Former Prosecutor Assisting Clients in Fort Worth and Tarrant County
Aggravated assault is a serious felony offense in the state of Texas. A conviction carries lengthy terms of incarceration in state prison, onerous probation conditions, hefty fines, and adverse consequences for housing, employment, and even child custody and visitation.
If you have been charged with aggravated assault in Fort Worth, Arlington, or Tarrant County in Texas, you need to contact a skilled aggravated assault defense attorney immediately.
Prior to opening my own criminal defense law firm, I prosecuted hundreds of aggravated assault, felony and misdemeanor cases for the District Attorney’s Offices in Tarrant and Collin Counties.
My work as a prosecutor gave me a unique perspective on approaching cases and crafting effective defense strategies. In addition, over the years, I have gained insight into how judges and juries evaluate evidence.
Overall, I became an assault crimes defense attorney because I believe that everyone deserves to have a seasoned attorney who can stand up for their rights. With my substantial trial experience and vast knowledge of the Texas Penal Code, I am prepared to aggressively defend all aggravated assault charges on your behalf.
In addition to my individual experience, the Fulgham Law Firm has a team of 5 Former Prosecutors with a combined 80 + years of criminal law experience as both a prosecutor and a criminal defense attorney. Each attorney has specific experience dealing with Aggravated Assault charges ranging from handling hundreds of cases in courts and prosecuting and defending dozens of jury trials involving the crime of Aggravated Assault.
If you decide to partner with the Fulgham Law Firm, you will receive a team of criminal attorneys working to defend your freedom and clean up your criminal record. To schedule a free consultation, feel free to contact the Fulgham Law Firm at (817) 886-3280 today.
Three Things You Need to Do Right After Being Arrested for Aggravated Assault in Texas
If you’ve been arrested or/and charged with aggravated assault in Texas, it is extremely important that you take very specific actions to protect yourself. Here are three things that you need to do after being arrested for aggravated assault in Texas:
1. Know Your Right to Remain Silent
Perhaps the most important thing that you need to know both at the time of your arrest and during any criminal proceedings is your fifth amendment right to not answer for a crime (unless indicted by a grand jury to do so).
As such, when you’re arrested, the most information that you should provide police officers is your name; wait until speaking with an attorney to say anything else, and never make any admission of guilt or association with other criminals. (You may inform the officers that you’re exercising your right to remain silent).
2. Avoid Any and All Questionable Activities
After your arrest, you’ll attend a hearing where your crimes will be read, and you’ll officially be charged or released. Charges must be posted against you within 72 hours of your arrest, or you’re free to go. If you’re charged, it’s likely that you’ll be given the opportunity to post bail.
Regardless of whether you are released from jail because no charges were filed against you or on bail, it is extremely important that you refrain from committing any illegal or suspicious activities. If you do, this can significantly impair your case, especially if you’ve already been charged with aggravated assault.
3. Call an Attorney
If you’ve been charged with aggravated assault, don’t wait to call an attorney. In addition to your right to remain silent, you also have the right to legal representation; make sure you exercise this right as quickly as possible. While being in the custody of law enforcement can be intimidating, it is your constitutional right to request an attorney.
An attorney is important early on for a variety of reasons: an attorney can help to ensure that charges are either filed against you or dropped within the 72-hour period, negotiate a fair bail amount, help you determine whether to plead guilty or not guilty, negotiate a plea deal, and collect and present evidence on your behalf.
The penalties for aggravated assault in Texas are serious – don’t risk your future and your life by failing to take legal action. To learn more, call the attorneys at the Fulgham Law Firm, P.C. today. You can reach us at (817) 764-1392 today.
If you’re facing an aggravated assault charge in Texas, you may wonder what the difference is between simple assault and aggravated assault. In this post, we’ll explain the difference and tell you what you can do to fight your charges.
Texas Assault Charges
In Texas, you can be charged with simple assault for the following reasons:
- You intentionally, knowingly, or recklessly caused bodily injury to another person.
- You intentionally or knowingly threatened another person with imminent bodily injury.
- You intentionally or knowingly caused physical contact with another person when you had knowledge or should have had reasonable knowledge that the other person would find the physical contact offensive or provocative.
- Note that physical contactdoes not need to be made for law enforcement to charge someone with assault.
