Assault Family Member cases in Houston, Texas require an experienced attorney. Brian Foley is Board Certified in criminal law and a former member of the domestic violence unit. Luis Baez is a former chief prosecutor and trial attorney. At Houston Criminal Defense Attorneys PLLC we can help take back your life after being accused of Assault Family Member.
- The complainant cannot drop the charge. In Harris County the District Attorney decides, and the Family Violence Division routinely prosecutes without a cooperating witness.
- Do not contact the other person — not by text, not through a friend, not even if they reach out first — until the protective order and bond conditions are modified. A violation is a new charge and a revoked bond.
- A "family violence finding" is often worse than the sentence. It can never be sealed, it bans firearms under federal law, and it makes the next allegation a felony — even after deferred adjudication.
Assault Family Member Penalties in Texas
| Charge | Level | Range |
|---|---|---|
| Assault by offensive contact — family member | Class C Misdemeanor | Fine up to $500 (still enhances a future case) |
| Assault causing bodily injury — family member (first offense) | Class A Misdemeanor | Up to 365 days in jail, up to $4,000 fine, probation up to 2 years |
| Assault family member with a prior family-violence conviction or deferred | Third-Degree Felony | 2–10 years in prison, up to $10,000 fine |
| Assault family member by impeding breath or circulation (strangulation) | Third-Degree Felony | 2–10 years in prison, up to $10,000 fine |
| Strangulation with a prior family-violence conviction | Second-Degree Felony | 2–20 years in prison, up to $10,000 fine |
| Aggravated assault family member — deadly weapon or serious bodily injury | Second-Degree Felony | 2–20 years in prison, up to $10,000 fine |
| Aggravated assault family member — deadly weapon and serious bodily injury | First-Degree Felony | 5–99 years or life |
| Continuous violence against the family (two or more assaults in 12 months) | Third-Degree Felony | 2–10 years in prison, up to $10,000 fine |
"Family member" is broader than most people think. Under Texas Family Code Chapter 71 it includes spouses and former spouses, parents of the same child, blood relatives and in-laws, foster relationships, anyone who lives or lived in the same household — roommates included — and anyone in a current or former dating relationship.
What Happens After an Assault Family Member Arrest in Harris County
- The arrestTexas law strongly favors arrest when officers respond to a family-violence call and find any evidence of an assault, even without visible injury and even when the complainant asks them not to. Officers will separate the parties, photograph any marks, record statements on body camera, and often arrest whichever person they conclude was the "primary aggressor."
- Booking and magistrationThe accused is taken to the Harris County Joint Processing Center at 700 N. San Jacinto and sees a magistrate, usually within 24 hours. The magistrate finds probable cause, sets bond, and imposes conditions — commonly no contact with the complainant, no return to the shared residence, no firearms, and sometimes GPS monitoring or a "stay away" radius.
- The emergency protective orderThe magistrate almost always signs a Magistrate's Order for Emergency Protection — 31 to 61 days in a standard case, up to 91 days if a deadly weapon was involved. It is a court order independent of your bond, and violating it is a separate Class A misdemeanor (or a felony with prior violations). We can move to modify it so you can return home or see your children.
- The first court settingTwo to four weeks after release, in one of the County Criminal Courts at Law (misdemeanor) or District Courts (felony) at 1201 Franklin. Nothing about guilt is decided. Bond conditions are reviewed, and the case is reset for the State to produce the offense report, 911 audio, body-camera video, and photos.
- Investigation and negotiationWe gather what the police did not — text messages, prior threats or false reports by the complainant, witnesses, medical records, and evidence of self-defense — and present it to the prosecutor with a demand for dismissal.
- ResolutionDismissal, a reduction to a non-family-violence offense, a pretrial intervention program, or trial. Our goal in every case is no family-violence finding on your record.
How the Harris County District Attorney Prosecutes These Cases
The Harris County District Attorney's Office has a dedicated Family Violence Division, and its policy is "evidence-based prosecution": build the case so it can be tried whether or not the complainant cooperates. Prosecutors rely on the 911 recording (admitted as an excited utterance), the body-camera video of the complainant's statements at the scene, photographs of injuries, the officer's observations, and medical records. They will subpoena a reluctant complainant, and they will not dismiss simply because an affidavit of non-prosecution is filed.
