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?
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.
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.