What does Assault By Threat mean in Texas criminal law?

angry-threatA person commits Assault by Threat if he or she intentionally or knowingly threatens another person with imminent bodily injury. In this context, the term “bodily injury” means anything that causes pain, even if it does not leave a mark.[1]Texas Penal Code 1.07(a)(8) The threat can be verbal or non-verbal.[2]Blount v. State, 452 S.W.2d 164, 166 (Tex. Crim. App. 1976)  The base level offense for Assault by Threat is a class C misdemeanor, the lowest level of criminal offense in Texas.

Unlike higher level assault charges, a person can not recklessly commit the offense of Assault By Threat. To win a conviction for this crime, the prosecutor must prove, beyond a reasonable doubt, that the defendant was aware that his or her conduct was reasonably certain to cause the result.

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

Is it worthwhile to fight an Assault By Threat charge?

The maximum fine for Assault by Threat is only $500 so it may be tempting to pay the fine and move on with your life.[3]Texas Penal Code 12.23 That could be a huge mistake!

Simply paying the fine usually amounts to pleading guilty or no contest, which counts as a conviction. An assault conviction on your criminal record can make it significantly harder to get a job, can cause you to be passed over for promotions, and can make it difficult if not impossible to obtain certain types of professional licenses. In addition, criminal background checks are playing an ever-increasing role in credit and lease applications.

Unless your criminal history is already ruined by multiple convictions for violent crimes, it is probably worth the time, energy, and money required to properly fight an Assault by Threat charge. The potential consequences are severe enough that you owe it to yourself to at least attempt to negotiate a resolution that would allow you to seek an expunction of the case records.

domestic-violenceAnother reason to fight the charge is that a conviction for Assault by Threat can escalate future misdemeanor domestic assault charges to the level of a third degree felony. This potential escalation of charges never goes away, it hangs over you for the rest of your life and can be a serious concern if you have unstable or chaotic relationships with any family members, roommates, or dating partners.

contestIn the short run, hiring a good criminal defense attorney to fight a class C assault charge is more expensive than simply paying the fine. But a conviction means being forever labeled as a person with a “history of violence” so the long-term damage to your earning potential is incalculable. This is especially true for licensed professionals and people with careers in fields like healthcare and corporate management. For example, many professional licenses require that the person be of strong moral character, but a conviction for domestic assault may be considered a crime of moral turpitude.

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

What are the elements of Assault By Threat?

It is not unusual for a law enforcement officer to accuse a person of Assault By Threat when they don’t have sufficient evidence to prove every element of the offense.  One common mistake is to confuse the fear experienced by the alleged victim with the intent of the defendant.

Culpable Mental State

To win a conviction for this offense, the state must prove, beyond a reasonable doubt, that one of the following statement is true:

  1. It was the defendant’s conscious objective or desire to threaten another person with imminent physical pain or injury.[4]Texas Penal Code 6.03(a)
  2. The defendant was aware that his conduct would be reasonably certain to threaten another person with imminent physical pain or injury.[5]Texas Penal Code 6.03(b)

Assault By Threat is not a crime that can be committed accidentally, negligently, or recklessly. For example, a threat that was merely intended to cause emotional distress or fear of property damage does not meet the definition of Assault By Threat, even if the behavior recklessly caused the alleged victim to actually fear physical pain or injury.


intimidationThe state must also prove, beyond a reasonable doubt, that the threat was imminent, rather than something that MIGHT happen in the future.

The word “imminent” is not defined in the Penal Code but the appellate courts have ruled that it means “ready to take place, near at hand, impending, hanging threateningly over one’s head, menacingly near.” [6]Garcia v. State, 367 S.W.3d 683, 689 (Tex.Crim.App.2012)[7]Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989)[8]Millslagle v. State, 81 S.W.3d 895, 898 (Tex.App.-Austin 2002, pet. ref’d)

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

When is Assault by Threat NOT a class C misdemeanor?

