Family Assault FAQ
How serious are the charges against me?
Family assault is perhaps the most serious charge prosecuted in county criminal courts. The state of Texas takes violence in the home very seriously. In fact, an entire session of the Texas Code of Criminal Procedure is dedicated to the prevention of family-related violence. In most large counties, like Harris, Fort Bend, Montgomery county, the District Attorney’s office has special divisions to prosecute these types of charged offenses. The state legislature has outlined increasingly stiff penalties for domestic abuse convictions. Prosecutors treat these types of cases with great care, and the punishment if reflected accordingly.
What exactly is assault involving family violence?
If a person causes bodily injury to a family member or another person within the home intentionally, recklessly, or knowingly, then he or she has committed assault involving family violence. Laws surrounding domestic violence are meant to protect not only immediate family members, but also those in dating relationships and others who dwell within a household. Even same sex relationships are protected. If an assault is designated as family violence, then the case is treated differently for enhancement purposes and by the non-disclosure statutes. If you stand accused of such charges, you should be in immediate contact with a Houston family assault attorney for important legal assistance.
What is a Magistrate’s Order of Emergency Protection?
In addition to ordering restrictive bail conditions in a family assault case, the court can issue a Magistrates Order of Emergency Protection. Ordinarily this order must be requested by the complainant, but it is no longer unusual to see the prosecutor request these orders when they suspect possible repeated violence. The order may be issued by the probable cause magistrate judge or the assigned court judge. The purpose of this order is to protect a domestic violence victim from any further threats, harassment or acts of violence and can restrict the movements and communication of the individual alleged to have committed domestic abuse. Quite often, the practical effect of this order is to prevent the accused from going home, getting his belongings or visiting with his children. This order often operates as a burden both to the defendant and the complainant, who may need help with bills and child care. Any violation of a protective order can lead to further criminal charges and immediate incarceration, it is wise to procure the help of a skilled attorney at Chernoff Law for a full and clear understanding of your legal rights and obligations. Even if an order has been issued, a skilled lawyer may be able to have certain terms modified or lifted.
What is the difference between a Protective Order, Magistrate’s Order of Emergency Protection and No-Contact Bail Condition?
Great question! In fact, the differences between these three “protection” orders confuse many attorneys. It is not uncommon for an individual charged with Family Assault to suffer from all three orders. To a large extent, all of these restrictive orders prohibit the same type of activity, which accounts for the confusion. For instance, a magistrates order of protection can prohibit contacting the “victim”, as can bail conditions. A protective order is issued by the civil family court. The magistrate’s order for emergency protection(MOEP) is issued by the criminal court assigned to the criminal case. The most important practical difference between the orders is the amount of time that each order is in place. A MOEP may expire after 60 days or 90 days. Bail conditions may last so long as the criminal case continues in court. A protective order, unless extended by the terms of a divorce decree, lasts during the pendancy of the divorce action. A civil protective order may last two years, irrespective of whether the criminal case continues or the divorce action is terminated.
What sort of punishment do I face if convicted of domestic assault?
First-time domestic assault is a Class A misdemeanor and a conviction can bring up to 1 year in jail and up to $4,000 in fines. It can also have negative effects on your ability to own a firearm and on other family court decisions. Subsequent offenses can be charged as felonies, and multiple convictions of domestic violence can lead to 25 years to life in prison. A 3rd Degree felony may be charged if the complainant claims she has been “choked” as that term is legally defined. The range of punishment for this particular subset of family assault is 2-10 years in prison.
How do I get charges dropped against me?
The short answer is to hire the best lawyer possible. The many ways to get your case dismissed encompasses a long list, but it is never quick and easy. Most people who are embroiled in this mess, want it to go away as quickly as possible. Since the case resulted from a personal family matter, it is often thought that it should go away as a family affair. Unfortunately, once charges are taken by a prosecutor, the case becomes a public matter. Even if the complainant runs into the District Attorney’s office and begs the Assistant D.A. to dismiss for the benefit of her family, her pleas are likely to fall on deaf ears. A good experienced defense attorney, like Ed Chernoff, will know how to argue the case to the prosecution. Sometimes the case must be set for trial to achieve a dismissal or reduction. Sometimes the case must be tried.
Why does my case have a “no-bond”?
Under certain circumstances a Judge is constitutionally permitted to deny bail to an accused. The most common situation is when a defendant has been incarcerated in the Texas Department of Corrections on two or more prior occasions. In a family assault case, it is not unusual for bail to be denied to an accused when the complainant or the District Attorney has requested a Magistrates Order for Emergency Protection. Ordinarily, bail is set when the Order has been officially served on the defendant. In the situation where a warrant has been issued, and the defendant has not yet been arrested, bail will only be set when the defendant has surrendered. It is best to hire a lawyer prior to this surrender, since a good experienced criminal defense attorney can substantially reduce the time you spend in jail.
Will an assault conviction effect my ability to become a citizen?
Likely. Immigration laws change frequently, so it is best to seek advice from a qualified immigration lawyer. However, under the current state of the law , a domestic violence conviction can effect both an individual’s immigration status and his ability to obtain citizenship.
What effect will a family assault case have on a pending divorce?
When a party in a divorce alleges domestic violence, and requests a protective order, the other spouse must realize the danger of this allegation. Pursuant to the Family Code, proof of domestic violence in a divorce proceeding can affect the Court’s decision in property division, child custody and visitation and spousal maintenance.(alimony) In short, a plea of guilty to assault of a family member will have a detrimental effect on every important decision that the Family Court makes in the divorce proceeding.
Why am I charged with a felony?
There are four situations when a family assault case can be charged as a felony. If the defendant has been accused of “choking” the complainant during the course of the assault, he can be charged with a third degree felony. If the defendant has a prior case of assault with a family violence designation, the second such case can be charged as a felony. If a deadly weapon is used during the course of the assault, or serious bodily injury has been caused, the accused can be charged with the felony of Aggravated Assault. Recent legislative changes has created a fourth felony. If there is probable cause to believe that the accused has involved himself in a continuing course of family violence against the same victim, then the prosecution has the option to file the case as a felony. In any of these circumstances, the case can be reduced back to misdemeanor status, so it is an exceptionally good idea to hire a good qualified criminal defense attorney like Ed Chernoff.