Continuous Violence Against the Family in Texas: How Two Misdemeanors Become a Felony

Most people charged with family violence assault are looking at a Class A misdemeanor which carries up to one year in county jail and a $4,000 fine. That is serious, but it is a misdemeanor. Continuous violence against the family under Texas Penal Code §25.11 is different. Under §25.11, two separate incidents of family violence assault (each of which, standing alone, would be a misdemeanor) are combined into a single third-degree felony charge carrying 2 to 10 years in prison.

This charge does not require a prior conviction. It does not require serious bodily injury. It does not require that any individual incident rise above a Class A misdemeanor. What it requires is a pattern: two or more acts of bodily injury assault against a family or household member or dating partner within a 12-month period.

The Statute: §25.11

Texas Penal Code §25.11(a) provides: 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 §22.01(a)(1) (i.e .bodily injury assault) against another person or persons whose relationship to or association with the defendant is described by Family Code §71.0021(b) (dating relationship), §71.003 (family), or §71.005 (household).

Third-degree felony: 2 to 10 years in prison, fine up to $10,000.

The offense is classified under Chapter 25 Offenses Against the Family rather than Chapter 22. This reflects the Legislature’s intent: §25.11 is not primarily about punishing the severity of any individual assault. It is about addressing the pattern of conduct.

What the Prosecution Must Prove

Two or more acts of §22.01(a)(1) assault.  Each predicate act must constitute bodily injury assault. Threats alone, offensive contact alone, and non-physical conduct do not satisfy this element. The prosecution must prove that actual bodily injury, however minor, resulted from each predicate act.

Within a 12-month period.  Both predicate acts must have occurred within a period of 12 months or less. Acts separated by more than 12 months cannot be aggregated under §25.11.

Against a qualifying person.  The assault must be against a person with whom the defendant has a qualifying family, household, or dating relationship under the Family Code.

The Unanimity Rule: What the Jury Must and Need Not Agree On

One of the most significant features of §25.11 is its special jury unanimity provision under §25.11(b): if the jury is the trier of fact, the jurors are not required to agree unanimously on the specific conduct in which the defendant engaged, the exact date when the conduct occurred, or the county in which each instance of conduct occurred.

What the jury must agree on unanimously is that the defendant, during a period of 12 months or less, two or more times engaged in conduct constituting §22.01(a)(1) assault against a qualifying person.

The defense implication is significant: attacking any single alleged incident is usually insufficient. A successful defense strategy must undermine the prosecution’s evidence of multiple incidents by either challenging whether individual acts constituted bodily injury assault or by attacking the 12-month aggregation.

The Unit of Prosecution: Protection Against Multiple Charges

• 25.11(d) provides that a defendant may not be charged with more than one count under §25.11(a) if all of the conduct alleged was committed against a single victim or members of the same household. This protection means the prosecution cannot stack multiple §25.11 counts based on the same course of conduct against the same victim. The defense should scrutinize any indictment alleging multiple counts to determine whether the charges are properly limited under this provision.

How This Charge Arises in Practice

The most common factual pattern: a couple or family has multiple incidents of physical conflict over the course of a year. Individual incidents may have been reported to police (or may not have been). The alleged victim, in the context of a separation, divorce, protective order proceeding, or custody dispute, provides law enforcement with an account of multiple incidents going back months. The State reviews the account, determines two or more incidents qualify within the 12-month window, and files a §25.11 charge rather than individual misdemeanor counts.

The felony charge gives the prosecution substantial leverage. A defendant who might contest a single misdemeanor assault faces a very different calculus when the single proceeding aggregates multiple incidents and the potential sentence is 2 to 10 years.

Probation Eligibility

Continuous violence against the family is a third-degree felony. Standard probation eligibility rules for third-degree felonies apply: a judge may grant community supervision after a finding of guilt or guilty plea, and a jury may recommend probation. However, deferred adjudication, like all family violence cases, triggers the affirmative family violence finding and carries the associated permanent consequences regarding firearms, future enhancement, and expunction (addressed in our separate article on the family violence affirmative finding).

Defense Strategy

Challenge each predicate act individually.  The prosecution must prove that each alleged act constituted bodily injury assault. Evidence of emotional conflict, verbal arguments, or minor contact that did not produce physical pain or injury does not satisfy §22.01(a)(1). The defense should examine each alleged incident for contemporaneous evidence and challenge whether the conduct proven actually constitutes bodily injury assault.

Challenge the 12-month window.  If evidence of one incident is vague as to timing, or if the documented incidents are more than 12 months apart, the 12-month element fails.

Challenge the qualifying relationship.  If the relationship between the parties does not fall within the Family Code’s definitions of family, household, or dating relationship, §25.11 does not apply.

False accusation in custody and divorce proceedings.  §25.11 charges are frequently filed in the context of contentious separation proceedings. The alleged victim’s account of multiple prior incidents (often without contemporaneous documentation) deserves careful scrutiny when it surfaces during divorce or custody litigation.

Self-defense.  If the defendant’s conduct in one or more of the predicate incidents was a lawful exercise of self-defense, that incident does not constitute an offense under §22.01(a)(1) and cannot be counted toward the two-incident threshold.

Speak With Deandra Grant Law

A continuous violence against the family charge aggregates your exposure in ways that a misdemeanor prosecution does not. Deandra Grant Law brings 30+ years of criminal defense experience and more than 500 trials to every case in our practice across North and Central Texas.

Call (214) 225-7117 or visit texasdwisite.com for a confidential consultation.