What constitutes physical contact? Any form of unwanted touching. This includes every instance an alleged victim feels personal bodily contact by another person or object another person is (or was) in possession of. Violence is not a requirement.
Penalties for Simple Assault
When a bodily injury is caused by a simple assault, an offender may be charged with a Class A misdemeanor. A conviction can carry a one-year jail sentence plus a fine reaching $4,000.
In the cases of threatening bodily harm or making unwanted physical contact, a Class C misdemeanor can result. Sentencing is usually a fine with no jail time.
Simple assault can be raised to a class A misdemeanor charge if the victim is elderly or disabled. A conviction will result in up to one year in jail, a fine of up to $4,000, or both.
It can also be converted to a class B misdemeanor charge if it is committed against a sports official or athlete at a sporting event. A class B misdemeanor is punishable by up to 180 days in jail, up to a $2,000 fine, or both.
When Texas Assault Becomes Aggravated
Aggravated assault is typically charged either when severe bodily injury is caused to another OR when a deadly weapon is brandished or used during an assault. However, there are other common aggravating factors according to Texas law.
- Location of the assault:Did the assault take place in the victim’s home or at school?
- Status of the victim:Was the victim elderly? A minor child? Part of a vulnerable population? Or a public servant of some kind?
- Severity of injury:In Texas, any injury that poses a risk of or causes death, serious permanent disfigurement, protracted impairment, or loss of a body part is “aggravated.”
- Use of a deadly weapon:Texas Penal Code identifies deadly weapons as anything that can be used or intended for use to cause grave bodily injury or death.
Your charge may be issued as aggravated assault under the following conditions:
- You intentionally, knowingly, or recklessly caused serious bodily injury to someone else.
- You exhibited or used a deadly weapon during the offense. This includes threatening someone else with bodily injury or exhibiting behavior that the victim would reasonably find offensive.
Bodily Injury vs. Serious Bodily Injury in Texas
The difference between bodily injury and serious bodily injury is as follows:
“Bodily injury” means physical pain, illness, or any impairment of physical condition.
“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 conviction for aggravated assault will result in a second degree felony, which is punishable with 2-20 years in prison and a fine of up to $10,000. This applies for using a deadly weapon during the assault.
If the use of a deadly weapon during assault causes serious bodily injury to the victim, a first-degree felony charge will result. This is a serious charge with a penalty of 5-99 years in prison and a fine of up to $10,000.
Defenses to Aggravated Assault Charges in Texas
You can be charged with aggravated assault even if you did not touch the alleged victim. Merely waving a deadly weapon and making a threat, can lead to charges of aggravated assault.
A knowledgeable Fort Worth criminal defense attorney will help you find a viable defense to your charges. Defenses may include the following:
- No deadly weapon was used
- No threats were made
- Acting in defense of others
A skilled lawyer can help you fight the charges that will result in loss of freedom. Since your future is at stake, call for a free consultation with a knowledgeable attorney who will work to protect your rights.
Definition of Aggravated Assault
Texas Penal Code § 22.02 governs aggravated assaults that occur in Tarrant County. Aggravated assault occurs when:
- An individual commits an assault, and either
- The victim suffers serious bodily injury, or a deadly weapon is used.
Assault generally covers physical contact that results in bodily injury, threats of bodily injury, and offensive or unconsented physical contact. Under Texas criminal law, “bodily injury” is defined as contact that results in “pain.”
How do you define “serious bodily injury?” As we mentioned earlier in this article, under Texas criminal law, “serious bodily injury” is defined as an injury that result in a permanent loss of use or protracted loss of use of a bodily member or organ.
In other words, “serious bodily injury” exists if the injury results in someone being crippled, permanent scarring or disfigurement, or the inability to perform certain functions or abilities that existed prior to the incident.
As you can see, proving serious bodily injury or bodily injury with an aggravated assault charge can create a challenge for prosecutors because the definition is vague and subjective.
It is not uncommon for our criminal law firm to represent someone who has been arrested for aggravated assault and there is no visible proof of injury. Obviously, an aggravated assault case that lacks any specific proof of visible injury is a weak case for the State of Texas and will likely provide your criminal defense lawyer with leverage to negotiate a favorable result.
Under Texas criminal law, Aggravated Assault can also be filed based upon a threat. The Texas Penal Code states that if a weapon is used in a manner that places someone in fear of imminent serious bodily injury or death, the police and district attorney could pursue a charge of Aggravated Assault – Deadly Weapon.
