Assault family member is one of the most frequently filed charges in Harris County — and one of the most misunderstood. Brian Foley prosecuted these cases as a member of the District Attorney's Domestic Violence Unit before defending them. In this video he answers the questions that come up in nearly every consultation.
What makes it "family member" assault?
The underlying offense is ordinary assault under Penal Code § 22.01 — intentionally, knowingly, or recklessly causing bodily injury. The "family member" label comes from the Family Code's definition of family violence, which reaches spouses, exes, co-parents, blood relatives, in-laws, roommates, and dating partners. A fight with a roommate you have known for a month is charged the same way as a fight with a spouse.
Does there have to be a mark?
No. "Bodily injury" is defined as physical pain, illness, or any impairment of physical condition. A complainant who says a push "hurt" has described bodily injury. That is why so many cases are filed on thin physical evidence — and why the credibility of the accusation, the 911 recording, and the body-camera footage become the whole case.
Why does a second offense become a felony?
A first assault family member is a Class A misdemeanor (up to a year in jail). But under § 22.01(b)(2)(A), if you have any prior conviction for an offense involving family violence, the new charge is a third-degree felony — 2 to 10 years in prison. Deferred adjudication counts as a prior for this purpose. So does a plea to a reduced charge if the judgment carries a family-violence finding. This is why we fight the finding, not just the sentence, in every first-offense case. See assault family member — second offense.
What about choking?
Impeding the breath or circulation of a family member — strangulation — is a third-degree felony on the first offense and a second-degree felony with a prior. Harris County prosecutors are trained to look for it in every family-violence report.
Can the case be dismissed?
Frequently, yes. The State's evidence in these cases is often a single witness whose account changes between the 911 call, the scene, and the written statement. Self-defense is common. Complainants recant. And Harris County offers pretrial intervention for eligible first-time defendants, which ends in a dismissal that can be expunged.
Our assault family member attorneys are former prosecutors who know how the Domestic Violence Unit evaluates these cases. Call or text (713) 703-1718 for a free, confidential consultation.