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  • Writer's pictureBrian Foley

Do you really need a lawyer for a misdemeanor assault charge?

Updated: Jun 25, 2021

Leonid Ivanovich Rogozov was a Soviet general practitioner who took part in the sixth Soviet Antarctic Expedition, 1960–1961. He was in Antarctica and was going to die if he did not have a doctor cut out his appendix. He decided to perform the surgery ON HIMSELF. With a bit of luck and a lot of "intestinal fortitute" (pun intended) he survived. His life was on the line and he handled it himself. Of course this was only because he was stranded in Antarctica. Your life can be on the line in a legal case and you should not follow the Leonid Rogozov method. Hire a professional to help you take back your life.

If you've been charged with misdemeanor assault there are a few different ways you may have been charged. The best case scenario for you would be to be charged with a class C ticket misdemeanor. If you're court is called a Justice of the Peace Court or a Municipal Court then you were probably charged with class C assault. A class C misdemeanor assault is one that doesn't cause pain or visible injury and could merely be offensive contact. If it is against a family or household member, or someone with whom you are in a dating relationship then the charge carries consequences in the future that you may not know about if you don't hire a lawyer. Class C assaults carry a punishment of a fine only but up to a $500 fine. You could try to handle it without a lawyer but you could set yourself up for a felony if the charge includes a family violence finding.

Hiring a lawyer is absolutely in your best interest. The law is complicated and can be daunting. Every case has unique facts and a good defense lawyer, heck even a bad defense lawyer, is likely in a much better position to handle the case than your average citizen. Even competent and otherwise professional citizens can be feel totally out of control when facing criminal charges, including low level charges like misdemeanors.

If you have been charged with a Class A misdemeanor your court would likely be a County Court at Law or just a County Court depending on which jurisdiction has charged you.

Class A misdemeanor assaults are ones that cause visible bodily injury or cause pain in the complainant. Again a conviction for an assault against a member of your family, household, or someone with whom you have had a dating relationship can cause you to be on the hook for a third degree felony in the future. Class A's carry a punishment range of 0-365 days in Jail and up to a $4,000 fine.

So if you handle your family violence charge on your own now you now you can't take a conviction or you will be eligible for enhancement to a felony in the future. So what if the prosecutor tells you he will give you deferred adjudication probation where the case is dismissed and you can ask for a non-disclosure? That sounds good right? Well you would be in for some bad news if you were charged for Assault Family Violence again. Even a plea of guilty and a deferred probation that is completed and results in a dismissal of the charges can be used to enhance a future family violence charge to a third degree felony. It's right here in the assault statue. You are considered convicted, "if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; . . . . "

There are so many different legal pitfalls it is difficult to encapsulate them into a single blog post. So here are 10 things that your defense lawyer can and should be doing if you are charged with misdemeanor assault.

  1. Review the Police Reports for a valid reason to make contact with you. For example an officer would need reasonable suspicion to pull you over for a traffic violation. But if a 911 phone call has been made a review of the 911 call notes or the recording may be necessary to determine if the officers had sufficient information to enter the home without a warrant. Most Assaults or Family Violence Assaults occur inside a private residence which has greater protection under the constitution and could require a warrant.

  2. Move to suppress the statements of witnesses or the complainant if they fail to appear at trial to testify. Out of Court Statement's offered for the truth of the matter asserted in the statement are considered hearsay and are inadmissible. Additionally a skilled defense lawyer can object that your 6th amendment right to confrontation of witnesses against you has been violated if a witnesses statement is admitted without the witness appearing in court.

  3. Cross examine and question witnesses and police officers on their actions on the night in question.

  4. Challenge physical evidence and the predicate for admission of photographs or videos.

  5. Introduce evidence under Code of Criminal Procedure 38.371 explaining the nature of the relationship between the defendant and complainant. Prosecutors will try to limit a defendant who represents themselves to only discussing the incident on hand, but if the person claiming they were assaulted has been violent with the accused in the past 38.371 can help bring that information in front of the jury.

  6. Object to prejudicial evidence under Texas Rule of Evidence 404(a) barring a prosecutor from introducing evidence to prove the defendant acted in conformity with a particular character trait.

  7. Preserve error for appealing your case to a higher court in the event of an unfavorable outcome.

  8. Argue and negotiate a plea bargaining agreement with the prosecutor to avoid having to go to a trial. Defense attorney's are typically familiar with the prosecutors. I was a prosecutor in Montgomery and Harris County prior to representing citizens accused of crimes.

  9. Draft and submit a jury charge with the relevant law to be made during closing argument.

  10. Apply the legal analysis of self defense and argue your case to the prosecutor, Judge, and Jury when you are acting with the legal justification of self defense under Chapter 9 of the Texas Penal Code.

You wouldn't attempt surgery by yourself. You would hire a doctor. Don't try your assault case alone. Hire a lawyer. Your future can be on the line even in a misdemeanor Assault charge. Talk to a lawyer about your case, you'll be glad you did.


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.

For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney.

For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.

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