Assault in the context of criminal law is the act of intentionally placing another individual in reasonable apprehension of imminent bodily harm or an offensive contact. Although the exact definition may vary depending on the jurisdiction, the standard elements of assault include:
- The defendant intended to create apprehension in the individual. In contrast to battery, accidental acts do not constitute assault;
- The victim must have reasonably believed that they were going to be harmed or offended by the conduct of the defendant;
- The victim’s belief that a harm or offensive contact was imminent must be reasonable and must have created a sense of immediate physical danger. This belief cannot be based upon a future act and must be more than a verbal threat, although there may be some exceptions; and
- The defendant must exhibit an intention to offend or harm the victim with a physical act.
Examples of assault may include, but are not limited to if a defendant:
- Attempts to spit on a victim;
- Mimes the act of kicking, hitting, or punching the victim;
- Brandish a deadly or non-deadly weapon in a manner which suggests the victim will be hit with it; and
- Points a gun at the victim, regardless of whether it is loaded or not.
It is important to note that, in some states, statutes will define assault as criminal attempted battery. Assault and battery, however, should not be used interchangeably, as many jurisdictions treat them as separate offenses.
A simple way to distinguish assault from battery is that battery requires the use of force and actual physical contact. In contrast, an assault only requires a victim to reasonably believe that they are in danger of imminent physical harm, even if that harm does not actually occur.
What is Felony Assault?
What is Felony Assault in Texas?
In Texas, felony assault occurs when a defendant assaults another individual when the defendant:
- Knows the victim is a public servant who is acting in their official job capacity;
- Knows the victim is a family member; or
- Knows the victim is a first responder, police officer, or security guard who is performing the official job duties.
In Texas, a conviction for felony assault is a third degree felony. If convicted, an individual may face:
- 2 to 10 years in prison; and
- A criminal fine of up to $10,000.
It is important to note that felony assault may also be referred to as aggravated assault. A felony assault can be described using the same concept as a misdemeanor assault but includes an extra factor which causes the offense to be viewed as one which is more severe in nature.
Because of this, a felony assault carries more significant consequences than misdemeanor assault. An assault will most likely be charged as a felony when a defendant commits a simple assault which includes an aggravating factor. Aggravating factors are discussed below.
What is Aggravated Assault?
An aggravated assault, as noted above, is a crime which is considered to be a more serious form of assault that may result in a felony charge. Felony assault usually consists of physical actions which cause bodily harm, including assault with a deadly weapon such as a pistol or a knife. It may also include an assault which involves another aggravating factor.
A large number of states have criminal laws which classify an assault as either a simple assault or an aggravated assault, depending upon the severity of the harm that occurred or the harm which was likely to occur if the defendant had actually struck the victim. Criminal statutes in some states may be further classified as first, second, or third degree, based upon the severity of the harm inflicted.
What are Examples of Aggravating Factors?
An aggravating factor is a circumstance that is related to the crime which makes the crime itself more severe. An aggravating factor is significant because it can increase the penalty for the crime significantly.
What constitutes an aggravating factor is determined by the criminal statute of the state. An example of an aggravating factor varies widely across jurisdictions. Examples of common aggravating factors include, but may not be limited to:
- The defendant’s prior criminal record;
- The defendant’s intent;
- The tool or tools which were used to commit the crime;
- The defendant’s cruelty, or, how the crime was committed; and/or
There are also other aggravating factors which may include the status of the victim. The specific laws of the state may name the aggravating factors, which may include assault with a deadly weapon or assault with the intent to commit another crime.
What is Aggravated Assault in Texas?
In Texas, aggravated assault occurs when an individual:
- Causes serious bodily harm to another individual, including the individual’s spouse; or
- Presets or uses a deadly weapon during the assault.
What is the Punishment for Second Degree Aggravated Assault?
In Texas, if an individual is convicted of aggravated assault as a second degree felony, they may face:
- 2 to 20 years in prison; and
- Criminal fines of up to $20,000.
When can Aggravated Assault become a First Degree Felony in Texas?
In Texas, an aggravated assault becomes a first degree felony when the victim is:
- A public servant that was acting in the course of their job duties;
- A family member;
- An informant;
- A security guard that was acting in the course of their job duties;
- A driver or passenger in a car; or
- A witness to a crime.
What is the Punishment for First Degree Felony Aggravated Assault?
If a defendant is convicted of aggravated assault as a first degree felony, they may face:
- 5 to 99 years in prison; and
- Criminal fines of up to $10,000.
What are Common Defenses to Aggravated Assault?
What actions constitute aggravated assault are defined by individual state laws. As such, state laws also define what defenses may be available to the charges.
The best defense to aggravated assault is factual innocence. There are, however, other defenses which may be offered in an individual’s state. Examples of defenses may include, but are not limited to:
- Self defense;
- The defense of others;
- The defense of property;
- A lack of intent;
- Provocation, or reacting to a perceived threat;
- No proof of a deadly weapon;
- The defendant’s constitutional rights were violated at the time of the arrest;
- Consent, meaning the victim consented to the assault; and/or
- Assumption of risk, such as voluntarily and knowingly assuming a risk of harm.
Second to factual innocence, the second best defense to aggravated assault is the lack of intent. A defense attorney may be able to show that the defendant did not actually intend to cause the victim or fear harm to or to hurt the victim.
Although this may be a very effective defense, it may be difficult to prove in court. If this defense is successful, it may cause the charges to be lowered or to be dismissed altogether. Having an attorney is a defendant’s best chance at successfully presenting this defense.
Should I Contact a Lawyer?
It is important to have the assistance of a criminal defense lawyer in Texas if you are facing aggravated assault charges in Texas. It is important to consult with an attorney as soon as possible, as it takes time to construct a defense case.
Your attorney can advise you regarding the charges against you and possible outcomes of your case, determine if there are any defenses available in your case, and represent you during any court proceedings.