Aggravated assault is a second degree felony in Texas, punishable by two to twenty years in prison and a fine of up to $10,000. It becomes a first degree felony — five to ninety-nine years or life — when the case falls into one of the categories listed in subsection (b), which include family violence with a deadly weapon, an assault on a public servant, a drive-by shooting, and a mass shooting. The offense is defined at Texas Penal Code Section 22.02.
What makes an assault aggravated under Texas law?
Aggravated assault is not a separate act. Section 22.02(a) says a person commits the offense if he commits assault as defined in Section 22.01 and then does one of two additional things: causes serious bodily injury to another, including the person’s spouse, or uses or exhibits a deadly weapon during the commission of the assault. Everything else about the offense — the mental state, the conduct, the definitions — comes from the assault statute. That is why the charging instrument in an aggravated assault case almost always recites the underlying assault first and then the aggravating element.
The practical consequence is that two very different cases carry the same label. A fight that ends in a broken jaw and a surgical repair is an aggravated assault because of the injury. A shouting match in which someone puts a hand on a pistol and never fires it can also be an aggravated assault, because exhibiting a deadly weapon during a threat is enough. The State does not have to prove both.
What counts as serious bodily injury?
Section 1.07 of the Penal Code defines serious bodily injury as 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. Ordinary bodily injury, by contrast, is defined as physical pain, illness, or any impairment of physical condition — a much lower bar, and the one that supports a misdemeanor assault charge.
The gap between those two definitions is where most aggravated assault cases are actually fought. Medical records, the treating physician’s own words, and whether an injury resolved or persisted are what separate a Class A misdemeanor from a second degree felony. A cut that required stitches is not automatically serious bodily injury; a scar that a jury finds to be serious permanent disfigurement is.
What counts as a deadly weapon?
Section 1.07 defines a deadly weapon as 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. The second half of that definition is the one that surprises people. A vehicle, a boot, a baseball bat, a bottle, a dog, or a pair of hands can each be found to be a deadly weapon depending on how it was used.
A deadly weapon finding does more than raise the offense grade. It also affects when a person becomes eligible for parole and, in a state jail case, can move the punishment range up under Section 12.35(c).
What is the punishment range for aggravated assault in Texas?
| Offense grade | When it applies | Punishment |
|---|---|---|
| Second degree felony | The default grade for every aggravated assault under 22.02(a) | 2 to 20 years in TDCJ, plus a fine up to $10,000 (Sec. 12.33) |
| First degree felony | Any of the categories in 22.02(b)(1) through (b)(4), listed below | Life, or 5 to 99 years in TDCJ, plus a fine up to $10,000 (Sec. 12.32) |
Those ranges come from Chapter 12 of the Penal Code, not from Section 22.02 itself. Section 22.02 assigns the grade; Chapter 12 supplies the numbers.
When is aggravated assault a first degree felony?
| Subsection | Category |
|---|---|
| (b)(1)(A) | The actor uses a deadly weapon during the assault and causes serious bodily injury to a person in a family, household, or dating relationship as those terms are defined in Sections 71.0021(b), 71.003, and 71.005 of the Family Code |
| (b)(1)(B) | The actor uses a deadly weapon during the assault and causes a traumatic brain or spine injury that results in a persistent vegetative state or irreversible paralysis |
| (b)(2)(A) | Committed by a public servant acting under color of the servant’s office or employment |
| (b)(2)(B) | Committed against a person the actor knows is a public servant, while the public servant is lawfully discharging an official duty or in retaliation for an exercise of official power |
| (b)(2)(C) | Committed in retaliation against a witness, prospective witness, informant, or a person who reported a crime |
| (b)(2)(D) | Committed against a person the actor knows is a process server, in retaliation for the service of process |
| (b)(2)(E) | Committed against a person the actor knows is a security officer while the officer is performing a duty as a security officer |
| (b)(2)(F) | Committed by a resident of a civil commitment facility against a Texas Civil Commitment Office officer or employee, or a facility contractor or that contractor’s employee |
| (b)(3) | A drive-by: the actor is inside of, or directly en route to or from, a motor vehicle and knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle, is reckless as to whether it is occupied, and in discharging the firearm causes bodily injury or property damage, or places a person in fear of imminent serious bodily injury |
| (b)(4) | The actor commits the assault as part of a mass shooting |
Subsections (c) and (c-1) add a presumption that runs in the State’s favor: if the person assaulted was wearing a distinctive uniform or badge indicating employment as a public servant, the actor is presumed to have known that. Categories (b)(2)(A) through (F) apply whether the underlying case rests on serious bodily injury or on the use or exhibition of a deadly weapon.
How is aggravated assault different from assault?
Section 22.01 assault covers causing bodily injury, threatening imminent bodily injury, and offensive or provocative contact. Most of it is a Class A misdemeanor or a Class C misdemeanor, with a set of listed victim categories that raise it to a third degree or second degree felony. Section 22.02 sits on top of that. It takes the same conduct and adds either a serious injury or a weapon, and it starts at the second degree felony level for everyone, with no misdemeanor version at all. Our page on Texas Penal Code Section 22.01 walks through the assault ladder in full.
Charged with aggravated assault in Harris County?
A second degree felony indictment is not the end of the analysis. Whether an injury is legally serious, whether an object was used in a way that made it deadly, whether the State can prove the actor knew who the complainant was, and whether self-defense or defense of a third person applies are all live questions that get decided long before trial in most cases. If you or a family member has been charged, call Blass Law at (713) 664-4000 or request a case evaluation. We will read the offense report and the medical records and tell you what the State actually has.
Related: Houston aggravated assault lawyer, assault on a family member, and what is a Class A misdemeanor in Texas.
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.