Aggravated Assault» Print This Page
In Texas, aggravated assault cases often spring from situations that happened within a few minutes time. It’s not uncommon for alcohol or drugs to contribute to these situations, and drug charges or DWI allegations may be filed in addition to an aggravated assault charge.
There are all sorts of ways that people who know each other, friends or family, find themselves in a criminal case for aggravated assault. A disagreement in a bar escalates into a physical fight at closing time in the parking lot and a gun or knife is used or threatened to be used. A couple leaves a party only to find that a boyfriend or girlfriend is upset and a romantic confrontation grows into a physical altercation with someone seriously hurt. Roommates that don’t get along suddenly come to blows and someone is injured with a weapon considered to be a “deadly weapon” under Texas law.
Pull a gun or a knife during a fight – even if it’s only for show and isn’t used — and in Texas, the situation just escalated to a potential felony conviction.
What is Aggravated Assault in Texas?
The Texas Legislature has enacted a special law for the crime of “aggravated assault,” so that there is a clear legal distinction between a simple assault and one that (1) involves using a deadly weapon during the assault or any assault (2) where the victim suffers serious bodily injury. Under Texas Penal Code §22.02, aggravated assault is defined as:
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.
Aggravated Assaults Can Result in Felony Convictions and Many Years in a Texas Prison
Aggravated assaults are more serious under the law because either people get hurt or someone pulls a weapon and there’s a risk that someone will get hurt (or killed). These crimes, upon conviction, bring with them felony sentences and significant jail time. Second degree felonies carry a potential sentence of 2 – 20 years incarceration; first degree felonies can result in a sentence of 5 – 99 years’ imprisonment in a Texas state prison facility.
Aggravated assaults are 2d Degree Felonies unless the prosecution can prove the following; with this evidence, the crime is considered a felony of the first degree:
(1) it is a case of family violence where a weapon is used and the victim suffers serious bodily injury and the victim and accused are in a dating relationship; kinfolk; or roommates (see Texas Family Code 71.0021(b), 71.003, or 71.005);
(2) 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; or
(3) the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and:
(A) knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle;
(B) is reckless as to whether the habitation, building, or vehicle is occupied; and
(C) in discharging the firearm, causes serious bodily injury to any person.
Criminal Defense in Texas Aggravated Assault Cases: Serious Charges Need Serious Defenses
For those facing charges of aggravated assault, it is extremely important to review in meticulous detail every legal element of the prosecution’s case and every nuance of the facts to be presented by the district attorney. The first defense in an aggravated assault case will be to make sure that the state has a case to take to a jury: can they meet their burden? What are the witnesses going to say? What documents will be introduced into evidence?
Challenge The Prosecution’s Case
If the defense can show things like eyewitness testimony is wrong; that DNA testing discounts the prosecution’s claims; or that witnesses may have bias in their perspective, then the charges can be successfully defended against through hard work in challenging the efforts by the District Attorney’s Office or the police (law enforcement) in bring the case against the accused.
Assert Independent Defenses
However, there are also claims and defenses that the defense can assert and if these defenses can be proven at trial, then the prosecution cannot win a conviction. These are defenses to aggravated assault that are provided and respected in Texas law and it is the job of the criminal defense attorney and his client to gather and present facts that demonstrate:
- Defense of someone else (helping to protect another person from harm)
- Accident (no intent to assault, any harm resulted from mistake)
- Consent (victim consented or actor had reasonable belief that the victim consented)(for example, which risk of serious bodily injury at the hands of another is part of someone’s job).
Tip: For more information on the unreliability of eyewitness testimony in a criminal proceeding, check out all the references provided in Michael Lowe’s May 2012 blog post, “Eyewitness Testimony and Prosecutorial Misconduct Spotlighted Again as Texas Executed Another Innocent Man: the Wrongful Prosecution of Carlos DeLuna.”
Texas Aggravated Assault Defense Lawyer
As a former prosecutor turned criminal defense lawyer with over 150 jury trials defending clients against charges brought by district attorneys and U.S. federal prosecutors in Dallas County, Tarrant County, and elsewhere in the State of Texas, Board Certified Criminal Lawyer Michael Lowe not only brings his years of experience to each case, he also dedicates 100% of his law practice to the defense of those being accused of a crime under Texas or federal law.
With a streamlined law firm that coordinates its efforts to give each client the personal attention that they need and deserve when fighting against the government and the possibility of jail time, fines, permanent marks on public records, prison incarceration, loss of licensure, loss of jobs, absence from family events and everyday living, Michael Lowe maintains an efficient and excellent criminal trial practice that is ready to help you or your loved ones in your defense against criminal charges from pre-arrest investigation to post-trial appeals.
To discuss your case in a free and completely confidential consultation, please contact Dallas Board Certified Criminal Lawyer Michael Lowe today.