In Texas, “assault with a deadly weapon” is charged as aggravated assault. It’s an assault plus one of two things: serious bodily injury, or using or exhibiting a deadly weapon (Penal Code § 22.02(a)). Nobody has to be hurt for the weapon version. Pulling a gun on someone during an argument in a parking lot, without firing it or touching anyone, can be enough. It’s a second-degree felony with 2 to 20 years in prison, and some versions are first-degree felonies carrying 5 to 99 years or life. The part most people don’t know about comes after: a deadly weapon finding in the judgment means a judge can’t give probation, and you aren’t even eligible for parole until you’ve served half the sentence. Most of these cases turn on self-defense, or on whether the weapon and the injury are really what the report says. We build all of it from the first day.
Call (713) 664-4000. If you were defending yourself, don’t explain that to the police or anyone else before you talk to us. The way it’s first told matters.
Aggravated assault is one of the most serious charges our Houston criminal defense practice handles, and self-defense is often the heart of the case.
What makes an assault aggravated
| Version | Level | Range |
|---|---|---|
| Assault causing serious bodily injury | Second-degree felony (§ 22.02(a)(1)) | 2 to 20 years, up to a $10,000 fine |
| Using or exhibiting a deadly weapon during an assault, including a threat | Second-degree felony (§ 22.02(a)(2)) | 2 to 20 years, up to a $10,000 fine |
| Deadly weapon causing serious bodily injury to a family or household member or dating partner | First-degree felony (§ 22.02(b)(1)(A)) | 5 to 99 years or life |
| Against a public servant doing their job or in retaliation for it; against an on-duty security officer or process server; in retaliation against a witness, prospective witness, informant or someone who reported a crime; or committed by a public servant acting under color of office | First-degree felony (§ 22.02(b)(2)) | 5 to 99 years or life |
| Knowingly firing at a home, building or vehicle from inside a car, or on the way to or from one, without caring whether anyone is inside, if the shot hurts someone or damages property, or puts someone in fear of serious injury | First-degree felony (§ 22.02(b)(3)) | 5 to 99 years or life |
| Deadly weapon causing a brain or spine injury that leaves someone in a persistent vegetative state or permanently paralyzed, or an assault that’s part of a mass shooting | First-degree felony (§ 22.02(b)(1)(B), (b)(4)) | 5 to 99 years or life |
A deadly weapon is a firearm or anything made or adapted to kill or seriously injure, or anything else that, in the way it was used or meant to be used, could cause death or serious bodily injury (§ 1.07(a)(17)). That second part is how a car, a bat, a bottle, a boot or even bare hands end up in an indictment. It’s also where a lot of these charges are overstated. The question is how the object was used or meant to be used in this encounter, and what the video shows, not what it could do in theory. Serious bodily injury has a legal meaning too: a substantial risk of death, death itself, serious permanent disfigurement, or protracted loss or impairment of the function of a body part or organ (§ 1.07(a)(46)). A broken nose or a cut that needed stitches isn’t automatically serious bodily injury, and we make the State prove it with the medical records and the doctors.
What a deadly weapon finding does
When the judgment includes a finding that a deadly weapon was used or exhibited, a judge can’t place you on probation after a conviction (Code of Criminal Procedure Art. 42A.054(b), (c)). A jury still can, as long as you’ve never been convicted of a felony (you swear to that in a motion filed before trial) and the jury sets the sentence at 10 years or less. And if you go to prison, you aren’t eligible for parole until you’ve served half the sentence (never less than two years, and capped at 30), with no credit for good time (Gov’t Code § 508.145(d)). Deferred adjudication is still possible from a judge, and if you finish it, there’s no finding. Our guide to who is eligible for probation in Texas lays out which of those routes stays open for each charge. A plea to misdemeanor assault or misdemeanor deadly conduct takes the finding out of the case entirely, because the finding only attaches to a felony. A felony plea, even to a lesser charge, can still carry one unless the deal rules it out. Whether that finding goes in the judgment is often what we’re really negotiating. And if the case involves family violence, including someone you dated, the firearm and custody consequences on our assault on a family member page apply too.
How we defend aggravated assault charges
Self-defense and defense of others. Texas law allows force, and in some situations deadly force, when you reasonably believe it’s immediately necessary to protect yourself or someone else (§§ 9.31, 9.32, 9.33). You don’t have to retreat if you had a right to be where you were and didn’t provoke it. Being engaged in criminal activity at the time changes that. Once there’s some evidence of self-defense, the burden is on the State, and if the jury has a reasonable doubt about whether you were defending yourself, it has to acquit (§ 2.03(d)). And pulling a weapon only to make someone back off counts as ordinary force, not deadly force, so the lower self-defense standard applies (§ 9.04). In a felony, we don’t wait for trial to make that case. We put the evidence in front of the grand jury before it decides whether to indict. See our page on stand your ground in Texas.
The weapon. Was there really a weapon, and was it used or exhibited during the assault? Complainants in a heated situation often describe a phone or a set of keys as a knife or a gun. If the object doesn’t qualify, or wasn’t used the way the State says, the weapon version falls apart. Without a serious injury, that often takes the case down to a misdemeanor or out entirely.
The injury. We get the medical records and the photos and compare them to what’s in the report. An injury that doesn’t meet the legal definition of serious bodily injury takes the (a)(1) version off the table.
The witnesses and the video. Surveillance cameras, phone video, 911 calls and body camera footage often show who was the aggressor better than anyone’s memory does. Some of it gets overwritten within days, so we move to preserve it right away.
Aggravated assault results from our case files
- No-billed by a Harris County grand jury: client was accused of starting a fight at a truck stop, then pointing a pistol and an AR-15 at several people.
- Dismissed in Fort Bend County: client was accused of pulling a pocketknife on a man at a gas station and threatening to stab him. There were witnesses and cell phone video of the knife.
- Dismissed in Harris County: client was accused of shooting his tenant in the foot during an argument over rent.
- No-billed by a Montgomery County grand jury: client was accused of threatening a man with a gun.
Those were bad facts on paper, and none of those clients walked out with a conviction. See more of our case results. Prior results do not guarantee a similar outcome.
Charged with aggravated assault in Houston? Call Blass Law
Jay Blass Cohen has defended serious felony cases in Houston since 2009 and has never worked for the prosecution. We’ll get the video and the medical records and tell you what the State can actually prove. When self-defense is the story, we tell it to the grand jury before an indictment.
Call (713) 664-4000. If you were arrested this week, call now, while the surveillance video still exists.
Related charges
See our pages on assault on a police officer, deadly conduct, terroristic threat and aggravated assault with a motor vehicle, or our Houston assault lawyer page for misdemeanor assault.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.