This article discusses aggravated assault and deadly conduct in Texas. For information on simple assault, see Simple Assault in Texas. For a complete discussion of the offenses of aggravated assault and deadly conduct involving a deadly weapon – particularly firearms – see Deadly Conduct in Texas.

What is Aggravated Assault in Texas?

Aggravated assault in Texas consists of:

• intentionally, knowingly or recklessly causing serious bodily injury to another person, or
• using or exhibiting a deadly weapon in the course of committing any assault crime, including threatening another with bodily injury or engaging in conduct that the victim likely will find offensive.

(Tex. Penal Code Ann. § § 22.01, 22.02).

What is Deadly Conduct in Texas?

The offense of deadly conduct in Texas consists of:

• recklessly engaging in any conduct that places another at imminent risk of suffering a serious bodily injury, or
• knowingly discharging a firearm at a person(s), house, building or vehicle with reckless disregard for whether the house, building or vehicle is occupied.

(Tex. Penal Code Ann. § 22.05).

Some forms of road rage could constitute deadly misconduct. For example, if a driver tries to cut off another driver or maneuvers his vehicle to potentially run another vehicle off the road, especially on a highway or other roadway with a high speed limit, he places the other driver in danger of serious bodily injury because his actions could cause a motor vehicle accident or collision.

Serious Bodily Injury

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. A minor cut, scrape, or bruise is a not serious bodily injury, but loss of an eye or permanent scarring would be considered serious bodily injury.

(Tex. Penal Code Ann. § 1.07).

Recklessness

A reckless act is one that is committed, not necessarily with intent to harm another, but without regard for the outcome. If someone is aware of but consciously disregards a substantial and unjustifiable risk that a likely result will occur, he or she acts recklessly.

For example, pushing someone out of the way in a crowd so that you can get through, without intending to injure the person, is reckless because it is likely that the person could fall and suffer an injury. The road rage conduct described above also is reckless because the driver is engaging in dangerous actions despite the high risk of injury to the other driver or the driver’s passengers.

(Tex. Penal Code Ann. § 6.03).

Level of Offense

Aggravated assault is a first or second degree felony and deadly misconduct is a Class A misdemeanor or a third degree felony.

Aggravated assault

An aggravated assault is a second degree felony except in the following circumstances in which it is a first degree felony:

• the offender uses a deadly weapon in committing the assault and causes serious bodily injury to the victim and the victim is a family or household member, or someone the offender is or has dated or had an intimate relationship with, qualifying the offense as a domestic assault
• the aggravated assault is committed by a public servant, such as a state worker or city counselor acting in his official capacity
• the victim is a person the offender knows to be a public servant engaged in the performance of his duties or the assault is committed in retaliation for the public servant performing his duties
• the aggravated assault is committed in retaliation against a witness, informant or a person who reported a crime
• the victim is a person the offender knows to be a security officer engaged in performing his duties, or
• the offender shoots a firearm from a motor vehicle at a house, building or motor vehicle with reckless disregard for whether the house, building or motor vehicle is occupied and causes serious bodily injury to the victim.

(Tex. Penal Code Ann. § 22.02).

For more information on domestic assault, see Texas Domestic Violence Laws.

Deadly misconduct

The offense of deadly misconduct is a Class A misdemeanor if it involves only conduct that puts another in danger. The offense is a third degree misdemeanor if it involves discharging a firearm.

(Tex. Penal Code Ann. § 22.05).

Penalties for Aggravated Assault and Deadly Misconduct

A person convicted of aggravated assault in Texas faces the following possible penalties:

• Second degree felony – from two to 20 years in prison and a fine of up to $10,000
• First degree felony – from five to 99 years in prison and a fine up to $10,000

(Tex. Penal Code Ann. § § 12.33, 12.32).

A person convicted of deadly misconduct in Texas faces the following possible penalties:

• Class A misdemeanor – up to one year in jail or a fine up to $4000, or both
• Third degree felony – from two to ten years in prison and a fine up to $10,000.

(Tex. Penal Code Ann. § § 12.21, 12.34).

Note that prior misdemeanor or felony convictions can result in increased prison time and fines.

(Tex. Penal Code Ann. § § 12.42, 12.43).

Restitution

A person convicted of aggravated assault or deadly misconduct in Texas can be required to pay restitution, which involves reimbursing the victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling or repair or replacement of damaged property.

Deferred Adjudication and Community Supervision

Texas law provides certain alternatives to a jail or prison sentence for a person charged with or convicted of aggravated assault or deadly misconduct.

Deferred adjudication

If a defendant pleads guilty to a misdemeanor deadly misconduct charge, the court may grant a deferred adjudication. The court postpones sentencing for a period of time on the condition that the defendant successfully complies with probation and certain other requirements, such as no new arrests or criminal offenses during the conditional period, paying restitution, or doing volunteer work in the community.

If the defendant satisfies all the court’s requirements, the court will discharge the defendant and dismiss the case. The arrest, deferral and dismissal will be part of the defendant’s criminal record. If the defendant fails to satisfy the court’s requirements, the court will impose a sentence and enter a conviction. This alternative is most typically granted to first offenders. Deferred adjudication may be available to a person charged with aggravated assault or felony deadly misconduct but such a light sentence for such a serious crime would be highly unusual.

Community supervision

If a defendant is convicted or pleads guilty, the court also can grant community supervision (probation) as an alternative to a jail or prison sentence for up to two years for a misdemeanor and up to ten years for a felony. The court can require the defendant to serve some time in jail or prison before beginning community supervision – 30 days for a misdemeanor and 180 days for a felony. The defendant must successfully complete probation and any other conditions the court imposes or the court can require him to complete the sentence in jail or prison.

A person on community supervision must meet with a probation officer, pay probation costs, and comply with conditions such as treatment, maintaining employment, curfews, drug tests, and avoiding any further criminal activity or arrests.

The Value of Good Representation

A conviction for aggravated assault or deadly misconduct becomes part of your permanent criminal record. If you are convicted later of another crime, the court can consider your prior conviction and impose a harsher sentence in the new case. A conviction for a violent crime – even a misdemeanor – can hurt you when you are looking for a job or applying to rent a house or apartment. A convicted felon loses the right to vote and carry firearms and can lose certain professional licenses.

An experienced attorney can determine whether you have any grounds for dismissal of the charges against you, explore plea options or represent you at trial. Only someone familiar with the local criminal court system and cases like yours will know how good your chances are for a favorable outcome in court or at the negotiating table. A knowledgeable attorney will take all of this into consideration, assist you in making decisions about your case, and protect your rights.

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