What is Aggravated Assault in Texas?
According to Texas Penal Code §22.02, the offense of aggravated assault consists of:
- Intentionally, knowingly or recklessly causing serious bodily injury to another person or;
- 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.
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.
What is Aggravated Assault with a Deadly Weapon in Texas?
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.
The First Step in Defending Aggravated Assault in Texas
The first step in defending an aggravating assault charge in Texas is to find an attorney who is experienced in using the grand jury process to try to prevent an indictment against you. The grand jury process is a powerful and often overlooked tool in the defense attorney’s toolbelt.
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.
Aggravated Assault in Texas: Level of Offense
|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 DEGREE||From 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 DEGREE||From 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 DEGREE||From 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 DEGREE||From 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 DEGREE||From 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 DEGREE||From 5 to 99 years in prison and a fine of up to $10,000.00|
|All other circumstances||FELONY 2nd DEGREE||From 2 to 20 years in prison and a fine of up to $10,000.00|
A person convicted of aggravated assault 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.
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.
Aggravated Assault: Mental States in Texas: Intentionally, Knowingly and 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.
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.
These differ based on whether the allegation requires a result-oriented definition or conduct-oriented definition.
Result-Oriented Definition of Knowingly:
A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Conduct-Oriented Definition of Knowingly:
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.
Result-Oriented Definition of Intentionally:
A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.
Conduct-Oriented Definition of Intentionally:
A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to cause the result.
Conduct-Oriented Definition of Recklessly:
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
Result-Oriented Definition of Recklessly:
A person acts recklessly, or is reckless, with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
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. It is important to note that deferred adjudication may be available to a person charged with aggravated assault or felony deadly misconduct but such a light sentence for such a serious crime would be highly unusual.
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.
REDUCING A CRIMINAL CHARGE FROM AGGRAVATED ASSAULT TO DEADLY CONDUCT
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.
If you or a loved one have been charged with Aggravated Assault Deadly Weapon, it is important that you find a criminal defense attorney who knows the law that applies to your case and has experience handling these offenses pre-indictment, pre-trial, and through trial when necessary. At Varghese Summersett PLLC we have over 30 years of combined experience in criminal law and have tried over 500 jury trials in Texas. Call us at (817) 203-2220 to find out how we can help you.
Statutory Defenses in Texas Criminal Law
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