You never expected to be in this position. An unfortunate argument or misunderstanding spiraled out of control, and now you’re facing family violence charges in Texas.
Even if no one was injured, these cases can have extreme life repercussions, including the career-killing finding of family violence in Texas.
The fear, confusion, and uncertainty are terrifying, but here’s the truth: your future is not defined by this moment. With the guidance of a qualified family violence defense lawyer, you can take control of the situation and work towards the best possible outcome.
The right attorney can come alongside you, and your family, to make the appropriate changes so that your family violence charge doesn’t end up leaving you with a label for domestic violence. With the right assistance you can reconcile with your family, get any counseling or therapy you may need, and resolve your case in a positive way.
Below, our team breaks down 5 ways to get family violence charges dropped in Texas and what you need to know to protect your rights and future.
How to Fight Family Violence Charges in Texas
Facing family violence charges doesn’t mean you’re out of options. Let’s look at some of the most effective key points to consider when fighting these types of charges.
1. Understanding the Role of the Victim or Complaining Witness
In Texas, it is not the alleged victim who prosecutes or “files charges” against the accused. It is the State prosecutor who decides whether to file and prosecute family violence charges. A common misunderstanding is that the victim can drop the charges if they wish. That is untrue.
Many domestic violence cases hinge on the testimony of the victim. Therefore, if the victim signs an affidavit of non-prosecution—which states that the victim does not want to press charges—it can significantly weaken the State’s case and strengthen your defense. However, it may not automatically lead to dismissal. The State can legally attempt to convince the victim to testify, or go forward with alternative evidence, such as 911 calls or photographs. If the prosecutor thinks they have enough non-hearsay evidence to prove the crime, they can still proceed without the victim. Proceeding without the victim is commonly referred to as “the State picking up the case.” Alternatively, if the prosecutor does not have enough evidence to go forward without the testimony of the victim, they could decide to dismiss the case. This will depend on whether or not the case is entirely based upon testimony or if there is other non-testimonial evidence that proves the case beyond a reasonable doubt.
2. Challenging the Evidence
Prosecutors must prove their case beyond a reasonable doubt. Your attorney can challenge the following:
- Inconsistent or not credible statements from any witness;
- Lack of physical evidence, such as injuries; and
- Errors made during the investigation, including improper police procedures.
A strong defense often begins with identifying these evidentiary weaknesses and exploiting them. For example, if a witness said via text message to a friend that they “were going to ruin their spouse’s life because they cheated on them,” and then a family violence police report is made the next day without any mention of the cheating or the text message that would be a red flag. The text message is not exculpatory (shows innocence) on its own, but in context it may be exculpatory. Without contrary evidence, such as injuries, this text message could show a lack of credibility and signal to the DA and jury that the witness may not be bringing honest testimony.
Another example could be when a police officer fails to collect pictures at the scene or activate their body worn camera while interviewing witnesses. This lack of evidence needs to be challenged by your legal counsel. Additionally, an officer may fail to ask the accused person for their side of events, even when they have exonerating evidence, such as a concrete alibi. Failure to collect all available evidence by law enforcement should be carefully analyzed by your legal team as they challenge the evidence in your case. A strong defense is not just built against the evidence against you, but also against the evidence that does not exist but should.
3. Negotiating with Prosecutors – Preparation is Key
Abraham Lincoln famously said, “If I had eight hours to chop down a tree, I’d spend six hours sharpening my axe.” Good defense attorneys know how to plea bargain a case down to a lower charge, but great defense attorneys take the time to expertly review the case file better than the DA’s office to produce strong negotiating points and outcomes.
When you know the weak points in the DA’s case file you can negotiate from a place of strength. Knowing your case thoroughly can lead to extraordinary outcomes in the right situation. Properly prepared defense attorneys focus on the importance of plea bargaining and recognize that almost any Texas prosecutor has far too many cases on their plate to know about obscure details in your client’s case file that may weaken or dismantle their case. It’s your attorney’s job to recognize this lack of resources and help the prosecutor on your case reach a just result. Prosecutors take an oath to see that justice is served in their actions. That’s why your legal team should review your case to find your strongest case facts, prepare this information in an easily digestible way for the DA’s office to review, and then share their findings with the prosecutors assigned to your case. The right preparation and negotiation skills can literally be the difference between a dismissal and an unfavorable case outcome.