Brian Foley served in that Domestic Violence Unit and knows exactly what prosecutors look for before they dismiss a case and what makes them nervous about a jury. That is the standard we build every defense against.
Defenses to Assault Family Member
Self-defense and defense of a third person. Texas Penal Code Chapter 9 justifies force when a person reasonably believes it is immediately necessary to protect against another's use of unlawful force. Family-violence arrests frequently involve mutual struggles in which the person who called 911 first, or who had the visible mark, was the aggressor. Once self-defense is raised the State must disprove it beyond a reasonable doubt. See our self-defense page.
No bodily injury. A Class A assault requires "bodily injury" — physical pain, illness, or any impairment of physical condition. Photos that show no mark, medical records that show no complaint, and a complainant who told the officer "it didn't hurt" all undercut the charge and support a reduction to Class C or a dismissal.
Credibility and motive. Divorce, custody disputes, immigration status, jealousy, and intoxication all supply motives for exaggeration or fabrication. Text messages sent before and after the incident, prior inconsistent statements, and prior false reports are admissible and often decisive.
Confrontation Clause problems. When the complainant does not appear, the State's case depends on hearsay exceptions. Statements made to police after the emergency has ended are testimonial and cannot be admitted without the witness. We litigate these issues aggressively.
Strangulation cases. "Impeding normal breathing or circulation" is a felony allegation that often rests on a single sentence in a report. We use the absence of petechiae, voice changes, or medical findings — and the training Brian received as a prosecutor in strangulation investigation — to attack the enhancement.
Reasonable discipline and accident. In Injury to a Child cases, Texas Penal Code 9.61 justifies reasonable parental discipline, and many "assaults" are accidents that involve no culpable mental state.
Options That Avoid a Family-Violence Finding
Because a family-violence finding carries lifetime consequences, the resolution matters as much as the sentence. In Harris County, realistic outcomes include a dismissal after the complainant's affidavit of non-prosecution is paired with weaknesses in the State's evidence; a dismissal after completion of the District Attorney's pretrial intervention program or an anger-management or Batterer's Intervention and Prevention Program course; a reduction to a Class C assault by contact or to a non-family-violence offense such as disorderly conduct; or an acquittal at trial. Deferred adjudication for Assault Family Member is generally a last resort, because Penal Code 22.01(f) treats it as a conviction for enhancement, the finding still attaches, and Government Code 411.074 bars nondisclosure.
Collateral Consequences of a Family-Violence Finding
A conviction or deferred adjudication with a family-violence finding results in a federal lifetime firearm ban under 18 U.S.C. 922(g)(9) and a five-year Texas ban; permanent ineligibility for an order of nondisclosure; enhancement of any future family-violence assault to a felony; a presumption against joint custody in a Texas family-law case; deportability for non-citizens; disqualification from many professional licenses, security clearances, and jobs involving children, healthcare, or public trust; and eviction or denial of public housing. Avoiding the finding is the central goal of our representation.
Misdemeanor Assault Family Member Cases
A misdemeanor Assault Family Member case is most likely to be filed as a class A misdemeanor. For these offenses the person is arrested and taken to the Joint Processing Center in downtown Houston where they have to wait to be seen by a magistrate judge before they are released. The magistrate judge sets a bond amount, but more critically, they impose a magistrate's order of emergency protection otherwise known as a protective order. The magistrate may also add bond conditions that require the citizen accused of Assault Family Member to report to the probation department, leave their own homes, and stop talking to their spouse, children, or romantic partner. Class A misdemeanors carry a punishment range of up to 365 days in jail and a $4000 fine. Probation can be assessed for up to 2 years on a Class A misdemeanor.
A misdemeanor Assault Family Member case could also be a class C offense which is punishable by a fine but not jail time. However even these class C offenses can be used to enhance future family violence allegations to a felony with a punishment range of 2-10 years in prison. It is important to have an attorney help you fight charges like Assault Family Member even if the maximum punishment is a fine only. These cases can prevent you from owning firearms and prevent you from being hired.
Felony Assault Family Member Cases
There are a few types of Assault Family Member cases that are considered felony charges.
