Aggravated Assault

If you are charged with aggravated assault, it is vital to consult with a lawyer to discuss your charge and develop a plan of action. It is important early on in the process to plan, prepare, and begin to implement your defense. Aggravated assault is a very serious felony charge in Texas, and if you are arrested for this it is important not to take it lightly. The word "aggravated" means that the potential penalties are greater and more severe than regular assault. In fact, aggravated assault is significantly more serious than basic assault, although conceptually it is very similar to basic assault. However, aggravated assault has at least one added element that results in a more serious criminal charge. Although basic misdemeanor assault is a crime that carries stiff penalties in its own right basic assault is still a misdemeanor. Even though assault carries with it some collateral consequences such as the loss of the right to own a firearm. When an assault charge becomes "aggravated," or becomes more severe, it becomes a felony charge.

The allegation is always serious and brings with it serious consequences for your quality of life and your future. A conviction for an assault or an aggravated assault can affect your employment opportunities and can affect where you can live. Potential landlords often run background checks and disqualify people based on an assault conviction. Furthermore, the Texas Legislature has also made it difficult to take an assault arrest off of your record in some circumstances. This can be true even if you receive deferred adjudication. As discussed below in greater detail, aggravated assault occurs when there is an allegation of serious bodily injury or the use of a deadly weapon. These cases are pursued aggressively by law enforcement. There is lots of pressure on law enforcement and prosecutors to seek convictions. There is both pressure from victims as well as political pressure. It is essential that you consult a criminal defense attorney experienced handling all kinds of assault cases. 

What Does Aggravated Assault Mean?

Your basic vanilla assault takes place when a person causes bodily injury to another person. The injured party can be anyone, such as a stranger in a skirmish, dispute, or a bar fight. People can get into fights all the time for any number of reasons. Probably more often, the altercation is between family members. The injured party is the person's spouse or boyfriend or girlfriend. Family member as defined by the Texas Family Code, has a specific definition and is very broad. According to the law, "family member" both includes roommates and all former dating partners. Generally, these cases have similar beginnings. A couple gets into an argument that turns physical in some way and eventually the police get called by either one of them or by someone like a neighbor. What makes an assault an aggravated assault? An aggravated assault is just a more serious kind of assault. Specifically, an assault becomes "aggravated" when the victim or the injured person suffers serious bodily injury, or a deadly weapon is used in the assault. Although it’s a more serious charge, aggravated assault is also related to deadly conduct and terroristic threat. The penalties for aggravated assault are very severe. It is a second degree felony. This is a quite serious criminal charge that will take serious criminal defense. This penalty carries a punishment range or between two and 20 years in prison, and a possible $10,000 fine.

To more fully understand what an aggravated assault is, it is first important to understand what the definition of assault is. This is because aggravated assault incorporates the basic assault statute. The Texas statute on assault is located in Chapter 22 of the Texas Penal Code Section. Below is the pertinent part of the statute, Texas Penal Code 22.01(a).    

Section. 22.01. Assault.

(a) A person commits an offense if the person:

(1) Intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;

Bodily injury is the basic definition and most commonly charged assault. For more on basic assault or simple assault bodily injury, look at the page on assault. At its most basic level, bodily injury means pain. Did the defendant cause pain? Did the victim feel pain? When police are called to the scene for an assault or an aggravated assault, officers are trained to ask the victim these questions during the course of the investigation. If the victim affirms that, yes, they did in fact feel pain, an arrest will likely flow from the encounter. Usually, if there is a fight and police get involved, someone is getting arrested. You can set your watch to this. This is especially true is alcohol is involved. For an aggravated assault involving serious bodily injury, police may not have to ask the victim if they felt pain. The answer to this question could be obvious if there is obvious evidence of physical altercation or if the person is obviously injured or immobilized. Assault bodily injury is a Class A misdemeanor, meaning that a conviction carries a potential range of punishment of up to a year in jail and up to a $4,000 fine.

An “aggravated” assault charge carries more serious penalties than that. An assault also becomes aggravated if there is a deadly weapon involved. If a person simply points a gun into the face or in the direction of another person, that can be enough to get charged with aggravated assault. Even if the "victim" lies to police and says that a gun was stuck in their face. Of course, these are often the kind of charges that blindside people. Here is the statute in the Texas Penal Code on aggravated assault: 

Section. 22.02. Aggravated Assault.