4. Exploring Diversion Programs
In San Antonio and other Texas counties, first-time offenders may qualify for alternative programs like pretrial diversion or a conditional dismissal. The prosecutors will offer these programs in situations that warrant a lighter type of punishment. Diversion programs involve completing certain requirements such as counseling, anger management courses, or community service. The benefit to this type of diversion agreement is that the State agrees to reduce or drop the charges after you’ve successfully completed the requirements of their diversion program. Also, in certain situations, they will agree to expunge the charges as soon as the person completes the terms of the agreement. This can be a huge win for the person accepting the diversion agreement.
Both pretrial diversion and conditional dismissals are reserved for cases for individuals that have little or no criminal history and have a case that the State is not willing to dismiss completely. Importantly, nine out of ten pretrial diversion agreements for family violence in Texas do not include an affirmative finding of family violence.
Diversion programs have taken on new popularity in Texas criminal courts, especially in places like San Antonio, Austin, San Marcos, Dallas, Corpus Christi, and Houston. These cities have seen massive population growth in the last decade and many Texas prosecutors are becoming much more open to looking at the criminal justice system as a rehabilitative tool for first time offenders as a way of alleviating their bursting caseloads. For these reasons, these programs have grown in popularity throughout the state of Texas.
A conditional dismissal in Texas is an informal pretrial diversion where a defendant completes certain requirements or coursework in exchange for a dismissal. These agreements are less common than pretrial diversion and typically happen in places where there is not a formal pretrial diversion program established. Be sure to ask your attorney about both options.
5. Proving Self-Defense or Lack of Intent
If you acted in self-defense or lacked the required intent to cause harm, your attorney can argue that you were justified in your actions or lacked the requisite intent necessary to support a conviction. This legal defense is found in Texas Penal Code Section 9.31. For example, you may have a valid self-defense claim if the alleged victim was the aggressor.
Texas Penal Code Section 9.31 lays out that a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. Without getting into a detailed legal analysis, the three most important factors to determine whether self-defense is justified in Texas hinge on the following:
- The actor’s use of force was based upon a reasonable belief that force was necessary in that moment, regardless of whether there was an opportunity to retreat.
- The actor’s use of force was immediately necessary to protect the actor or the actor’s property from the force being used against them or their property.
- The actor’s use of force was lawfully used against unlawful force or the threat of unlawful force.
While the first two points pretty much speak for themselves, the third point requires more detailed analysis. Lawful force must be proportionate, unprovoked, cannot come during the commission of a crime, is not in response to verbal provocation alone, is not used against a peace officer, and cannot be claimed from consented physical combat. The law spells out these guidelines to make sure this powerful legal defense applies only in certain situations.
Self-defense can be a powerful legal tool to defend a person fully against family violence charges, but it is very fact specific. Your legal team will need to carefully analyze your situation so that you can effectively raise this legal defense. Often cases with self-defense fact patterns end up being dismissed or going to trial.
What Is Family Violence in Texas?
Under the Texas Penal Code, family violence refers to acts intended to cause physical harm, bodily injury, assault, or sexual assault against a family or household member. It also includes threats of imminent harm and certain types of emotional abuse.
While many people use these terms interchangeably, family violence vs. domestic violence in Texas often depends on the relationship between the involved parties.
Who Qualifies As a Family or Household Member?
In Texas, family violence laws cover a broad range of relationships, including:
- Spouses or ex-spouses,
- Individuals in dating relationships (both past and present),
- Parents and their children,
- Siblings,
- Grandparents,
- Relatives by marriage only,
- Aunts,
- Uncles,
- Cousins,
- Roommates or former roommates, &
- Other familial relationships
This broad scope means you could face charges even if the relationship isn’t marital or biological. Meaning a brief dating relationship could add a much more onerous legal punishment range to your legal situation.
