Copyright @ Raphael Ortega Law PLLC, 2023| All rights reserved.
Maintaining meaningful relationships require constant work. When you argue constructively with a spouse, domestic partner, or child, you both air what is bothering you, and often, you move forward with a deeper understanding of each other. But sometimes lines get crossed when simmering resentments boil over, name-calling starts, shoving begins, and one of you hits the other. Tensions are high, emotions are out of control, and someone calls the police to investigate the situation. In Montgomery County, that usually means one of you goes to jail. Unfortunately, when the police arrive, even if the parties have calmed down, no injuries are apparent, and both of you ask that the other person not be arrested—one of you probably will be.
When you find yourself in this situation, it is time to call a Conroe domestic violence lawyer to help put your life back together again. A dedicated criminal defense attorney and former felony prosecutor such as Raphael Ortega could help you defend your rights, protect your reputation, and keep your family intact.
Texas does not use the term “domestic violence” in its criminal code because it implies aggressive physical acts by one spouse upon another. Today, the term assault of a family member expands on the idea of including all people who live together or have a certain familial relationship, such as:
Thus, domestic violence is family violence according to Texas Penal Code § 22.01 and Texas Family Code § 71.0021 to 71.006. A Conroe attorney could review details of a specific case to determine whether it qualifies as an instance of domestic violence under state law.
When a family member is arrested for assault, it is common for the involved party to want to “drop charges.” Heads are clearer than the night before, and if you are jailed and your family depends on your income for their daily necessities, your family may be remorseful that they contributed to putting you there. Your family member may want to file an Affidavit of Non-Prosecution, a legal document asking for the case to be dismissed, dropped, or reduced to a lesser charge. While the district attorney does not have to honor the request, they will seriously consider it because it considers your wishes on how the case should be handled based on your rights as a victim.
An Emergency Protective Order (EPO) is issued by the court to protect an alleged victim from contact with the accused. The arresting police officer, a prosecuting attorney, or the alleged injured party can request an EPO be issued. According to Tex. Penal Code Ann. § 17.292, the EPO is effective for 31 through 91 days at the judge’s discretion. An EPO can restrict the accused from:
An EPO and Affidavit of Non-Prosecution are tools an experienced domestic violence lawyer in Conroe can use to change your course toward conviction to a more favorable outcome. Your seasoned defense attorney may suggest you attend anger management classes, substance abuse counseling or other intervention programs if they believe the programs may help you. Prosecutors may view these programs favorably when determining whether to reduce or dismiss the charges because it portrays an element of self-awareness and a commitment towards rehabilitation.
There are many common charges a police officer might consider when responding to a domestic violence call, all of which are listed under Tex. Penal Code § 22.01. They include:
Intentional physical contact against a family or household member that causes any discomfort, pain, or physical injury is Assault Family Violence. This is a Class A Misdemeanor that could land you in county jail for up to a year and up to a $4,000 fine.
When the assault includes an allegation that you choked a family or household member, police will charge you with Assault on a Family Member by Impeding Breath or circulation. This is a third-degree felony with a 2-to-10-year stint in state prison and a fine up to $10,000.
When someone has a prior Assault Family Violence conviction and are currently facing another Assault Family Violence charge, then the current assault is enhanced to a third-degree felony with the same penalty as impeding breath or choking, a 2-to-10-year stint in state prison and a fine up to $10,000.
A charge of Assault Family Violence is enhanced to Aggravated Domestic Assault when you inflict serious bodily injury (SBI) against a family or household member. Serious bodily injury is defined as 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.
Aggravated Domestic Assault is a second-degree felony, and you face up to 20 years in prison and up to a $10,000 fine. The charge is enhanced to a first-degree felony if a person uses or displays a deadly weapon during the assault (like a knife, gun, or any instrument that can cause serious bodily injury), and carries a maximum sentence of life in prison and up to a $10,000 fine.
Texas Penal Code § 1.07(a)(17) defines a Deadly Weapon as 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.
Serious Bodily Injury under Texas Penal Code §1.07(a)(46) is defined as 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.
