings a wealth of critical experience necessary in winning an assault trial:  sizing up the credibility of a witness, cross examination designed to expose lies and exaggerations, character building and character attack where admissible and relevant, developing winning trial strategies, and understanding and selecting jury members.

I heard that family violence deferred adjudication results in a fake dismissal. Is this true?

Yes, deferred adjudication for family violence does not result in a true legal dismissal (similar to the new Fake Deferred Adjudication for DWI). Although successful completion of terms results in a case dismissal, the case legally still exists for purposes of enhancement. Law enforcement still has access to this disposition record despite successful completion of the deferred adjudication period. A second family violence case still results in a felony because, even if the defendant served deferred adjudication, the judge still enters a finding of family violence on the record (Texas Penal Code § 22.01(f)(1)). That Penal code section states:

“a defendant has been previously convicted of an offense [of family violence], if the defendant was adjudged guilty of the offense . . . 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 . . .”

Texas Penal Code § 22.01(b)(2)(A) increases punishment to a third degree felony if “it is shown . . . that the defendant has been previously convicted (see above) of an offense . . . against a person whose relationship to or association with the defendant [is defined under the family code as family violence].”

In addition, a deferred adjudication can have negative legal repercussions for sealing one’s record, among other things. It is the Coffey Firm’s goal to avoid a conviction and a fake dismissal (that counts as a conviction) at all costs, unless the case is simply not triable. “Fool me once, shame on you. Fool me twice, shame on me.”  Defendants who are falsely accuse need to ask themselves, where falsely accused: “If she called the police on me once, will she do it again?” Get your case resolved properly or you may regret it. Take no chance and hire an experience criminal lawyer like Mimi who will fight to avoid long-term consequences.

No one will believe me that this did not happen.  I have no witnesses and she is lying!

Have no fear. “The truth is in the pudding.”  Mimi will get down to the bottom of the situation during her full case evaluation. Prosecutors are legally able to bring in past bad acts under the Texas Rules of Evidence (Rule 404, Rule 405, and Rule 609); specifically, in a family violence trial where such allegations would be prohibited in other types of offenses. However, bad acts works both ways. It is very important that we go over all the facts of the case, the nature of the relationship, relationship history, and speak with witnesses (if any) to understand how to attack the charges. Do not give up or make an emotional decision. Mimi wants to help you protect your life, reputation and liberty.

The legal repercussion of an assault or family violence conviction are serious.

Family violence and assault cases are very serious. Depending on the nature of the offense (for example, man on woman), there may be a classification of “crime of moral turpitude.” A “crime of moral turpitude” is the common phrase defining crimes involving dishonesty, fraud, and deliberate violence (among other crimes). Crimes of moral turpitude can prevent state occupational licensing (e.g., teacher, doctor, lawyer).

The law considers family violence and assault cases as crimes of violence. These types of convictions can prevent a person in jail (for example on a DWI) from gaining “trustee” status. They can also deny one jail alternatives (for example, labor detail) for people with past violent convictions.  An assault conviction or pending case can prevent entry into schools, scholarships or teaching assistant jobs. A family violence conviction can even impact your ability to apply for or hold a License to Carry These are just a few of the more poignant consequences, which is why fighting the charge is so important.

I was released from jail with an emergency protective order (EPO). What does this mean? 

Protective orders are often issued as part of a family violence arrest. A protective order must be read and followed (see Texas Family Code § 85.022). Any violation can result in additional charges. Bring the protective order to our office and Mimi will cover specifics of the order. She will discuss any potential options with you. It is likely that a magistrate granted the protective order out of concern of further violent behavior.

Violating a protective order is a Class A Misdemeanor, which means possible jail time or a fine. However, a violation becomes a third-degree felony after two convictions for violating the protective order. In other words, a third violation makes it a felony (especially if the two violations happened within 12 months). Think of it as the three-strikes rule (“three strikes and you’re out”).If you have an emergency protective order, please contact our criminal lawyers for assistance.

I really don’t feel like I have a case to defend. What are my options?

There are many options that can include true dismissal. Everyone makes mistakes. We will advise you on the best options for your case and help you deal with the consequences and aftermath of a family violence charge.  It is often in the best interest of justice for prosecutors to not prosecute these cases. We can assist you with this. Our assault lawyers are here to help!

More about Mimi Coffey

When people look for a “top criminal lawyer near me” or “best criminal lawyer”, 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.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft and Possession charges.

Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI Lawyer Dallas County, DWI Lawyer Collin County and DWI Lawyer 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.