What Are the Three Elements of Assault?

In Texas, the most common assault charge, assault causing bodily injury, has three elements the State has to prove beyond a reasonable doubt: that you acted intentionally, knowingly or recklessly; that you caused bodily injury; and that the person injured was someone other than you. That’s Penal Code § 22.01(a)(1). But the statute contains two more versions of assault, a threat and an offensive touching, and each has its own elements. Texas also has no separate crime called battery. What other states split into assault and battery, Texas puts in one statute.

If you’ve been charged with assault in Houston or Harris County, call (713) 664-4000. Every one of those elements is a place the State’s case can come apart, and the earlier we start pulling the 911 call, the video and the medical records, the better the odds we find where.

The three kinds of assault in Texas

Type	What the State must prove	Mental state required	Usual level
Bodily injury, § 22.01(a)(1)	You caused bodily injury to another person	Intentionally, knowingly or recklessly	Class A misdemeanor: up to one year in jail and a $4,000 fine
Threat, § 22.01(a)(2)	You threatened another person with imminent bodily injury	Intentionally or knowingly	Class C misdemeanor: fine up to $500, no jail
Offensive contact, § 22.01(a)(3)	You made physical contact you knew or should have known the person would find offensive or provocative	Intentionally or knowingly	Class C misdemeanor: fine up to $500, no jail

Sources: Penal Code §§ 22.01(a)-(c), 12.21 and 12.23.

Most arrests are for the first type. A threat, or a shove that didn’t hurt, is usually a Class C offense punished by a fine, unless a weapon was involved or the person was elderly or disabled. The difference between that and a Class A with jail on the table is often one line in the complainant’s statement about whether it hurt, and we read every word of it.

Where each element breaks

The mental state

Recklessness is the lowest mental state that counts for bodily injury assault, and it’s a real bar. Under Penal Code § 6.03(c), you’re reckless only if you were aware of a substantial and unjustifiable risk and consciously disregarded it. An injury from a risk you weren’t aware of isn’t assault, and neither is ordinary carelessness. Swinging a door open into someone you didn’t know was standing there doesn’t meet it, and the threat and offensive-contact versions require even more: you had to act intentionally or knowingly.

The bodily injury

This is where the statute is weakest for the defense. “Bodily injury” under Penal Code § 1.07(a)(8) means “physical pain, illness, or any impairment of physical condition.” No mark is required. A slap that stung is enough if the jury believes it hurt.

But someone has to say it hurt. The usual source is the complaining witness, and when that person doesn’t come to court, the State will try to prove the injury through the 911 call and what was said to officers on body camera. Whether those statements come in is a constitutional fight. Under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), statements made to get help during an emergency can usually be played for the jury, and statements describing what already happened, once the emergency is over, usually can’t unless the person testifies. On a lot of family violence cases, that line decides whether the State has a case at all.

For the threat version, the word that matters is imminent. “I’m going to hit you” with a raised fist is a threat of imminent injury. “You’ll regret this next week” isn’t. A threat about the future might be charged as a terroristic threat under § 22.07, which has its own elements, but it isn’t assault. Our page on whether getting in someone’s face is assault covers where that line sits.

The other person, and self-defense

Self-defense under Penal Code § 9.31 is a legal justification for force you’d otherwise be charged for. Once there’s evidence of it, you’re entitled to have the jury instructed that a reasonable doubt on self-defense requires an acquittal, under § 2.03(d). The State has to disprove it. In a lot of assault cases, the real question is who started it, and the arrest report only tells one side of that. Our page on Texas stand your ground law covers when force is justified.

When assault becomes a felony

The same bodily injury assault becomes a third-degree felony, two to ten years in prison, in several situations under § 22.01(b). Two of them are specific to family violence cases: an assault on a family member or dating partner by someone with a prior family violence conviction or deferred adjudication, and any assault on a family member that involves choking or blocking the person’s breathing. An assault on a peace officer or judge doing their job is a second-degree felony under § 22.01(b-2).

If the State alleges serious bodily injury or a deadly weapon, the charge is aggravated assault under § 22.02, a second-degree felony with two to twenty years. See our pages on when assault on a family member is a felony and aggravated assault.

A misdemeanor family violence case also carries costs that outlast the sentence. If the assault involved family violence, it can never be sealed through an order of nondisclosure under Government Code § 411.074(b), even if you got deferred adjudication, and that record also blocks sealing anything else later. Section 22.01(f)(1) counts that deferred as a prior, so the next accusation involving a family member can be charged as a felony. And a family violence conviction involving a current or former spouse or partner, a co-parent, a cohabitant or your child generally ends your right to possess a firearm under federal law, 18 U.S.C. § 922(g)(9).

How we defend an assault charge

We work from the elements. What was the mental state, and what does the evidence actually show about it? Was there pain, and who is going to say so under oath? Can the State get the 911 call and the body-camera statements in front of a jury without the complainant? Was it self-defense? The answers to those questions are what get assault cases dismissed or tried to acquittal, and our page on how an assault case gets dismissed goes through them.

The complaining witness doesn’t control the case. In Texas the prosecutor files and dismisses charges, and an affidavit of non-prosecution doesn’t end a case by itself. It still matters, and how and when it’s used matters more. Our page on who can file assault charges explains how the prosecutor, not the complainant, decides.

Charged with assault in Houston? Call Blass Law

Jay Blass Cohen has defended assault cases in Houston since 2009 and has only ever worked on the defense side. Our Houston assault lawyers will tell you on the first call which element we think the State can’t prove, and what we’ll do about the emergency protective order and bond conditions that come with a family violence arrest.

Call (713) 664-4000. The 911 recording and the video from the scene don’t wait around, and neither should you.