Maybe it was self-defense. Maybe you were trying to protect another person. Maybe the fight was mutual. Whatever the case may be, you now have an aggravated assault charge hanging over your head. A conviction carries with it serious penalties. Don't take the matter lightly just because you think and know you are innocent or have some justification for the act. The prosecution will go hard on you, so you need an attorney who will hit back accordingly to defend your rights and your freedom.
Doug Murphy is a Board Certified criminal defense lawyer who -- for more than two decades -- has been defending clients just like you, an otherwise law-abiding citizen who made a poor choice or was at the wrong place at the wrong time. Regardless how the charge came about, you need strong, smart, and strategic representation, and that's what Doug Murphy is committed to providing. Current and former clients can confirm the same. His office is based in Houston, Texas, but he represents clients throughout the region, including the following counties: Austin, Bastrop, Brazoria, Colorado, Galveston, Grimes, Harris, Fayette, Fort Bend, Lavaca, Leon, Liberty, Madison, Matagorda, Montgomery, Walker, Waller, Washington, and Wharton. If you or someone close to you has been charged with aggravated assault, contact Doug Murphy today at 713-229-8333.
Aggravated Assault & What It Is According to Texas Law
According to Tex. Penal Code § 22.02, aggravated assault occurs when a person commits simple assault but also (1) causes serious bodily injury to another person, including a spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.
Serious Bodily Injury
Serious bodily injury is a key element to one form of aggravated assault. Unlike simple assault where bodily injury refers to bruises or a scratch, serious bodily injury is injury that is substantial enough to cause death, serious permanent disfigurement, or protracted loss or impairment of the function of any body part. (Tex. Penal Code Ann. § 1.07).
Generally, determining if an injury is serious per the statutory definition is on a case-by-case basis. When this determination is made, it is made without the benefit of medical treatment. That means, if medical treatment was able to save your life, that is not taken into consideration. The determination is based on the bodily injury before treatment and if it was substantial enough to cause death. If so, then the bodily injury may be deemed serious and the charge will be one of aggravated assault rather than simple assault.
The determination of serious permanent disfigurement and protracted loss or impairment of the function of any body part is also a matter of degree. A small scar -- though permanent -- does not generally constitute serious bodily injury; it depends on the degree of disfigurement.
In Texas, a person can commit an aggravated assault without inflicting serious bodily injury if that person assaults another while using or exhibiting a deadly weapon. In fact, if you simply exhibit a deadly weapon but don't lay a finger on the other person, then that could be construed as aggravated assault.
That said, possession of a deadly weapon during an assault is not the same as using or exhibiting a deadly weapon. The determination leans on the means or manner in which the weapon was used or exhibited whereby it enabled the assault. If the weapon played no role, then the element of using or exhibiting a deadly weapon can be deemed unsatisfied.
Many people often question what a “deadly weapon” means. In short, it can be just about anything if it was designed or if it can be used to cause serious bodily injury. Examples include:
- Firearm, loaded or unloaded
- Glass bottle
- Baseball bat
- Bed pillow
As you can tell, most of these “deadly weapons” were not designed to cause injury, but under certain circumstances, they can be used as such. (Tex. Penal Code § 1.07(a)(17)). In Texas, a number of factors are considered to determine if the thing other than a firearm had the capacity to cause death or serious bodily injury.
- How was the “weapon” used?
- What was the physical proximity between the victim and the object?
- Did the defendant use any threats or use any other language?
- What are the physical characteristics of the “weapon”?
- Was the “weapon” actually able to inflict death or serious injury? This may seem obvious, but remember you can still be charged with aggravated assault without harming the person so long as you exhibited the weapon. Consider a glass vase with flowers? With the vase and combined threats, that could be construed as aggravated assault. Minus the vase but just flowers and threats, that likely won't be considered aggravated assault.
Determining if a thing is a deadly weapon is take on a case-by-case basis. Expert testimony and lay testimony can help support a claim that a thing is or is not a deadly weapon. The jury often makes the final determination.
Aggravated Assault Defense
If you have been charged with aggravated assault in Texas, you need a good defense. The most likely defense is a claim of self-defense, defense of another person, or defense of property. Tex. Penal Code §9.31 states that self-defense is a justification for aggravated assault.
Self-defense is justified in aggravated assault cases when the person or actor reasonably believed
the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
The use of force is not justified in the following scenarios:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(3) if the actor consented to the exact force used or attempted by the other;
(4) if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor; or
(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02; or
(B) possessing or transporting a weapon in violation of Section 46.05.
The problem with self-defense, however, is that in order to assert this defense you must admit to the crime. Then it's up to the jury to determine if justification exists or not.
In lieu of a self-defense defense, there are other measures an experienced criminal defense attorney can take. For instance, your attorney may choose not to assert an affirmative defense if it is not a viable defense, but may choose to challenge the evidence, including expert and lay testimony. Doug Murphy, Board Certified criminal defense lawyer, will discuss all your options and explain the defense strategy with you. The most important thing to remember is that you have options. Pleading guilty or taking a plea deal are not the only options available to you. Fighting the charge may be your best option.
Aggravated Assault Classification as a Felony
Aggravated assault can be charged as a second- or first-degree felony. Absent any enhancing factors, aggravated assault is a second-degree felony. It becomes a first-degree felony when:
- The person uses a deadly weapon and causes serious bodily injury to another person who is a family or household member, or other current or former intimate person -- which would qualify the assault as a domestic assault.
- The victim of the alleged aggravated assault is a security officer or public servant who was working in their official capacity.
- A person commits aggravated assault in retaliation against a witness or informant.
- A person inside a motor vehicle shoots at a house, building, or another motor vehicle with reckless disregard and causes serious bodily injury to an occupant.
Aggravated Assault Penalties & Consequences
A conviction can lead to serious penalties topped off with a lifetime of collateral consequences.
If you are convicted of a second-degree felony aggravated assault, you can anticipate two to 20 years in prison and a fine not to exceed $10,000. If you are convicted of a first-degree felony aggravated assault, you can anticipate five to 99 years in prison and a fine also not to exceed $10,000. The range of sentencing is wide and will in part be determined by any prior misdemeanor or felony convictions you may have.
In many assault cases, convicted persons are required to pay restitution to the victim. Restitution contributes to the expenses of medical treatment counseling the victim may have received or any property damage the victim may have had to repair.
But what so many defendants fail to think about are the consequences that extend beyond prison. An ex-convict is stripped of certain constitutional rights, like voting and gun ownership. An ex-convict will find it hard to find good employment or housing. An ex-convict can carry on as usual as before the conviction, but if they don't have the support -- both family and financial support -- to help, they are looking at hard times. The importance of a Board Certified criminal defense lawyer cannot be stressed enough. Someone like Doug Murphy, who commits himself to your defense and who has the resources and insight to prepare a strategic, smart, and aggressive defense, is the kind of lawyer who can help you fight the State's case against you and protect your future.
Aggravated Assault Criminal Defense Lawyer in Houston, TX
Houston criminal defense lawyer Doug Murphy takes a comprehensive, aggressive approach to defending his clients. His capabilities have been recognized by the legal community, which has endorsed his name through accolades and frequent invitations to speak at seminars so that he can provide his insight and teach legal defense skills to other criminal defense attorneys throughout Texas and the United States. At Doug Murphy Law Firm, P.C., you can expect commitment and the best result according to the facts and circumstances of your case. Contact Doug Murphy Law Firm, P.C. today at (713) 229-8333.