What is Aggravated Assault with a Deadly Weapon in Texas?
Aggravated assault with a deadly weapon is a second-degree felony in Texas punishable by 2 to 20 years in prison and fines up to $10,000. Under Texas Penal Code § 22.02, this charge applies when someone causes serious bodily injury to another person or uses or exhibits a deadly weapon during any assault, including threats.
The charge can escalate to a first-degree felony (5 to 99 years in prison) if the alleged victim is a family member, public servant, or security officer acting in their official capacity.
What Makes an Assault “Aggravated” Under Texas Law?
Texas law elevates a simple assault to aggravated assault when either of two conditions exists: the assault causes serious bodily injury, or the person uses or exhibits a deadly weapon during the assault. These are separate paths to the same charge. A person can face aggravated assault without causing any physical injury if they displayed a deadly weapon while making threats.
This distinction matters because many people assume aggravated assault requires severe injuries. That’s not the case in Texas. Pointing a gun at someone during an argument, even without firing it, can result in a second-degree felony charge.
Four Ways Texas Prosecutors Charge Aggravated Assault with a Deadly Weapon
Texas prosecutors file aggravated assault charges under four distinct theories. Understanding which applies to your case shapes the defense strategy.
Assault with use or exhibition of a deadly weapon. This occurs when someone commits an assault and displays or uses a deadly weapon during the offense. The weapon doesn’t need to cause injury. Holding a knife while pushing someone constitutes this offense.
Threat with a deadly weapon. A person who threatens bodily injury while exhibiting a deadly weapon faces this charge. No physical contact is required. Pointing a firearm at someone during a verbal threat qualifies.
Assault causing serious bodily injury. When an assault results in injuries that create a substantial risk of death, permanent disfigurement, or loss of organ function, the charge becomes aggravated assault regardless of whether a weapon was involved.
Shooting from a vehicle. Under Texas Penal Code § 22.02(b)(3), a person who discharges a firearm from a motor vehicle toward a building, residence, or vehicle and causes serious bodily injury commits aggravated assault. The prosecution only needs to prove the shooter acted recklessly about whether the structure was occupied.
What Are the Penalties for Aggravated Assault with a Deadly Weapon?
The standard punishment for aggravated assault with a deadly weapon is a second-degree felony:
| Offense Level | Prison Range | Maximum Fine |
|---|---|---|
| Second-Degree Felony (Standard) | 2 to 20 years | $10,000 |
| First-Degree Felony (Enhanced) | 5 to 99 years or life | $10,000 |
Texas courts may also order restitution, requiring the convicted person to reimburse victims for medical expenses, counseling costs, and property damage.
When Does Aggravated Assault Become a First-Degree Felony?
Texas Penal Code § 22.02(b) enhances the charge to a first-degree felony in three situations:
Family violence cases. When the alleged victim is a family member, household member, or someone with whom the defendant has a dating relationship, the charge increases to a first-degree felony.
Assaults against public servants. Aggravated assault against a police officer, firefighter, judge, or other public servant performing official duties carries first-degree felony penalties. The same applies to assaults committed in retaliation against public servants.
Attacks on security officers or process servers. Security guards and process servers performing their job duties receive the same protection as public servants under this statute.
Is Aggravated Assault with a Deadly Weapon a 3G Offense in Texas?
Yes. When a deadly weapon is used or exhibited during a felony offense, Texas law classifies it as a “3G” offense under Code of Criminal Procedure Article 42A.054. This designation carries significant consequences for sentencing.
A person convicted of a 3G offense cannot receive judge-ordered probation. Jury probation remains possible only if the sentence is 10 years or less and the jury specifically recommends it. Deferred adjudication from a judge is technically available but extremely rare in practice.
The 3G designation also affects parole eligibility. A defendant must serve at least half the sentence before becoming eligible for parole, rather than the standard one-quarter.
What is a “Deadly Weapon” Under Texas Law?
Texas Penal Code § 1.07(a)(17) defines a deadly weapon broadly. The definition includes any firearm and anything “designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” It also covers anything that “in the manner of its use or intended use is capable of causing death or serious bodily injury.”
This broad definition means almost any object can qualify as a deadly weapon depending on how it’s used. Courts have found the following items to be deadly weapons in various cases:
Firearms, knives, baseball bats, motor vehicles, hands and feet (when used to strangle or stomp), pillows (in suffocation attempts), glass bottles, rocks, screwdrivers, and even dogs commanded to attack.
The prosecution must prove the weapon was capable of causing death or serious bodily injury in the manner it was used. A butter knife at rest in a drawer isn’t a deadly weapon. That same knife held to someone’s throat during a robbery becomes one.
What is the Difference Between Assault and Aggravated Assault in Texas?
