Waco Domestic Violence Lawyers

The CCP Article 38.371 Rule — Relationship Evidence

Code of Criminal Procedure Article 38.371 creates a rule of evidence specific to family violence cases, including the offenses discussed on this page. At the guilt-or-innocence phase, each party may introduce evidence of “all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense,” including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.

The effect is to open the door to propensity-type evidence (prior bad acts, relationship history, pattern-of-conduct evidence) that would typically be excluded under Texas Rule of Evidence 404(b) in non-FV cases. This is usually worse for the defense than for the state, but Article 38.371 cuts both ways: the defendant can introduce relationship evidence the state might prefer to keep out, including evidence of prior false allegations, the alleged victim’s prior conduct, and other relationship-history that can support the defense. Pretrial litigation over 38.371 scope is often where these cases are won and lost.

Emergency Protective Orders — CCP Article 17.292

At the initial magistration following a domestic violence arrest, the magistrate typically issues an Emergency Protective Order under CCP Article 17.292. The EPO is effective for 31 to 91 days and commonly includes:

• No contact with the alleged victim — direct or through third parties.
• Exclusion from the residence, even if the residence is the defendant’s own home or a home shared with the alleged victim.
• Firearm prohibition during the pendency of the order.
• No-contact provisions extending to children of the relationship.

A violation of an EPO is prosecuted as a Class A misdemeanor under Penal Code § 25.07 (potentially a third-degree felony with assault or stalking). Many defendants end up with more serious charges for EPO violations than for the original alleged offense. Strict compliance with an EPO is essential.

Civil protective orders under Family Code Chapter 85 can be entered separately from the criminal case, last up to two years, and have their own enforcement framework.

Collateral Consequences

• Lifetime federal firearm disqualification under 18 U.S.C. § 922(g)(9) (Lautenberg Amendment).
• Five-year Texas firearm ban under Penal Code § 46.04(b).
• Immigration consequences. A domestic violence conviction is deportable under 8 U.S.C. § 1227(a)(2)(E).
• Professional licensing. Nursing, teaching, law, medicine, and many other boards address FV convictions in licensing proceedings.
• Family Code Chapter 153 custody presumption. A family violence finding creates a statutory presumption that joint managing conservatorship is not in the best interest of the child.
• Housing. Public housing authorities and many private landlords deny housing based on FV convictions.
• Employment. Background-check disclosures prominently flag domestic violence convictions.
• Nondisclosure bar. Government Code § 411.074(b) generally excludes family violence convictions from nondisclosure relief, even after a successful deferred adjudication. 

How Domestic Violence Cases Are Defended

Factual Challenge

Many DV cases turn on the reliability of the alleged victim’s statements. Inconsistencies across 911 calls, initial police reports, ER records, and later statements are frequently decisive. Text messages, call records, and witness statements from third parties often reveal a narrative meaningfully different from the state’s theory.

Self-Defense and Chapter 9 Justifications

Penal Code Chapter 9 justifications apply fully. Self-defense under § 9.31 can be a complete defense. Once raised by the evidence, the state bears the burden of disproving the justification beyond a reasonable doubt.

Article 38.371 Litigation

Pretrial litigation over what relationship evidence comes in at trial often determines the outcome. Limiting propensity evidence while preserving defense-favorable relationship evidence is central to preparation.

Challenge to § 25.11 Predicate Conduct

For Continuous Violence Against the Family charges, the state must prove two predicate assaults within a 12-month period. Challenging whether each predicate qualifies (whether the conduct met the elements, whether the relationship met the Family Code definition, whether the dates are within the 12-month window) can reduce a third-degree felony to individual misdemeanor counts or defeat the § 25.11 charge entirely.

Constitutional Issues

Stops, searches, arrests, and statements are subject to constitutional review. Article 38.23 applies Texas’s exclusionary rule to illegally obtained evidence.

Forfeiture by Wrongdoing Contests

When alleged victims become unavailable or refuse to testify, the state sometimes seeks to introduce prior statements under forfeiture-by-wrongdoing. Defense litigation on whether the defendant actually procured the unavailability can determine whether the case can proceed at all.

Deferred Adjudication — With the Nondisclosure Caveat

Deferred adjudication under CCP Article 42A.101 is available for first-offense Assault FV and most misdemeanor domestic-violence cases. Successful completion avoids a final conviction. However, under Government Code § 411.074(b), family violence convictions are generally not eligible for nondisclosure which means the arrest and disposition remain accessible to employers and licensing boards. This is one of the most common surprises in Texas FV practice, and every deferred adjudication plea on an FV case should include a clear-eyed understanding of the nondisclosure limitation.

