Austin, TX

Felony AFV Cases

Felony AFV Cases

It should go without saying that Felony Assault cases are extremely serious.  They can become a felony when “enhanced” because there is a previous family violence conviction, because it is alleged that the defendant impeded breath of the alleged victim, or when serious bodily injury has occurred as a result of the assault. 

The risk of jail time and a felony conviction on your criminal history mean that the stakes are higher.  A dismissal in these cases can still be possible when evidence is lacking.  In general, felony cases require more time and care from the attorney because of the high stakes.  This section is a brief discussion of Felony DV cases, but if you are charged, it is imperative that you speak to an attorney as soon as possible.

Impede Breath Cases

FV Assaults are enhanced to a third degree felony if it is alleged that strangulation was involved.  This means that the maximum jail sentence can range from 2-10 years.  Strangulation cases are considered more serious because studies have shown them to be one of the last steps of an escalating cycle of violence.  Even though the cycle of violence is overused by prosecutors, there is some truth to it, and strangulation can lead to death.  Therefore, when strangulation is alleged, the case needs to be taken seriously, given the consequences.

Evidence of strangulation can include CW statements, bruises or scratching around the neck area, or evidence that the CW lost consciousness.  When there is an abundance of physical evidence, the prosecutor is likely to move forward on such a case even without support from the CW.

All defense attorneys should be aware that strangulation cases are overcharged.  This means that police will often charge a case with the impede breath enhancement even when it is not warranted by the evidence.  Police always ask the CW if the accused put their hands to his/her throat.  Sometimes they don’t understand the question and will answer yes even if the accused did not apply any pressure.  Other times, in an emotional state, they will lie to police because they know it will enhance the charge.  Therefore, the strangulation claim should always be viewed with skepticism and the evidence examined closely.

Subsequent FV Charges and Continuous Violence

If a person has previously been convicted or given deferred adjudication for a domestic assault, new charges are automatically enhanced to a third degree felony.  Note here that the severity of the new charge has no bearing and can be charged as a felony even if the allegations are relatively minor. It is sometimes possible to drop the enhancement and plea to a misdemeanor in these cases.  I don’t know if you can call it a silver-lining, but when there is already a FV finding on the criminal history, a new conviction won’t change that in any material way.  This means that the option to plea to a misdemeanor conviction might be a good one since the FV finding is not a factor.

In general, prosecutors are not going to give great plea options for someone who is back in court on a second DV charge.  They are much more likely to see it as a pattern that they need to curb with severe punishments.  Therefore the conversation might be more about avoiding jail time and/or reducing to misdemeanor charges than avoiding convictions.  Still, every case is different, and there are often ways to handle them that avoid the worst consequence and can keep the accused out of jail.

The ”Continuous Violence” enhancement is similar to the subsequent charge enhancement, except that there does not need to be a previous convictions.  Instead, there must be two or more instances of violence in the last 12 months.  The prosecutor needs to prove up each charge individually.  If he can do that, two misdemeanors can equal one felony.

Aggravated Domestic Assault

If the accused is charged with causing serios bodily injury or with using a deadly weapon, they can be charged with Aggravated Domestic Assault, a first degree felony.  The punishment range for a first degree felony is 5-99 years.  Serious bodily injury means an injury that causes substantial risk of death or disfigurement.  If aggravated assault is alleged, the evidence will need to be studied carefully, not just for determining whether the assault occurred, but whether there is enough evidence for serious bodily injury.

A deadly weapon can mean a knife, a gun, or even an air rifle in some cases.  If the weapon is capable of causing death, even in rare cases, it can be considered a deadly weapon.  Courts have certainly found that vehicles can be a deadly weapon as well.


In many ways, felony AFV cases play out the same way as misdemeanors.  It is still the defense attorney’s job to force the prosecutor to prove every element of the case.  If a dismissal is not offered, then we must consider trial as an option.  But with felonies, the raised stakes mean that we must consider every step carefully in terms of risk and reward.  The potential risks in a felony case are much higher.

Also, because felonies often include enhancements, there are additional elements that the prosecutor must prove.  This makes the cases more complicated for all parties involved – including the prosecutor, who has to prove all the enhancement elements as well.

If charged with a felony AFV, seek consultations as soon as possible.  Having the right attorney advocating for you in this situation can have far-reaching consequences for the rest of your life.

Download the free PDF Guide by clicking the image below. Nothing in the DV guide or this post is intended as legal advice. If you would like legal advice on your specific situation, visit our contact page to schedule a no-cost consultation.
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