Anger. It overcomes us all at times, but whether it is expressed through writing an angry letter and throwing it away or punching a wall, matters. When directed towards another, anger may result in an assault. There are many types of assault in Texas, and the defenses available have been expanded over the last several years.
The lowest level assault is a fine-only misdemeanor. This kind of assault does not result in any physical harm or injury; the actor caused only an offensive contact, or threatened bodily injury. The actor need not contact the victim in any way; for example, fighting words may be interpreted as threatened bodily injury without landing a single punch. An example of offensive contact is where a patron in line at the movie theater reaches up and touches the customer ahead of him on the backside without consent.
The next higher class of assault, still a misdemeanor offense, involves an actor causing contact with the complainant causing bodily injury. Bodily injury includes physical pain, illness, or any impairment of physical condition. The injury need not be apparent or even visible; the complainant need only feel pain.
Assault becomes aggravated assault, and a felony level offense, when the victim suffers from serious bodily injury or a weapon is used or displayed in a threatening manner. A deadly weapon includes a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. Items found to be deadly weapons include knives or sharp objects, baseball bats, clubs, rocks, bricks, and crowbars. Courts have taken an expansive view, including BB guns, automobiles, water (when used alongside strangulation), and having unprotected sex with an individual while the actor knows that the actor has HIV.
Assaults involving family violence include both assault and aggravated assault, as well as the specific manner of assault by strangulation. Convictions on cases involving family violence include serious collateral consequences, including inability to carry a firearm or ammunition under federal law for even misdemeanor convictions. What is defined as a conviction for purposes of family violence cases is also much broader than ordinary assaults, as a disposition of deferred adjudication may be used in the future to enhance a subsequent charge of family violence.
Some defenses against assault that should be considered in every case include self-defense, defense of third person, defense of property, consent, necessity, duress, and mistake of fact. The burden of producing evidence of such defenses is on the accused; if some evidence is produced the prosecution must then carry the burden of persuasion that the defense does not apply. Key elements to self-defense include whether the force was reasonable and immediately necessary. The amount of force used - deadly or not - must be reasonable, and the timing of the force must be immediate, not after patient reflection and time for vengeance. Significantly, Texas has enacted "stand your ground" legislation, and as a result, a person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force in self-defense.
Misdemeanor assault causing bodily injury is punishable by up to a year in county jail and a $4,000 fine. Aggravated assault is punishable by 2-20 years in prison, and up to a $10,000 fine. Possible enhancements include whether the complainant is a peace officer, an elderly or disabled individual, whether a deadly weapon was used or displayed during the offense, and previous convictions, among others.
If you have questions concerning assault, aggravated assault, family violence, or other similar offenses, please contact Lewis Thomas for a free consultation at 281-513-9880.
-Neveah McLemore is a student intern with Lewis Thomas Law PC.