Assaults accusations at home are a common charge in Texas. Many times arguments are the result of a minor disagreement that gets blown out of proportion. Sometimes alcohol is involved, and believe it or not, it helps the situation more reasonably explainable later on. It is always wiser to take a deep breath and step away. Many times egos don’t allow stepping away in the heat of the moment. The angry argument can be the result of smaller issues building up over time.
Bodily Injury Penal Code
Bodily injury is defined in Chapter 1.07 in the Texas Penal Code as “Bodily Injury” means physical pain, illness, or any impairment of physical of physical condition. I have handled cases and have seen various assault allegations. Some cases involve blood, bruises, and even stabbing. But bodily injury can be as minor as a pinch as long as it caused pain. 1989 case law mentions that “bodily injury” is purposefully broad and includes even minor contact but must be more than offensive touching.
Bodily injury is less than “serious bodily injury” which means “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” according to 1.07(46) of the Texas Penal Code.
So any physical pain no matter how minor, will qualify and bodily injury. Case law from 2012 says the fact finder (judge or jury) can infer that the victim felt pain. It reasons that people of common intelligence understand pain and some of the natural causes of it.
Texas Assault Causes Bodily Injury Family Member Levels
There are many varieties of assault cases with various levels of accusations. The most minor charge is Assault by Contact or Threat and is a Class C misdemeanor in Texas It is punishable by fine only. This charge requires the mental state of intentionally or knowingly. It will need more specific intent than the rest of the assault statute. This means a person cannot recklessly cause assault by physical contact and be found at fault of violating a law. The next higher assault charge requires intentionally, knowingly or recklessly mental state while committing the act.
Reckless means “with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Also a gross deviation from the standard of care that an ordinary person would exercise from the actor’s standpoint.
In order for the prosecution to prove reckless, they must produce a prima facie case of defendant’s actual, subjective disregard of the risk of a resulting injury which rises to the level of a gross deviation from an ordinary standard of conduct.
The state’s indictment must allege with reasonable certainty the act or acts relied upon. It means needs to say more than just “acted recklessly in committing the offense.”
Assault by Contact against an elderly or disabled person is a Class A misdemeanor.
Assault on a Family Member or Non Family Member
The victim’s relationship with the aggressor is significant if for nothing else enhancement purposes later if there is another accusation with the same person or a different person. But the statute has a defense. A mother cannot be charged with committing a crime against her unborn child. Also physicians and other healthcare providers with consent to do lawful medical procedures.
What is a Family Violence?
The Texas Penal code refers to Texas Family Code to define family violence as seen below. If a person has previously been convicted or placed on deferred adjudication for family violence, then the new accusation is a 3rd degree felony.
Sec. 71.004. FAMILY VIOLENCE. “Family violence” means:
(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
(3) dating violence, as that term is defined by Section 71.0021.
How Much Jail Time for Assault Causing Bodily Harm?
There is no requirement for jail time in Texas for assault family violence. Generically speaking in Texas people with significant criminal history have a better chance to go to jail for any particular crime not just assault. For a first time assault family violence class A misdemeanor case the possible jail time is up to one year in county jail.
There is a possibility of getting probation only. Probation and jail time as a condition of probation or only jail time depending on the circumstances.
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What is a Household Member?
The state must prove and an element of the offense of felony assault on a household member that the two were living together when the offense took place. A 2010 case defines a dating relationship as same and opposite sex relationships.
What Makes My Assault Case a 3rd Degree Felony?
Usually a case is a Class A misdemeanor. It becomes a 3rd degree felony for a few different reasons. The first of which is if the actor knew the person was a public servant lawfully discharging an official duty or in retaliation for performance of an official duty as a public servant. Secondly as mentioned early, the defendant was previously convicted of an assault family violence (there are other charges that can be used) charge or given deferred adjudication. Thirdly, it is a 3rd degree felony to intentionally, knowingly or recklessly impede the normal breathing or circulation of blood of a person by applying pressure to the person’s throat or neck or blocking the person’s nose or throat.
Also assaulting a security officer or emergency services personnel who is performing duty is a 3rd degree felony. It is a felony to force a pregnant woman to have an abortion. A government contract worker in a correctional or detention facility, if assaulted, will be charged as a 3rd degree felony.
What Makes My Assault Case a 2nd Degree Felony?
An offense committed against a dating, family or household member and the defendant has been previously convicted of assault family violence will rise to 2nd degree if impeding breath or blood is charged. Also an offense against a peace officer or judge lawfully discharging official duties or retaliation for those duties.