In the Texas Penal Code, assault bodily injury is essentially a situation in which one person is accused of causing pain to another person. Bodily injury is essentially defined as pain in Texas, and it doesn't matter what degree of pain. I come across and defend these charges on a regular basis. Unfortunately, many people are accused of assault bodily injury with a "victim" who wants nothing to do with the case, and not much other evidence. In these cases, people can get railroaded by the justice system. 

Fort Worth Assault AttorneyIt is sometimes easy to get arrested and charged if someone simply makes the accusation. If you are facing a charge or assault bodily injury, or you have a loved one who is facing this charge, it is very important to hire an attorney who is knowledgeable and skilled at defending them. You need great representation, because these cases are often complex and nuanced. Assault bodily injury is a charge that requires careful and adept criminal defense lawyering.    

Were You Arrested for Assault Bodily Injury?

It’s not like the old days where more often than not, fist fights and other physical altercations were allowed to play out. Boys were allowed to get it out of their system. This boys-will-be-boys approach is no more. In our schools, in our homes, in public, in bars or restaurants, a fight is taken seriously. Usually, people are getting arrested and charged. Years ago, intoxicated people in a simple bar fight were at worst arrested and put in the drunk tank for a few hours and then told to go home and not do it again. These days, if you get in an altercation, you will get charged with assault bodily injury. Because pain doesn’t take much.

The statute on assault comes from Chapter 22 from the Texas Penal Code: 

Section 22.01. Assault. 

For the actual text of the law, please look here. To summarize, there are three kinds of basic assault.

The first and most common kind of assault is assault bodily injury or ABI. The law states that a person commits an ABI when a person, with intent, brings about a physical injury to another person. The other person can be anyone, including a dating partner or spouse. The injury must be either intentional or reckless. That means that it cannot be a pure accident. (The words 'recklessly' and 'intentionally' denote mental states, and these are discussed in greater detail below). Although the other two basic kinds of assault are discussed briefly right here, ABI is what this article is about.   

The second kind of assault is one not involving physical contact, but involving threats. Threats are forms of speech, and speech is protected. However, true threats are not protected speech. The courts require this kind of assault to be an imminent threat. There cannot be any gap in time between the words spoken and the time in which the person receiving the threat expects it to be carried out.      

The third kind of assault involves physical contact that is unwanted or provoking or inciting. This is the least serious of the three kinds of assault. Physical contact can be any kind of touching.  

So there are three ways in which to commit assault in Texas, but the definition we are concerned with here is the first definition, 22.01(a)(1), concerning bodily injury. It is this kind of assault—the kind causing bodily injury—that is most commonly charged. Assault with bodily injury is by far the most commonly occurring assault charge. It comes through the door the most often and it is not even close. It is also the most serious of the three kinds. Assault bodily injury is a Class A misdemeanor. Class A misdemeanors carry a potential range of punishment of up to a year in County jail and up to a $4,000 fine. The second and third definitions are Class C misdemeanors, unless they are alleged to have been committed against a disabled or elderly person.

Assault Bodily Injury Means Causing Pain

When police officers respond to a 911 call about a possible assault, one thing they want to know from the victim is was there any pain? It doesn’t take much pain. Pain is a concept that is completely subjective to the person experiencing it. It does not make any difference if that person has a high or low threshold for experiencing and enduring physical pain. The question is, was there any pain? Most police encounters are now captured on video. In Fort Worth, officers wear body cameras that capture the witness interview. Police will invariably ask the victim if pain was experienced. Often times when I watch these videos, I can sense that the victim does not know they implication of telling the officer, “yes, I experienced pain.” Many times the alleged victim doesn’t want the person arrested, but calls the police in a moment of desperation. Perhaps an argument has spiraled out of control and they feel cornered. I have seen this scenario play out many times. Many times the alleged victim and the person charged both come into my office at the same time. This is especially true in situations where the two are either married or dating. The prosecution will proceed even though the alleged victim does not want to go forward.            

Assault Bodily Injury on a Family Member

When a person commits an assault bodily injury on a family member, the charge becomes more serious. When the alleged victim is the wife or husband or girlfriend or boyfriend of the person charged, getting a conviction has more consequences. That is because when you have one conviction, the next one becomes a felony. So it can get very serious in a hurry. Furthermore, Texas has made it difficult to get it off of your record. Even if you receive deferred adjudication. Deferred adjudication simply means that a finding of guilt is suspended while probation is going on, and the charge is then dismissed. Family member and household member is defined broadly in the Texas Family Code, and includes a spouse or immediate family member, but also includes a roommate or someone that you are dating or even someone that you dated in the past.

What if The Victim Does Not Want to Prosecute?