Where McLennan County Domestic Violence Cases Are Heard

Misdemeanor Assault FV and § 25.07 protective order violations are filed in the McLennan County Courts at Law. Felony domestic violence cases (§ 25.11 continuous violence, second Assault FV, strangulation, aggravated assault, stalking) are filed in the McLennan County District Courts at the McLennan County Courthouse, 501 Washington Avenue, Waco. The McLennan County District Attorney’s Office prosecutes all criminal cases in McLennan County, both felony and misdemeanor.

Frequently Asked Questions

Is “domestic violence” a separate offense in Texas?

No. Texas does not have a stand-alone “domestic violence” statute. What people describe as a domestic violence case is typically Assault under Penal Code § 22.01 with a family violence finding under Family Code § 71.004, or Aggravated Assault under § 22.02, or Continuous Violence under § 25.11, or Violation of Protective Order under § 25.07.

The alleged victim doesn’t want to press charges. Why is this still happening?

The case is prosecuted by the state, not by the alleged victim. The McLennan County District Attorney’s Office decides whether to proceed. A cooperating complainant makes the state’s case easier; a non-cooperating complainant makes it harder. But the decision belongs to the prosecutor.

Will I lose my right to own firearms?

A Class A misdemeanor Assault FV conviction triggers lifetime federal firearm prohibition under 18 U.S.C. § 922(g)(9) (Lautenberg Amendment). Penal Code § 46.04(b) adds a five-year Texas ban. A successful deferred adjudication (without adjudication being entered) has different implications (the analysis is fact-specific).

Can a domestic violence case be nondisclosed?

Generally no, even after a successful deferred adjudication. Under Government Code § 411.074(b), family violence convictions (including most deferred adjudication dispositions) are excluded from nondisclosure eligibility. The arrest and disposition remain accessible to employers and licensing boards.

What’s Continuous Violence Against the Family?

A third-degree felony under Penal Code § 25.11 charged when the state alleges at least two assault-level incidents within a 12-month period against the same family or household member. The state does not need convictions on the predicate assaults; it needs to prove the conduct occurred. This statute allows misdemeanor-level predicate conduct to be aggregated into a third-degree felony charge.

What about custody?

A family violence finding creates a statutory presumption under Family Code Chapter 153 that joint managing conservatorship is not in the best interest of the child. The criminal case and the family-law case run on separate tracks, but the findings in one can affect the other. Coordinated criminal and family-law representation is often necessary.

About Deandra Grant Law

Deandra Grant Law is a Texas criminal defense firm with offices in Waco, Dallas, Fort Worth, Allen, Denton, and Rockwall.

Deandra M. Grant, Managing Partner

• More than 30 years in practice, focused on criminal defense and DWI
• Former prosecutor
• J.D.; M.S. in Pharmaceutical Sciences
• Graduate Certificate in Forensic Toxicology
• ACS-CHAL Forensic Lawyer-Scientist from the American Chemical Society
• Standardized Field Sobriety Test (SFST) Instructor
• Texas Super Lawyer since 2011
• Author of 17 law books including Assault Charges in Texas

Douglas E. Huff, Partner

• ACS-CHAL Forensic Lawyer-Scientist
• Digital forensics and electronic evidence training
• Extensive Texas trial experience

James Lee Bright, Of Counsel

• National federal criminal defense practice
• Admitted to all four Texas federal districts (including the Western District of Texas, which covers McLennan County), the District of Columbia, the Fifth Circuit Court of Appeals, and the Supreme Court of the United States

Contact Our Waco Domestic Violence Attorneys

Domestic violence cases are moving the day of arrest. An Emergency Protective Order has issued. The alleged victim has given initial statements. Digital evidence (text messages, call records, social media) has been collected. Defense involvement before the state’s narrative solidifies often determines whether the case becomes a felony or stays a misdemeanor, whether a first-offense plea carries Lautenberg or avoids it, and whether the long-tail collateral consequences are manageable or permanent.

Call Deandra Grant Law at (254) 735-3588 to schedule a consultation. We serve Waco, Hewitt, Woodway, Bellmead, and all of McLennan County from our Waco office.