Texas Penal Code 25.11 – Continuous Violence Against the Family

WHAT IS CONTINUOUS VIOLENCE AGAINST FAMILY IN TEXAS?

The Texas law against continuous violence against family, also called continuous dating violence, prohibits committing assault involving family violence two or more times within a 12-month period.

• What is assault “family violence” or “domestic violence” in Texas? Texas Penal Code Section 22.01 distinguishes “simple assault” from assault involving family violence, also referred to as assault against a family member, domestic violence, or domestic abuse. Assault is considered family violence if a person intentionally, knowingly, or recklessly causes bodily injury to a family member, roommate or household member, or a current or former significant other. A family violence charge exposes a person to higher penalties and collateral consequences.

WHAT IS THE CONTINUOUS VIOLENCE AGAINST FAMILY LAW IN TEXAS?

Tex. Penal Code § 25.11. CONTINUOUS VIOLENCE AGAINST FAMILY.

(a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a), the exact date when that conduct occurred, or the county in which each instance of the conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

(c) A defendant may not be convicted in the same criminal action of another offense the victim of which is an alleged victim of the offense under Subsection (a) and an element of which is any conduct that is alleged as an element of the offense under Subsection (a) unless the other offense:

(1) is charged in the alternative;

(2) occurred outside the period in which the offense alleged under Subsection (a) was committed; or

(3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a).

(d) A defendant may not be charged with more than one count under Subsection (a) if all of the specific conduct that is alleged to have been engaged in is alleged to have been committed against a single victim or members of the same household, as defined by Section 71.005, Family Code.

(e) An offense under this section is a felony of the third degree.

WHAT IS THE PENALTY CLASS FOR CONTINUOUS VIOLENCE AGAINST FAMILY IN TEXAS?

Continuous violence against family is a third degree felony, punishable by two to ten years in prison.

WHAT IS THE PUNISHMENT RANGE FOR CONTINUOUS VIOLENCE AGAINST FAMILY IN TEXAS?

The punishment range for continuous violence against family, a third degree felony, is two to ten years in prison, and a maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR CONTINUOUS VIOLENCE AGAINST FAMILY IN TEXAS?

A person convicted of continuous violence against family may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed ten years.

• Does a family violence conviction or deferred adjudication affect a person’s right to own a gun? Yes. Texas Penal Code Section 46.04 prohibits possessing a firearm within five years after a person’s release from jail or community supervision after being convicted of or placed on adjudication for assault family violence. Even an arrest for an offense involving family violence may affect a person’s right to legally own and carry a firearm. See Ex parte Isedore, No. 14-22-00161-CR (Tex. App—Houston [14th Dist.] Jan. 10, 2023, no pet.).Federal law likewise prohibits a person convicted of or placed on deferred adjudication for an offense involving family violence from possessing or owning a gun under federal law. See 18 U.S.C. 922(g).

WHAT ARE THE DEFENSES TO CONTINUOUS VIOLENCE AGAINST FAMILY IN TEXAS?

A person charged with continuous violence against family may raise any of the justification defenses at trial, or attempt to negate one of the elements the State must prove beyond a reasonable doubt.

• What is the necessity defense? According to Texas Penal Code Section 9.22, conduct ordinarily considered criminal is justified under the necessity defense if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.Necessity requires confession and avoidance, meaning the accused must admit to the allegation, but argue it was immediately necessary to avoid harm.In Juarez v. State, a defendant was charged with aggravated assault against a peace officer after he bit the officer’s finger while resisting arrest. The defendant testified he felt like he was suffocating when the officer was on top of him, and admitted to biting the officer’s finger to get him off so he could breathe. The trial court refused to give a necessity instruction, but the Court of Criminal Appeals reversed. The jury should have been permitted to consider whether his conduct was justified as necessary under the circumstances.

• Is there a “mutual combat” defense to assault? Texas Penal Code Section 22.06 authorizes a person charged with assault to raise the defense of consent, or “mutual combat,” if the victim and accused agreed to fight before the alleged assault occurred. The consent defense does not apply to an assault during a gang initiation.For the defense of consent to apply, the accused must show:

• • the victim, or “complainant,” effectively consented to the accused’s conduct or the accused reasonably believed that the complainant consented to the accused’s conduct; and
    • the accused’s conduct did not threaten or inflict serious bodily injury, or
    • the complainant knew the conduct was a risk of his occupation, recognized medical treatment, or a scientific experiment conducted by recognized methods.

• What is self-defense? Texas Penal Code Section 9.31 explains a person is justified in using force against another when and to the degree he reasonably believes force is immediately necessary to protect against the other’s use or attempted use of unlawful force.The accused need not prove the victim was actually using force—a person has the right to defend himself from apparent danger as he reasonably apprehends it. A person’s use of force is presumed reasonable if used against another who was:
  • unlawfully entering or attempting to enter the person’s home, vehicle, or place of business or employment;
  • unlawfully removing or attempting to remove the person from his or her home, vehicle, or place of business or employment; or
  • committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

  A person may not use force in response to verbal provocation alone, or if the person provoked the victim’s initial use of force.

• What if the accused started the fight prior to assaulting the other person? If the accused “provoked the difficulty,” he or she forfeits any claim of self-defense. Texas courts have interpreted this as more than merely starting the fight. Rather, self-defense is forfeited when an accused provoked the attack in a manner reasonably calculated to give the defendant a pretext for inflicting harm.The State must show: (1) the defendant provoked the attack through action or words; (2) the action or words were reasonably calculated to provoke the attack; and (3) the provocation was intended to give the defendant a pretext for inflicting harm. See Elizondo v. State, 487 S.W.3d 185 (Tex. Crim. App. 2016).

WHAT IS THE STATUTE OF LIMITATIONS FOR CONTINUOUS VIOLENCE AGAINST FAMILY IN TEXAS?

The limitation period for continuous violence against family, a third degree felony, is three years.

CONTINUOUS VIOLENCE AGAINST FAMILY IN TEXAS

The crime of continuous violence against family requires the State to prove beyond a reasonable doubt that, during a period that is 12 months or less in duration, the defendant two or more times criminally assaulted persons who (1) are family, (2) resided in the same household, or (3) dated the defendant.

TEXAS CONTINUOUS VIOLENCE AGAINST FAMILY COURT CASES 

The case law regarding continuous violence against family or continuous dating violence in Texas illustrates the statute’s application.

• In Uhr v. State, the defendant was convicted of continuous violence against family based on two incidents against different victims. While he was pushing his baby’s mother, he was holding their 18-month-old daughter, and hit her head on the garage door track. Six months later, he assaulted his then-girlfriend. On appeal, he did not contest the second assault allegation, but argued he accidentally injured his baby, rather than caused her injury with criminal recklessness.The appellate court found sufficient evidence of recklessness. The defendant knew he was holding a toddler when he turned around to push the mother, disregarding the risk of hitting the baby’s head against the garage door. Conviction affirmed.