There are several situations in which threatening to hurt someone is a more serious offense than a class C misdemeanor.

Aggravated Assault

If someone intentionally or knowingly uses or exhibits a deadly weapon while threatening another person with imminent bodily injury, the offense may be charged as Aggravated Assault with a Deadly Weapon, which is a second degree felony punishable by up to 20 years in the state penitentiary and a fine up to $10,000.[9]Texas Penal Code 12.33 The penalties can be more severe for repeat offenders.[10]Texas Penal Code 12.42

threat-deadly-weaponThis offense might be committed, for example, by pointing a firearm at a person or otherwise displaying it in a threatening manner. The courts have upheld convictions for Assault with a Deadly Weapon in cases where there was no proof that the firearm was loaded.

Assault with a Deadly Weapon is raised to a first degree felony if the assault involves a public servant, is committed against a security guard, or is in retaliation against a witness.

Assault of Elderly or Disabled Individual

Threatening to hurt an elderly or disabled person is a class A misdemeanor. The punishment range for a class A misdemeanor is confinement for up to one year in the county jail and a fine up to $4,000 but may be enhanced depending on the defendant’s criminal history.[11]Texas Penal Code 12.21[12]Texas Penal Code 12.43 For the purposes of Texas assault law, the word “elderly” means anyone age 65 or older.

Assault / Sports Participant

umpireAssault by threat is a class B misdemeanor when committed by a person who is not a sports participant against a sports participant either during the game or in retaliation for the person’s performance. The punishment for a class B misdemeanor is confinement for up to 180 days in the county jail and a fine up to $2,000 but may be enhanced based on the defendant’s criminal history.[13]Texas Penal Code 12.22

For the purpose of this law, the “sports participant” could be an athlete, referee, umpire, coach, or other staff members involved in the game.

Terroristic Threat

Terroristic Threat is not technically a form of Assault, but one of the ways it can be committed is very similar to Assault by Threat. Specifically, the act of threatening to commit a violent crime with intent to place a person in fear of imminent serious bodily injury can be charged as Terrorist Threat.

ambulanceAlthough “bodily injury” is just something that causes pain, the term serious bodily injury is specifically defined in law as an 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.[14]Texas Penal Code 1.07(a)(46)

Like regular Assault by Threat, the fact that the alleged victim actually experienced fear is not particularly relevant and the threat itself must be imminent.

Unlike Assault by Threat, it is not enough for the prosecution to show that the defendant knew his or her actions would cause the fear, the state can only win a conviction if they can prove, beyond a reasonable doubt, that it was the defendant’s intent to cause a specific type of fear.

The prosecution must also prove is that the defendant threatened to commit a criminal offense involving violence. This is key because there are many situations where it is NOT a crime to threaten an act of violence.  Some of the most common legal justifications for threats of violence are: self defense, defense of another person, defense of property, or threats to terminate trespass.[15]Texas Penal Code 9.04

This type of Terroristic Threat is usually a class B misdemeanor but it is a class A misdemeanor when the threat is against a public servant or involves family violence.

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

Further Reading

What is the Minimum Punishment for Assault?
More about Assault and Aggravated Assault
More about Assault with Family Violence


1Texas Penal Code 1.07(a)(8)
2Blount v. State, 452 S.W.2d 164, 166 (Tex. Crim. App. 1976)
3Texas Penal Code 12.23
4Texas Penal Code 6.03(a)
5Texas Penal Code 6.03(b)
6Garcia v. State, 367 S.W.3d 683, 689 (Tex.Crim.App.2012)
7Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989)
8Millslagle v. State, 81 S.W.3d 895, 898 (Tex.App.-Austin 2002, pet. ref’d)
9Texas Penal Code 12.33
10Texas Penal Code 12.42
11Texas Penal Code 12.21
12Texas Penal Code 12.43
13Texas Penal Code 12.22
14Texas Penal Code 1.07(a)(46)
15Texas Penal Code 9.04