Texas Domestic Violence Archives: Legal Definitions & Defense

When people hear the phrase “assault and battery,” they often envision two distinct criminal offenses: one encompassing threats of harm and the other involving actual physical violence. However, it's crucial to understand that under Texas law, the legal landscape is structured differently. The term “battery” is not used to define a separate criminal offense. Instead, both the act of threatening harm and/or the act of causing physical harm are typically consolidated under the broader legal definition of assault. This fundamental difference is key to comprehending how such charges are prosecuted in the state.

This post aims to provide a comprehensive breakdown of what constitutes assault under the Texas Penal Code, delve into the varying degrees of severity and their classifications, and outline the potential penalties that individuals accused of these offenses may face. We will also explore related offenses like aggravated assault and common legal defenses.

Defining Assault in Texas: A Three-Pronged Approach

The Texas Penal Code § 22.01 provides a specific and multifaceted definition of assault. A person commits assault if they engage in any of the following actions:

• Causing Bodily Injury: Intentionally, knowingly, or recklessly causing bodily injury to another person. This includes a spouse, and the term "recklessly" implies a conscious disregard of a substantial and unjustifiable risk that the injury will occur. Bodily injury itself is defined broadly as physical pain, illness, or any impairment of physical condition. This means even an act causing temporary pain, without visible marks, could qualify.
• Threatening Imminent Bodily Injury: Intentionally or knowingly threatening another person (including a spouse) with imminent bodily injury. The key here is the "imminent" nature of the threat; it must be a threat of harm that is about to happen. The threat can be conveyed through words, gestures, or a combination of both.
• Causing Offensive or Provocative Physical Contact: Intentionally or knowingly causing physical contact with another person when they know—or should reasonably believe—that the other person will regard the contact as offensive or provocative. This prong does not require any injury. Examples could include an unwanted touch, a shove that doesn't cause pain but is clearly offensive, or spitting on someone.

Because this statutory definition of assault encompasses both verbal or gestural threats (with no physical harm necessarily resulting) and actual physical contact that might or might not cause bodily injury, Texas law effectively subsumes what many other jurisdictions would categorize separately as “battery” into its singular assault statute.

Degrees of Assault and Their Corresponding Penalties: A Spectrum of Severity

Assault charges in Texas are not one-size-fits-all. The severity of the charge and the potential penalties depend heavily on the specific circumstances of the incident, the harm caused, the identity of the victim, and the defendant's prior criminal history.

• A. Class C Misdemeanor Assault
  • What It Is: This is the lowest level of assault. It typically involves situations where an individual threatens someone with imminent bodily injury but does not actually cause any physical harm, or where they cause physical contact that is deemed offensive or provocative but does not result in bodily injury. Examples could include a verbal threat of immediate harm or an unwelcome, offensive touch.
  • Penalties: A Class C misdemeanor is punishable by a fine of up to $500. While there is no jail time associated with a Class C misdemeanor conviction itself, failure to pay the fine or adhere to court orders can lead to further legal complications.

• B. Class A Misdemeanor Assault
  • What It Is: This is a more serious charge and is often filed when the assault results in actual bodily injury to another person, and the circumstances do not elevate it to a felony. As previously noted, bodily injury is defined as physical pain, illness, or any impairment of physical condition. This could range from a bruise or scratch to more significant, but not life-threatening, injuries.
  • Penalties: A Class A misdemeanor carries significantly steeper penalties, including potential confinement in county jail for up to one year and/or a fine of up to $4,000.

• C. Enhanced Misdemeanors and Felony Assault: When Circumstances Escalate the Charge The gravity of an assault charge can be substantially increased, elevating it from a lower-level misdemeanor to a higher-level misdemeanor or even a felony, based on several critical factors. These factors often relate to the identity of the victim, the defendant's prior criminal record, or the specific nature and context of the incident.
  • Assault Against a Public Servant:
    • If the victim of the assault is a public servant (such as a police officer, firefighter, emergency medical services (EMS) personnel, correctional officer, or even a process server) who is lawfully discharging an official duty, and the defendant knows the person is a public servant, the charge can be enhanced. An assault that might otherwise be a Class A misdemeanor can become a third-degree felony if it results in bodily injury to a public servant.
    • Penalties for a third-degree felony include imprisonment for 2 to 10 years and a fine of up to $10,000.