- Assault Family Member - Second Offense,
- Assault Family Member - Impeding Breath or Blood,
- Aggravated Assault Family Member - Deadly Weapon, and
- Injury to a Child.
All of these offenses are found in Chapter 22 of the Texas Penal Code and involve some type of bodily injury or threat. Injury to a Child is not necessarily a family member case but often is charged as such.
Assault Family Member - Second Offense
Assault Family Member - Second Offense is sometimes listed as Assault Family Member with previous conviction. If you have been found guilty of an Assault against a family member then a future allegation of Assault can be charged as a third degree felony with a punishment range of 2-10 years in prison. It is actually a little worse than that. Any charge under Chapter 22 of the Texas Penal Code that involved a family member, household member (roommate), or a person with whom you were in a dating relationship, that results in a conviction can then be used to enhance a new Assault causing bodily injury charge to third degree felony status. This is true even if you didn't go to jail and even if the original charged was dismissed due to the granting of deferred adjudication. Only a true dismissal of an assault family member charge will lead to its inability to enhance future offenses.
The punishment range on this charge is 2-10 years in prison and up to a $10,000 fine or probation for up to 10 years.
Assault Family Member - Impeding Breath or Blood
This charge can be filed any time a dating, household, or family member is choked or strangled. The law says that if you intentionally, knowingly, or recklessly impede the normal breathing or blood flow of a person by applying pressure to that person's neck then you can be found guilty of a third degree felony. This has the same punishment range of 2-10 years, up to a $10,000 fine and probation for up to 10 years.
This offense is fairly new and has been charged more and more frequently by prosecutors who are looking to increase the punishment range that a defendant faces on a first Assault Family Member charge.
Aggravated Assault Family Member - Deadly Weapon
Aggravated Assault Family Member is almost always charged as threatening with a deadly weapon. It becomes a family violence charge if the threat is to a family, household member, or person with whom you have been in a dating relationship.
A deadly weapon is "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Texas Penal Code Sec. 1.07(17).
Anything can be used as a deadly weapon. Harris County Prosecutors may choose to file a charge of Aggravated Assault any time a weapon of any kind was used during an assault. I have seen frying pans and even a bong charged as a deadly weapon in Harris County Aggravated Assault charges. Many times a closer look at the evidence shows that the weapon used was not really capable of causing death. Firearms however are deemed to be deadly weapons by statute. The best defense to a firearm case is often that there was no threat, or that the threat to use a firearm was made in self defense.
Aggravated Assault Family Member - Deadly Weapon is a second degree felony with a punishment range of 2-20 years in prison and up to a $10,000 fine or probation for up to 10 years.
Injury to a Child
Injury to a Child cases are typically charged as third degree felony offenses. If serious bodily injury occurred due to an intentional act then the range of punishment could be increased to a first degree felony 5-99 years or life in prison.
An injury to a child case may also have what is called a family violence finding. This is a finding on the record by the judge and recorded on the face of the judgment that the offense was committed against a member of the defendant's family, household, or a person with whom the defendant has had a dating relationship. When this finding is present it triggers a firearms ban in Texas for 5 years. If you are convicted of a felony then the firearms ban is for life. There is a lifetime federal ban on firearm possession for persons convicted of family member or domestic assaults.
One of the other possibilities for an injury to a child case involves reasonable child discipline.
Texas Penal Code Sec. 9.61 allows a parent to discipline their child physically.
(a) The use of force, but not deadly force, against a child younger than 18 years is justified: (1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare. (b) For purposes of this section, "in loco parentis" includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.
Being arrested for Injury to a Child is a frightening proposition. Don't face criminal charges alone. Call us today for your free consultation.
Why Houston Clients Hire HCDA for Assault Family Member Cases
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization, served in the Harris County District Attorney's Domestic Violence Unit, and was trained as a prosecutor in strangulation investigation. Luis Baez is a former Trial Bureau Chief. They know how the Family Violence Division builds a case, what makes prosecutors dismiss one, and how to try one to a Harris County jury. Our office at 310 Main Street is two blocks from the courthouse. Call or text (713) 703-1718 for a free, confidential consultation — before your first court date, and before you speak to anyone else about the case.