Aggravated Assault

Aggravated Assault under Texas Penal Code § 22.02 requires proof that a person commits assault as defined in Section 22.01 and either:

  • the assault caused serious bodily injury to another, including the person's spouse; or
  • the defendant uses or exhibited a deadly weapon during the commission of the assault.

Aggravated assault is typically charged as a felony in the second degree. In some cases, the offense can be charged as a felony in the first degree depending on the presence of other aggravating factors such as the status of the victim. 

Attorney for Aggravated Assault in Fort Worth, TX

If you were charged with the serious criminal offense of aggravated assault causing serious bodily injury to another or using a deadly weapon during the commission of the assault, then contact an experienced criminal defense attorney in Fort Worth, TX. Our attorneys are experience defending these types of allegations involving a crime of violence.

Call (817) 422-5350 today to discuss your case.


Penalties for Aggravated Assault Crimes in Texas

Under Texas Penal Code § 22.02(b), the crime of aggravated assault is generally a second-degree felony that carries a punishment range of two to twenty years. Under § 22.02(b)(1), the crime of aggravated assault may become a first-degree felony when the defendant uses a deadly weapon. If the deadly weapon allegation is proven, then it prevents the defendant from being eligible for community supervision.

The prosecutor for the State of Texas can also reach the first-degree felony punishment range because of an enhancement if the defendant has a prior felony to which the defendant had entered a plea. The second-degree felony of aggravated assault is punished as first-degree felony when the defendant has a prior felony conviction.


Aggravated Assault with a Deadly Weapon

To obtain a first-degree felony conviction for aggravated assault, the Texas Penal Code requires the prosecutor for the State of Texas to prove that the defendant:

  • intentionally, knowingly, or recklessly caused serious bodily injury to a member of his family or household, and
  • used a deadly weapon during the commission of the assault.

Tex. Penal Code Ann. §§ 22.01(a)(1); § 22.02(a)(1), § 22.02(b)(1) and Tex. Fam. Code Ann. §§ 71.003, 71.005.


Definition of Deadly Weapon for Assault Crimes in Texas

A deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp. 2016).

Under Texas Penal Code § 1.07(a)(46), the term “serious bodily injury” is defined as “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.”

Before the prosecution established sufficient evidence at trial to sustain a deadly weapon finding, the prosecution must demonstrate that:

  • the object meets the statutory definition of a deadly weapon;
  • that the deadly weapon was used or exhibited “during the transaction from which” the felony conviction was obtained; and
  • that someone was put in actual danger. 

Even hands and feet may qualify as deadly weapons by the way they are used. Other items not designed to be weapons can also qualify. For instance, although a beer bottle should not always be considered a deadly weapon, or the act of hitting someone with a bottle inevitably the cause of serious bodily harm, for purposes of elevating offense to aggravated assault. 

At trial, the jury may consider evidence when determining whether an object was used as a deadly weapon including:

  • the physical proximity between the victim and the object;
  • any threats or words used by the defendant;
  • the manner in which the defendant used the object;
  • testimony by the victim that she feared death or serious bodily injury; and
  • testimony that the object had the potential to cause death or serious bodily injury.

When determining whether a bodily injury creates a substantial risk of death, the courts consider the impairing quality of the bodily injury as it was inflicted on a complainant by the defendant. Therefore, the amelioration of an injury through medical treatment must be considered.

For instance, in Blea v. State, 483 S.W.3d 29, 31, 34–35 (Tex. Crim. App. 2016), the court held that an injury qualified as “serious bodily injury” when the victim had a collapsed lung, she was taken to a hospital, the lung required a tube to permit breathing, and medical testimony described a risk of death.


Aggravated Assault in the First Degree

Although the crime of aggravated assault is typically charged as a felony of the second degree, the offense can be charged as a felony of the first degree if:

  • the defendant 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 Section 71.0021(b), 71.003, or 71.005, Family Code;
  • regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the 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 or on account of an exercise of official power or performance of an official duty as a public servant;
    • in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or
    • against a person the actor knows is a security officer while the officer is performing a duty as a security officer.

The actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer.


Aggravated Assault in a Motor Vehicle

The crime of aggravated assault is also charged as a felony in the first degree when the defendant is in a motor vehicle, as defined by Section 501.002, Transportation Code, 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.

Finding a Lawyer for Aggravated Assault in Tarrant County, TX

If you were charged with a felony for aggravated assault, then contact an experienced criminal defense attorney in Fort Worth at Law Offices of Richard C. McConathy. Call us for a free consultation to discuss the charges pending against you, the maximum and minimum penalties that come with a conviction for that offense, and important defenses that can result in the judge dismissing the case completely.

We also represent clients charged with endangering a child in Tarrant County, TX. Call (817) 422-5350 today to discuss your case.


This article was last updated on Monday. April 17, 2017.