Austin Assault Attorney
Felony Assault Charges in Austin, TX
Felony assault charges are extremely serious and need to be handled with care by an experienced Austin assault attorney. There are a number of ways that assault is charged as a felony. In Texas, this moves the case from County Court to the District Court, and cases are usually handled by the County’s District Attorney.
The stakes for felony assault are much higher than a misdemeanor, and the cases are much more difficult to handle from beginning to end. Initially, a jail release is much more difficult than a jail release for misdemeanor assault. Often, defendants must stay in custody for days or weeks before the judge will grant a release. In other cases, the release is not an option until the Assault case is handled with either a plea or trial. Whether release is granted by the judge comes down to the facts of the case, the recommendation of the District Attorney, and the skills of the assault defense attorney.
Previous Family Violence Conviction 22.01(2)(A)
If a person is charged with a new family violence assault and has a previous conviction, the new charge can be enhanced to a third-degree felony. This relates only to convictions, so if there was a previous charge, but it was dismissed without a conviction, the new charge cannot be enhanced. The new assault does not have to include more significant injuries than a regular misdemeanor assault. It could be a relatively “minor” assault but still, result in a 3rd-degree felony charge.
However, the family violence finding from the previous conviction does not need to be specifically made by the court. If the previous conviction was for a crime that necessarily involves violence against a family member, the finding attaches whether the judge put it on the record or not. In fact, even if the judge specifically did not make the finding, the new court can disregard that and enhance the new charge. That is why it is extremely important to be wary of any conviction where a family violence finding is a possibility.
Even if charged as a 3rd-degree felony, it is sometimes possible to drop the enhancement and carry on with the misdemeanor. Whether that is possible depends on the circumstances in each case. There is no escaping that the felony charge is almost always a more difficult hurdle to clear than a misdemeanor, and repeat offenders are treated poorly by prosecutors, judges, and even juries.
Impeding Breath (Strangulation) 22.01(B)
A first-time assault can be charged as a felony if the evidence suggests that in the course of the assault, the actor intentionally, knowingly, or recklessly impeded normal breathing by applying pressure to the throat or neck. Obviously, this situation is considered more serious because of the risk that the consequences could be fatal. It was added to the criminal code after evidence suggested that it was a huge red flag for the escalation of domestic violence.
Obviously, an assault involving strangulation is very serious, and that’s why it gets enhanced to a felony. The unfortunate truth is that the enhancement is often abused by law enforcement who want to raise the stakes of the crime by charging a misdemeanor as a felony. It is also commonly abused by alleged victims who are aware of the law and want to retaliate against their partner or ex-partner (usually boyfriend or husband) by getting them into more serious trouble.
Sometimes, the charge is backed by credible evidence such as bruising or redness around the neck. Other times, the only evidence is solely the word of the alleged victim. A good family violence defense attorney will always call into question the credibility of all the evidence and put the prosecutor to task to prove their case beyond a reasonable doubt.
Aggravated Assault (22.02)
Assault becomes aggravated assault if the alleged victim suffers serious bodily injury, which means injury that creates “substantial risk of death”, or “causes serious permanent disfigurement … or impairment of the function of any bodily member or organ.” Aggravated Assault is charged as a second-degree felony, with a maximum jail sentence of 20 years.
This charge is further enhanced to a first-degree felony if it is shown that the actor used a deadly weapon in the commission of the assault. A deadly weapon can obviously be a gun or a knife, but can also be other items that we wouldn’t usually think of as a deadly weapon. Courts have found air rifles, screwdrivers, pocket knives, and cars to be deadly weapons.
Defenses To Felony Assault Charges
With felony assault, there are generally two ways to handle the defense, and both can be employed simultaneously. First, is there a reason that the charge can be completely dismissed? For example, can self-defense be credibly argued? Second, if the evidence for the assault is clear, are there factors that could reduce the charge to a misdemeanor simple assault. Every case is unique, and a good Austin assault lawyer will examine the prosecution’s case closely for holes and mitigating factors.
Photos, videos, and phone recordings can sometimes be good evidence for the prosecution, but context and differing interpretations must be examined. A picture is worth a thousand words, but sometimes it can be misleading or ambiguous. For example, a bruise could have been caused by an assault, or it could have been caused by a drunken stumble. Alcohol is often involved, and memories are warped or lost. Few cases are as simple as they seem on the surface.
Finally, the credibility of the sources of evidence must be examined. Often the accusers in assault cases have accused others previously. It is, unfortunately, true that domestic violence victims are more likely to be abused by future partners. Sometimes these accusers know the magic words to get a person charged with a crime or to elevate a misdemeanor charge to a felony. Obviously not every case is like that, but the words of accusers must be closely examined and compared with the other evidence in the case.
Contact An Austin Assault Lawyer Today
If you or a loved one is charged with felony assault or domestic violence, you should contact an Austin assault attorney as soon as possible to discuss your case. ATX Legal offers a free case evaluation by phone or Zoom, reach out to us today for a consultation.