  • Assault Involving Family Violence:
    • Texas law takes domestic violence very seriously. If an assault involves a family member, household member, or someone with whom the defendant has or had a dating relationship, the penalties can be enhanced, especially with prior convictions.
    • A first offense of assault causing bodily injury to a family member is typically a Class A misdemeanor. However, if the defendant has a previous conviction for an offense involving family violence (including assault against a family member, violation of a protective order, or stalking), a subsequent assault against a family member causing bodily injury can be charged as a third-degree felony.
    • Furthermore, if the assault involves impeding the normal breathing or circulation of the blood of a family member or household member by applying pressure to the throat or neck (strangulation or choking) or by blocking the nose or mouth (suffocation), this act itself can elevate the charge. Such an offense can be a third-degree felony, or even a second-degree felony if the defendant has a previous conviction for a similar offense.
    • Penalties for a second-degree felony range from 2 to 20 years in prison and a fine of up to $10,000.

  • Assault Against Elderly& or Disabled Individuals:
    • Assault committed against an elderly individual (defined as someone 65 years of age or older) or a disabled individual can also lead to enhanced charges. Depending on the severity of the injury and the defendant's intent, these offenses can be prosecuted as felonies, reflecting the state's interest in protecting vulnerable populations.

Aggravated Assault: A More Serious Offense

Distinct from simple assault, though closely related, is the offense of aggravated assault, as defined under Texas Penal Code § 22.02. This charge signifies a more severe form of assault. A person commits aggravated assault if, during the commission of an assault (as previously defined), they either:

• Cause serious bodily injury to another person (including their spouse). Serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
• Use or exhibit a deadly weapon during the commission of the assault. A deadly weapon can be a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
• Penalties for Aggravated Assault:
  • Generally, aggravated assault is classified as a second-degree felony. This carries a potential punishment of 2 to 20 years in prison and a fine of up to $10,000.

• Enhanced Aggravated Assault Charges:
  • Similar to simple assault, aggravated assault charges can be further enhanced under specific circumstances. For instance, if the aggravated assault is committed against a public servant acting in their official capacity, or involves discharging a firearm from a motor vehicle towards a habitation, building, or vehicle and causing serious bodily injury, the charge can be elevated to a first-degree felony.
  • A first-degree felony is punishable by imprisonment for 5 to 99 years, or life, and a fine of up to $10,000.

Exploring Possible Legal Defenses in Assault Cases

Facing an assault charge does not automatically mean conviction. The Texas legal system provides for due process and various defenses that, if applicable to the facts of the case, could lead to charges being reduced or dismissed. Common defenses in assault cases include:

• Self-Defense (Texas Penal Code Chapter 9): This is one of the most common defenses. A defendant may argue that their actions were justified because they reasonably believed that the force they used was immediately necessary to protect themselves from the other person's use or attempted use of unlawful force. The amount of force used in self-defense must be reasonable in relation to the perceived threat.
• Defense of Others (Texas Penal Code Chapter 9): Similar to self-defense, a person is justified in using force to protect another individual if they reasonably believe the other person would be justified in using force to protect themselves, and the defendant reasonably believes their intervention is immediately necessary.
• Lack of Intent (Mens Rea): For most assault charges, the prosecution must prove a culpable mental state (intentionally, knowingly, or recklessly). If the contact or threat was purely accidental, and the defendant did not possess the requisite intent to cause harm, threaten, or make offensive contact, this could be a defense. For example, if bodily injury occurred due to an unforeseeable accident rather than intentional or reckless conduct.
• Mistaken Identity / Alibi: The defendant may argue they are not the person who committed the act in question or were wrongly identified by witnesses. An alibi defense would involve presenting evidence that the defendant was elsewhere when the alleged assault occurred.
• Consent: While not applicable in many assault scenarios (one cannot generally consent to serious bodily injury), in limited circumstances involving offensive contact or minor bodily injury (e.g., a contact sport), consent might be a factor.

