aggravated assault in texas

Aggravated Assault Deadly Weapon Texas | Fort Worth (817) 203-2220

What is Aggravated Assault in Texas?

Aggravated assault occurs when a person causes serious bodily injury to another by assault, uses or displays a deadly weapon during an assault, or threatens another while exhibiting a deadly weapon. The last definition may be the most surprising because it allows a person to be charged with a second degree felony without causing any injury.

How is Aggravated Assault Defined in Texas?

According to Texas Penal Code §22.02, the offense of aggravated assault consists of:

  1. Intentionally, knowingly or recklessly causing serious bodily injury to another person or;
  2. Using or exhibiting a deadly weapon in the course of committing any assault crime, including threatening another with bodily injury or engaging in conduct that the victim will likely find offensive.

What is the Difference between Assault and Aggravated Assault?

What most people think of as an assault - Assault Causing Bodily Injury - requires some showing that a person was hurt. This would be a Class A misdemeanor and includes everything from "it hurt" to any level of injury that does not qualify as serious bodily injury as defined below. That means an alleged victim could have two black eyes and bruises all over their body, but the charge would still be a misdemeanor if there was no serious bodily injury as defined. The offense comes "aggravated" if serious bodily injury was caused, if a deadly weapon was exhibited, or if the accused made a threat while displaying a deadly weapon.

What is Serious Bodily Injury?

The definition for Aggravated Assault in Texas uses the term “serious bodily injury.” In Texas, serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

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What is Aggravated Assault with a Deadly Weapon in Fort Worth?

Use of a deadly weapon during an assault constitutes aggravated assault, whether or not the weapon causes physical injury to anyone. Whether a weapon is a deadly weapon will depend on its manner of use in the assault. It can range from things that are obviously weapons, like a firearm, to things that are not generally thought of as deadly weapons, including air (by deprivation) or a person’s hands. In Texas, a deadly weapon includes anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

What is Aggravated Assault with a Deadly Weapon by Threat in Texas?

A person can be charged with Aggravated Assault with a Deadly Weapon even if there are no injuries, if it is alleged that the actor intentionally or knowingly threatened imminent bodily injury and the actor used or exhibited a deadly weapon during the commission of the assault. This is also a second-degree felony. Common examples include allegations of making a threat while holding a gun or a knife.

Defenses to Aggravated Assault in Texas

The most common defense in assault cases is the defense of “Self Defense.” Per §9.31 of the Texas Penal Code, a person has the right to defend him/herself from another person’s use or attempted use of unlawful force against us. The right of self-defense is confined to the use of “reasonable force” that is immediately necessary to protect him/herself from another person’s use or attempted use of unlawful force. Another defense to an assaultive offense is defense of a third person.

Reckless Aggravated Assault Charges

Recklessness is one way a person can cause serious bodily injury to another and be guilty of aggravated assault. A reckless act is one that is committed, not necessarily with intent to harm another, but without regard for the outcome. For example, pushing someone out of the way in a crowd so you can get through, without intending to injure the person, is reckless because it is likely that the person could fall and suffer an injury. Also, road rage can often constitute recklessness because the driver is engaging in dangerous actions despite the high risk or injury to the other driver or the driver’s passengers.

Reducing a Criminal Charge from Aggravated Assault to a Misdemeanor

If the evidence in a criminal case does not prove the elements of an Aggravated Assault, a case could be reduced to a less serious offense like Disorderly Conduct. In order to understand the elements of the aggravated assault, one must understand what deadly conduct in Texas means. According to Texas Penal Code Ann. §22.05.  It consists of the following:

  • Recklessly engaging in any conduct that places another at imminent risk of suffering a serious bodily injury or
  • Knowingly discharging a firearm at a person(s), house, building or vehicle with reckless disregard for whether the house, building or vehicle is occupied.

One example of deadly conduct is road rage. Some but not all forms of road rage could constitute deadly misconduct. For example, if a driver tries to cut off another driver or maneuvers his vehicle to potentially run another vehicle off the road, especially on a highway or other roadway with a high speed limit, he places the other driver in danger of serious bodily injury because his action could cause a motor vehicle accident or collision.

