ASSAULT CHARGES

Assault is usually associated with physical violence; however, assault charges can encompass much more than fights or physical attacks. In Texas simple assault is any unwanted touching that a defendant knew the other person would find offensive or provocative. Instead of a charge of Terroristic Threat as separate "threat” statute, sometimes a mere threat to harm another can also constitute an assault. This means that a victim never has to experience pain or an injury before a defendant can be charged with Assault. However, an assault with a lower level of injury, pain or fear to the victim will usually result in lower level assault charges and thus less severe penalties.

A more extensive injury or fear factor will increase the level of the assault. For example, if a defendant walks by a neighbor’s house and is mumbling to himself about killing them when he has the chance, this would be considered a lower level or misdemeanor type offense because it is merely a threat with less anxiety. However, if the defendant was yelling directly at the neighbor that he was going to kill them and was pointing a gun in their direction, then this incident could be charged as Aggravated Assault because the threat and fear were much more direct and intense.

Assault penalties vary depending on the circumstances. Sentence ranges and punishments for assault are usually serious because assault is considered a violent crime. Even minor assaults are treated more harshly because there is a concern that the level of violence will escalate when a second event arises.  A defendant charged with assault should know the different types of assaults, the defenses available, and the punishment ranges for the different types of assault offenses.

Defenses

Some defenses to assault are set out in common law or statutory defenses, which are defenses set out in a statute or law. The first generally accepted defense is self-defense. To use self-defense as a defense, the defendant essentially admits that they assaulted another person, but argues that there was a valid legal reason for doing so.  A second general defense is Consent or mutual combat. The basic argument in a consent defense is that both parties entered the event and understood the risks before they entered into the altercation. For example, if a “victim” challenges a defendant to a fight, but the defendant wins the fight, the defendant could have a defense because he did not provoke the altercation and the victim willingly entered.

Punishment Ranges for Assault

Some trial strategies in assault cases are not defenses per se, but rather they are ways to mitigate any aggravating circumstances that could increase a range of punishment. Basic assault charges that involve minimal injuries or threats are usually punished as misdemeanor offenses. The punishment range for a misdemeanor offense is probation of up to a year or more in a county jail. If the prosecution alleges and proves certain aggravating circumstances, then an assault charge can be punished as a felony. The punishment range can include extensive prison time, including up to life in prison in some  rare circumstances. Parole rules also tend to be more severe for defendants convicted of assaults with aggravating circumstances. This means that they serve more of their sentence than another defendant sentenced to the same amount of time for a non-aggravated offense. 

What qualifies as an aggravating circumstance will depend on the Texas penal code. However, some general aggravating categories include: (a) the use of a deadly weapon, (b) the infliction of serious or permanent bodily injuries, (c) the assault was racially motivated, (d) prior convictions for assaults involving family violence, and (e) the age of the victim (child or senior citizen) at the time of the assault.  If a defendant knows they are guilty, and it can be proven, of assault, a better strategy option may be to focus on refuting the aggravating circumstance to get a reduced sentence, rather than trying to disprove that the assault occurred at all. 

Long Term Consequences of a Conviction

When many people face an assault charge, they are naturally focused on the immediate consequence of how long a probation or jail sentence will be. However, an assault charge can have a dramatic impact on a defendant’s future. If a defendant is in the process of applying for citizenship, an assault conviction can be a basis for denial of citizenship. Some schools and employers will not accept persons with assault convictions on their records.  Additionally, some occupations exclude individuals with assault convictions. Even a misdemeanor assault conviction can have long-term consequences. Before making a final decision about whether you should or should not accept a plea bargain, a defendant should consider their future plans and contact a criminal attorney.

Assault Class C

"Simple Assault"

To be guilty of Class C misdemeanor assault a person must "intentionally or knowingly cause physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative [Texas Penal Code Section 22.01(a)(3)]. 

Aggravated Assault

The offenses of Aggravated Assault With Serious Bodily Injury and Aggravated Assault With a Deadly Weapon are outlined in Texas Penal Code Section 22.02.  “Serious bodily injury” is defined as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ [Texas Penal Code Section 1.07(a)(46).  Aggravated Assault with a Deadly Weapon occurs where a person uses or exhibits a deadly weapon during the commission of an assault.  "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.  Aggravated Assault with Serious Bodily Injury and Aggravated Assault with a Deadly Weapon are usually charged as second-degree felonies.

Assault Class A

"Assault causing Injury"

Class A Assault is an offense whereby it is alleged that the defendant intentionally, knowingly or recklessly caused "bodily injury" to the complainant. [Texas Penal Code Section 22.01(a)(1)].   However "bodily injury" is very broadly defined as any "physical pain, illness, or any impairment of physical condition [Texas Penal Code Section 1.07(8)].   Hence, the prosecutor only has to prove that the complainant experienced pain, even where there are no bones broken, or blood or scratches or bruises or red marks to get a conviction for Class A Assault.   Assault on a Peace Officer is the same as Class A assault, except because the alleged victim is a peace officer it is charged as a third-degree felony. 

Assault Family Violence

The single most common Assault charge prosecuted in Smith County Courts is a variation of Class A Assault, which is Assault Family Violence.   Cases are charged as Assault Family Violence cases pursuant to Texas Family Code Section 71.003 where the alleged victim is related by blood or affinity to the defendant, where the alleged victim and the defendant are former spouses, where the alleged victim and the defendant are parents of the same child, where there is a foster child and parent relationship between the alleged victim and the defendant, where there is or has been a dating relationship between the alleged victim and the defendant, and where the alleged victim and the defendant have shared a household.

Assault Family Violence cases, although initially only Class A misdemeanors, can nonetheless have very serious consequences.  Non-citizens convicted of Assault Family Violence can be denied Lawful Permanent Resident Status or can be deported.  Family violence convictions can cause individuals to lose professional licenses and can prevent skilled tradesmen from being bonded.  A person convicted of Assault Family Violence cannot possess a firearm for five years from the date that the person is released from jail or the date on which the person’s community supervision ends.  Hence a family violence conviction can end a person’s career in the military or law enforcement.   Also, protective orders are frequently issued against individuals accused of family violence, and can prevent them from being able to return home or from having contact with members of their household.  If a person is charged a second time with Assault Family Violence after having been convicted or having received deferred adjudication on an initial Class A Family Violence charge, the offense is charged as a third-degree felony.  

Fortunately, there are defenses to charges of Assault Family Violence.    Often there is little or no physical evidence in Assault Family Violence cases.  If the case is not dismissed before trial, the credibility of the accuser can often be effectively challenged at trial.    Also, Chapters 8 and 9 of the Texas Penal Code deal with justifications and defenses to criminal charges, and additionally, there are other defenses recognized in case law.  The most common defense available in assault cases is the defense of “self-defense.”  

 

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