It is absolutely critical to understand that the viability and success of these defenses are highly dependent on the specific, unique facts and circumstances of each individual case. Gathering evidence, witness testimony, and understanding the nuances of Texas self-defense laws (including the Castle Doctrine and Stand Your Ground principles, where applicable) are vital. Therefore, consulting with an experienced criminal defense attorney is paramount to thoroughly investigate the case, identify all possible defenses, and develop an effective and tailored defense strategy.

Consequences Beyond Criminal Penalties: The Ripple Effect of an Assault Conviction

A conviction for assault in Texas can have profound and lasting repercussions that extend far beyond court-imposed fines and potential imprisonment. These collateral consequences can significantly impact a person’s future:

• Permanent Criminal Record: An assault conviction, particularly a felony, creates a permanent criminal record that is accessible through background checks. This can severely limit opportunities for employment (especially in certain professions like teaching, healthcare, or law enforcement), housing (as landlords often run checks), and higher education.
• Issuance of Protective Orders: Victims of assault, especially in family violence cases, may seek and obtain protective orders (also known as restraining orders) against the defendant. These orders can legally prohibit the defendant from contacting the victim, going near their residence or workplace, or possessing a firearm, often for extended periods (e.g., two years, or sometimes longer). Violating a protective order is a separate criminal offense.
• Loss of Civil Rights: Certain convictions, predominantly felonies, can lead to the loss or restriction of fundamental civil rights. This includes the right to vote (until the sentence, including parole or probation, is fully discharged) and the right to possess firearms under both federal and state law.
• Immigration Consequences: For non-U.S. citizens, an assault conviction can have severe immigration consequences, potentially leading to deportation, denial of naturalization, or inability to re-enter the United States.
• Professional Licensing Issues: Many professions require state licenses (e.g., doctors, nurses, lawyers, teachers, real estate agents). An assault conviction can jeopardize an existing license or prevent an individual from obtaining one.
• Social Stigma: The social stigma associated with an assault conviction can affect personal relationships and standing in the community.

Conclusion: Navigating Assault Charges in Texas Requires Expertise

In summary, under Texas law, the traditional concept of “battery” is effectively integrated within the broader offense of “assault”. This legal framework makes it essential for anyone facing such allegations to understand precisely how Texas law defines and penalizes a wide array of threatening or harmful behaviors.

Whether an assault charge is classified as a misdemeanor or a felony, it invariably carries the potential for serious penalties, including substantial fines, incarceration (in county jail or state prison), and a host of long-term collateral consequences that can shape an individual's future. Given the complexities of the law, the nuances of evidence, and the severity of potential outcomes, facing an assault charge alone is a daunting prospect.

Facing assault charges in Texas can be overwhelming, with serious consequences that can impact your life for years to come. Don't navigate this complex legal challenge alone. If you or someone you know is confronting assault charges, the time to act is now. It is absolutely imperative to secure the counsel of a qualified and experienced criminal defense attorney immediately.

At Howard Lotspeich Alexander & Williams, PLLC (HLAW), our knowledgeable attorneys are ready to:

• Meticulously analyze the specific details of your case.
• Clearly explain your rights and the charges you face.
• Thoroughly explore all available defenses.
• Skillfully navigate the intricate Texas legal system on your behalf.
• Advocate zealously to protect your rights and fight for the best possible outcome.

Your future is too important to leave to chance. Contact Howard Lotspeich Alexander & Williams, PLLC (HLAW) today for a confidential consultation. Let our experience work for you.

When you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 8 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year's season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the "five finger discount" for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Air Travleing Trouble (Guns, Drugs, and Intoxication)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year's. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed or when folks over indulge during a layover. Specifically, we see the following airport arrests:

• • Airport Gun Charges (as of 2022 and changes in the law, this has mostly subsided);
  • Possession of a Controlled Substance (CBD oil, THC oil, marijuana, etc.); and
  • Public Intoxication.

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests, airport drug arrests, and airport public intox arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year's parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We're Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

How To Lift an Emergency Protective Order (EPO) Associated with a Texas Domestic Violence Case?

If you were arrested for Assault (Family Violence), chances are that you also received an Emergency Protective Order prohibiting you from going within 500 yards (or similar distance) from the “victim’s” home or workplace, along with other conditions for a period of 31, 61, or 91 days depending on the nature of the alleged assault. Protective Orders can cause big problems, especially when the two parties live together in the same house and share childcare and other family responsibilities.