Consequences of an Aggravated Assault Conviction

A person convicted of aggravated assault or deadly misconduct in Texas can be required to pay restitution, which involves reimbursing the victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling or repair or replacement of damaged property.

Texas law also provides certain alternatives to jail or prison sentence for a person charged with or convicted of aggravated assault or deadly misconduct such as deferred adjudication and/or community supervision. 

What is more likely to happen is community supervision. If a defendant is convicted or pleads guilty, the court can also grant community supervision (probation) as an alternative to a jail or prison sentence for up to ten years for a felony. The court can require the defendant to serve some time in jail or prison before beginning community supervision-180 days for a felony. The defendant must successfully complete probation and any other conditions the court imposes or the court can require him to complete the sentence in jail or prison. Usually, a person on community supervision must meet with a probation officer, pay probation costs and comply with conditions such as treatment, maintaining employment, curfews, drug tests and avoiding any further criminal activity or arrests.

Punishment for Aggravated Assault

ACTLEVEL OFFENSEPUNISHMENT
All cases unless one of the conditions below applies.FELONY 2nd DEGREEFrom 2 to 20 years in prison and a fine of up to $10,000.00
The offender uses a deadly weapon in committing the assault AND causes a serious bodily injury to the victim AND victim is a family or household member OR someone the offender is or has dated or had an intimate relationship with, qualifying this offense as a domestic assault.FELONY 1ST DEGREEFrom 5 to 99 years in prison and a fine of up to $10,000.00
Aggravated assault is committed by a public servant, such as a state worker or city counselor acting in his official capacity.FELONY 1ST DEGREEFrom 5 to 99 years in prison and a fine of up to $10,000.00
The victim is a person the offender knows to be a public servant engaged in performance of his duties or the assault is committed in retaliation for the public servant performing his duties.FELONY 1ST DEGREEFrom 5 to 99 years in prison and a fine of up to $10,000.00
The aggravated assault is committed in retaliation against a witness, informant or a person who reported a crime.FELONY 1ST DEGREEFrom 5 to 99 years in prison and a fine of up to $10,000.00
The victim is a person the offender knows to be a security officer engaged in performing his duties.FELONY 1ST DEGREEFrom 5 to 99 years in prison and a fine of up to $10,000.00
The offender shoots a firearm from a motor vehicle at a house, building or a motor vehicle with reckless disregard for whether the house, building or motor vehicle is occupied or causes serious bodily injury to the victim.FELONY 1ST DEGREEFrom 5 to 99 years in prison and a fine of up to $10,000.00

A person convicted of aggravated assault with a deadly weapon in Fort Worth can be required to pay restitution, which involves reimbursing the victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling or repair or replacement of damaged property.

If a person uses or exhibits a deadly weapon in the commission of a felony offense or during immediate flight after committing a felony offense, the offense is treated as a “3g” offense in Texas, so the defendant will not be eligible to receive probation from a judge. The defendant may receive probation for most 3g offenses from a jury, but only if the sentence comes back at 10 years or below AND the jury recommends the sentence be probation. The judge may allow defendant charged with a 3g offense to receive deferred adjudication, but this would be an extraordinary outcome for anyone charged with a 3g offense.

Don't Miss: 3G Offenses in Texas

Mental States for Assault in Texas

Intentionally, Knowingly and Recklessly: The offense of Aggravated Assault is one that can be proven by the State if the prosecution can prove the defendant acted intentionally, knowingly, or even recklessly. The first definition for Aggravated Assault is a result-oriented definition, while Aggravated Assault by Threat is a conduct-oriented definition. Being able to distinguish between result-oriented offenses and conduct-oriented offenses is important to properly determine the elements the prosecution is required to prove an alleged offense. The prosecution often will not make this distinction in the charging document so it is important that your  defense attorney pay attention to this distinction, especially if your case is headed to a jury trial.

Intentionally

Knowingly

Recklessly

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If you or a loved one is facing a charge of aggravated assault, it's imperative that you contact a skilled defense attorney as soon as possible. We can help. Contact us today at 817-203-2220 for a free consultation.

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese
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