What is Aggravated Assault With a Deadly Weapon?

What is Aggravated Assault With a Deadly Weapon?

deadly-weaponIn Texas, a person commits Aggravated Assault With a Deadly Weapon by committing regular assault while using or exhibiting a deadly weapon.

Regular assault can be committed by hurting someone, making an imminent threat to hurt someone, or causing offensive physical contact with someone. This means that the crime of “Aggravated Assault With a Deadly Weapon” can be committed without actually HURTING anyone with a weapon.

The possession of a deadly weapon during an assault does not necessarily mean the weapon was used or exhibited as required by this law. The determining factor is whether the means in which the weapon was used, or the manner in which it was displayed, somehow facilitated the commission of assault. For example, an assault might be facilitated by possession of a weapon because it could intimidate the victim not to fight back.[1]See: McCain v. State, 22 S.W.3d 497 (Tex.Crim.App.2000)[2]See: Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App.1989)

Aggravated Assault With a Deadly Weapon appears on the docket for the Travis County Criminal District Courts as “AGG ASSAULT W/DEADLY WEAPON”.


Call (512) 480-9020 to hire us on an Aggravated Assault case in Travis County.


What is the legal definition of a Deadly Weapon?

baseball-batA “deadly weapon” can be (1) a firearm, (2) anything specifically made to cause death or serious bodily injury, or (3) anything used in a manner that is capable of causing death or serious bodily injury. So a firearm is ALWAYS a deadly weapon, even when not loaded.

The third definition includes objects that one ordinarily wouldn’t think of as weapons such as a glass bottle, a golf club, a bed pillow, or a motor vehicle. The primary purpose of these items is not to hurt a person but, under the right circumstances, they could be used as deadly weapons. Even a defendant’s bare hands have determined to be  deadly weapons in cases where a victim died or suffered a serious bodily injury after being punched or pushed. The precise legal definition can be found in Texas Penal Code 1.07(a)(17).

deadly-weaponTexas courts have identified multiple factors to be used in determining whether a thing (other than a firearm) is capable of causing death or serious bodily injury:

  1. Physical proximity between the victim and the object.[3]Tisdale v. State, 686 S.W.2d 110, 115 (Tex.Crim.App.1984) (op. on reh’g)checklist
  2. Threats or words used by the defendant.[4]Williams v. State, 575 S.W.2d 30, 32 (Tex.Crim.App.1979)
  3. Physical characteristics of the weapon, e.g: size, shape, sharpness, etc.[5]See: Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983)
  4. Weapon’s ability to inflict death or serious injury.[6]See: Blain The danger to others must be actual, not hypothetical. [7]See: Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005)[8]See: Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App.2003)
  5. Manner in which the defendant used the weapon.[9]See: Blain

No single factor is determinative, and each case must be examined on its own facts.[10]Brown v. State, 716 S.W.2d 939, 946-47 (Tex.Crim.App.1986) The nature or existence of inflicted wounds may be probative, but wounds are not required.[11]Magana v. State, 230 S.W.3d 411, 414 (Tex.App.–San Antonio 2007, pet. ref’d) Either expert testimony or lay testimony may be sufficient to support a finding.[12]English v. State, 647 S.W.2d 667, 668-69 (Tex.Crim. App.1983) The jury may determine the weapon was capable of causing death or serious bodily injury even if it is not in evidence.[13]English at 669


Call (512) 480-9020 to hire us on an Aggravated Assault case in Travis County.


What is the legal definition of a Serious Bodily Injury?

broken-glassBodily injury is defined as physical pain, illness, or any impairment of condition.  Meanwhile, “serious bodily injury” means 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. This definition of serious bodily injury is found in Texas Penal Code 1.07(a)(46).

The difference between “bodily injury” and “serious bodily injury” is a matter of degree. There is no type of wound that is always a serious bodily injury, even one caused by a deadly weapon or that requires surgery. The determination must be made on a case-by-case basis.[14]See e.g. Moore v. State, 739 S.W.2d 347 (Tex.Crim.App.1987)[15]Webb v. State, 801 S.W.2d 529 (Tex.Crim.App.1990)[16]Madden v. State, 911 S.W.2d 236 (Tex.App.—Waco 1995, pet. ref’d)[17]Hernandez v. State, 946 S.W.2d 108 (Tex. App.–El Paso 1997, no pet.) The nature of the risk posed by an injury is evaluated without regard to the positive effects of medical treatment.[18]See: Blea v. State, NO. PD–0245–15 (Tex.Crim App. 2016)[19]Brown v. State, 605 S.W.2d 572, 575 (Tex.Crim App. 1980)

