What makes an assault an aggravated charge?

Posted by Tab Lawhorn | Jan 04, 2022 | 0 Comments

If you have been charged with aggravated assault in Texas, you need to be informed about the charges you are facing and prepared for what you can do to attack those charges. Below, we are going to detail the law and associated penalties and tell you how a knowledgeable criminal defense attorney can help.

Aggravated Assault Charges in Texas

Aggravated assault is defined by Texas Penal Code as such:

“intentionally, knowingly or recklessly causing serious bodily injury to another person,” or “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 likely will find offensive.”

In order to understand the elements above, we first must examine the definitions in detail.

Intentionally or Knowingly

To act “intentionally” means to act in such a way that it is your “conscious objective or desire to engage in the conduct or cause the result.” In other words, someone that picks up a weapon and points it directly at another person and pulls the trigger acted with a conscious desire to cause the result of the person being injured by the weapon.

To act “knowingly” means to act in a manner that you are “aware that your conduct is reasonably certain to cause the result.” For example, if someone shoots in the direction of someone knowing there are people around their target, it does not matter if they “meant” to shoot them. In that scenario, it is likely that they should have known that “their conduct was reasonably certain to cause the result.”


Recklessness is acting with a conscious disregard to the results of that action. For example, a reckless driver does not necessarily act with intent to harm but presents a risk of harm to the other driver with his or her reckless actions, such as speeding or tailgating.

What if someone is racing another person on a public roadway and in the process of racing loses control of their vehicle, hits another vehicle and that results in a serious bodily injury to that driver. Was this reckless behavior under Texas criminal law? Yes! Although the driver had no intention of hurting anyone, their actions were in conscious disregard to the risk and results that someone could be seriously injured.

What if the criminal mental state can be proven by the prosecutor? Is there another area your criminal defense lawyer should analyze to give you the best chance at a favorable result? Yes! The State of Texas must prove beyond a reasonable doubt that your actions caused “serious bodily injury” to another.

Serious bodily injury

Serious bodily injury is described as such under Texas criminal law:

  • Presents a substantial risk of death.
  • Causes death.
  • Causes serious permanent disfigurement.
  • Causes impaired function or functional loss of a bodily organ or member.

Specifically, a prosecutor must prove that the alleged victim sustained an injury so severe that they are no longer able to act in a manner that they could prior to the injury. For example, were they permanently crippled? Are the permanently disfigured? Are they unable to do certain tasks, activities, or functions after the assault that they could perform prior to the assault? Simply breaking a bone or suffering a head injury is not, alone, sufficient to meet the standard required by law. Your criminal defense attorney should aggressively seek the medical records and analyze them to determine if the medical experts are able to provide enough evidence to establish the proof of “serious bodily injury.”

These types of injuries normally require hospitalization, surgery, or physical therapy for treatment.

Criminal Lawyer Tip: Serious bodily injury must be proven beyond a reasonable doubt that establishes a permanent or substantial loss of use of a bodily member or organ. Many times, an injury can appear serious but be determined to NOT meet the Texas Criminal Law definition of “Serious Bodily Injury.”

The Grand Jury Process in Texas

Because Aggravated Assault Serious Bodily Injury is a second-degree felony charge, it must be presented to a grand jury for indictment. The grand jury is a panel of citizens that are responsible for determining if a felony case has probable cause. As a practical matter, the grand jury reviews cases and, if they have the opportunity to hear both sides of what took place, they may come to a different conclusion than the police and the alleged victim.

The best criminal lawyers make it a practice to prepare a packet of evidence establishing the injury does not meet the requirements under Texas law. If the grand jury agrees, the aggravated assault charge could be lowered to a misdemeanor assault charge or be completely dismissed through a no bill.

A No Bill is the equivalent of a dismissal of your aggravated assault charges. In fact, after the expiration of the statute of limitations, you will be eligible to file a petition for expunction to have your aggravated assault arrest and charges permanently deleted from your criminal record.

Deadly weapon

deadly weapon is a weapon that is inherently dangerous, such as a firearm, knife, or brass knuckles. Depending on the circumstances of the incident, other items like chairs, ropes, or baseball bats can be considered deadly weapons.

ANYTHING can be a deadly weapon if the manner of its use was intended to cause serious bodily injury or death. For example, grabbing a pencil and trying to stab someone in the eye would categorize the pencil as a deadly weapon under Texas law because its intended use, in this example, was to cause serious bodily injury or death.

Aggravated Assault By Threat Charges in Texas

Under Texas law, you can be charged with Aggravated Assault if you “exhibited” a deadly weapon and the alleged victim claims to have been in fear of serious bodily injury or death.