Consequences of a Family Violence or Domestic Violence Conviction
The State can charge family violence as a misdemeanor or felony. The severity of the charge and accompanying punishments depends on the circumstances, such as whether:
- The offense involved serious bodily injury,
- The accused has prior family violence convictions,
- There was another credible allegation of family violence in the last 12 months, or
- A deadly weapon was used during the incident.
Common penalties for family violence include:
- Class A misdemeanor—up to 1 year in jail and a $4,000 fine;
- Third-degree felony—2 to 10 years in prison and up to a $10,000 fine; or
- Continuous violence against the family—a third-degree felony charge applies if the accused commits two or more acts of family violence acts, even if they were both misdemeanors, within 12 months.
Beyond legal penalties, a conviction can lead to long-term consequences like losing firearm rights, difficulty finding or keeping employment, and a tarnished reputation. In San Antonio, these cases are often handled by the Bexar County Criminal District Court’s Family Violence Division, where judges and prosecutors take family violence allegations very seriously. Furthermore, even if you are not convicted, many family violence prosecutors in Texas will seek to impose an affirmative finding of family violence. Even if your case is placed on deferred adjudication, an affirmative finding of family violence will result in many of the same legal consequences as a conviction and will not allow for your case record to be sealed in Texas.
San Antonio’s Unique Court Procedures
In Bexar County, there are specific procedures for family violence cases. Here is a look at the typical progression of a family violence case in the Bexar County courts:
Arrest
Law enforcement may arrest you based on probable cause at the time of their initial investigation. In San Antonio, law enforcement will almost always arrest one person if they respond to the scene of a domestic disturbance and both parties are present. This is seen as a safety procedure but also is inline with a community goal to aggressively prosecute family violence cases. Usually, this means that someone calls 911, and then the police respond, finding probable cause to believe that a crime has taken place and then arresting someone. However, it is very common in family violence cases that a report will be made without the accused party present and the case will get filed without the accused person ever being able to give their side of events. While this one-sided investigation is devastating at first, it can lead to good outcomes in the long run of the case. People on a jury struggle to feel comfortable convicting someone that never got to share their side of the story, especially when their side of the story strongly suggests their innocence.
Protective Orders
A judge may issue a protective order prohibiting contact with the alleged victim. In San Antonio, Texas it is common that the DA’s Office will automatically pursue an emergency protective order on behalf of a victim without ever speaking to the victim or asking if they would like one. Defendants are often subject to emergency protective orders (EPOs), which ban contact with the alleged victim directly or indirectly for a set period of time. Violating an EPO can lead to additional charges for Violation of a Protective Order. A skilled attorney can petition the court to modify or lift the order if it creates unnecessary hardship, such as preventing you from returning home.
In situations where the victim wants a protective order (PO) that endures longer than an emergency protective order, the Bexar County DA’s Office will often assist with this process. POs can last for years and also can result in additional criminal charges if they are not followed. Also, during the duration of an EPO or PO the person under order cannot possess their own firearms. While the firearms can still be owned by the person, possession must be temporarily relinquished to another person or organization. For these reasons, it is best to get an attorney that is familiar with fighting EPOs and POs.
Prosecution
The prosecutor decides whether to file charges based on the case evidence such as police reports, witness statements, photos (if any), body worn camera footage, 911 audio, or medical records. In making the decision to prosecute, most Texas prosecutors are very open to insight into the case facts provided by defense attorneys into why their case may have weaknesses or need to be dismissed. This openness to information serves to the prosecutor’s advantage as they can review the case and figure out how to overcome their case weaknesses. Alternatively, if they cannot overcome the weaknesses of their case, they may offer better plea options or decline prosecution by dismissing the case entirely.
Court Procedures
San Antonio courts require pretrial hearings where a judge informs you of your charges and allows you to enter a plea. During the pretrial phase, your attorney will negotiate with the prosecutor and attempt to get the charges reduced, the case dismissed, or secure an advantageous plea bargain. If that fails to produce the desired result, you can decide to take your case to trial.
