Can You Drop Domestic Violence Charges in Texas?

Attorney Marsh
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This is a questions I’ve been asked over and over again by clients. Sometimes it’s their first domestic violence charge, other times it might be their second or third. Under Texas law, Domestic Violence crimes are formally called – Assault Family Violence. For short, the legal world calls it AFV. In the past few legislative sessions, there has been more of a focus on domestic violence and the problems it causes in society. If there is a physical injury, you may see it called “Assault Causes Bodily Injury Family Violence.”

What does family violence mean in Texas?

Family violence in Texas means an assault between members of the same family, household, or between people in a dating relationship. These members don’t have to be blood related.  The people can still be considered part of your household if they are roommates, adopted children, adopted parents etc… The definition of family violence is meant to be broad under the law.

What kinds of Assault Family Violence cases are there?

The lowest level can be a Class C Misdemeanor if it is Assault by Threat. If you read my previous post on Class C Misdemeanors, you’ll know that they carry no potential jail time. The average, first time, AFV case is a Class A Misdemeanor and carries up to a year in jail/$4,000 fine. If the person arrested has a prior conviction for Assault Family Violence, then the charge gets “enhanced” (bumped up) from a Class A Misdemeanor to a Third Degree Felony. Assault Family Violence as a Third Degree Felony carries between 2 and 10 years of prison time/$10,000 fine.

Another point to consider is that an Assault Family Violence charge can be an automatic third degree felony if there is strangulation involved. Assault Family Violence – Strangulation means that you impeded or blocked the airway of the alleged victim. If you put your hands near or around the other person’s neck, don’t be surprised if the police charge it as a felony.

What’s the difference between a Class A Domestic Violence charge and a Third Degree Domestic Violence charge?

The most basic answer to this is jail time versus prison time. But, if you are accused of strangulation, (putting your hands around the neck to impede/block breathing) then the charge will be a third degree felony. Jail time is spent in the County Jail where prison time will be spend in a Texas State Prison. Prison is the big house. You’re not going to be in there with petty criminals. You may be in there with murderers, sex offenders, and people serving life in prison.

Can you drop the charges?

The short answer to this is NO. Once the police are called on a domestic dispute, the general rule is that someone will be getting arrested. Why? Domestic disputes tend to be repetitive. Many clients have asked me whether or not we can file an “Affidavit of Non-Prosecution.” This is a type of document which is a sworn statement by the person who is sometimes called the “victim.” In this document, the victim will usually write out their version of the events and include something along the lines of “I do not wish to press charges against _______.” It may also include something about being non-cooperative in the prosecution of the crime. This happens VERY, VERY, often in assault family violence cases. There can be a cycle of abuse. More often than not the two people care about each other, rely on each other for support, and they’re lives are tied together. A bigger piece to focus on in your case is whether or not the alleged victim is fully co-operational with the District Attorney, County Attorney and/or police. At the end of the day, he or she will be the main witness in the State’s case against you.

What does this mean for my case?

If the “victim” fills out an Affidavit of Non-Prosecution, that is not going to be the torpedo that sinks the battleship of the prosecutor’s case. The Affidavit is simply a piece of evidence or information to consider in deciding whether or not to push forward with your case. It’s not the end all, be all, of domestic violence prosecutions. The prosecutor may also consider the specific facts of the assault. The specific facts of your case will be the horse that drives the cart for plea bargaining with the prosecutor. Depending on your prior criminal history and whether you’re charged with a Class A Misdemeanor AFV of a Third Degree Felony AFV, you may have plea deal options for deferred adjudication or straight probation. These plea deals may include fines, court costs, treatment/counseling, and Court ordered classes.

Summary

Domestic violence charges, or Assault Family Violence as it’s called in Texas come in different levels. The definition of family/household/dating relationship is very broad under the law. This is because the legislature and society has become less and less tolerant for this kind of behavior.

Usually the charges are Class A Misdemeanors but can become Third Degree Felonies under certain situations. The punishment for a felony is much more severe, not including the potential for time in prison as opposed to jail. Affidavits of Non-Prosecution will not carry the day and sink the prosecutor’s case against you. Co-operation by the alleged victim is much more important in the big picture. If the alleged victim is uncooperative, it may be very difficult to go forward with the case against you. So when someone asks Can You Drop Domestic Violence Charges in Texas? The answer is a simple – NO.