The line between misdemeanor assault and felony aggravated assault often comes down to the severity of injuries or the presence of a weapon.
| Element | Simple Assault (Bodily Injury) | Aggravated Assault |
|---|---|---|
| Injury Required | Any physical pain or impairment | Serious bodily injury OR none if weapon exhibited |
| Weapon Required | No | Yes (or serious bodily injury caused) |
| Standard Classification | Class A Misdemeanor | Second-Degree Felony |
| Maximum Jail/Prison | 1 year county jail | 20 years state prison |
| Maximum Fine | $4,000 | $10,000 |
A victim with bruises, black eyes, and cuts still only supports a misdemeanor assault charge if the injuries don’t meet the legal definition of “serious bodily injury.” However, that same assault becomes a felony the moment the defendant picks up a weapon or causes injuries creating a substantial risk of death.
What Qualifies as “Serious Bodily Injury” in Texas?
Texas Penal Code § 1.07(a)(46) defines serious bodily injury as harm that creates a substantial risk of death, causes permanent disfigurement, or results in protracted loss or impairment of any bodily member or organ.
| Injury Type | Bodily Injury (Misdemeanor) | Serious Bodily Injury (Felony) |
|---|---|---|
| Examples | Bruises, minor cuts, swelling, soreness | Broken bones, internal bleeding, permanent scarring, organ damage |
| Legal Standard | Physical pain or impairment | Risk of death, permanent disfigurement, or loss of organ function |
The distinction often requires medical evidence. Prosecutors typically rely on hospital records, physician testimony, and photographs to establish serious bodily injury.
Can You Be Charged with Aggravated Assault Without Causing Any Injury?
Yes. Texas law allows aggravated assault charges even when no one suffers physical harm. The “threat” theory of aggravated assault applies when a person intentionally or knowingly threatens imminent bodily injury while using or exhibiting a deadly weapon.
Common examples include pointing a firearm at someone during an argument, brandishing a knife while making verbal threats, and swinging a baseball bat toward someone without making contact.
These charges carry the same second-degree felony punishment as cases involving serious injuries. Many defendants find this surprising, but Texas courts have consistently upheld this interpretation of the statute.
What About Reckless Aggravated Assault?
Unlike many felonies that require intent, aggravated assault can be proven through recklessness. A person acts recklessly when they’re aware of a substantial risk but consciously disregard it. The risk must be so significant that ignoring it deviates grossly from how a reasonable person would act.
Road rage incidents often result in reckless aggravated assault charges. A driver who swerves toward another vehicle to intimidate the other driver may face felony charges if serious injury results, even without intent to harm. Similarly, firing a gun into the air in a populated area can lead to aggravated assault charges if someone is injured.
The mental state distinction matters for defense strategy. Proving the defendant didn’t act intentionally won’t help if the prosecution proceeds under a recklessness theory.
What Are the Best Defenses to Aggravated Assault with a Deadly Weapon?
Defense strategies depend on the specific facts of each case. Our Fort Worth criminal defense attorneys evaluate every aggravated assault charge for potential defenses including:
Self-defense. Texas Penal Code § 9.31 allows a person to use force to protect themselves against another’s unlawful use or attempted use of force. The force must be immediately necessary and proportional to the threat. Texas also has a “stand your ground” law eliminating any duty to retreat in most situations.
Defense of others. A person may use force to protect a third party under the same circumstances where self-defense would be justified. The defendant must reasonably believe the third party faced an immediate threat requiring intervention.
Lack of intent. For certain theories of aggravated assault, the prosecution must prove the defendant acted intentionally or knowingly. Evidence showing an accident or misunderstanding can defeat these charges.
Mistaken identity. Particularly in chaotic situations involving multiple people, the wrong person sometimes gets arrested. Surveillance footage, witness testimony, and alibi evidence can establish misidentification.
The object wasn’t a deadly weapon. The prosecution must prove the alleged weapon was capable of causing death or serious bodily injury in the manner used. Some objects prosecutors allege as deadly weapons don’t meet this standard under the circumstances.
The injury wasn’t “serious.” Defense experts can challenge whether injuries meet the legal definition of serious bodily injury. This can potentially reduce the charge to misdemeanor assault.
Video: Aggravated Assault Defenses Explained
Can Aggravated Assault Be Reduced to a Misdemeanor?
Yes, though it depends on the evidence. If the prosecution cannot prove all elements of aggravated assault, they may accept a plea to a lesser offense. Potential reductions include:
Simple assault (Class A Misdemeanor). If the evidence doesn’t clearly establish serious bodily injury or proper use of a deadly weapon, the charge may be reduced to assault causing bodily injury with punishment up to one year in county jail.