Can I Lift The Emergency Protective Order So That I Can Go Home?

Yes, you can (in most cases). We are asked this question on a daily basis. A spouse that was arrested for Domestic Violence has been forced to leave the family home because of the EPO. EPOs, however, do not relieve people of their daily responsibilities to take care of children, go to work, or provide for their families. An EPO can certainly throw a wrench into a family dynamic.

We help families modify protective orders to allow a defendant to return home. We do not typically request that the entire EPO be lifted completely, only amended.

Amending an EPO is Not the Same Thing as Lifting an EPO.

So what’s the big difference in lifting an EPO versus amending an EPO. Most judges will not agree to completely lift an EPO, because, as they see it, there was likely a good reason for the imposition of the EPO in the first place. Additionally, in almost every scenario, the District Attorney's office will oppose lifting the EPO. However, many judges will agree to amend or modify an EPO and change some of the conditions. Usually, if the victim requests it, a judge will amend the protective order to allow the defendant to return home or resume contact with the complainant and the family. However, the remaining conditions, usually involving not committing family violence or threatening the victim, remain in place for the duration of the protective order.

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Call BHW Today (817) 993-9249

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What are the Steps to Amending a Protective Order in Fort Worth?

First, it is important to know that all jurisdictions handle protective orders differently. For instance, the Fort Worth Municipal Court handles protective orders differently from Tarrant County Criminal Court #5. Some courts prefer to hold a formal hearing and others do not. However, in all cases, we request the following:

• An Affidavit from the Victim Requesting a Change of the Protective Order: This can be drafted and signed in our office, but the victim must be present and indicate that this is what he/she wants. In our experience, if the complaining witness does not want the EPO changed, then the judge is not going to change it.
• A Motion to Modify the Protective Order: We draft and file the motion with the court having jurisdiction over the EPO. Texas law requires that we allege 3 things in our motion and that the judge find those 3 things to be true before he/she can modify the EPO:
  • (1) The current EPO is unworkable;
  • (2) Modification of the EPO will not place the victim in a greater risk of harm; and
  • (3) Modification of the EPO will not result in harm to any person protected under the order.

• An Affidavit of Non-Prosecution: This is not a required document, but we allow victims to sign an ANP in our office if they request it. They may end up having to sign another ANP with the prosecutor, but we like to give them the opportunity.
• Formal or Informal Hearing with the Presiding Judge: Some courts will require an actual hearing with witnesses before deciding whether to modify an EPO. Other courts simply prefer the verified documentation and an informal meeting with the state and the defense.
• Filing the Amended Order with the Arresting Agency and Sheriff’s Office: If the judge agrees to amend the protective order, we send a copy of the signed order to the defendant, the complainant, the arresting police agency, and the local sheriff’s office. We also advise our clients to keep a copy of the order near the front door in case a nosy neighbor decides to call the police believing that the EPO is being violated.

I Have an Emergency Protective Order. How Do I Get Started in Amending the Order?

If you have an EPO that was issued against you in response to an allegation of Assault (Family Violence), give us a call today to see if we can assist you in getting the order amended so that you can return home to your family. Every case is different, so we want to speak with you and learn more about your situation. This article will not apply to every case, so call us today at (817) 993-9249. We offer Free Consultations in every case with no obligation.

If You Lie or Exaggerate in a Police Report or File a False Report, You Could be Charged with a Class B Misdemeanor

As Fort Worth criminal defense attorneys, we are often asked by witnesses and victims what might happen if it comes to light that the story they told the police was not exactly true. We often see this in Domestic Violence cases, when a victim decides that the statement he or she gave on the night of the incident was perhaps embellished a little during a fit of anger. Witnesses later become fearful when they realize they might have to take the witness stand and give a different (truthful) account of the event. They worry that they might be charged with a crime themselves for filing a false police report.

Filing a False Police Report in Texas | Texas Penal Code Section 37.08

Section 37.08 of the Texas Penal Code provides:

(a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to: (1) a peace officer or federal special investigator conducting the investigation; or (2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

Filing a false report under Section 37.08 is a Class B Misdemeanor, punishable by up to 180 days in jail and a fine up to $2,000.

