4940 Broadway St, Suite 130
San Antonio, TX 78209
4940 Broadway St, Suite 130
San Antonio, TX 78209
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If you or someone you love is sitting on a family violence case, don't let the word "misdemeanor" fool you. An assault family violence charge can damage your future about as badly as most felony convictions. It can cost you jobs, apartments and your right to own a firearm, and the family violence label stays on your record.
Brian Powers has seen these cases from every seat in the courthouse. He has been a police officer, a felony prosecutor and a magistrate judge. Today he defends people charged with assault and family violence in San Antonio and across Bexar County. He knows how officers write these reports, how prosecutors decide what to file and how magistrates set bond and protective orders, and he uses that knowledge to look for the weak spots in the State's case.
Assault is defined in Texas Penal Code §22.01. It covers three different kinds of conduct:
Each of those words carries its own legal definition. "Intentionally, knowingly or recklessly" can take days to argue about, but at minimum the State has to show a voluntary act on your part. "Bodily injury" does not have to be a bruise or a cut. Under Texas law, simple physical pain is enough.
You may have heard the term "battery." Texas has no separate battery charge. Hitting, pushing or grabbing someone is charged as assault. We explain the difference in Assault vs. Battery in Texas.
A family violence assault is the same §22.01 offense. What changes is who the other person is. The charge applies when the alleged victim is a family member, a household member or someone you date or dated. Those relationships are defined in the Texas Family Code (§71.0021, §71.003 and §71.005), which is why you will see the Family Code cited in a Penal Code case. If you are related to the person by blood or marriage, are married to them, live with them now or lived with them before, or are in or were in a dating relationship with them, you qualify.
Outside Texas, the same charge is usually called domestic violence or domestic assault. Texas law uses the term family violence, but the meaning is the same.
When the case involves family violence, the prosecutor will ask the court to enter a family violence finding. That finding is what makes these cases so damaging. It follows you on background checks, it can turn a future assault charge into a felony, and it can cost you your gun rights.
If the State alleges two or more family violence assaults within a 12-month period, it can charge continuous violence against the family under Penal Code §25.11. That is a third-degree felony even if each incident on its own would have been a misdemeanor, and even if neither incident led to a prior conviction.
A prior conviction for assault against a family member, household member or dating partner turns a new bodily injury assault into a third-degree felony. Deferred adjudication can count for this purpose as well. That is one more reason to fight the first case instead of treating it as a minor misdemeanor.
The penalty range on the charging paper is the State's opening position, not the final word. Prosecutors often file the highest charge the first report supports. The evidence decides what they can actually prove.
After booking, you will see a magistrate. The magistrate tells you what you are charged with, sets your bond and, in family violence cases, often issues an emergency protective order that takes effect immediately. That order can bar you from contacting the alleged victim, going to your own home or being near your children's school, and it can require you to give up your firearms.
Your bond will almost always carry conditions, usually no contact with the complaining witness and a stay-away from the residence. Take these seriously. Violating a protective order or bond condition is a separate crime under Texas Penal Code §25.07, and it can get your bond revoked and put you back in jail. That is true even if the other person invites you over, calls you or asks a friend to pass along a message.
Do not call, text or message the complaining witness. Do not post about the case on social media. Do not go back to the house to get your things on your own. Your lawyer can arrange a safe, court-approved way to retrieve property and can ask the court to modify orders that are broader than they need to be.
Many people believe the case goes away if the alleged victim "drops the charges." It doesn't work that way. The State of Texas is the party bringing the case, and prosecutors regularly go forward without the complaining witness's cooperation. An affidavit of non-prosecution can help, but it is rarely the end of the case by itself. Brian often asks for a full written statement in addition to the affidavit. He explains why, and what else he looks at in the first days after an arrest, in Assault Family Violence: Initial Concerns at the Time of Your Arrest.
If you haven't been in trouble much, jail is usually not where a first family violence case ends. On your first court date with an appointed attorney, a typical offer includes a fine, court costs, community service, a family violence class that runs around 6 to 8 months of weekly sessions, and deferred adjudication lasting anywhere from 6 months to 2 years.
Deferred adjudication is a form of probation. If you complete it, the case is dismissed. That sounds great. The fine print is that this kind of dismissal never goes away. Your record will always show that you pled to the offense and served probation on it, and a family violence deferred generally cannot be sealed with an order of nondisclosure.
For someone who wants to become a nurse, that background snag can end the plan. For someone applying for an apartment, it will likely show up and get the application rejected. For someone starting a new relationship, a simple background search can end it.
Sometimes a deferred is the right call. There may be pressures outside the courthouse, or a plea may head off a felony or a worse charge. But that decision should never be made without real effort first to get a dismissal or a not guilty verdict.
Many of the strongest ways to win an assault family violence case happen in the preparation stage, in the weeks right after the arrest. Waiting for something to happen at trial wastes that time. Here is what that work looks like.
911 recordings, body camera and dash camera video, doorbell and surveillance footage, text messages and phone records are easiest to get right after the incident. Some of it gets overwritten. If you had injuries, they should be photographed, and photographed again as they develop. Witnesses who saw what happened should be identified and asked for statements while their memories are fresh.
Texas law allows you to use force when you reasonably believe it is immediately necessary to protect yourself or another person against someone else's unlawful force. If you were defending yourself, that may be a complete defense. Read more in Aggravated Assault and Self-Defense.
Not every case goes to trial. When the evidence supports it, the goal of negotiation is to get the case dismissed, reduced to a lower charge, or resolved without a family violence finding. Any offer should be weighed against what matters most to you, whether that is your record, your gun rights, your job, your immigration status or time with your kids.
No. Only the State can dismiss the case. A complaining witness who doesn't want to go forward can sign an affidavit of non-prosecution, and that can matter, but prosecutors can and do proceed without the witness's cooperation.
Not if your bond conditions or a protective order say no contact. Violating the order is a new criminal charge even if the other person reached out first. Ask your lawyer to request a modification instead.
A conviction is permanent, and a deferred adjudication dismissal still shows the plea and probation. If your case is dismissed outright or you are found not guilty, you may be eligible for an expunction. See our expunctions and non-disclosures page.
Yes. Under Texas law, bodily injury includes physical pain. An officer can arrest based on a statement that someone was pushed or grabbed and it hurt, even with no mark. The lack of injury can still matter later, when the defense tests what the State can prove.
Yes. The first offer in a family violence case often looks easy and carries consequences that last the rest of your life. A lawyer can tell you what the plea really means before you sign it and look for a better way out.
Aggravated assault adds serious bodily injury or the use or display of a deadly weapon, and it is a felony. See Aggravated Assault vs. Simple Assault.
If you or a loved one has been charged with assault or family violence in San Antonio or Bexar County, call Brian Powers Law at (210) 222-9446 or contact us online for a free consultation with a San Antonio criminal defense attorney who has worked these cases as a prosecutor and a judge. The earlier we start, the more evidence we can protect.