A charge of Continuous Assault Family Violence requires that a person commit two assaults against a family or household member within a 12 month period. Prosecutors must prove both the prior assault and current charged assault beyond a reasonable doubt. The prior assault does not require proof of a conviction, merely committing two separate assaults (with or without an arrest) within 12 months is sufficient to bring a charge of Continuous Assault Family Violence.
Continuous Assault Family Violence is a third-degree felony with the same punishment as impeding breath or choking and assault with a prior: A 2-to-10-year state prison sentence and a fine up to $10,000.
Terroristic Threats may sound like something straight out of a warzone or Hollywood action movie, but in the context of Texas criminal law it means to make a statement or take any action intended to place any person in imminent fear of serious bodily injury.
This is a Class A Misdemeanor, and you can face up to one year in jail and a maximum $4,000 fine.
When someone is arrested for Assault Family Violence, chances are a magistrate judge will issue an order granting an Emergency Protective Order (EPO) prohibiting them from having any contact with the alleged victim. The order will set forth specific conditions that must be adhered to, and any violation of those conditions could lead to serious consequences. Texas Penal Code § 25.07.
Generally, this offense is a Class A Misdemeanor, and you face up to one year in jail and a maximum $4,000 fine.
However, the charge is enhanced to a state jail felony if the subject of the EPO was a victim of sexual assault or abuse, indecent assault, stalking, or trafficking, in which case you would be facing up to 2 years in state prison and a fine up to $10,000.
The case would be further enhanced to a third-degree felony if you have two or more prior convictions for a violation of an EPO. In this scenario, you would be looking at up to 10 years in state prison and a maximum $10,000 fine. To have the best chances of avoiding harsh penalties, anyone in Conroe facing charges for domestic violence or violating a protective order should prioritize meeting with an attorney as soon as possible.
The intimate nature of family violence cases often means that the incidents between the parties typically occurs behind closed doors, and often with limited or no other witnesses. It is not uncommon for police to rely solely on the alleged victim’s testimony to justify an arrest and charge. Possible defenses to family violence charges include:
Defending against allegations of domestic violence can be extremely difficult, but it also presents opportunities to craft a sound legal defense strategy. Therefore, hiring a Conroe domestic violence attorney is crucial.
The Second Amendment of the U.S. Constitution protects your fundamental rights as a gun owner. However, both federal and state laws can regulate the right to bear arms for certain classes of individuals, usually for health and public safety reasons. Legal professionals in Conroe know that a conviction for certain domestic violence offenses can greatly affect your gun rights.
Unlawful Possession of a Firearm under Texas Penal Code § 46.04 prohibits the possession of a firearm if you have been convicted for a Class A Misdemeanor Assault Family Violence. However, this restriction is lifted 5 years after release from confinement or community supervision, thereafter you can legally possess a firearm in Texas.
However, there is a caveat: Federal law also regulates the possession of firearms for individuals convicted of misdemeanor crimes of domestic violence. Under federal law 18 U.S.C. § 922(g) it is unlawful for anyone convicted of a misdemeanor crime of domestic violence to possesses a firearm, forever.
Therefore, there are scenarios where the possession of a firearm after a certain domestic violence conviction would be lawful under Texas law, but still illegal under Federal law, and thus expose you to harsh penalties in Federal court.
When you are undocumented, you risk immediate deportation if police arrest you for family violence, even before a trial. When you have a Green Card, visa, or work permit, you are at risk for other harsh consequences, including detainment, loss of status, and problems with the naturalization or admission process.
A Texas criminal charge and conviction requires special handling when it overlaps with federal immigration laws. Conroe domestic violence attorney and former ICE trial attorney Raphael Ortega is skilled in navigating such legal matters and could help you reach the most positive outcome possible given the circumstances of your specific case.
No one person or relationship is perfect, and we understand that sometimes tempers flare and people make regrettable choices. If we believe you need counseling or other services, we will recommend it. Our job is to mitigate your family violence charge, so the prosecutor reduces or dismisses it, and get you back to rebuilding your personal relationships.
Prosecutors take domestic violence allegations extremely seriously, and so should you. If the police arrested and charged you with assaulting a family member after a heated argument that escalated to physical contact, call an experienced Conroe domestic violence lawyer and former felony prosecutor such as Raphael Ortega to discuss the situation.
Copyright @ Raphael Ortega Law PLLC, 2023| All rights reserved.