(a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:

(1) causes serious bodily injury to another, including the person’s spouse; or,

(2) uses or exhibits a deadly weapon during weapon during the commission of the assault     

(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if:

(1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by [Chapter 71 of the Texas Family Code]   

If you are charged with this crime, your case will end up in a Criminal District Court. District Courts hear felonies in Texas. Felonies must go through the indictment process. This means that the case initially goes to a grand jury. The grand jury process is between the prosecutor and a small group of grand jurors who decide up or down on a case. This is a much simpler and less formal approach than the way a courtroom jury will decide a case. The grand jury process is a closed-doors process between the prosecutor and the grand jury. The defense is not allowed access to the proceedings. Sometimes a grand jury will not indict the case, and when this happens the case is referred to as "no-billed." If your case is no-billed, this is a big indicator that the evidence is not very strong. However, this is not necessarily game over. After a no-bill, prosecutors still have a choice about where to go with the case. They can let it go, or they can also refile it. If your case gets indicted, that does not mean the end of the story. This just means that the case begins. Victory can still happen after indictment. Cases can and are won in many different ways after indictment: acquittal, dismissal, reduction, deferred adjudication.   

What is Serious Bodily Injury?

Serious bodily injury is defined in the Texas Penal Code and involves an injury that places a person at risk of death or at risk of some kind of permanent disfigurement. Here is the definition from the Texas Penal Code:

“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.  

As mentioned above, the decision to charge serious bodily injury and aggravated assault is up to a Tarrant County prosecutor, or whatever County your case happens to be in. Police agencies in Tarrant County submit cases to the District Attorney's Office, and again, these charges can change. The difference between bodily injury and serious bodily injury is often a matter of discretion. What does a substantial risk of death mean? This is a term of art that lawyers can disagree about. A prosecutor will initially make a decision on what level the charge can be and what courtroom the defendant will be in. Aggravated assault must be indicted and presented to a grand jury. If the case is indicted, the allegation of serious bodily injury must be stated in the indictment. Many times a victory in these cases can happen when charges are reduced from aggravated assault to basic assault, thereby skirting the felony charge. Of course, there is no way to have an idea of what might be possible in your case without knowing the facts of your case. I’m happy to discuss your options and all avenues of your criminal defense.         

What is a Deadly Weapon?

Deadly weapons may encompass any object that can be utilized to cause serious bodily injury.

Deadly weapon can enhance an assault to an aggravated assault. When people hear the phrase “deadly weapon,” they usually think about a firearm or a gun. However, the Texas Penal Code broadly defines this term.

“Deadly weapon” means:

a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

anything that in the manner of its use or intended use is capable of causing death or serious bodily injury

So anything that can be used to seriously hurt someone can be considered a deadly weapon. This might include a knife, a belt, a club, a bat, or many other items. Here are a few of the specifically listed items: explosive weapon, machine gun, knife, switchblade knife, knuckles, club, nightstick, mace, tomahawk, dagger, spear, and sword. What is and is not a deadly weapon can be ripe for a defense challenge. This is because of the vagueness of the term "use or intended use." This is often very much open to interpretation and divergent opinions. By this definition, almost every object can be employed as a deadly weapon if it is used the right way. Although it is not possible to say whether or not beating the deadly weapon allegation is a potential result in your case. But, if you have been charged with aggravated assault with a deadly weapon, it is important to hire a criminal defense lawyer who can dispute and challenge the deadly weapon finding.    

Aggravated Assault Can Be a First Degree Felony

Aggravated assault can be charged as a first degree felony. A first degree felony is the most serious felony charge and carries a possible range of punishment of between 5 and 99 years and life if convicted, and up to a $10,000 fine. This huge range of punishment should tell you that there are a lot of variables that should be considered in a given case. if serious bodily injury occurs or a deadly weapon is used, and one of the following situations is also present:

  1. If a deadly weapon is used and the victim is a family member or household member
  2. It is committed by a public servant in their official capacity
  3. It is committed against a public servant in their official capacity and the offender knows that the victim is a public servant
  4. It is a retaliation for reporting a crime, or against a witness or prospective witness
  5. If the offender knows that the victim is a security officer while the officer is performing a duty as a security officer
  6. If the actor is in a motor vehicle and shoots a firearm in the direction of a house


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