Have You Been Accused of Assault?
Looney, Smith & Conrad, P.C., Criminal Defense Law Firm
Experienced Texas Assault Defense Attorneys
Since 1995 criminal defense trial attorney Paul Looney has litigated
60 criminal jury trials with Zero Final Convictions
What is Assault?
Assault is committed when a person intends to put another person in reasonable apprehension of fear. For example, if a person points a water gun at another person’s head, and that person believes it is a real gun, the first person has committed the crime of assault. Under Texas law, certain factors can move a simple assault up to an aggravated assault. First degree assault, second degree assault and third degree assault are defined in the information below.
Types of Assault
Assault and Battery
Assault and battery are two separate offenses against the person that when used as one phrase, is defined as any unlawful and unpermitted touching of another. Assault is an act that creates an apprehension in another of an imminent, harmful, or offensive contact. The act consists of a threat of harm accompanied by an apparent, present ability to carry out the threat. Battery is a harmful or offensive touching of another.
The biggest difference between the two offenses is the existence or non-existence of touching or contact. While contact is an essential element of battery, there must be an absence of contact for assault. Sometimes assault is defined loosely to include battery.
Assault and battery are offenses in both criminal and civil law and are either misdemeanors or felonies. Felonious assault is characterized as “with intent,” such as an intent to kill, rob, or rape, or when they are committed with a dangerous weapon. If a defendant who commits this crime does not have an intent to harm the victim, the individual cannot be guilty of the offense.
Call the law offices of Looney, Smith & Conrad, P.C., Texas Aggravated Assault Attorneys today for a free consultation concerning aggravated assault in Houston and all of Texas.
Simple Assault (Class A, B, or C Misdemeanor)
Under the Texas Penal Code, a person commits an assault when he or she:
- Intentionally, knowingly, or recklessly causes bodily injury to another person including the spouse;
- Intentionally, or knowingly threatens to cause imminent bodily harm to another person including the spouse; or
- Intentionally or knowingly physically contacts or causes a physical contact that he/she knows a person would reasonably regard as an offensive contact.
Punching, kicking or choking someone during a fight means the person can be charged with assault as well as if the person tells someone he/she is going to beat them up (and the person has a reasonable fear that the person is about to do it).
Class A Assault Misdemeanor is usually when a simple assault results in a minor injury. Examples include assault causing bodily injury, driving while intoxicated (1st or 2nd offense), theft of property valued at $500 – $1500, and resisting arrest. Circumstances, however can upgrade the assault. For example, the assault is a Class A misdemeanor if the victim is elderly or disabled but becomes a Class B misdemeanor if the victim is a sports official.
Class B Assault Misdemeanor examples include driving while intoxicated (1st offense), possession of marijuana less than two ounces, indecent exposure, enticing a child, interference with railroad property, graffiti, theft of property valued at over $50 but less than $500, telephone harassment and a non-sports participant toward a sports participant while performing duties or in retaliation thereof.
Class C Assault Misdemeanor is when the assault involves only touching or threatening and the penalty of a fine up to $500.
Misdemeanor Penalties
| Misdemeanor | Penalty |
|---|---|
| Class A | Not more than 1 year in a county jail and/or a fine of not more than $4,000 |
| Class B | Not more than 180 days in a county jail and/or a fine of not more than $2,000 |
| Class C | A fine of not more than $500 |
Although civil rights are not lost for a misdemeanor conviction, a conviction for a Class A or B Misdemeanor charge can negatively impact a person’s legal record and make it difficult to seek employment. If convicted, a Class C Misdemeanor can also stay on the record.
Misdemeanor charges should be researched by an attorney to find out whether the charge is eligible for deferred adjudication, a charge reduction, or pre-trial diversion so the charge can be cleared from the record through expungement or nondisclosure.
Aggravated Assault
Under the Texas Penal Code, a person commits an aggravated assault when committing an assault plus an aggravating factor. To prove that an assault was an aggravated assault, there must be one of these two aggravating factors:
- The person who committed the assault causes serious bodily injury to a person or to that person’s spouse; or
- The person uses or shows a deadly weapon while committing the assault; or
- The person 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.
Aggravated assault, or criminal assault, is a second-degree felony that can become a first-degree felony in cases of domestic violence or if the assault was committed against a peace officer, judge, security guard, EMS worker, informant, witness to a crime or pregnant individual as defined as:
- Committing an assault against a family member or someone with whom the person is in a romantic relationship with and the person has a previous domestic violence conviction;
- Knows the person is a peace officer or judge while the officer or judge 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 peace officer or judge; or
- Knows the person is a security guard or emergency services worker and commits the assault while the person was doing his or job; or
- Knows the person is pregnant and forces her to have an abortion.
Domestic Assault
Any abusive, violent, coercive, forceful, or threatening act or word inflicted by one member of a family or household on another can constitute domestic violence.
Domestic violence is defined from saying unkind or demeaning words; verbal assault, to grabbing a person’s arm, to hitting, kicking, choking, or even murdering. Domestic violence most often refers to violence between married or cohabiting couples, although it sometimes refers to violence against other members of a household, such as children or elderly relatives.
Domestic violence usually occurs in a cycle with three general stages:
- First, the abuser uses words or threats, perhaps humiliation or ridicule;
- Next, the abuser explodes at some perceived infraction by the other person, and the abuser’s rage is manifested in physical violence;
- Finally, the abuser calms down, asks for forgiveness, and promises the violence will never occur again.
Victims often abandon any attempt to leave the situation or to have charges brought against the abuser, although some prosecutors will go forward with charges even if the victim is unwilling to do so. Typically, the abuser’s rage begins to build again after the reconciliation, and the violent cycle is repeated.
Sexual Assault
Sexual assault is defined as any nonconsensual sexual activity including touching, sexual intercourse, penetration, child molestation, attempted rape, indecent assault, etc. In cases where the victim was asleep or too intoxicated to give consent and also in instances where the alleged assailant holds a position of authority or trust over the victim, sexual assault charges may be filed.
Attempted Assault
An attempted assault is defined as attempting to cause serious physical harm resulting in significant injury. Examples of this include physical harm to a person or another person’s unborn child and engaging in sexual conduct as a known carrier of a virus that causes acquired immunodeficiency syndrome.
Felony Penalties
A felony is a serious criminal offense carrying a fine up to $10,000 and sentencing in a state penitentiary for a period between six months and life. Voting privileges may be revoked as well as the right to have a gun or obtain certain state occupational licenses. Felonies include aggravated assault, burglary and DWI (third offense).
| Felony | Penalty |
|---|---|
| Capital | Death or life in prison without parole |
| First-degree | 5 to 99 years in prison and/or a fine of not more than $10,000 |
| Second-degree | 2 to 20 years in a state prison and/or a fine of not more than $10,000 |
| Third-degree | 2 to 10 years in a state prison and/or a fine of not more than $10,000 |
| State Jail | 180 days to 2 years in a state jail and/or a fine of not more than $10,000 |
The Texas Penal Code sets broad sentencing guidelines for each class and degree of criminal charge. Exact sentences are generally up to the judge, with recommendations from the prosecutor and, in certain cases, from the jury.
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