Sometimes the victim in an assault case determines that the do not want to prosecute. More often, they did not fully understand the implications of calling the police and what would follow from that. These situations are obviously very emotional. Cases in which someone does not want to prosecute are generally between family members: dating partners, boyfriends/girlfriends, or spouses. Someone will often call the police just wanting an end to the argument or fight. So they call the police hoping that their boyfriend or girlfriend will settle down after the threat or the presence of the police officers. At worst, they are thinking that there will be an arrest made and maybe somebody spends a night in jail. Often the reality can hit both parties in my office, or during the initial phone call with me, sitting down realizing that the charge has not gone away. In fact, now there is a Class A misdemeanor to deal with. Now they are in a lawyer's office and must start going to court and there is a lot of uncertainty and there are a lot of question marks. 

So what can be done? Often times if the victim does not want to prosecute this is obviously good for the defense. The victim is the prosecution's key witness in any assault case. If the victim is a hostile witness for the prosecution, that only makes things more difficult. However, it is not simply going to make the case go away because the victim does not want to go forward. There can still be other evidence. Usually there are photographs and even videos of the police investigation. Many police agencies have body cameras and there are video interviews of the defendant and the victim. If there are injuries the photographs will show that. If the defendant makes any statements and admits to causing bodily injury. Statements made by the defendant are not hearsay and will come into evidence. With statements and police testimony and pictures of injuries, that is enough evidence for the prosecution to go forward and go for a conviction. 

What is an Affidavit of Non-Prosecution?

When the victim does not want to prosecute, does not want to go forward with the charge, they will generally come into the office and sign a statement to that effect. The statement is sworn to and notarized and essentially says either that the victim does not want to prosecute or that the underlying conduct did not happen. I make sure the victim understands that I do not represent them and that I represent the defendant. Once this statement is signed, I then present it to the prosecutor who is handling the case and argue that the case should be dismissed or reduced. This is persuasive evidence. However, it is not going to simply make the case go away. There are politics involved with assault charges. The district attorney will not just dismiss cases because the victim signs an affidavit of non-prosecution. The district attorney will go forward with the charges if they feel like the evidence can sustain a conviction. Often it is a matter of prosecutorial discretion. This can lead to a lot of cases that are not dismissed and ultimately taken to trial that should not be. Some cases that are frivolous and should be dismissed but are not. This is yet another reason that you need an attorney who is not afraid to go to trial if the prosecution does not let go of the cases that should be dismissed.                    

Intentional, Knowing, or Reckless Conduct

In the law, the terms intentional, knowing, and reckless are called culpable mental states. Sometimes it is clear from looking at an action what the person’s intent was. Other times, it is unclear and open to interpretation. When someone punches someone in the face, that is a deliberate action. When this kind of thing happens, it is easy for the prosecution to conclude that the person intended to cause the victim pain. Everyone has an idea of what intentional conduct is. That is a straightforward concept. Knowing and reckless mental states are not as intuitive, and are not easy to understand. In the Texas Penal Code, “knowing” has a specific definition as discussed below:

Section 6.03. Definitions of Culpable Mental States.

An intentional intent is the highest level or culpability. Intentional means that the result of the conduct is the person's goal. This is basically when we want something and then get it. I want an ice cream cone. I got an ice cream cone from the ice cream shop. It was my intentional mindset to achieve this result. Often it is not this simple and can be a matter for conjecture. This level of intent can be explicitly stated in words, (I want to punch you in the face), or by circumstances (a person balled up a fist and propelled it toward a person's face).  

A person acts knowingly, or with knowing intent when they are reasonably certain that their conduct will cause a certain result. This is less clear than intentional, but imagine someone drives a car through a wall into a person's bedroom, and knows that it is a person's bedroom, and the lights are off, and it's very early in the morning. That person acts knowingly (arguably also intentionally) that their conduct (driving through the wall) will cause a certain result (someone getting hurt, or much worse). Many times conduct can be arguably both knowing and intentional.     

A reckless intent occurs when there is a substantial risk of the result happening, and that risk is not justified. Imagine if someone throws rocks into a crowd. If that rock then hits someone from the crowd in the head and badly injures that person, this was not the intentional or knowing result. However, throwing a rock into a crowd carries a serious risk that such a thing would happen.      

What Happened in Your Case? 

Because the statute allows for the proceed under intentional, knowing, or reckless conduct, prosecutors are able to have more leeway in charging people with assault bodily injury. Depending on the facts of your case, this is another aspect that a good lawyer can challenge. Unless a person says "Yes, i meant and intended to do this," what a person's intent is hidden. It is contextual and there can be different meanings. This is where a lawyer's argumentation and storytelling becomes crucial. You need an attorney who can tell your story and tell it persuasively to a jury, to a judge, or frame your story in the right way to a prosecutor during plea negotiations. It is crucially important to consult with and retain an attorney who can challenge and fight the prosecution at every turn. Every case is different and unique, although many attorneys do not treat them this way. There are many ways a case can go, and there are many different outcomes and results. Assault charges require a detailed investigation and preparation. There are many moving parts to an assault case. Because much of the evidence is testimonial, these cases can be complex. If you or someone you care about is looking at an assault bodily injury charge, or any other assault charge, you need an attorney who will defend you in whatever way the case requires. Call me today.