Aggravated assault is a specific intent crime. This means that one must either intentionally, knowingly, or recklessly commit the act that constitutes the assault. What if the altercation was the result of a mistake or accident? What if the action was negligent but not intentional?
For example, what if a husband and wife are arguing with each other and husband believes his wife is cheating on him? He approaches her and grabs for her phone in her purse. In the process of doing so, this leads to an altercation where they are both pulling on the purse fighting for the phone. At some point, the husband decides to de-escalate the situation, so he lets go of the purse. However, the wife yanks on the purse and loses her balance, resulting a fall that causes her to hit her head on the fireplace. This results in a bloody injury and a 911 call to the police. The police arrive and see the blood and injury to the woman and arrest the man for Assault. Did he have the criminal intent to commit the assault? Was his action intentional? NO! Was his action knowing? NO! Was his action reckless? NO! Every action that caused the injury was not intentional, it was an accident.
Penalties for Aggravated Assault
Aggravated assault is usually a second-degree felony. Under Texas law, a second-degree felony is punishable by a prison sentence ranging from 2 – 20 years in the Texas Department of Corrections and up to a $10,000 fine. However, the offense becomes a first-degree felony when either:
- A domestic violence incident involving serious bodily injury and/or involving a deadly weapon.
- A public service officer such as a police officer commits the offense while on-the-job.
- An individual commits the offense against a public service officer or security officer.
- The offense is committed for the purpose of silencing or retaliating against a witness to a crime; or
- An individual performs a drive-by shooting.
A first-degree felony faces either five to 99 years in state prison or life in state prison.
Defenses to Aggravated Assault
Your best defense varies based on the individual facts and evidence involved in your case. However, common defenses to aggravated assault charges include:
Defense of Accident
What if you accidentally made physical contact with another person? There are multiple scenarios where the defense of accident can apply to an aggravated assault charge. For example, what if someone is walking behind you and you are frustrated or angry over something and you walk into your office or home and slam the door behind you breaking their nose or causing serious bodily injury to their face?
Should you be charged with Aggravated Assault? It depends. Did you know they were walking behind you? If you were not aware that they were present and you slammed the door with no criminal intent, you should not be guilty of aggravated assault serious bodily injury. However, if you knew they were walking directly behind you and intentionally slammed the door, the element of intentionally or knowingly becomes much stronger for the State of Texas to prove.
Defense of Lack of Intent
Did the alleged victim misconstrue your joke as a threat? Did the alleged victim misunderstand you? Did they misinterpret what you did as intentional?
One common example is when the alleged victim claims a deadly weapon was displayed but the threat is vague or implied. In other words, we have seen cases where a gun was displayed or visible and the alleged victim overreacted believing that the mere presence of the “deadly weapon” constituted a threat sufficient to place them in fear of serious bodily injury or death.
The “fear” or “threat” element on an aggravated assault by threat charge must be objectively reasonable. What if someone overreacts and draws an unreasonable conclusion that a threat was made when no specific statements were made, or overt actions were made that could have reasonably been interpreted as a threat? In this situation, there should be a challenge made to the credibility of the alleged victim and a presentation could be made to a grand jury to dispose of your case.
The police arrested the wrong person. Did the incident take place at night? How was the lighting? Is the only evidence admissible in your case a positive identification by the alleged victim but the remaining evidence does not support your involvement? If so, you may have strong case for the defense of mistaken identity.
It has long been known and settled in the field of criminal justice that one of the most unreliable forms of evidence in a criminal jury trial is the eyewitness identification. Overwhelming evidence exists establishing that eyewitness identifications are not always reliable. Does the description match your clothing? Your height? Is there video footage? Is it clear? All of these are important questions your criminal attorney should be looking into and determining if the defense of mistaken identity applies to your aggravated assault charge.
What if the alleged victim made up the entire story of the aggravated assault? We find this happen more often than you might think. We have seen people arrested for aggravated assault charges because the alleged victim wanted the upper hand in a divorce proceeding or child custody battle. We have also seen alleged victims make up a story of an aggravated assault to obtain favorable status for immigrations proceedings.
Regardless of the motivation of the alleged victim for fabricating the story, your criminal defense attorney can partner with you to gather emails, text messages, voicemails, witness statements and other evidence to establish you were either not present at the time the alleged aggravated assault took place or that the incident did not happen as the alleged victim claimed.
