Do Not Get Caught in the Traps of Domestic Violence Law
Every family has disagreements from time to time. When a domestic dispute becomes particularly heated and someone calls the police, it is no longer a family matter. The State of Texas now decides whether to arrest, jail and prosecute you for spousal assault, family violence, domestic abuse or other domestic violence-related charges.
One of the biggest misconceptions about domestic violence is that the problem will go away if the accuser changes his or her mind. These cases are almost always prosecuted whether or not the alleged victim wants to drop the charges.
If you have been arrested for family violence, contact the criminal defense attorneys at Pelley Law Office, L.L.P. as soon as possible. Our lawyers have been extraordinarily successful representing clients facing domestic violence charges. We have obtained numerous dismissals for our clients. These types of cases include:
- Assault Causes Bodily Injury: Family Violence
- Aggravated Assault with a Deadly Weapon: Family Violence
- Harassment
- Stalking
- Violation of Restraining Orders
The Penalties
If a restraining or protective order has been issued, you will not be able to return to your home or have any contact with the accuser for a period of time. A conviction on a domestic violence charge has severe penalties, including incarceration and serious fines. In addition, you may not possess a firearm for five years and you may not be treated equally in family law issues such as child custody, visitation and spousal support.
What Constitutes a Family?
The Texas Family Code has expanded its definition of what constitutes a family for purposes of domestic or family violence to include persons who are not related in the traditional sense.
People are considered a member of a family if they are:
- Related by blood or affinity
- Former spouses
- Parents of the same child, without regard to marriage
- A foster child or foster parent, residing together or not
- Dating
- People who previously shared a household
Do not take charges of domestic violence lightly. If you have been arrested anywhere in North Texas, contact the Pelley Law Office in Plano or Sherman for a free consultation. Call 972.608.0335 or 903.813.4778 to set up an emergency consultation as quickly as possible.
Additional Consequences to Consider:
Your potential exposure may be much more severe if you are a repeat or habitual offender. Even a successfully completed prior deferred adjudication for previous offense(s) designated as low as a Class C misdemeanor can be used to enhance the punishment range and/or consequences for this alleged offense. Effective September 1, 1999, trial convictions, or prior pleas of guilt or nolo contendre (no contest) regardless of whether deferred adjudication or regular probation was granted, can be considered as convictions when determining the possibility of enhancing the punishment. This incident could result in an enormous change in your life.
The 79th Legislature expanded the prior offenses which may be used to enhance an assault charge from a Class A misdemeanor to a 3rd Degree Felony to include prior Kidnapping, Aggravated Kidnapping, and Indecency with a Child so long as the complaining witness in the case was a family member as defined by the Family Code. Also included in the new enhancement statutes are out-of-state family violence convictions.
Domestic Relations:
Much like Capital Murder and DWI law, family violence has developed its own body of law over the years. For example, the Family Code has expanded its definition of what constitutes “domestic or family violence” to persons who are not “related” in the traditional sense. A person is a member of a family if they are related by consanguinity (blood) or affinity, if they are former spouses of each other, if they are the parents of the same child, without regard to marriage or if they are a foster child or foster parent without regard to whether they reside together. It also includes persons who are dating, and those who have previously lived in a household. You must be aware that under Texas Family Law, this case may affect whether you are required to pay spousal maintenance in a subsequent divorce. It also could affect your possession and access to your children. We will discuss this issue further at the initial consultation.
Parole/Probation Eligibility:
Please also be advised that judgments including affirmative findings of the use of a deadly weapon during the commission of the offense affect the accused’s parole eligibility date, and eligibility for probation.
Firearms:
You must be aware of the fact that a person who has been convicted of at least a Class A assault involving a member of the family or household may not possess a firearm before the fifth (5th) anniversary of the date of his/her release from confinement or from the date of the release from probation, whichever is later. §46.04(b) Tex. Penal Code.
Immigration/Deportation Consequences:
This case may have immigration/deportation consequences depending upon your citizenship status. Under §237(a)(2)(E) of the Immigration and Nationality Act (The Act), any alien who at any time after entry is convicted of a crime of domestic violence is deportable. In the immigration context, “a crime of domestic violence” means any crime of violence, as defined by 18 USC §16, against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabitating with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs. §237(a)(2)(E)(ii).
Section 237 applies to any domestic violence regardless of its classifications. The fact that the alien may have only been convicted of a class C misdemeanor is irrelevant, as is the severity of the injuries. It is important to note that it does not matter whether there was an affirmative finding of family violence (AFFV) noted on the judgment because the INS can go behind the judgment and look at the facts of the case to determine if the case involved family violence. For the purposes of the Act, a conviction includes straight probation, fines only or deferred adjudication.
Again, if you have been arrested anywhere in North Texas, contact the Pelley Law Office in Plano or in Sherman for a free consultation. Call 972.608.0335 or 903.813.4778 to set up an emergency consultation as quickly as possible.
