Most assault arrests in Houston are for “assault causes bodily injury,” a Class A misdemeanor with up to a year in jail and a $4,000 fine. And the bodily injury the State has to prove can be nothing more than pain. No bruise and no doctor visit. What turns an ordinary assault into something much bigger is who the other person was. If the other person is a relative, someone you live with or used to live with, your child’s other parent, an ex, or someone you’ve been in a real dating relationship with, it’s a family violence case, and a family violence case stays with you after it’s over, even if you got deferred. The person who called the police also doesn’t get to decide whether the case goes forward. The District Attorney does.
Call (713) 664-4000. If there’s a bond condition or protective order telling you to stay away from the other person, follow it to the letter, even if they reach out first. Replying counts.
How assault is charged in Texas
| Charge | What the State has to prove | Level |
|---|---|---|
| Assault by threat or offensive contact (Penal Code § 22.01(a)(2), (3)) | Threatening someone with imminent bodily injury, or touching them in a way you knew, or should have known, they’d find offensive or provocative | Class C misdemeanor (fine only), with exceptions such as offensive contact with an elderly or disabled person |
| Assault causing bodily injury (§ 22.01(a)(1)) | Intentionally, knowingly or recklessly causing bodily injury, which includes physical pain | Class A misdemeanor |
| Felony assault (§ 22.01(b)) | Bodily injury to someone like an on-duty public servant, security officer, emergency or hospital worker, or someone you knew was pregnant. Also family violence with a prior family violence assault (a deferred counts), or family violence by choking or blocking the nose or mouth | Third-degree felony, 2 to 10 years |
| Second-degree assault (§ 22.01(b-2), (b-3)) | Bodily injury to a peace officer or judge on duty, or family violence by choking with a prior family violence conviction | Second-degree felony, 2 to 20 years |
| Aggravated assault (§ 22.02) | Causing serious bodily injury, or using or exhibiting a deadly weapon | Second-degree felony, or first degree in cases like a deadly weapon causing serious bodily injury to a family member, household member or dating partner, or an assault on an on-duty public servant |
“Family violence” covers relatives by blood or marriage, people who live together, former spouses, people who share a child and current or former dating partners (Family Code §§ 71.0021, 71.003, 71.005). Our pages on assault on a family member, aggravated assault, including assault with a deadly weapon, and assault on a police officer cover those charges in detail.
Why a family violence finding matters so much
When the judge finds that an assault involved family violence, that finding goes in the judgment (Code of Criminal Procedure Art. 42.013). But the consequences come from who the other person was, finding or not. The next bodily injury assault against a family or household member or dating partner becomes a felony, and a deferred adjudication counts as the prior (Penal Code § 22.01(b)(2)(A), (f)). A family violence conviction or deferred can never be sealed with an order of nondisclosure, and having one on your record blocks sealing anything else later (Gov’t Code § 411.074(b)). And it can cost you your guns. Texas bars a person convicted of Class A assault against a family or household member from having a firearm for five years after release from jail or probation (Penal Code § 46.04(b)). Federal law bans firearm possession after a misdemeanor domestic violence conviction if you were the victim’s spouse or ex-spouse, parent or guardian, co-parent, someone living with them like a spouse, or a current or recent dating partner (18 U.S.C. §§ 921(a)(33), 922(g)(9)). A dating partner conviction counts only if it was entered on or after June 25, 2022, and for a single conviction like that the federal ban can lift after five years. A plea that avoids the family violence finding, or a plea to a different offense altogether, can matter more than the sentence itself.
When the complaining witness wants to drop it
It happens in a lot of family violence cases, and it doesn’t end the case on its own. The State can subpoena the complaining witness, and in some cases it can try the case without them, using the 911 call and body camera video from the scene. Not all of that is admissible. Statements to police that describe what already happened, instead of asking for help with an emergency, are testimonial, and the Constitution says the State has to bring that witness to court so we can cross-examine them. That protection disappears if the State shows the accused got the witness to stay away (Code of Criminal Procedure Art. 38.49). And a spouse can’t refuse to testify against the other spouse in a family violence case (Texas Rule of Evidence 504(b)(4)). An affidavit of non-prosecution doesn’t bind the prosecutor, but it does matter, and how it’s done matters too. We can’t advise the complaining witness, and offering a complaining witness money or any other benefit to drop the case, or coercing them, is a felony in a family violence case, unless it’s restitution worked out with the prosecutor (Penal Code § 36.05). See how an assault case can get dismissed.
How we defend assault charges
Self-defense. Texas law allows force when you reasonably believe it’s immediately necessary to protect yourself against someone else’s unlawful force (Penal Code § 9.31). Insults and arguing alone don’t justify force. But “who started it” isn’t the legal test. Once there’s some evidence of self-defense, the burden shifts to the State, and if the jury has a reasonable doubt about it, the verdict has to be not guilty. The jury only hears that instruction if the defense asks for it and the evidence supports it, so we build the record for it from the start. We also put self-defense evidence in front of the grand jury in felony cases before an indictment when that’s the right move.
The injury. Pain is enough for bodily injury, but the State still has to prove it with evidence, and what the complaining witness told the officer that night often doesn’t match the photos or the video. In a choking case, the State has to prove the pressure actually impeded breathing or blood flow. A hand near someone’s neck isn’t that.
The video and the calls. Body camera footage, the 911 recording, dispatch audio and the CAD log are the most important evidence in most assault cases. We get all of it early and compare it line by line to the report. Officers write reports after the fact, and the video doesn’t change.
The other witnesses. Neighbors, roommates, children and the people at the bar often saw something different from what’s in the report. We find and talk to them before the State does.
Keeping it off your record
A dismissal can be expunged, right away if the dismissal order gives the right reason, and otherwise once the limitations period runs, which is two years for a misdemeanor assault. A dismissal after finishing deferred adjudication doesn’t qualify. A deferred on a misdemeanor assault that didn’t involve family violence can be sealed by petition two years after discharge, and if it’s the only thing on your record, even a misdemeanor assault conviction can be sealed two years after the sentence or probation is done (Gov’t Code §§ 411.0725, 411.073, 411.0735). Neither route is open if the case involved family violence, finding or not. That’s why what you plead to, and against whom, is often the first thing we negotiate. See our pages on expunctions and orders of nondisclosure.
Results
A Harris County client charged with felony assault on a family member, accused of grabbing the complaining witness by the neck, choking them and throwing them to the ground, had the case dismissed. See more of our case results. Prior results do not guarantee a similar outcome.
Charged with assault in Houston? Call Blass Law
Jay Blass Cohen has defended assault cases in Houston since 2009 and has never worked for the prosecution. We’ll get the video and the 911 call, and we’ll tell you what the State can actually prove.
Call (713) 664-4000. If you were arrested this week, call now. Some 911 recordings and surveillance video are only kept for a short time.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.