What is Aggravated Assault?

Aggravated assault is one of the most common felony assault charges in Texas. Aggravated assault is codified in § 22.02 of the Texas Penal Code. An assault becomes aggravated if the defendant:

• Intentionally, knowingly, or recklessly causes serious bodily injury to another person; or
• Uses or exhibits 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 Serious Bodily Injury in Texas?

In Texas, serious bodily injury is defined as bodily injury that creates a substantial risk of death or that causes death, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Examples of serious bodily injury include:

• a knife wound that requires extensive medical treatment;
• paralysis;
• severe burns throughout the body;
• loss of a limb or limbs;
• injuries to the head, neck, or spine.

It is important to note that not all serious injuries rise to the level of serious bodily injury.

What is a Deadly Weapon?

As mentioned, in Texas, a person can be charged with a second-degree felony without actually hurting someone. Simply threatening another, while holding a weapon, could result in an aggravated assault charge. In Texas, deadly weapon is defined as 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. Weapons under this definition may include knives, clubs, bats, bricks, guns, and tire irons. A person’s hands or a pillowcase can be considered a weapon under this definition. Generally, aggravated assault is a second-degree felony, but § 22.02 of the Texas Penal Code states that a person commits aggravated assault in the first-degree if the violent offense is committed:

• by a public servant acting under color of the servant’s office or employment;
• against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation of an exercise of official power as a public servant;
• in retaliation against a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or
• the actor is in a motor vehicle, and knowingly discharges a firearm at or in the direction of a habitation, building or vehicle, is reckless as to whether the habitation, building or vehicle is occupied, and in discharging the firearm causes serious bodily injury to any person.

What is Assault Family Violence?

In Texas, assaults accounted for 96 percent of all family violence incidents in 2018, with simple assaults accounting for 75.1 percent. When an assault causing bodily injury is against an intimate partner, family member, or household member, it is classified as an assault family violence offense. The first time someone commits assault bodily injury against a family member (ABI-FM), it is a class A misdemeanor, punishable by up to a year in jail and up to a $4,000 fine. If someone commits aggravated assault against an intimate partner, family member, or household member, the punishment range increases to a first-degree felony – which, aside from capital punishment, is the most severe punishment range a person can face in Texas. https://www.youtube.com/aGg6JDoLcLg

What is Continuous Violence Against the Family?

If an offender commits an ABI-FM twice, within 12-months, the offense is classified as Continuous Violence Against the Family, a third-degree felony. A person can be convicted of this offense without either assault having resulted in a conviction or even an arrest. Additionally, the two assaults need not have been committed against the same victim. Furthermore, an offender who commits an ABI-FM will face a third-degree felony if the offender has been previously convicted of at least one family violence offense in the past.

What is Assault by Strangulation?

In 2009, the Texas Legislature enacted a law which enhanced an ABI-FM from a class A misdemeanor to a third-degree felony when the offense is committed by:

• intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.

Any subsequent convictions of assault by strangulation are a second-degree felony. If, however, the offender has a family violence conviction on his or her record, a first-time assault by strangulation offense is automatically a second-degree felony. Common forms of strangulation are:

• Manual: when pressure is applied to the neck with hands, arms, or legs. For example, placing the victim in a headlock or placing hands around the victim’s neck or mouth.
• Ligature: when an object is used to apply pressure around the neck, which results in an inability to breathe. Ligatures that are commonly used include: ropes; cords; wires; and shoe laces.
• Hanging: when a person is suspended with a ligature around his or her neck, which constricts due to the gravitational pull of a person’s own body weight.

In Texas, a person can also be charged with assault by strangulation by suffocating, or attempting to suffocate, another. For example, by covering someone’s face with a pillow or placing a plastic bag over someone’s head, subsequently restricting the person’s access to air.

What is Injury to a Child, Elderly Individual, or Disabled Individual?

The severity of simple assault drastically increases if the victim is a child, elderly individual, or disabled individual because these individuals cannot always protect themselves. In Texas, this offense is taken seriously which is why a defendant found guilty of this offense could spend up to 99 years in prison. Texas Penal Code § 22.04 states that a person commits this offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, causes a child, elderly individual, or disabled individual: serious bodily injury; serious mental deficiency, impairment, or injury; or bodily injury. In certain situations, parents and caretakers may be criminally charged with injury to a child, elderly individual, or disabled individual, by omission if they had a duty to act or had assumed care of the alleged victim. For example, in October of 2020, a severely malnourished, 12-year old child was found in Conroe, Texas. The child, weighing in at roughly 50 pounds, had been deprived of food by his mother and her boyfriend. The couple plead guilty to injury to a child by omission, a first-degree felony, and were each sentenced to 40 years in prison. Furthermore, owners, operators, and employees of institutional care facilities may face criminal charges if the alleged victim is a resident of their facility when the injury occurred. In Wichita Falls, a North Texas State Hospital employee pled guilty to injury of a disabled person. The young man physically assaulted a resident of the group facility which resulted in a three-year sentence, suspended to probation. The punishment range for injury to a child, elderly individual, or disabled individual varies from a state jail felony to a first-degree felony based on the intent of the alleged offender and the extent of injuries sustained by the alleged victim:

