Articles Posted in Aggravated Assault

punch2.jpgThe first jury trial I won on aggravated assault was trickier because allegation was threatening injury and displaying a deadly weapon. My client was alleged to have chased his ex-girlfriend/child’s mother’s vehicle up and down the highway with his vehicle, and threatened to ram her (he did bump her a little). Fortunately, the jury found him guilty of the lesser included offense of deadly conduct. This can be a reasonable out in many aggravated assault cases, which in reality are deadly conduct cases.

If you are trying an aggravated assault case, always ask for deadly conduct as a lesser included, particularly if the language of the aggravated assault allegation allows deadly conduct to fit more neatly as a lesser included. The court found it to be one in my first jury trial where it was alleged to be an intentional threat with a deadly weapon. Sec. 22.05 of the Penal Code defines deadly conduct as “(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury…” Deadly conduct has been held to be a lesser included offense to aggravated assault on multiple occasions. Bell v. State, 693 S.W.2d 434, 437 (Tex.Crim.App.1985). Guzman v. State, 188 S.W.3d 185, 190-91 (Tex.Crim.App.2006). The end result was my client walked away with a misdemeanor conviction and a fine only, when he was facing two to twenty years in the penitentiary on the indictment.

If all this sounds complicated, it is because it can be. The laws and facts of every assault case, including the interpersonal dynamics between the witnesses, are normally convoluted. This is why you should be very careful to hire an experienced criminal trial lawyer for any aggravated case. Really, for any criminal case.

921217_crashed_car.jpgWhat is a deadly weapon? Well, thankfully the code defines that for us as well. Penal Code 1.07(17) says that “‘Deadly weapon’ means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” In most cases, the latter is the alleged deadly weapon theory.

So, there are several ways of committing aggravated assault. The first is straightforwardly causing serious bodily injury without a deadly weapon. Punching someone in the nose and breaking their nose could be aggravated assault. The state would not have to prove that the fist was a deadly weapon because they just have to prove serious bodily injury occurred. Pushing someone down a set of stairs could also be aggravated assault this way if it caused serious bodily injury, but the same could also be aggravated assault in another way. How? The stairs could be alleged to have been “used” as a deadly weapon when used this way. In that case, even if you only caused them pain, the stairs could be alleged as a deadly weapon, aggravating the assault.

In my most recent jury trial, the allegation was using a vehicle as a deadly weapon and causing pain, alleged in the same manner as if someone had punched another and then displayed a knife in the course of the assault. We beat it primarily on credibility issues and the lack of any real injury. If the jury had convicted, however, legal sufficiency of the conviction would have been tough to overcome because a vehicle has been routinely upheld as a deadly weapon in many cases, and pain is all of the injury that was required.

punch1.jpgTo understand aggravated assault, one must understand misdemeanor assault. Section 22.01 of the Penal Code defines assault as “(a) A person commits an offense if the person: 1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; [or] (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse…” Texas Penal Code section 1.07(8) says that “‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.” So, to have an assault you must either cause or threaten bodily injury, which in most cases is physical pain (though illness and other physical impairment are sometimes seen.)

Section 22.02 of the Penal Code defines aggravated assault as “(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Section 1.07(46) of the Penal Code says that “‘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.” Thus, there are two aggravators to make an assault an aggravated one: 1) causing serious bodily injury, i.e. risk of death or actual disfigurement/loss of use of organ, or 2) displaying a deadly weapon in the course of committing an assault.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

assaultknife.jpgOne of the most prosecuted and least appreciated criminal statutes is aggravated assault with a deadly weapon. Criminal trial lawyers are separated from other lawyers by their ability to win aggravated cases at jury trial. We go into the case knowing our client is likely to do time if the jury believes they committed the offense, particularly if the client has any criminal history. When people think of aggravated assault, or when I do, I think of someone shooting another person in the leg or beating them with a baseball bat, or maybe pointing a gun at someone and threatening their life (without justification, of course.) Aggravated assault normally carries two to twenty years in the penitentiary, the first two of which and, if a four or more year sentence, half of which must be served day for day before parole eligibility, so it is important to know how easily it can be alleged.

I recently won a jury trial where my client was accused of aggravated assault against a police officer. He was accused of intentionally, knowingly or recklessly driving his car at the officer and hitting the officer’s hand with his side view mirror, causing the officer “pain.” My first ever felony jury trial victory was an aggravated assault with a deadly weapon charge in which a vehicle was alleged to be the deadly weapon. In that case, he allegedly “exhibited” it while intentionally or knowingly threatening his ex-girlfriend by running her off the road. Both were thin cases on their face with no serious injury, but a reading of the law reveals that indicting a person for aggravated assault just requires an assault allegation and a theoretical deadly weapon.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.