An assault conviction is bad enough. There are both direct and indirect consequences. A Section 22.01 violation is, at a minimum, a Class A misdemeanor. That means up to a year in jail. Furthermore, assault is a crime of moral turpitude. Such a conviction can cause problems later in life, especially in terms of deportation proceedings.
An "FV" designation makes these crimes even worse. The direct consequences are the same, but the indirect consequences go up a notch. Assault-FV convictions cause problems not only in current or near-future family law cases. These convictions also create issues in divorce and other family law cases decades into the future, even if the conviction had nothing to do with the person's current family relationships.
So, successfully defending assault FV charges, or at least reducing them to simple assault charges, is always a priority for a Weatherford criminal defense attorney.
Nuts and Bolts of the Offense
Contrary to popular myth, "injury" is not an element of a 22.01 offense. A threat of "imminent bodily injury" is sufficient.
However, if there is any injury, even a red mark, assault FV is easier to prove in court. If the defendant caused an injury, it's hard to claim that the contact was accidental. The opposite is also true. If there was no injury, it's rather easy to claim that the contact was unintentional.
Also contrary to popular myth, a spouse cannot "drop" charges in criminal court. A spouse can tell the prosecutor s/he does not want to go forward with the case, but only the state can drop charges.
However, if the complaining witness does not want to testify, the state's case is much more complex. Under Texas law, the prosecutor can force the complaining witness to testify, but there's no telling what the witness may say on the stand.
Some prosecutors try to use a hearsay exception to admit part of the police report into evidence, but many judges will not allow the state to use the excited utterance loophole. The elements of this exception (an out-of-court statement made in the heat of the moment) are often not present in these cases.
Defenses to Assault-FV
In non-injury and/or reluctant witness cases, even a borderline defense is often extremely effective.
Self-defense is the best defense to assault-FV cases. Basically, proportionality is the only requirement. If the alleged victim made any threatening physical moves, like moving toward the defendant or raising a hand, the defendant can respond. Texas is a stand-your-ground state, so there is no duty to retreat.
Provocation is not technically a defense to the crime. But it can sway a jury. Furthermore, provocation is also relevant in the punishment stage. So, a prosecutor could work very hard to get a conviction only to see the defendant essentially walk after the punishment phase. Prosecutors know this, so they are often willing to make a deal in these situations.
Many assault cases are difficult to prove in court. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact Herreth Law. We routinely handle matters in Tarrant County and nearby jurisdictions.