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Is Domestic Violence a Felony in Texas? | Law Office of Terrence Marsh

Is Domestic Violence a Felony in Texas?

Background and History of Domestic Violence Law in Texas

In the past 5-10 years in Texas, the number domestic violence charges have rapidly increased. Domestic violence has caught national attention and the attention of the Texas Legislature. I think there is an unspoken rule that if there is a call to police for domestic violence, then someone is going to jail. However, depending on the facts of your case, you may have options available to you for your defense.

3 Most Common Levels of Domestic Violence 

There are three levels of domestic violence in Texas. These are assault by threat with family violence (Class C Misdemeanor), assault causes bodily injury with family violence – also called Assault Family Violence (Class A Misdemeanor), and felony assault family violence or Assault family violence by strangulation (Third Degree Felony).

For a visual, here are the levels:

         Crime                                                               Crime Level                                                       Punishment

  • Assault by Threat Family Violence          Class C Misdemeanor                                        $500 fine/No Jail Time
  • Assault Family Violence                          Class A Misdemeanor                                        $4,000 fine/1 year Jail
  • Assault Family Violence                          Third Degree Felony                                 $10,000 fine/ 2 years to 10 years

 

So… Is Domestic Violence a Felony in Texas?

The short answer is…. it depends. Domestic violence CAN be a felony in Texas under certain situations. This can be done by an enhancement or if the act of family violence was due to strangulation.

What is Domestic/Family Violence in Texas? 

Family violence is defined very broadly in Texas. It can be unrelated roommates, relatives you live with, someone you’re dating or married to. Basically, if they live with you, you’re related, or you’re dating and you have threatened them with harm (physically or verbally), caused them injury (visible or not visible), or touch them in a harmful or offensive way, then you can be arrested for domestic violence.

How Does Domestic Violence Become a Felony in Texas?

There are two ways that a domestic violence charge can become a felony in Texas. These two ways are by enhancement or strangulation during the criminal act.

  • Domestic Violence Enhanced to a Felony

First, let me explain an enhancement… An enhancement is an increased penalty range (in this case third degree felony) when a person has a prior family violence conviction. A second domestic violence can be charged as a felony whether the first was a Class C Misdemeanor or a Class A Misdemeanor.

Let’s use a few examples of where domestic violence is a felony:

Example #1 – My college roommate Jeremy and I get into an argument at our apartment. He tells me “if you don’t shut you’re mouth I’m going to stab you.” I call the police because I’m afraid. Whether or not he reaches in the drawer for a knife is irrelevant. When the police show up I tell them that he threatened to stab me. The police arrest Jeremy for Class C Assault by Threat with Family Violence. Family violence is charged here because Jeremy and I are roommates and under the law, part of the same household. Jeremy later pleads guilty to the charge which counts as a conviction, pays his fine, and we move on with life. However, this family violence charge will stay on his record permanently and can be used for future enhancements.

Example #2 – Let’s change the facts a little now. Let’s say that 10 years pass and Jeremy and his girlfriend get into an argument. Jeremy pushes his girlfriend and she calls the police. The police show up, run Jeremy’s record, and see a prior conviction for family violence (the one against me). Any prior family violence conviction will allow for an enhancement of the charge to the felony level. It doesn’t matter         whether that prior conviction was from out of state, or a Class C, B, or A Misdemeanor. At this point, the police or prosecutor can Enhance the current family violence charge against Jeremy to a Third Degree Felony due to the prior conviction.

  • Felony Domestic Violence Due to Strangulation 

The second scenario where someone is charged with felony domestic violence right off the bat, on their first domestic violence charge. If strangulation is alleged, police can charge you with a felony on the spot. There doesn’t need to be any prior conviction for you to be charged with the Third Degree Felony of Family Violence if strangulation happened.

What is considered strangulation under the law? It means – impeding (blocking) the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth. I’ve seen cases where people ahve been charged with strangulation and a hand was only placed near the neck. Let’s use an example of how this would apply:

Example #1 – Strangulation – John and Mary live together in an apartment. John has no prior convictions or arrests for family violence whatsoever. Mary and John get into an argument and start fighting. Mary is screaming loudly at John. At one point, John grabs Mary by the throat and slams her against the wall. He holds Mary against the wall until she stops fighting back. John lets her go and Mary goes into the bathroom and calls police. Police show up and Mary tells them that John put his hand around her neck. John is arrested for strangulation and charged with a 3rd Degree felony because he applied pressure to her throat/neck.

Example #2 – Hand Over Mouth – Let’s use the same example above and just change some details. Now, let’s say instead of grabbing Mary’s throat, John puts his hand over Mary’s mouth while she’s screaming to keep her quiet. Same as above, Mary eventually calls the police and tells them John put his hand over her mouth. John is arrested for blocking Mary’s mouth and charged with a 3rd Degree felony.

What’s Going to Happen Next?

Usually the first question people ask me is – Can I Drop Domestic Violence Charges in Texas? The short answer to that is NO. If you click that link, I wrote a whole blog post explaining why. Domestic violence is a felony in under certain conditions. That doesn’t mean that all hope is lost on your case. There are still many options and defenses available to you. Your options and defenses will mostly depend on the facts of your case. Some things to consider:

  1. Were witnesses around?
  2. Was there a weapon involved?
  3. Was anyone injured?
  4. How bad was the injury?
  5. Do you have a prior criminal record?

This information will all come out when I Request Your Criminal Discovery from the State. After that point, we can discuss the finer details of your case and form a strategy.

3 Comments. Leave new

Great writing and sharing..thanks a ton…

Reply
Attorney Marsh
February 25, 2016 5:08 pm

I’m glad you enjoyed it Erik! I try to make all my posts easy to read. No JD required!

Reply

Just because someone has 1 prior fv charge does that automatically mean the 2nd will be enhanced to a felony? Can victim cooperate with da and get it all dropped in the end?

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