Aggravated Assault: Texas Penal Code §22.02

The Texas Aggravated Assault law requires the state’s attorneys to prove the elements of the Assault offense and also proe that either the assault caused serious bodily injury (often abbreviated “Agg Assault SBI“) or was perpetrated with a deadly weapon (often abbreviated “AA/DW“).

The Aggravated Assault with Serious Bodily Injury Texas charge encompasses everything from shooting someone to getting in a bar fight. Aggravated Assault can also be prosecuted as Aggravated Assault with a Deadly Weapon, which does not require serious bodily injury but does require a weapon. And the Aggravated Assault Family Violence Texas enhancement is one of the most frequent ways that this offense is prosecuted as a first degree felony.

One important difference between the offense of Assault and the offense of Aggravated Assault is that a “simple” Assault is typically a misdemeanor offense, and Aggravated Assault is a felony offense. However, there are an increasing number of scenarios in which “simple” Assault can be enhanced to the felony level. Although a conviction for Aggravated Assault is punishable as a second degree felony by default, certain circumstances can result in an enhancement to a first degree felony offense, carrying a range of punishment of up to life in prison.

The Aggravated Assault law was amended in 2023 to include an enhancements for offenses that caused a traumatic brain or spine injury that resulted in a persistent vegetative state or irreversible paralysis and for mass shootings. Read more about this in the enhancement section below.

There are several other different types of assaultive crimes in Texas such as Sexual Assault, Aggravated Sexual Assault and Intoxication Assault.

The Penal Code classifies the Texas Aggravated Assault law under Title 5 “Offenses Against The Person,” Chapter 22 “Assaultive Offenses.” Learn more about the Texas offense of Aggravated Assault below.

What is the current Texas law about Aggravated Assault?

Texas law currently defines the offense of Aggravated Assault in Penal Code Section §22.02 as follows:^[1]

(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:

(1) causes serious bodily injury to another, including the person’s spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

The reference in the law above to “Sec. 22.01” is to Section 22.01 of the Texas Penal Code, which defines the Simple Assault offense. Any Simple Assault can become an Aggravated Assault charge for the two reasons listed in the Aggravated Assault statute: (1) “serious bodily injury” or (2) the use of a “deadly weapon.”

Aggravated Assault with Serious Bodily Injury

The state can obtain a conviction for a Class A misdemeanor Simple Assault by proving any bodily injury, however minor. Texas law defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.”^[2]. But if the state can prove that you caused a serious bodily injury, the Aggravated Assault with Serious Bodily Injury law will apply. Under Texas law, “serious bodily injury” means “injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”^[3]

Aggravated Assault with a Deadly Weapon

When Aggravated Assault is charged under Section 22.02(a)(2) of the statute, it is commonly referred to as Aggravated Assault with a Deadly Weapon. The term deadly weapon includes an extremely broad array of things. So what exactly is a deadly weapon?

What is a deadly weapon under the Aggravated Assault statute?

Texas law provides specifically that “deadly weapon” means “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.”^[4]

Under the Texas Penal Code is a firearm or any other weapon that is made or used for the purpose of inflicting death or serious bodily injury. Some examples of deadly weapons are a gun, a knife, or a baseball bat. But as long as the object was used in a way that could have killed them or severely injured them, the object is considered a deadly weapon. This is an extremely broad definition. The Texas District & County Attorneys Association actually says “Everything is a deadly weapon.”^[5]

The crucial point is that the manner of use or intended use pertains to the defendant’s intent, not the manufacturer’s original purpose. This includes improvised weapons, like frogs shot out of potato guns, rather than specifically designed weapons. Objects such as hammers, rocks, pipes, bricks, the defendant’s own hands and feet, and motor vehicles (a popular choice) all fall into this category. Naturally, a weapon can meet more than one criterion; for example, a handgun is both a firearm and an object designed and capable of causing death or serious bodily injury.

Can I be charged with Aggravated Assault for accidentally hurting someone?

You may be convicted of Aggravated Assault under certain circumstances even if you did not mean to injure someone. If you were shooting a firearm towards a home, a building, or a vehicle and and caused someone serious bodily injury, the state may bring a charge of Aggravated Assault against you. If the state proves that you were reckless^[6] in determining whether the home, building or vehicle were occupied, you may be convicted of Aggravated Assault under Section 22.02(b)(3). In fact, a conviction under Section 22.02(b)(3) is an enhanced punishment, punishable by a first degree felony.

What is the new Aggravated Assault law in Texas?

In 2023, the Texas legislature added enhancements for mass shootings and assaults that resulted in paralysis or vegetative states.

The legislature created an enhancement for offenses against process servers in 2021.