Lack of Knowledge
What if you did not know the alleged victim was a police officer or security officer? This criminal defense arises when you have been charged with an aggravated assault against a police officer or other public servant. A required element of proof on an aggravated assault public servant charge is for the State of Texas to prove that you had knowledge the alleged victim was a police officer or public servant.
For example, what if you are at a bar and loud music is playing and someone aggressively grabs you from behind and yanks you down? You respond by turning around and punching them in the nose, disfiguring their face. You couldn’t hear the police officer talking to you from behind because of the loud music and the officer was not wearing a uniform. Should you be charged with aggravated assault of a public servant? No!
Lack of Serious Bodily Injury
What if the alleged victim did not suffer harm that can be classified as serious bodily injury? What if there was an injury but it did not result in a permanent loss of use of bodily member or organ? In that situation, your criminal defense attorney can gather medical records to show that the legal definition of serious bodily injury is not able to be proven. Failure to prove the element of serious bodily injury may result in the case being dropped to a lesser charge of a misdemeanor or thrown out completely through a No Bill by the grand jury.
Should Your Criminal Defense Attorney Present Evidence To A Grand Jury?
What if the criminal defenses we listed above apply to your aggravated assault case? What can you do about it after you have been arrested and bonded out of jail? You must hire an aggressive and experience criminal lawyer that will prepare your defense and make a presentation to the grand jury.
The grand jury is a panel of citizens that will listen to the evidence presented and decide to do one of three things to your case:
- Keep your case as a felony aggravated assault
- Lower your charge to a lesser felony or misdemeanor
- No Bill your charge
If your criminal defense attorney does not present evidence to the grand jury, they will only hear one side of the story and keep your case as a felony. However, if your criminal attorney is aggressive early in your defense and works to present evidence to the grand jury, there is a possibility your case could be resolved early with a no bill or reduced to a lesser misdemeanor charge.
When Your Defense Strategy for Assault Charges Might Change
The most common defenses used in cases of assault are self-defense, defense of others, and defense of property. However, if you’re facing aggravated charges, you might be staring down a prison term up to twenty times longer and a fine more than double that of a simple assault.
This is when your defense strategy needs nuance. Here are some examples of how an experienced Texas criminal law attorney might shift the court’s perspective on what took place…
The Severity of Injury Can Provide Insight into Intent
A huge part of every criminal case is the defendant’s intent. When brandishing a firearm, for instance, if the offender did not actually shoot the other person or if they did, they aimed lower than the vital organs, a strong case can be made for an intent to protect, not an intent to harm.
Use of a Deadly Weapon Can Be Tempered with the Right Permitting
In the same scenario described above, let’s say you can present the proper permitting to legally possess the “deadly weapon” involved. If you have no prior criminal history like the charges, you currently face, again, evidence points to clear decision-making, and not simply rash violence.
Victim Status Sometimes Isn’t Readily Evident
Flared tempers and over-indulgence are two common (and human) states. It’s not like a Friday night fight over a girl, after a long week, following a heated argument at home (whatever the motivation) never happened. So, what if you wind up in a bar brawl with an off-duty cop or another public servant? Suddenly your misdemeanor tiff is a felony charge.
If you honestly didn’t realize you were going ‘round with an official and can also show little to no violent history among other things, you may be able to have your charges reduced.
These are just a few of the ways an experienced Texas assault attorney can modify your defense strategy to shed light on the facts and ensure the best possible outcome for your case. The right set of eyes on the situation could mean the difference between a fine and twenty years in prison.
Contact the Fulgham Law Firm for a Free Consultation Today!
The best way to approach your case is with an experienced and well-regarded criminal defense lawyer by your side. I am a Texas native and have a keen understanding of Texas law, the Texas court system, and potential successful defenses for aggravated assault charges. In addition, my experience as a prosecutor provides me with the uncanny ability to anticipate the prosecution’s evidence and theory of the case. If you need legal assistance and would like to learn more about your legal rights, call the Fulgham Law Firm today at (817) 886-3280 to schedule a free case evaluation in Fort Worth.
Call us right now to get help.
We’ve helped hundreds of people in Texas, and we can help you too. We’ll set you up with a free conversation with Mr. Fulgham which will help you know what to do next. The Fulgham Law Firm serves Fort Worth and Tarrant county areas.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.