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    Categories: Texas Criminal Law

Aggravated Assault

Aggravated Assault is a Texas crime that is described as an assault either causing serious bodily injury or an assault with a deadly weapon. The Aggravated Assault offense requires the state’s attorney to prove Simple Assault plus the additional deadly weapon (Aggravated Assault with a Deadly WeaponAA/DW“) or Aggravated Assault with Serious Bodily Injury.

The most important distinction between a Simple Assault and an Aggravated Assault is that a Simple Assault is typically a misdemeanor offense, whereas Aggravated Assault is a felony crime. Although a conviction for Aggravated Assault is usually punishable as a second degree felony, certain circumstances can result in an enhancement to punishment as a first degree felony.

There are several other different types of Assault Crimes in Texas such as Sexual Assault, Aggravated Sexual Assault and Intoxication Assault. It is important to understand the differences between all the Assault Crimes. Because our firm has experience in defending against all these mentioned assault crimes, we can help you defend against an Aggravated Assault charge. Learn more about statutory Defenses to Assault Crimes

What is an Aggravated Assault under Texas law?

Aggravated Assault is defined in Section 22.02 of the Texas Penal Code:

(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.

Section 22.01 of the Texas Penal Code is the Simple Assault offense1. A Simple Assault charge becomes 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.” A charge for Simple Assault is appropriate when bodily injury2 was caused, but if serious bodily injury3 was caused, a person may be subject to an Aggravated Assault charge instead. Bodily injury is the impairment of a physical condition while serious bodily injury involves a substantial risk of death or permanent physical impairment. When Aggravated Assault is charged under Section 22.02(a)(2) of the Aggravated Assault statute describing the use of a deadly weapon during an assault, it is commonly referred to as the crime of Assault with a Deadly Weapon.

What is a deadly weapon under the Aggravated Assault statute?

The definition of a deadly weapon4 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. 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.

What is the punishment for a conviction of Aggravated Assault?

A conviction for Aggravated Assault is punishable as a second degree felony. However, the punishment for Aggravated Assault is punishable as a first degree felony under certain circumstances. For example, Aggravated Assault is a first degree felony when someone uses a deadly weapon and causes serious bodily injury to someone that they are in a close relationship to under the Texas Family Code. A close relationship under the Aggravated Assault statute refers to a dating relationship5 with, a family6 member, or someone living in the same household7.

A conviction for Aggravated Assault is also punishable as a first degree felony when committed by a public servant during their course of employment, when committed against a witness or informant in a criminal trial, or against a security officer[8][9]. The perpetrator is presumed to know that someone was a public servant or officer if the person assaulted was wearing a uniform or badge.

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 reckless10 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 statute of limitations for Aggravated Assault?

The Texas Court of Criminal Appeals (the highest criminal court in Texas) recently (Novemeber 2016) held that the limitation period for Aggravated Assault is two years.11


Legal References:

1Simple Assault is defined in Section 22.01 of the Texas Penal Code –

(a) A person commits an offense if the person:

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

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

2Texas Penal Code 1.07(a)(8)–

“Bodily injury” means physical pain, illness, or any impairment of physical condition.

3Texas Penal Code 49.07(b) –

In this section, “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.

4Texas Penal Code Section 1.07

“Deadly weapon” means:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

5Family Law 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.

6Family Law 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.

7Family 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.
8Texas 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

9Texas Penal Code 22.02(d) –

(d) In this section, “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.

10Recklessness is a culpable mental statute under Texas Penal Code Section 6.02(c)

11Schunior v. Texas