The issues of “serious permanent disfigurement” and “protracted impairment of a bodily member or organ” are also matters of degree. For example, the mere existence of a permanent scar is not, on its own, sufficient to establish serious permanent disfigurement.[20]See: McCoy v. State, 932 S.W.2d 720 (Tex. App.—Fort Worth 1996, pet. ref’d) Likewise, the length of the recuperation period does not automatically elevate bodily injury to serious bodily injury. The simple existence of some form of impairment does not always amount to a protracted loss or impairment of a bodily member or organ.[21]See: Moore, 739 S.W.2d at 356


Call (512) 480-9020 to hire us on an Aggravated Assault case in Travis County.


What is the punishment for Aggravated Assault?

Aggravated Assault is defined Texas Penal Code 22.02 and is typically a second degree felony, punishable by 2 to 20 years in the state penitentiary and a fine up to $10,000.  However, this offense is a first degree felony punishable by 5 years to life if it meets any one of the following conditions:

  • razor-wire-fenceCauses serious bodily injury and involves a deadly weapon and family violence or dating violence.
  • Committed by or against a public servant on official duty.
  • Committed in retaliation against a witness, prospective witness, informant, or someone who reported a crime.
  • Committed against an on-duty security officer.
  • Is a drive-by shooting that causes serious bodily injury to any person.

The minimum punishment for Aggravated Assault with a Deadly Weapon is nothing, zero, zilch, nada.

Any non-citizen convicted of an aggravated felony is subject to deportation. [22]8 U.S.C. 1227(a)(2)(A)(iii) – General Classes of Deportable Aliens


Call (512) 480-9020 to hire us on an Aggravated Assault case in Travis County.


Punishment Consequences of “3g” Offenses

3gUnder Article 42.12, Section 3g of the Texas Code of Criminal Procedure, Aggravated Assault With a Deadly Weapon is grouped with the most serious offenses, like murder, sexual assault, and aggravated kidnapping. This law prohibits a judge from granting regular probation to individuals convicted of 3g offenses, but allows deferred adjudication probation. Probation is also not an option when the sentence is greater than 10 years.

As of January 1, 2017, section 3g has been moved to Article 42A.054 but many people are still using the “3g” terminology.

jailA judge may not grant early termination of community supervision to those who receive probation from a jury. Individuals who serve prison sentences for 3g offenses must also serve more of their sentences before becoming eligible for parole than inmates who are convicted of other crimes.


Call (512) 480-9020 to hire us on an Aggravated Assault case in Travis County.


Further Reading:

What is the minimum punishment for Assault?
What is Deadly Conduct?
Assault & Aggravated Assault FAQ

References   [ + ]

1. See: McCain v. State, 22 S.W.3d 497 (Tex.Crim.App.2000)
2. See: Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App.1989)
3. Tisdale v. State, 686 S.W.2d 110, 115 (Tex.Crim.App.1984) (op. on reh’g)
4. Williams v. State, 575 S.W.2d 30, 32 (Tex.Crim.App.1979)
5. See: Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983)
6, 9. See: Blain
7. See: Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005)
8. See: Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App.2003)
10. Brown v. State, 716 S.W.2d 939, 946-47 (Tex.Crim.App.1986)
11. Magana v. State, 230 S.W.3d 411, 414 (Tex.App.–San Antonio 2007, pet. ref’d)
12. English v. State, 647 S.W.2d 667, 668-69 (Tex.Crim. App.1983)
13. English at 669
14. See e.g. Moore v. State, 739 S.W.2d 347 (Tex.Crim.App.1987)
15. Webb v. State, 801 S.W.2d 529 (Tex.Crim.App.1990)
16. Madden v. State, 911 S.W.2d 236 (Tex.App.—Waco 1995, pet. ref’d)
17. Hernandez v. State, 946 S.W.2d 108 (Tex. App.–El Paso 1997, no pet.)
18. See: Blea v. State, NO. PD–0245–15 (Tex.Crim App. 2016)
19. Brown v. State, 605 S.W.2d 572, 575 (Tex.Crim App. 1980)
20. See: McCoy v. State, 932 S.W.2d 720 (Tex. App.—Fort Worth 1996, pet. ref’d)
21. See: Moore, 739 S.W.2d at 356
22. 8 U.S.C. 1227(a)(2)(A)(iii) – General Classes of Deportable Aliens

 

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