Bexar County’s family violence division prioritizes rehabilitation programs that address the root causes of family violence rather than just punishment. In the right situations, this can result in pre-trial diversion and conditional dismissals being offered rather than traditional punishment such as jail, probation, or deferred adjudication. The options offered often depend on the quality of preparation you and your attorney put into sharing with the prosecution why your situation is different and you deserve an unusually good outcome.
Can Family Violence Charges Affect My Child Custody Case?
Yes, family violence charges will have a substantial impact on a Texas child custody case. A family violence charge or conviction can impact child custody or visitation rights. Texas courts make an effort to prioritize the child’s safety, and a criminal history of domestic violence may be used against you in family custody proceedings. In Texas, if you receive an affirmative finding of family violence on your record, there is a legal presumption that you cannot be the managing conservator of your children. This presumption is found in Texas Family Code Section 153.004. This is a rebuttable presumption, but an affirmative finding of family violence makes it much more difficult to be designated as the primary custodial parent in Texas. If you are dealing with child custody proceedings, it is best to avoid an affirmative finding of family violence at all costs.
About Our Domestic Violence Defense Lawyers
Defending yourself against family violence charges is a complex and high-stakes process. Without a skilled attorney, you risk severe penalties and long-term repercussions. Our law firm has more than a decade worth of experience handling complicated family violence cases throughout Texas. Additionally, our managing trial attorney, Austin Hagee, was a family violence prosecutor before becoming a defense attorney. Mr. Hagee is familiar with both sides of the system and he can use his expertise to compassionately help you navigate your legal situation. Here’s how our family violence defense lawyers can help:
- Local experience. Our San Antonio-based attorneys understand the nuances of complex family violence charges. They are also familiar with the judges and attorneys in Bexar County’s criminal justice system—and knowing the players can help them more effectively strategize an effective defense. It’s often said that a good lawyer knows the law, but a great lawyer knows the judge. While this is no representation of results to come, it stands to reason that understanding the tendencies of a judge and certain prosecutors does help provide better preparation and expectations for clients selecting our firm.
- Strategic defense. We can tailor a defense based on the unique circumstances involved in your case. Our firm is designed to keep caseloads low and customer service expectations high. This allows us to work alongside you to provide a defense that fully represents you and your situation. We will work with you to analyze every legal nuance that may apply to your situation. This is possible based upon our team-based approach to cases. We work as a team and regularly roundtable your case, with multiple attorneys, to work towards the best possible outcome.
- Negotiation skills. Our team of experienced lawyers can negotiate with prosecutors to secure reduced charges or alternative resolutions. This comes from the experience of having worked on thousands of family violence cases in the last decade. Put our experience to work for you to negotiate a fair and just outcome that you and your family can accept.
Our San Antonio law firm believes strongly in our mission to help good people through hard times with the goal of restoring families. Our compassionate and aggressive approach ensures your rights are protected every step of the way. Choose a firm that fights for you with you.
Your Family Violence Defense Starts Now
You don’t have to let a family violence charge define your future. At Austin Hagee Law Firm, we’re ready to stand by your side, fight for your rights, and guide you toward a resolution that protects your freedom and reputation.
With our extensive experience and proven track record of positive results, we’re the team you can count on. Take some time to look at our reviews and recent results in the Why Hire Us tab above. Then contact us today by calling us at 210-500-3700 or filling out our online contact form to schedule a confidential consultation. Let’s work together to make this challenging chapter a stepping stone to a brighter future.
Resources
- Texas Penal Code §22.01, link
- Texas Penal Code §9.31, link
- Legal Information: Texas. Women’s Law (2024), link
- Protective Orders. Bexar County District Attorney, link
- OCA Texas Family Violence Benchbook. Texas Judicial Branch, (2013), link
- Emergency Protective Orders, Texas Law Help (2022), link
Austin M. Hagee is a trusted and proven San Antonio trial lawyer who tirelessly defends his clients’ constitutional rights. As a former prosecutor turned nationally recognized criminal defense attorney, Austin has the knowledge and expertise to get the best possible outcome for his clients.
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