*Filing a false report about a missing child or missing person is a Class C offense, punishable by fine only.

Charges for Filing a False Report Do Not Happen Very Often in Texas

In our line of work, we see false reports on a daily basis. Be they embellished statements, outright lies, or  statements that simply omit important details, false reports happen all the time. In over 10 years, we have yet to see a case filed on a victim or witness for filing a false report or giving a false statement. While we're sure it has happened, it doesn't happen very often in our experience.  Perhaps it is because the state does not want to chill victims from reporting or because no one knows which story was actually true.  Either way, it is unlikely that a victim or witness who changes their story is going to be charged with an offense. Regardless, we always tell witnesses to simply TELL THE TRUTH.  If you tell the truth, even if the truth has changed since the first time you told the story, you'll probably be in good shape.

*Note: this post does not discuss the offense of Perjury, which is a separate offense involving swearing to a false statement. See Texas Penal Code Section 37.02.

Tarrant County Trial Court Admits Testimony in Violation of the Confrontation Clause

The Second Court of Appeals recently released a memorandum opinion, which reversed a defendant’s conviction due to a confrontation clause violation. The issue was whether the trial court (Criminal District Court Number 1, Tarrant County) erred in allowing an officer to testify about certain statements the alleged victim made regarding a prior assault allegation.

McDowell v. State—2nd Court of Appeals (2018)

The Facts—Defendant Was Convicted for Felony Domestic Violence

On August 21, 2016, officers were alerted to a domestic disturbance in progress. When officers arrived at the scene they made contact with the victim and the victim’s friend who had reported the disturbance. While talking with the two females, officers noticed multiple bruises on the victim and learned that the suspect (i.e. Defendant), who had allegedly assaulted the victim, was still inside the home. Officers subsequently entered the residence and arrested Defendant.

At trial, dash-cam video showing the accusations made by the two females was admitted. In addition, one of the officers testified to additional statements made by the victim suggesting that the defendant had a history of violence. These additional statements, however, were not included in the dash cam video. Defendant objected to these statements under Crawford because the victim did not appear at trial. Nonetheless, the trial court allowed the out-of-court statements to be admitted over objection.

In addition to the officer’s testimony regarding the hearsay statements, the jury heard from two other witnesses about the cycle of domestic violence. The State then referenced this testimony in relation to Defendant’s history of domestic violence during closing arguments. As a result, Defendant was convicted. Defendant later appealed his conviction arguing that the trial court erred when it allowed the officer to testify to the victim’s statements in violation of the confrontation clause of the 6th Amendment.

Court of Appeals Reverses and Remands Case—Holding the Trial Court Erred in Admitting the Officer’s Testimony

Generally, the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial. In determining whether certain statements were testimonial in nature, “the Court looks to see whether circumstances were present at the time the statements were made that would indicate the existence of an ongoing emergency.” If such circumstances existed, the statements are admissible.

Here, the victim did not appear at trial. As such, the Court of Appeals attempted to analyze whether the victim’s statements were testimonial in nature by determining whether they were made during the ongoing emergency. However, the Court was unable to do so because there was no evidence from the State regarding when these statements were made. The Court concluded that without knowing the timing at which the statements were made, there was no way to determine the existence of an ongoing emergency. The Court explained that once there is an objection to the admission of evidence on confrontation grounds the burden shifts to the State. Here, the State was silent in regard to the confrontation objection. And, without the State providing more evidence, the Court could not conclude that the statements were nontestimonial. Accordingly, the Court held that the trial court erred in admitting the statements.

The Court then conducted a harm analysis to determine whether the error impacted the jury’s verdict, which would require a reversal. In making its determination, the Court noted that the majority of the officer’s testimony was based on the inadmissible statements. These statements portrayed a history of violence rather than just one instance. Further, the other witnesses’ testimony hinged on these inadmissible statements. Thus, because the inadmissible statements were a crucial part in establishing the elements of the offense, the Court could not say beyond a reasonable doubt that the trial court’s error did not contribute to Defendant’s conviction and, therefore, a reversal was required.