Domestic Violence Charges in Bexar County: What Is Really at Stake

The short answer. In Texas the charge is usually assault, but the thing that follows you is the family violence finding. Under Code of Criminal Procedure article 42.013, if the court determines a Title 5 offense involved family violence, the court shall enter that finding in the judgment. It is that finding, not the offense level, that costs you your firearms, complicates custody, and turns the next allegation into a felony. A Class A misdemeanor with a family violence finding can do more long-term damage than some felonies.

Most people who call me about a family violence case are worried about the wrong thing. They are worried about jail. In most first-time misdemeanor cases in Bexar County, jail is not the likely outcome. What is likely, if the case is resolved the wrong way, is a permanent mark that the person will run into for the rest of his life in rooms he has not walked into yet.

Who counts as “family” in Texas?

Wider than most people expect. The relationships come from the Family Code and are pulled into the Penal Code by reference: a dating relationship under § 71.0021(b), family under § 71.003, and members of a household under § 71.005.

That reaches spouses and former spouses, people who have a child together, people related by blood or marriage, people who live or have lived in the same dwelling, and people in a dating relationship. Roommates count. An ex-girlfriend from four years ago counts.

How the charges are graded

Common family violence charges under Texas law

Conduct	Statute	Offense level
Causing bodily injury to a family or household member or dating partner	Penal Code § 22.01(a)(1), (b)	Class A misdemeanor
Same, with a qualifying prior conviction for a listed offense against such a person	§ 22.01(b)(2)(A)	Third degree felony
Same, by impeding normal breathing or circulation with pressure to the throat or neck, or by blocking the nose or mouth	§ 22.01(b)(2)(B)	Third degree felony
Impeding breath or circulation with a qualifying prior	§ 22.01(b-3)	Second degree felony
Two or more assaults against family or household members within 12 months	§ 25.11	Third degree felony
Threat to commit violence against a family or household member	§ 22.07(c)(1)	Class A misdemeanor
Serious bodily injury, or use or exhibition of a deadly weapon	§ 22.02	Second degree felony, first degree in some circumstances

The strangulation allegation is the one that changes a case most. A single sentence in an officer’s narrative, “she said he put his hands on her neck,” moves a Class A misdemeanor to a third degree felony punishable by two to ten years. Whether that sentence is supported by anything else in the file is the fight.

What the emergency protective order does the first morning

At the magistration after a family violence arrest, article 17.292 lets the magistrate issue an order for emergency protection, and requires one if the arrest involved serious bodily injury or the use or exhibition of a deadly weapon during an assault. The complainant does not have to be present, and does not have to want it.

The order can prohibit going near the residence, the workplace, or a child’s school. It can prohibit any communication at all. It prohibits possessing a firearm. It suspends a license to carry. An order issued on the ordinary track runs at least 61 days and up to 91; where a deadly weapon was involved, at least 91 days and up to 121.

Violating it is a separate offense under Penal Code § 25.07, ordinarily a Class A misdemeanor and a third degree felony in some circumstances. And here is the part that ruins otherwise defensible cases. Article 17.292(g) requires the order to say, in capital letters, that nobody, including the protected person, may give permission to violate it. She invites you over. You go. Now there are two cases, and the second one is the one you cannot win.

If the order is unworkable, there is a procedure to ask the court to modify it. Use the procedure. Do not use the phone.

Can she drop the charges?

No. This is the single most common misunderstanding I hear, and it costs people months.

The case belongs to the State of Texas, not to the complaining witness. She can tell the prosecutor she does not want to go forward. She can sign an affidavit of non-prosecution. That affidavit is a piece of evidence, and in some cases it matters a great deal. It is not an off switch, and in Bexar County prosecutors frequently proceed without a cooperative complainant, using the 911 call, the body camera footage, the photographs, and the medical records.

There is also a related danger. An affidavit of non-prosecution prepared badly, or prepared by the accused, can become evidence of witness tampering, which is a felony. If someone wants to recant, she needs her own lawyer. Not mine, and not you.

What happens when she does not testify?

This is where the constitutional law lives. Under Crawford v. Washington, 541 U.S. 36 (2004), a testimonial out-of-court statement cannot be admitted against the accused unless the declarant is unavailable and there was a prior opportunity to cross-examine. Statements made during police interrogation to establish past events are testimonial. Statements made to meet an ongoing emergency generally are not.

So the State’s ability to try a case without the complainant turns on a line drawn through the body camera footage, sometimes minute by minute. Which questions were asked while the scene was still unfolding, and which were asked after everyone was safe and an officer started building a case. That is a real fight with a real record, and it has to be litigated with the video, not with generalities.

Cutting the other way, article 38.371 allows both sides to offer evidence about the nature of the relationship between the accused and the complainant. The State uses it. So can we, because a relationship has two people in it and usually a longer history than one night.

What the finding costs, long after the case

A conviction for a misdemeanor crime of domestic violence triggers the federal prohibition at 18 U.S.C. § 922(g)(9). Do not assume a Texas deferred adjudication keeps you clear of it; that question depends on how the case was resolved and on federal law, and it needs a specific answer for your specific case.
The next case. A qualifying prior makes the next family violence assault a felony.
Your record. A family violence finding cannot be sealed. This is why I will not resolve one of these cases quickly just because the offer sounds light.
Article 42.23 requires the criminal court to notify the court with continuing jurisdiction over your children.
Housing, employment, and licensing. The finding shows up in background checks forever, and it is read by people who will never hear your side.

Where these cases are defended

In the first 72 hours, before anything is gone. The 911 audio, all of it, not the summary. Every body camera and in-car camera from every unit that responded, not just the reporting officer. Photographs of both people, including the accused’s hands, arms, and face, taken the same day. Texts and call logs from both directions, preserved before a phone is reset. The names of the neighbors who were standing outside. Medical records where there are any, and the absence of them where there are none.

Then the investigation itself. Whether officers identified a primary aggressor or just arrested the man. Whether anyone asked about injuries on my client. Whether the account in the affidavit matches the account on the video, word for word, because often it does not.

If you were arrested last night

Do not contact her. Not to explain, not to apologize, not through your sister. Read the protective order all the way through before you go anywhere near an address on it. Write down everything you remember today, including the hours before. Preserve your phone, and do not delete a single message, including the ones that embarrass you.

Then call 210-663-3750 . I answer my own phone, and I would rather hear from you before the first setting than after.