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By Benson Varghese

Last Updated: January 24th, 2023 at 8:04 AM
Published on: July 5th, 2019 at 11:33 PM

Aggravated Assault with a Deadly Weapon occurs when a person causes serious bodily injury to another by assault, uses or displays a deadly weapon during an assault, or threatens another while exhibiting a deadly weapon. The last definition may be the most surprising because it allows a person to be charged with a second-degree felony without causing any injury. Learn more about Aggravated Assault with a Deadly Weapon Texas.

How is Aggravated Assault with a Deadly Weapon defined in Texas?

According to Texas Penal Code §22.02, the offense of Aggravated Assault with a Deadly Weapon as:

  1. Intentionally, knowingly or recklessly causing serious bodily injury to another person or;
  2. 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.

 

What is the Difference between Assault and Aggravated Assault with a Deadly Weapon Texas?

What most people think of as an assault – Assault Causing Bodily Injury – requires some showing that a person was hurt. This would be a Class A misdemeanor and includes everything from “it hurt” to any level of injury that does not qualify as serious bodily injury as defined below. That means an alleged victim could have two black eyes and bruises all over their body, but the charge would still be a misdemeanor if there was no serious bodily injury as defined. The offense comes “aggravated” if serious bodily injury was caused, if a deadly weapon was exhibited, or if the accused made a threat while displaying a deadly weapon.

What is 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.

Aggravated Assault with a Deadly Weapon Texas Without Injuries Explained

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.

A person can also 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.

Reckless Aggravated Assault Charges

Recklessness is one way a person can cause serious bodily injury to another and be guilty of aggravated assault. A reckless act is one that is committed, not necessarily with intent to harm another, but without regard for the outcome. For example, pushing someone out of the way in a crowd so you can get through, without intending to injure the person, is reckless because it is likely that the person could fall and suffer an injury. Also, road rage can often constitute recklessness because the driver is engaging in dangerous actions despite the high risk or injury to the other driver or the driver’s passengers.

What are some defenses to Aggravated Assault with a Deadly Weapon?

There are several potential defenses that may be used in a case of aggravated assault with a deadly weapon in Texas, including:

  1. Self-defense: If the defendant can prove that they acted in self-defense, they may be able to argue that the assault was not unlawful.
  2. Defense of a third party: This refers to the situation where the defendant is accused of assaulting someone in order to protect a third party from harm. In order for this defense to be successful, the defendant must be able to prove that:
    • The third party was under immediate threat of harm or injury
    • The defendant had a reasonable belief that their actions were necessary to protect the third party
    • The defendant’s actions were proportional to the threat that the third party was facing.
  3. Lack of intent: If the defendant can prove that they did not intend to cause harm, they may be able to argue that the assault was not committed with intent.
  4. Mistaken identity: If the defendant can prove that they were not the person who committed the assault, they may be able to argue that they are not guilty.
  5. Insanity: If the defendant can prove that they were not capable of understanding the nature of their actions or that their actions were a result of a mental disease or defect, they may be able to argue that they are not guilty by reason of insanity.
  6. Coercion or duress: If the defendant can prove that they were under threat of harm or death, they may be able to argue that the assault was committed under coercion or duress.

It’s important to note that these are just general examples, and the specific circumstances of each case will determine which defenses may be applicable. It’s important to consult with a legal professional who can evaluate your case and advise you on the best course of action.

What is the Punishment for Aggravated Assault with a Deadly Weapon?

Aggravated assault is generally a second degree felony punishable by two to 20 year in prison and up to a $10,000 fine. A person convicted of aggravated assault with a deadly weapon in Fort Worth 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.

second degree felony punishment range in texas

Aggravated Assault with a Deadly Weapon Texas

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 a defendant charged with a 3g offense to receive deferred adjudication, but this would be an extraordinary outcome for anyone charged with a 3g offense.

Consequences of a Conviction for Aggravated Assault with a Deadly Weapon Texas

Texas law also provides certain alternatives to jail or prison sentences for a person charged with or convicted of aggravated assault or deadly misconduct such as deferred adjudication and/or community supervision.

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 10 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.

What is considered a deadly weapon in Texas?

Under Texas law, a deadly weapon is

  • a firearm or “anything 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 (SBI)”

Basically, this definition encompasses just about everything. It certainly covers obvious dangerous items such as guns, knives, swords, and bats, but it also covers less obvious items that were not designed to cause injury. For example, a pillow or plastic bag could be a deadly weapon if used to try and suffocate an individual. Likewise, a car or boat could be considered a deadly weapon if it is used to try and run someone over. Fists, hands and boots can also be considered deadly weapons.

If you have a question about the weapon that is being alleged in your aggravated assault case, please contact our firm and speak with an experienced attorney. We have seen prosecutors allege all kinds of “deadly weapons” in Texas. In fact, they teach prosecutors that anything is a deadly weapon.

Hear from a Client Charged with Aggravated Assault with a Deadly Weapon

Reducing an Aggravated Assault with a Deadly Weapon Texas to a Misdemeanor

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 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.

Mental States for Assault in Texas

Intentionally, Knowingly and Recklessly: 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. 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.

Intentionally

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.

Knowingly

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.

Recklessly

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.

Charged with Aggravated Assault with a Deadly Weapon 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.

If you or a loved one is facing a charge of aggravated assault, contact our experienced attorneys today. We have defended hundreds of assault charges in Fort Worth.

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What is Aggravated Assault with a Deadly Weapon in Texas?
2023-01-24T08:04:00-06:00
Varghese Summersett PLLC
Varghese Summersett PLLC