If you are just holding a deadly weapon but the alleged victim tells the police they were scared for their life, you can be charged with aggravated assault.

Here is where aggravated assault charges can get a little crazy. Here are a few examples:

  • Defending Yourself When Someone Threatens You– what if someone else makes threats toward you and you have a concealed carry license? You pull out your weapon to prevent harm to yourself, should you be arrested? Unfortunately, many times the police officers will question both sides and discover you were the one with the weapon and decide to arrest you based upon the other person's word. Remember, probable cause to arrest can be established purely by the word of another person if the police choose to believe that witness. This is a good example of why you must fight a charge like this because the State of Texas will be required to prove the case beyond a reasonable doubt at a criminal jury trial. Just because someone claims they were in fear of serious bodily injury or death does not mean it was objectionably reasonable under the circumstances. An aggressive and experienced criminal defense attorney can expose the alleged victim's claims as being false and help secure a favorable result for your case.
  • Road Rage– what if you are driving and someone cuts you off and forces you off the road? What if they get out of the car and begin to charge you, cursing and making threats? If you pull out your weapon to be ready for an encounter, should you be charged with aggravated assault deadly weapon? NO! However, many citizens of Tarrant County, Texas are charged under this fact scenario. The police will see that you have the weapon in your possession and the other party is claiming that you placed them in fear of serious bodily injury or death. Many times, the police will choose to arrest based upon a witness's word alone.

Additionally, there may be many reasons people will claim aggravated assault deadly weapon. We have found that an opposing party in a divorce proceeding will sometimes claim an aggravated assault by threat to gain leverage in a family law proceeding. This is important to remember this concern and bring it up to your criminal attorney so that the true motive behind the alleged victim's claim can be exposed at a criminal trial.

Sometimes a person will make up a claim of aggravated assault deadly weapon to protect themselves. They may be afraid that if they do not claim you placed them in fear for their life, they may get arrested and face similar criminal charges. For example: someone may have attacked you with a knife and this caused you to pull out your gun to protect yourself. The alleged victim knows that if he does not claim you attacked him first with the gun, he will face his own aggravated assault deadly weapon arrest and face prosecution and a possible conviction.

Penalties for Aggravated Assault in Texas

Aggravated assault is normally a second-degree felony. A conviction will result in a prison sentence of two to 20 years and a fine of up to $10,000.

In the following situations, however, aggravated assault will be charged as a first-degree felony, and conviction can result in a prison sentence of five to 99 years and a fine of up to $10,000.

  • Use of a deadly weapon during assault which causes serious bodily injury to a family or household member, or someone with whom the offender has or has had an intimate relationship (domestic assault)
  • Victim is a public servant or security officer working in his or her line of duty.
  • Offender knows the victim to be a public servant and acts in retaliation for the duties performed by the public servant.
  • Assault against someone who reported a crime, an informant, or a witness.
  • Offender shot a firearm from a motor vehicle at another motor vehicle, building, or house with reckless disregardfor occupancy and causes serious bodily injury to victim.

If you are convicted of an aggravated assault deadly weapon or serious bodily injury charge, the court may require you to pay restitution to the victim for his or her medical treatment, counseling, and property damages related to the crime.

Fighting Aggravated Assault Charges

If you are convicted for assault charges in Texas, your consequences go beyond prison and fines. Your permanent record will be negatively affected. Your ability to find quality employment and housing may be hampered, and you will lose other rights such as the right to bear arms.

With a skilled aggravated assault lawyer's help, you may be able to get your charges reduced or dismissed. A good aggravated assault lawyer will examine the witness statements and determine if they make sense compared to what happened at the scene.

As you can see from the examples above, there can be times when there is very little evidence to establish an arrest for aggravated assault deadly weapon. Because this charge is categorized as a felony under Texas law, it must be presented to a grand jury. You need to be aggressive EARLY in your criminal defense to make certain that favorable and exculpatory evidence is presented to the grand jury so that a NO BILL can be returned on your case.

What is a No Bill? A grand jury no bill is the equivalent of a dismissal. It is a finding that establishes you have been exonerated of the charges and provides the opportunity to have your criminal case file and arrest expunged from your criminal record.

About the Author

Tab Lawhorn

Attorney, Tyler Office Tab E. Lawhorn is a principal partner at Lawhorn & Malouf, PLLC in Tyler, Texas. Mr. Lawhorn represents clients in Tyler and throughout Smith County who are victims of a personal injury caused by negligence. He regularly handles matters involving car wrecks, trucking accidents, wrongful death and premises liability.


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