(also Known as Assault – Family Member)
There are many different ways someone can be charged with domestic violence, the ones we see most commonly in Harris and the surrounding counties are as follows:
Assault – Family Member (Assault-Family Violence w/ injury)
This is charged as a Class A misdemeanor, the range of punishment for this type of case is up to 1 year in the County Jail, and up to a $4000 fine.
Assault-Family Member Impeding Breath (Choking)
This is charged as a 3rd Degree Felony, the range of punishment for this type of case is 2-10 years in prison, and up to a $10,000 fine.
Assault-Family Member 2nd (Normal Class A domestic violence charge, with a prior conviction)
When you have a prior conviction for a domestic violence case, the 2nd case (whether it would have been a misdemeanor or not) is charged as a 3rd Degree Felony, the range of punishment for this type of case is 2-10 years in prison, and up to a $10,000 fine.
Assault of a Family Member – Continuous
When you have multiple assault allegations within 1 year, they can be combined together and result in an enhancement of the charge to a 3rd Degree Felony, the range of punishment for this type of case is 2-10 years in prison, and up to a $10,000 fine.
If the Victim Drops the Charges, Will the District Attorney Dismiss in Harris County and Surrounding Counties?
The one questions I get asked more than anything is, “my family member dropped the charges, why is my case not dismissed?”
The reason is, almost every single domestic violence case at some point has the family member wanting to drop charges. DAs see this on almost every single case, and as a result, they tend to evaluate the case and the evidence they have instead of automatically dismissing a case. Even if your family member doesn’t want to testify against you, the DA can possibly still use other evidence that was gathered on the day of the event, and can use testimony from other witnesses as well.
At my law firm we will work with you, and with the DAs to try to show what really happened on the night you were arrested. We will reach the best possible outcome on the case for you. If appropriate we will fight for a dismissal, or fight the case in front of a jury at trial.
Should I File an Affidavit of Non-Prosecution?
This is basically a sworn letter that the “victim” writes asking the DA to dismiss the case, or drop the charges. A “victim” writing this letter does not in any way obligate a DA to dismiss a case. As I stated above, DAs get these affidavits so often that they tend to give them little weight (as unfair as that may be). But at minimum it is a good indication to the DAs that the complainant is recanting and does not wish to prosecute the defendant. When push comes to shove, it might be the difference maker is reaching a deal on a case or not. So filing an affidavit of non-prosecution doesn’t hurt.
Why do I have a Protective Order?
A MOEP (magistrates order of emergency protection) is an order from the court that is filed on Assault-Family Member cases that prohibits a defendant from doing certain things. It warns you not to assault an individual, or communicate with the protected individual in a threatening or harassing manner, and prohibits you from going within a certain amount of feet from the individuals home or work/school.
Typically on a class A misdemeanor this order is valid for 61 days. On a felony it is typically 91 days.
Can I Lift the Protective Order?
This is very court and judge specific. The only way to get these orders lifted is by having both the defendant and the complainant in court on the same day, approach the judge, let the judge know that the complainant wants the order lifted, that the complainant is not scared of the defendant, and that no one would be in danger if the order was lifted.
In my experience most judges in Harris County and surrounding counties will not lift the order, but some do. The ones that do typically will have a conversation with the complainant, and if good enough reasons are given, then they will remove the order and allow unlimited contact.
Again, this is very court specific, so if you have any questions regarding this just contact me directly.
Is it Possible to get a Case Dismissed if I Take a Class? Will this be Visible on My Record?
It is possible. Sometimes we can show that justice (and future peace to the relationship and family) is served by allowing an accused to do a class (Batterers Intervention and Prevention Program or Anger Management). Sometimes the DAs will offer a dismissal if the class is completed, and sometimes they will offer a reduction to a lesser charge.
The only thing that will be visible on your record is the outcome of your case. So if the case is dismissed, it is dismissed. It doesn’t matter that you took a class. It is not a conviction and eventually will be eligible for an expunction which destroys all of the arrest records.
If the case is lowered down to a lesser charge, and you are convicted of that charge, then you will have a conviction on your record for whatever that charge is. Domestic Violence convictions are not able to be sealed, non-disclosed, or expunged off of your record.
Additional Consequences to Being Convicted of Domestic Violence?
Even if you successfully complete a deferred adjudication, you will not be able to non-disclose (seal) your record for the general public the way that you can do for most cases.
You also will not be able to have a firearm in your possession. State and Federal law conflicts on this issue, but under federal law, there is no time limit to the amount of time. So under federal law, you are never allowed to possess a firearm again.