Every day dozens of aggravated assault charges are filed in the Greater Houston area. The conduct that forms the basis of an aggravated assault charge can vary greatly but all forms of aggravated assault are felonies with potentially serious consequences. If you are charged with aggravated assault, it is critical that you obtain the services of an experienced criminal defense lawyer as soon as possible. The goal of an aggravated assault charge should always be to obtain a dismissal and protect your freedom and record.
What are the elements of an aggravated assault charge in Texas?
An aggravated assault is an assault plus some “aggravating” or additional factor. Under Texas Penal Code 22.01, an assault requires a person to intentionally, knowingly, or recklessly cause bodily injury to another, or threaten another with imminent bodily injury.
Under Texas Penal Code 22.02, aggravated assault is a second-degree felony if the defendant uses or exhibits a deadly weapon during the commission of the assault or the assault results in serious bodily injury to another person.
Serious bodily injury is defined as bodily injury that creates a substantial risk of death or causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. A deadly weapon is defined as a firearm or anything “manifestly designed” for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing death or serious injury (the “manner of use” definition can apply to a wide range of objects not typically thought of as deadly weapons). A second-degree felony can be punished by 2-20 years in the Texas Department of Criminal Justice and a $10,000 fine.
Aggravated assault can be a first-degree felony if a deadly weapon is used against a family member or someone the defendant is in a dating relationship with and the defendant causes serious bodily injury. Aggravated assault can also be a first-degree felony if it is:
- Committed by a public servant acting “under color” of his employment.
- Committed against a public servant while the public servant is doing his job, or in retaliation for the public servant performing his job.
- Committed against a process server while the process server is performing his job.
- Committed against a security officer while the officer is performing his job.
- Committed during a drive-by shooting, and the shooting causes serious bodily injury to any person.
A first-degree felony can be punished by 5-99 years in the Texas Department of Criminal Justice and a $10,000 fine.
How can you get a case dismissed?
Aggravated assault cases are regularly dismissed or reduced to misdemeanors in the Greater Houston area. In order to be able to evaluate your case and maximize your chances of a dismissal, your attorney will first need to obtain all of the evidence in your aggravated assault case. Typically, this includes offense reports, videos, 911 calls, witness statements, and medical records.
Your attorney should start by challenging the elements of the offense. As noted above, an aggravated assault is a regular assault, plus some aggravating factor – typically serious bodily injury or the exhibition of a deadly weapon. In many cases, the State will not be able to prove that the complaining witness suffered serious bodily injury (which has a specific definition under Texas law), or that an object used in the assault should be considered a deadly weapon due to the manner of its use. It is important to remember that it is the responsibility of the State of Texas to prove all of the elements of aggravated assault beyond a reasonable doubt.
There are several defenses that are commonly employed in aggravated assault cases in the Greater Houston area. One common defense in aggravated assault cases is self-defense. Under Texas law, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the use of deadly force. Even where an aggravated assault has been committed, it is possible that the defendant was justified in using or exhibiting deadly force. Whether the defendant was reasonable in using deadly force will often turn on the nature of the actual or perceived threat being responded to.
In some cases, the defense will be that the aggravated assault did not occur how the police or complaining witness claims. In these situations, it is important to have evidence disputing the complaining witnesses’ statements, and possibly showing why the complaining witness had a motive to lie. Whatever the defense, a criminal defense attorney should be proactive and conduct his own investigation – not just wait for the District Attorney to provide evidence. In every aggravated assault case, your criminal defense attorney should work to obtain witness statements. Contrary to what many prosecutors believe, the defense has the right – and even the duty – to contact all witnesses to the alleged aggravated assault, even the complaining witness.
Once your criminal defense attorney understands the facts and has conducted his own investigation, he will need to decide whether to share any information with the District Attorney’s Office. Before sharing a defense or materials with a prosecutor in an aggravated assault case, a criminal defense attorney should have a good idea whether putting his cards on the table might lead to a dismissal or favorable outcome. If a prosecutor will simply use the information a criminal defense attorney shares to anticipate what the defense will do at trial, then it is not a good strategy to work with the prosecutor.
At Ceja Law Firm, one tool we regularly employ to get aggravated assault cases dismissed is a Grand Jury Packet. Grand Jury packets are documents provided to the Grand Jury in the hope of persuading them to find no probable cause in a case (known as a “no bill”). In the right situation, a Grand Jury Packet can be a silver bullet but the conditions must be right to consider this option. Typically, you need a compelling defense, a sympathetic defendant, and a prosecutor who is on your side. It is also helpful to have a passed polygraph examination and letters of character reference.
Some examples of situations where we have obtained dismissals for our clients after submitting a Grand Jury Packet include a wife stabbing her husband with a pair of scissors after the husband got physical with the wife and repeatedly pushed her, a man shooting a car thief who lunged out of the stolen car in a threatening manner, or a Marine stabbing a man to prevent him from assaulting his wife (known as defense of a third-person). In the Greater Houston area, most prosecutors present cases to the Grand Jury in the first few months after the incident so it is important to act quickly if this is an option you wish to explore.
If your aggravated assault case is not dismissed, you will have to choose between a trial and a plea agreement. Your criminal defense attorney should review the evidence with you in detail, as well as the terms and consequences of the offer, to help you make an informed decision. It is also critical that your attorney help you understand the potential risks of going to trial.
Attorney Jose Ceja is a former prosecutor who has handled hundreds of aggravated assaults in his career and has extensive trial experience with virtually every type of criminal case. He regularly obtains excellent results for client charged with aggravated assault throughout the Greater Houston area. If you are charged with aggravated assault, Mr. Ceja is an excellent choice. Call Ceja Law Firm for a free consultation.