• An alleged offender will be charged with a state jail felony if he causes bodily injury, recklessly or by omission, to a child, elderly individual, or disabled individual, or if he causes serious bodily injury, serious mental deficiency, impairment, or injury, or bodily injury through criminally negligent actions.
• An alleged offender will be charged with a third-degree felony if he intentionally or knowingly causes bodily injury to a child, elderly individual, or disabled individual.
• An alleged offender will be charged with a second-degree felony if he recklessly causes serious bodily injury or serious mental deficiency, impairment, or injury to a child, elderly individual, or disabled individual, or if he intentionally or knowingly causes bodily injury to a disabled individual residing in a care facility and he is an employee of the facility whose job it was to provide direct care for the victim.
• An alleged offender will be charged with a first-degree felony if he intentionally or knowingly causes serious bodily injury or serious mental deficiency, impairment, or injury to a child, elderly individual, or disabled individual.

Texas Penal Code §22.04(c) defines:

• Child: a person 14 years of age or younger.
• Elderly Individual: a person 65 years of age or older.
• Disabled Individual: a person with one or more of the following: autism spectrum disorder; developmental disability; intellectual disability; severe emotional disturbance; traumatic brain injury; mental illness; or someone who, because of age or physical or mental disease, defect, or injury, is substantially unable to protect himself from harm or provide food, shelter, or medical care for himself.

What is Indecent Assault?

Indecent assault is a relatively new offense found in the Texas Penal Code § 22.012 in September of 2019. A person commits indecent assault, a class A misdemeanor, if without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person, the person:

• touches the anus, breast, or any part of the genitals of another person;
• touches another person with the anus, breast, or any part of the genitals of any person
• exposes or attempts to expose another person’s genitals, pubic area, anus, buttocks, or female areola; or
• causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of any person.

Prior to the enactment of this offense, touching another person without consent was classified as a class C misdemeanor. The offense was equivalent to that of a traffic ticket, with no jail time repercussions. Indecent assault was enacted to fill a gap in sexual assault offenses, and it did just that. Despite being a serious offense, indecent assault is not a registerable offense. This means that a person convicted of indecent assault is not required to register as a sex offender.

How to Beat Texas Assault Charges: Affirmative Defenses

There are a number of affirmative defenses that can be used to negate criminal culpability:

• Self-Defense: if it can be shown that the victim initiated or provoked the confrontation and the defendant was solely protecting him or herself, there is a possibility charges may be dismissed. Claiming self-defense requires a showing that the defendant was threatened with unlawful force or harm, the victim initiated the first act of violence or displayed a weapon during altercation, and that the defendant truly responded appropriately. The defendant must show he or she used a reasonable amount of force in defending him or herself. A self-defense claim will not prevail if the defendant had the opportunity to run, call for help, escape, or end the altercation without the use of violence;
• Defense of Property: in limited circumstances, a defendant may use deadly force to defend his or her residence. In Texas, this is known as the “stand your ground” law. A defense of property claim is most successful when the defendant can show he or she was using reasonable force in defending his or her home or vehicle;
• Defense of Others: in certain situations, a defendant may be under a reasonable belief that force is necessary to defend another person. In Texas, bystanders have the right to interfere in order to defend a person if he or she sees that something is wrong. The necessary requirements to establish a successful Defense of Others claim vary from jurisdiction to jurisdiction. However, the rule of thumb for this type of defense, is that the defendant has no more right to defend a third party than the third party would to defend him or herself;
• Consent: Texas Penal Code § 22.06 states that a victim’s effective consent or the offender’s reasonable belief that the victim consented is an affirmative defense to assault and aggravated assault if the conduct did not threaten or inflict serious bodily injury or the victim knew the conduct was a risk of his occupation, recognized medical treatment, or a scientific experiment conducted by recognized methods.
• Mistake of Fact: sometimes the allegations are outright false. The police may have arrested the wrong person, the victim could have lied, or eyewitnesses might have described the wrong culprit. Mistakes happen often, and with the help of a good defense attorney, a mistake of fact defense could lead to a dismissal of the case. When using this defense, it is important to include any corroborating evidence, or lack thereof. For example, if a weapon was allegedly used, was it found at the crime scene?

Facing Texas Assault Charges? Contact Us

If you or a loved one are facing Texas assault charges, it is crucial to have a tenacious and skilled representation. Call today for a complimentary strategy session with an experienced Fort Worth criminal defense attorney. Call us at 844-849-9789 or reach out online.