Can the alleged victim drop an Assault Family Member charge in Texas?

No. In Texas the State — not the complaining witness — decides whether to prosecute. Even if the alleged victim signs an affidavit of non-prosecution or recants, the prosecutor can proceed using the 911 call, photos, and officer testimony. That is exactly why you need your own attorney building the defense from the start.

What is an affirmative finding of family violence and why does it matter?

It is a formal notation the court places in the record confirming the offense involved family violence. Even without jail time, this finding can restrict your firearm rights, affect custody and family-law matters, prevent you from sealing the record, and make any future family-violence charge a felony. Avoiding an affirmative finding is often as important as avoiding jail.

Is Assault Family Member a felony in Texas?

A first offense is usually a Class A misdemeanor. It becomes a felony with a prior family-violence conviction, an allegation of strangulation or impeding breath, a deadly weapon, or serious bodily injury — ranging from a third-degree felony (2–10 years) up to a second-degree felony (2–20 years). Whether an enhancement applies is frequently contestable.

How does a family-violence charge affect my gun rights?

Both Texas and federal law restrict firearm possession after a family-violence conviction or while a protective order is in effect, and a federal conviction can be a lifetime ban. Because the stakes reach your constitutional rights, these cases should never be handled without experienced counsel.

Should I contact the alleged victim after my arrest?

No. Contacting the alleged victim almost always violates a protective order or bond condition and can lead to new charges, even if the contact is well-meaning or the other person reaches out first. Let your attorney handle all communication — improper contact can seriously damage your case.

Can an Assault Family Member charge be dismissed?

Yes. These cases often turn on shifting accounts, self-defense, a lack of real injury, or weak evidence. As former prosecutors — one with Domestic Violence Unit and strangulation training — we know how these cases are built and where they break down, and we fight for dismissal, reduction, or a resolution that avoids a family-violence finding.

What is a protective order and can it keep me out of my own home?

After a family-violence arrest, a magistrate can issue an emergency protective order that bars contact with the alleged victim, removes you from a shared home, and prohibits firearm possession — typically for 31 to 91 days. These are separate from bond conditions, and we can ask the court to modify overly restrictive terms.

Houston Assault Family Member Attorneys | Former Chief Prosecutor

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.

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.

Assault Family Member