In 2009, the legislature added an enhancement for shooting into homes or other buildings.

Learn more about these changes to the law in the punishment section above.

What is the statute of limitation for Aggravated Assault in Texas?

The Texas Court of Criminal Appeals (the highest criminal court in Texas) held in 2016 that the limitations period for Aggravated Assault is two years.^[7]

However, since that case was decided, the legislature passed a bill in 2023 that gave Aggravated Assault a five year limitations period under Texas law.^[8]

But to further complicate things, the legislature later (but during the same session) also passed a bill that left Aggravated Assault out of the list of offenses that have a five-year limitations period.^[9] So the statutes conflict, which leaves the law in limbo for now.

What is the penalty for a Texas Aggravated Assault offense?

A conviction for Aggravated Assault is punishable as a second degree felony, unless a jury finds that one of the first degree felony enhancements apply.^[10]

The First Degree Felony Enhancements

Aggravated Assault is punishable as a first degree felony when someone uses a deadly weapon and causes serious bodily injury to someone with whom they are in a close relationship, as that is defined in the Texas Family Code. This “close relationship” refers to a dating relationship^[11], a family member^[12], or someone living in the same household.^[13]

As of September 1, 2023, Aggravated Assault is also punished as a first degree felony when someone uses a deadly weapon during the commission of the assault and causes a traumatic brain or spine injury that results in a persistent vegetative state or irreversible paralysis^[14] and for mass shootings.^[15]

Prosecutors can also charge the offense as a first degree felony by alleging the offense was committed by a public servant during their course of employment, when committed against a public servant, against witness or informant who reported a crime, against a process server (as of 2021), or against a security officer.^[16] The perpetrator is presumed to know that someone was a public servant or officer if the person assaulted was wearing a uniform or badge.^[17] A “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.^[18]

The final way to enhance Aggravated Assault to a first degree felony is for the state to prove that the offense occurred while you were in a motor vehicle and you knowingly discharged a firearm at or in the direction of a habitation, building, or vehicle, you were reckless as to whether the habitation, building, or vehicle was occupied, and in discharging the firearm, you caused a serious bodily injury.^[19] Note that this only applies to Aggravated Assault with Serious Bodily Injury.

Can you get probation for Aggravated Assault in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Aggravated Assault, and judges are also allowed to accept deferred adjudication plea deals.^[20]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[21] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[22]

What level of crime is Aggravated Assault in Texas?

The Penal Code classifies the punishment for Aggravated Assault as a second or third degree felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §22.02. This law is current as of 2024.^2. Texas Penal Code §1.07(a)(8)^3. Texas Penal Code §49.07(b)^4. Texas Penal Code §1.07(17)^5. “Everything is a deadly weapon,” published November-December 2016, by Benjamin I. Kaminar^6. Texas Penal Code §22.02(b)(2)(A-D) Aggravated Assault is punishable by a first degree felony if:

The offense is committed:

(A) by a public servant acting under color of the servant’s office or employment;

(B) 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;

(C) 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

(D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer

^7. State v. Schunior, 506 S.W.3d 29, 37 (Tex. Crim. App. 2016); also see Ex Parte Lucas Vieira, 676 S.W.3d 654 (2023) – No. PD-0690-22.^8. Code of Criminal Procedure 12.01(4)(H), as amended by HB 467, 88th Legislature (RS), Section 1^9. Code of Criminal Procedure 12.01(4)(H), as amended by HB 1506, 88th Legislature (RS), Section 1^10. Texas Penal Code §22.02(b)^11. Texas Family Code §71.0021(b) –

(b) For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:

(1) the length of the relationship;

(2) the nature of the relationship; and

(3) the frequency and type of interaction between the persons involved in the relationship.

^12 Texas Family Code §71.003 –

“Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

^13. Texas Family Code Section §71.005 – “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.^14. Texas Penal Code §22.02(b)(1)(B), enacted by HB 28, 88th Legislature, Section 2^15. Texas Penal Code §22.02(b)(4), enacted by HB 165, 88th Legislature, Section 4^16. Texas Penal Code §22.02(b)(2)(A-E) Aggravated Assault is punishable by a first degree felony if:

The offense is committed:

(A) by a public servant acting under color of the servant’s office or employment;

(B) 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;

(C) 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;

(D) against a person the actor knows is a process server while the person is performing a duty as a process server; or

(E) against a person the actor knows is a security officer while the officer is performing a duty as a security officer

^17. Texas Penal Code §22.02(c)^18. Texas Penal Code §22.02(d)^19. Texas Penal Code §22.02(b)(3)^20. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^21. Art. 42A.053(c), Texas Code of Criminal Procedure^22. Art. 42A.054(b), Texas Code of Criminal Procedure