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Assault Bodily Injury Texas Family Violence Dismissed or Dropped

On Behalf of | Jan 12, 2023 | Domestic Violence

As a domestic violence defense attorney based in Collin County, I make it my top priority to get your charge dropped to class c misdemeanor assault family violence or dismissed altogether.  Prosecutors, however, view domestic violence in Texas as a serious problem, and they don’t drop domestic violence charges just because the complaining witness now says they don’t want to press charges anymore.  That’s why it’s so important that you have an experienced domestic violence defense attorney in your corner.  Dropping charges for domestic violence in Texas requires convincing prosecutors not only that justice demands a charge reduction or dismissal, but also that they cannot prove their case beyond a reasonable doubt, according to the Texas penal code.  Click here to call for a free consultation.

Affidavit of Non-Prosecution

An affidavit of non-prosecution is the first line of defense in fighting your domestic violence charge.  Often, assault family violence charges in Texas arise from an argument that escalates out of hand.  The complaining witness calls 911, hoping the police will arrive and simply deescalate the situation.  Instead, officers ask leading questions searching for a few magic answers.  If the complaining witness states that some sort of contact took place and that contact caused even the slightest bit of pain, officers make an arrest for class a assault family violence.  The complaining witness may tell officers not to make the arrest, but the officers say policy requires they do.  The result is a domestic violence charge that carries immediate and long-term consequences.

Hiring a domestic violence defense attorney soon after arrest gives us an opportunity to prepare an affidavit of non-prosecution.  In an affidavit of non-prosecution, the complaining witness writes a sworn statement regarding the events leading up to the arrest and the desire that the district attorney’s office not prosecute the case.  The affidavit gives a complaining witness the opportunity to explain how officers may have misinterpreted observations and statements made before the arrest.  It also gives the complaining witness a chance to inform prosecutors that justice calls for them to drop the case.  For more information on affidavits of non-prosecution and affidavit of non-prosecution forms, click here.  While an affidavit of non-prosecution helps prosecutors see the arrest from the perspective of the complaining witness, we still need to make the prosecutors see the weaknesses in their case by contesting the elements of the assault family violence charge.

Assault Family Violence Texas

The Texas penal code breaks down class a misdemeanor assault family violence into several elements, each of which the prosecution must prove beyond a reasonable doubt in order to get a conviction.  We need to find the weakest element and attack it.  The elements of assault family violence come from § 22.01, Penal Code and include relationships defined under Chapter 71 of the Texas Family Code.  Those elements are:

  • Identity of the defendant
  • Date of the offense
  • County where the offense took place
  • Mental state: intentionally, knowingly, or recklessly
  • Caused bodily injury
  • To the complaining witness
  • The manner and means for causing bodily injury
  • The relationship as defined by Ch. 71, Family Code

The first three elements: 1) identity of the defendant; 2) date of the offense; and 3) county where the offense took place are usually not up to much debate.  The best elements to attack are as follows:

Mental State

To get a conviction, prosecutors must prove you acted intentionally, knowingly, or recklessly.  If you caused bodily injury to a member of your family, household, or someone you’re dating, by negligence or accident, you have not committed assault family violence.  While intoxication is not a defense for the mental state involved in a Texas domestic violence charge, prescription drugs can sometimes cause people to act out of character.  If you have been arrested for assault family violence and take prescription medications, especially ones that treat mood, mental health, or help you fall asleep, you need to tell your domestic violence defense attorney during a free consultation.  Side effects of prescription medication do not automatically make your charges disappear, but they do provide your domestic violence attorney with plea bargaining leverage and can help with a grand jury defense packet.

Bodily Injury

Bodily injury means pain, and prosecutors have to prove beyond a reasonable doubt that any alleged contact caused the complaining witness to feel pain.  The primary way prosecutors introduce evidence of pain is through testimony from the complaining witness.  But what if the complaining witness does not want to testify?  Or what if the complaining witness writes an affidavit of non-prosecution that denies feelings of pain?

If the prosecutors have pictures that show injuries so severe that any reasonable person would infer pain or medical records that indicate broken bones or significant injuries, they may not need testimony from a complaining witness to prove bodily injury.  But without evidence of an obvious bodily injury, prosecutors will have to have a credible complaining witness testify to prove assault bodily injury.

A complaining witness can tell prosecutors he or she does not want to testify.  An affidavit of non-prosecution can state that the complaining witness did not feel any pain.  These two factors don’t automatically equal a reduced charge or a dismissal, but they are great weapons to use in your defense.  I always approach plea negotiations from a trial-strategy perspective.   Since each case is different, feel free to contact me to discuss your unique situation anytime.

Manner and Means

Manner and means describes the specific way the bodily injury occurred.  An example would be: striking and scratching complaining witness with defendant’s hand.  Let’s say the bodily injury was actually caused by kicking the complaining witness with the defendant’s foot.  Prosecutors must prove that bodily injury occurred by the manner and means alleged.  It is not enough that prosecutors prove that bodily injury occurred from any contact whatsoever.  If there is reason to doubt the connection between the injury and what caused it, an experienced domestic violence defense attorney can exploit that issue to your benefit.

The Relationship

Even if the prosecutors have the evidence to prove an assault took place under penal code § 22.01, they still have to prove that the relationship between you and the complaining witness satisfies one of the three relationships described in Chapter 71 of the family code. 

§ 71.003 (Family) – “Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

§ 71.005 (Household) – “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

§ 71.0021(b) (Dating Relationship) – “Dating Relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.  The existence of such a relationship shall be determined based on consideration of:

  • The length of the relationship;
  • The nature of the relationship; and
  • The frequency and type of interaction between the persons involved in the relationship.

Felony domestic violence charges add elements, such as an allegation of a prior conviction, impeding breath or blood circulation as the alleged manner and means, or aggravating factors like serious bodily injury or the use of a deadly weapon.

Grand Jury Defense Packet

In Texas, grand juries review the evidence in felony cases to determine whether probable cause for the arrest truly exists.  When a grand jury finds probable cause, it issues a true bill of indictment, and the felony case gets assigned to a district court and felony prosecutor.  If the grand jury does not find probable cause, however, it issues a no bill.  A no bill effectively kills the felony case, and after the statute of limitations runs, a no-billed arrest can be expunged from your record.

In comes the grand jury defense packet.  Texas grand jury hearings take place in secret.  Defense attorneys are not allowed to be present and question witnesses or make arguments to the grand jurors.  But we can submit a grand jury defense packet.

A grand jury defense packet contains sworn affidavits, like affidavits of non-prosecution and character statements, written legal argument, and any other applicable evidence that might negate a finding of probable cause as applied to the assault family violence elements listed above.  Domestic violence defense attorneys assemble the grand jury defense packet and provide copies to the grand jury department at the district attorney’s office.  If the grand jury issues a no bill, then you can breathe a sigh of relief knowing the felony assault family violence charge has effectively been dismissed.  The next step will be getting your domestic violence charge expunged.

Domestic violence attorney free consultation

If you or someone you care about has been charged with domestic violence, I am here to help.  I provide free consultations where we will discuss your unique situation and all the ways I can help you get a positive outcome.  To schedule your free consultation, click here to call, email, or schedule online.