Emergency? Call Now A fistfight outside a bar on the St. Mary’s Strip can be a Class A misdemeanor with a maximum of a year in the county jail. The same fight can be a second-degree felony carrying up to twenty years in prison. If the people involved live together, and a bottle was picked up, it can be a first-degree felony with a ceiling of life. Same night, same two people. The difference is which words the prosecutor puts on the charging instrument, and whether the defense can keep them off. I have charged these cases and I have defended them. Here is how the statute actually works, and where the fight is.
Assault: the baseline
Penal Code § 22.01(a) defines assault three ways: intentionally, knowingly, or recklessly causing bodily injury to another; intentionally or knowingly threatening another with imminent bodily injury; or intentionally or knowingly causing physical contact the person knows the other will regard as offensive. “Bodily injury” is defined in § 1.07(a)(8) as “physical pain, illness, or any impairment of physical condition.” Pain is enough. A slap that leaves no mark is bodily-injury assault if the complainant says it hurt. That is why so many assault cases rest on nothing but one person’s word.
Assault causing bodily injury is a Class A misdemeanor under § 22.01(b). The threat and offensive-contact versions are Class C — a ticket. But § 22.01 is full of escalators. Bodily-injury assault becomes a third-degree felony (two to ten years under § 12.34) if it is committed against a family or household member or dating partner and the accused has a prior family-violence conviction, or if it is committed by impeding the person’s normal breathing or circulation — the “choking” allegation that turns a misdemeanor argument into a felony in Bexar County every week.
Aggravated assault: two definitions carry all the weight
Penal Code § 22.02(a) says a person commits aggravated assault if he commits assault under § 22.01 and either causes serious bodily injury to another, or uses or exhibits a deadly weapon during the assault. Everything turns on those two phrases. “Serious bodily injury” under § 1.07(a)(46) 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 broken nose that heals is bodily injury.
A broken nose that leaves a permanent deformity is arguably serious bodily injury. A cut that needed stitches is usually bodily injury; a cut that severed a tendon is serious. The medical records decide these cases, and the defense lawyer who hasn’t read every page of them is guessing. “Deadly weapon” under § 1.07(a)(17) means a firearm or anything “manifestly designed, made, or adapted 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 bodily injury.” That second clause is the one that matters.
A beer bottle, a car, a boot, a kitchen knife, a hot pan — Texas courts have found all of them to be deadly weapons depending on how they were used. The question is not what the object is; it is whether the way it was used was capable of causing death or serious injury. “Exhibits” is broader still: a knife shown but never swung will support the charge.
The punishment ladder
Aggravated assault is a second-degree felony under § 22.02(b): two to twenty years under § 12.33. It becomes a first-degree felony — five to ninety-nine years or life under § 12.32 — in several situations, and two of them come up constantly in San Antonio: • the accused used a deadly weapon and caused serious bodily injury to a family or household member or dating partner (§ 22.02(b)(1)(A)); or • the assault was against a person the accused knew was a public servant on duty, including a police officer (§ 22.02(b)(2)(B)).
An affirmative deadly-weapon finding also has consequences that don’t show up in the sentence itself: it pushes parole eligibility out to half the sentence, and it takes straight probation away from the judge — only a jury can recommend it, and only if the sentence is ten years or less. A plea to “aggravated assault, deadly weapon” is a very different plea from “aggravated assault, serious bodily injury,” even at the same number of years, and a family evaluating an offer needs to understand that.
Where the defense goes to work Downgrading the injury.
Was it “serious” within the statutory definition, or did the prosecutor use the word because it sounded right? I have seen “serious bodily injury” charged on injuries that a treating physician, when actually asked, described as minor. The medical records and, if necessary, a defense medical expert are the tools.
Contesting the weapon.
Was the object used in a manner capable of causing death or serious bodily injury? Whose word says it was displayed at all? In a case with no injury and a claimed weapon that was never recovered, the deadly-weapon element is often the softest part of the State’s case. Self-defense and defense of others. Texas justification law is generous to a person who reasonably believed force was immediately necessary, and once the defense raises the issue, the State has to disprove it beyond a reasonable doubt. The evidence that raises it — the other person’s injuries or lack of them, who was the aggressor, threats beforehand — has to be gathered early.
The relationship allegation.
The family-violence escalators and the first-degree enhancement depend on the relationship between the parties fitting the Family Code’s definitions. That is a fact the State has to prove.
Mental state.
Recklessness supports assault; it also supports aggravated assault. But whether the accused “used” a weapon, “knew” the person was a public servant, or “intended” the contact are each elements a jury has to find.
One more thing families need to know
In Bexar County, the complaining witness does not get to drop an assault case. Once it is filed, it belongs to the State. A spouse or partner who calls the DA’s office to say “I don’t want to press charges” will be told that, and the case will proceed. What the defense does with the complainant’s changed account is a matter of strategy, not a matter of the case going away. If you or someone in your family is charged with assault or aggravated assault in San Antonio, the charging language is the first thing I want to see. Call 210-663-3750.
Frequently asked questions
What’s the penalty for aggravated assault in Texas?
It is a second-degree felony — two to twenty years in prison and up to a $10,000 fine under Penal Code §§ 22.02(b) and 12.33. It becomes a first-degree felony (five to ninety-nine years or life) in the circumstances listed in § 22.02(b), including deadly weapon plus serious bodily injury to a family or household member.
Can a fist be a deadly weapon in Texas?
Hands and feet are not deadly weapons per se, but courts have upheld deadly-weapon findings where the manner of use was capable of causing death or serious bodily injury. It is a fact question decided on the evidence in each case.
What does a “deadly weapon finding” do to a sentence?
An affirmative deadly-weapon finding delays parole eligibility and prevents the judge from granting probation; only a jury can recommend it. Whether a plea includes such a finding is one of the most important terms to negotiate.
Can an assault charge be filed based only on the complainant’s statement?
Yes. “Bodily injury” includes physical pain, and a complainant’s testimony that the contact hurt can be legally sufficient. Whether a jury believes it is another matter.
What if the alleged victim doesn’t want to prosecute?
The decision belongs to the State, not the complainant. Bexar County prosecutes family-violence cases without the complainant’s cooperation as a matter of policy. The complainant’s position still matters to how the case is defended. This post is general information about Texas law, not legal advice about any specific case. Every case turns on its own facts.