Deadly conduct (Class A Misdemeanor or State Jail Felony). Under Texas Penal Code § 22.05, deadly conduct involves recklessly engaging in conduct that places another person at imminent risk of serious bodily injury. This can serve as a fallback charge when aggravated assault elements aren’t fully established.
Disorderly conduct (Class C or Class B Misdemeanor). In cases with weak evidence, prosecutors sometimes agree to significantly reduced charges to resolve the case.
An experienced criminal defense attorney can analyze the evidence and negotiate with prosecutors when reductions are appropriate.
What Happens After an Aggravated Assault Conviction?
Beyond prison time and fines, an aggravated assault conviction creates lasting consequences. Texas law prohibits convicted felons from possessing firearms, effectively eliminating Second Amendment rights. Professional licenses may be revoked or denied. Many employers refuse to hire people with violent felony convictions.
The 3G designation means parole eligibility won’t occur until serving at least half the sentence. Once released, supervision conditions typically include regular meetings with a parole officer, drug testing, employment requirements, and restrictions on contact with victims.
Expunction isn’t available for felony convictions. The conviction remains on your permanent record.
Is Probation Possible for Aggravated Assault with a Deadly Weapon?
Because aggravated assault with a deadly weapon is a 3G offense, the path to probation is narrow. A judge cannot grant probation after conviction. Only a jury can recommend community supervision, and only if the sentence is 10 years or less.
Deferred adjudication remains theoretically possible. If the judge grants deferred adjudication and the defendant successfully completes the probation term, there’s no final conviction. However, judges rarely grant deferred adjudication for violent offenses involving deadly weapons.
Probation conditions for aggravated assault typically include regular reporting to a probation officer, community service, anger management classes, restitution to victims, drug and alcohol testing, and prohibitions on firearm possession.
Mental States: Understanding Intent, Knowledge, and Recklessness
Texas Penal Code § 6.03 defines the mental states that can establish criminal culpability. For aggravated assault, prosecutors can prove their case through intent, knowledge, or recklessness.
Intentionally. A person acts intentionally when causing a result is their conscious objective. Deliberately punching someone to break their jaw demonstrates intent.
Knowingly. A person acts knowingly when they’re aware their conduct is reasonably certain to cause a particular result. Swinging a bat at someone’s head knowing it will likely cause serious injury meets this standard.
Recklessly. A person acts recklessly when they’re aware of a substantial and unjustifiable risk but consciously disregard it. The disregard must constitute a gross deviation from ordinary care.
Defense attorneys must carefully analyze which mental state the prosecution alleges. The charging document doesn’t always specify, making trial preparation more complex.
Hear From a Client Who Faced Aggravated Assault Charges
Watch this video to hear from someone who faced aggravated assault charges and how our defense team helped them.
Frequently Asked Questions About Aggravated Assault in Texas
What is the sentence for aggravated assault with a deadly weapon in Texas?
Aggravated assault with a deadly weapon is a second-degree felony carrying 2 to 20 years in prison and fines up to $10,000. First-degree felony enhancements (family violence, public servant victims, etc.) increase the range to 5 to 99 years or life.
Can you go to jail for aggravated assault in Texas?
Yes. Aggravated assault is a felony offense that carries state prison time, not county jail. Even with the minimum sentence of 2 years, convicted individuals serve time in a Texas Department of Criminal Justice facility.
Can you get probation for aggravated assault with a deadly weapon?
Probation is possible but difficult. Because this is a 3G offense, judges cannot grant probation after conviction. Only a jury can recommend probation, and only if the sentence is 10 years or less. Deferred adjudication is rare but technically available.
What is the outcome for a first-time offender charged with aggravated assault?
Outcomes vary based on the evidence, circumstances, and quality of legal representation. First-time offenders may see charges reduced or dismissed with effective defense work. However, prosecutors take violent felonies seriously regardless of criminal history.
Can aggravated assault charges be dropped?
Yes, though the decision belongs to the prosecutor, not the alleged victim. Prosecutors may dismiss charges when evidence is insufficient, witnesses become unavailable, or defense investigation reveals problems with the case. Strong legal representation significantly improves dismissal chances.
Arrested for Aggravated Assault with a Deadly Weapon in Texas?
An aggravated assault charge threatens your freedom, your record, and your future. At Varghese Summersett, our criminal defense team includes board-certified specialists who have defended hundreds of assault cases across Fort Worth, Dallas, Houston, and Southlake. We know how Texas prosecutors build these cases and how to challenge them effectively.
Our firm has secured more than 1,600 dismissals and achieved favorable outcomes in cases ranging from misdemeanor assault to first-degree felonies. Every case receives thorough investigation and aggressive defense.
Contact our experienced attorneys today for a free consultation. Call (817) 203-2220 to discuss your case.
