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Defending Aggravated Assault on a Family Member Cases in Texas

Updated: Mar 12

A misdemeanor assault-family member charge can become a felony Aggravated Assault on a Family Member if a deadly weapon is alleged to have been used during the commission of the offense, or if serious bodily injury resulted. When defending aggravated assault on a family member cases, an experienced criminal defense attorney will get to know the facts of his case inside and out in order to determine whether the state can prove each and every element of the aggravated assault beyond a reasonable doubt.

Consequences of Pleading Guilty to Aggravated Assault on a Family Member

It is important for any accused to understand the consequences of pleading guilty to Aggravated Assault on a Family Member in Texas. The crime is a 2nd degree felony with a punishment range of 2 to 20 years in prison and/or a $10,000 fine. Regular aggravated assault (against non "family members") is also a 2nd degree felony. Pleading guilty to assault on a family member comes with an affirmative finding of family violence. Such a finding will result in the accused losing the right to possess a firearm for at least 2 years. The accused also loses the right to file a Petition for Non-Disclosure in the future, permanently scarring the accused's criminal record. A second arrest for assault on a family member automatically becomes a felony, whether or not the case is aggravated.

The Elements of Aggravated Assault on a Family Member

To truly understand the strength of an aggravated assault on a family member case, an experienced criminal defense attorney will evaluate the case like a prosecutor would, beginning with the specific elements of the crime. Under Section 22.02 of the Texas Penal Code, the state must first prove that an "assault" was committed. Under Section 22.01, an "assault" occurs when a person either (1) intentionally or recklessly causes bodily injury to another, or (2) intentionally threatens another with imminent bodily injury. "Bodily injury" essentially means pain. If the victim did not experience any pain, the state cannot prove the element of bodily injury.

The alleged assault must also have been intentional or reckless and not the result of an accident or some unintentional act. If the state cannot prove that the bodily injury or the threat was the result of an intentional or reckless act, they cannot meet their burden under the Texas Penal Code.

Assault on a Family Member by Impeding Breath or Choking

If the alleged victim in an Assault on a Family Member case mentions anything about being choked or having their breathing impeded, the state can enhance a misdemeanor domestic violence case to a 3rd degree felony choking case. The range of punishment for an Assault by Impeding Breath case is between 2 to 10 years in prison and/or up to a $10,000 fine.

Assault by Threat of Imminent Bodily Injury

When trying to prove an aggravated assault was committed by threat under the second prong of Section 22.01, the threatened bodily injury must be imminent. If the victim is inside of a car with windows up and doors locked while someone pokes the closed window with a knife, a good defense attorney could argue that the threat was not imminent. If the car windows were down, however, the defense attorney might have a harder time with that argument. If the accused exhibited a gun, rather than just a knife, the defense attorney's argument would be even more difficult to make, as a gun could certainly shoot through a closed window and seriously injure anyone in the car. When defending an aggravated assault on a family member case, a defense attorney should determine whether the gun was pointed at anyone or whether any verbal threats were made with the weapon. Every case is different, so make sure you communicate all of the facts to your lawyer so he or she can evaluate your case properly.

Definition of a Deadly Weapon

There are still more elements of an Aggravated Assault on a Family Member that the state must prove beyond a reasonable doubt. In addition to proving an "assault" under Section 22.01, the state must also show that the person either (1) caused serious bodily injury to another; or (2) used or exhibited a deadly weapon during the commission of the assault. "Deadly weapon" is defined in Section 1.07 of the Texas Penal Code and essentially includes anything capable of causing serious bodily injury or death. When defending an aggravated assault case, a BB gun may not qualify as a deadly weapon, depending on how it is used. Common items alleged to be deadly weapons are firearms, knives, vehicles and bats or clubs.

Defending Aggravated Assault Using Self-Defense

Self-defense is the most common theory when defending an aggravated assault on a family member charge. The definition of self-defense can be found in Section 9.31 of the Texas Penal Code. Using force against another is justified if the actor reasonably believes the force is immediately necessary to protect against another's use or attempted use of unlawful force. Words alone are not provocation enough, but can be used along with other actions to justify self defense.

Attacking Victim and Witness Credibility in an Assault-Family Member Case

Your defense attorney should also investigate the credibility of the victim and any other witnesses in an assault-family member case. Sometimes police officers responding to a family violence case take down false or inaccurate statements. Victims and/or witnesses can be pressured by police to say things that may not be true or are exaggerated. Communication between a defense attorney and the client is crucial to make sure the attorney knows the full story.

Definition of Assault "Family Violence"

The state must also prove the element of "family violence" in an aggravated assault on a family member case. Family violence is defined fairly broadly in Section 71.004 of the Texas Family Code. "Family" includes persons related by either consanguinity or affinity, people who are former spouses and people who share a child together, whether or not they live together or are married. It includes not only assaults between family members, but also between members of the same household, regardless of relation.

Always remember that the accused in any criminal case is not required to prove his or her innocence. The burden is on the state of Texas, which must prove every single element of the case beyond a reasonable doubt. When defending an Aggravated Assault on a Family Member case, a good defense attorney can expose cracks in the state's case by becoming intimately familiar with the facts of each case.

If your or someone you know is being investigated or charged with Aggravated Assault on a Family Member, call the Houston Assault on a Family Member Lawyers at Mercer and Keirnan for a free consultation. You can reach defense attorneys Michael Mercer and John "Casey" Keirnan anytime by calling 713-236-9700 or by requesting a free consultation through our online form.

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