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Continuous Violence Against the Family

Posted by Edward Chernoff | Jul 03, 2022 | 0 Comments

It is a misdemeanor for one person to cause bodily injury to another, including a family member. However, if it is alleged that this same person caused bodily injury to a family member more than once, and these separate events occurred within a 12 month period, then the State can charge the felony offense of Continuous Family Assault under Texas Penal Code §25.11.

There are some differences between felony and misdemeanor family assault cases, starting with bail. In neither the misdemeanor nor felony is an individual eligible for a PR bond. In both charges an accused can expect the Judge or magistrate to issue a Magistrate's Order of Emergency Protection(MOEP) and impose a no-contact bail condition. However, felony bail is going to be much higher than in a charged misdemeanor and it is not uncommon for Judges in District Court to impose all types of additional bail conditions, including electronic monitoring.

The second big difference between a Continuous Family Assault and a one event Family Assault is the level of punishment attached to the offense. Continuous is a third-degree felony, which carries with it a potential punishment of 2 to 10 years in prison. A misdemeanor Assault can only be punished by up to one year in jail.

The theory behind the Section 25.11 is reasonable. Punishment should be more severe for repeat offenders. If an individual has a prior charged offense for family assault, and is alleged to be continuing this behavior, he should be paid more attention by the criminal justice system. However, the danger with the Continuous Family Assault charge is that it doesn't require a previous charged offense! A complainant can tell the police officer that a year earlier the accused hit her, but she never called the police and no other witnesses or investigation is necessary.  In fact, it doesn't even have to have involved the same complainant. The allegation could be that the accused assaulted another girlfriend, roommate or family member.

Continuous Family Violence used to be charged only when the accused had a prior conviction for family assault, which made sense to me. However, I've seen a lot more felony Continuous Family Assault cases lately involving individuals with no prior record of family violence. This is not because there are more repeat offenders out there. I think the charge has become more prevalent because street cops love felonies. A felony arrest justifies the hours it takes to investigate a domestic violence event.  

I watched this same phenomenon occur when the penal code was amended to make choking a felony. With that law change, I noticed that every offense report claimed the complainant had been choked. This confused me because we rarely found choking prior to the law change. I had occasion to speak to some of these complainants and they would tell me that they were pointedly asked about neck pain from the assault. In a fit of anger and emotion, they would be steered toward an allegation of choking. Later they would come clean about the event and the case was dismissed or reduced, but the cop still got credit for a felony arrest.

I think the new trend in domestic violence investigations is to ask the teary complainant whether this has ever happened before, and on what date. If the complainant is exaggerating or making up the event in the first place, it is not a stretch for them to claim it also happened in the mystical past. This allows the officer to report a felony to the DA on duty and we all wind up in District Court.

This trend is far more dangerous than a choking charge. At least in that event, there might be some evidence, or lack thereof, of choking. For instance, photos may show that there are no marks on the complainant's neck. The only evidence of a prior incident that needs be shown is a mere allegation.

The good news is that the prosecution is thus far aware of the distinction between a prior charged offense and an alleged prior offense. The conversations with the Assistant District Attorneys and their offers have reflected this. Trial is more complicated for the prosecution in these types of cases. They are required to prove two events beyond a reasonable doubt, and each are dependent on the other when trying to establish the complainant's veracity. If it appears that the complainant made up the first assault, it is hard to convince a jury that she is telling the truth about the last, no matter the breadth of the supporting evidence.

Bottom line is, a felony charge sucks but it is not an unmanageable situation. I'll give the same advice I give on most cases – hire a qualified, experienced criminal defense attorney. You will make it through this just fine. 

About the Author

Edward Chernoff

ABOUT ED CHERNOFF CALL TODAY FOR A FREE INITIAL TELEPHONE CONSULTATION AND DISCUSS YOUR CASE WITH ME.  I was born in 1962, and grew up in Florida. I lived in a trailer, and that is about all I remember from my childhood. I attended University of Florida and received an accounting degree in 1984...

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