Aggravated assault in the State of Texas is defined as serious bodily injury or the use of a deadly weapon during the assault. Serious bodily injuries are defined as causing death, long-term loss of any part of the body or permanent disfigurement. An example of permanent disfigurement would be permanent scarring from dog bites or burns caused by fire or chemicals. Any type of deep wound or laceration that would require plastic surgery can fall under permanent disfigurement.
An example of aggravated assault would be beating someone with something as simple as a bat during an altercation. Or purposely throwing hot coffee at someone, causing them to suffer severe burns. This charge is considered a felony of the second degree, which means 2-20 years of imprisonment and up to $10,000 in fines.
Depending on the type of party that was assaulted, it could jump to a felony of the first degree, which would be 5-99 years or life imprisonment. An example of this would be aggravated assault against a spouse, a police officer, a school officer, a judge or an attorney. Aggravated assault of the first degree can include purposely discharging a firearm in any direction of a building, habitation or vehicle; regardless if it is occupied or not. A good example of this is a drive-by shooting of a house, place of business or vehicle. Another example would be the journalist who threw his shoe at our late president Bush in 2008.
Fighting Against An Aggravated Assault Charge
The best plan of action for defending yourself during an aggravated assault charge would be to equip yourself with a highly knowledgeable attorney that can guide you. This charge is serious and before talking to anyone, it is highly recommended to first get a Criminal Defense Lawyer to help build a strong defense case. As this type of charge is a more violent type of charge and, if convicted, holds serious consequences.
You would first see if you can lower your charge from aggravated assault to simple assault, as the penalties are less severe. A defense that is overlooked is an alibi. An alibi is a witness that can prove you were elsewhere at the time the crime happened. For example, if you were at work and an alleged assault happened at home, there would be documentation that you were not at the scene of the aggravated assault. This defense is good against someone trying to claim you assaulted them, as you can bring up eyewitnesses that can testify you were elsewhere at the time of the incident.
One could also claim self-defense as a defense type against aggravated assault. This defense type is commonly the first to be looked at and used to help prove innocence. The Texas Penal code 9.32 allows for the defendant to be justified in using deadly force against another if they are using it as self-defense; and to the degree they believe deadly force is necessary. Whether it is to protect themselves against another deadly force or to prevent others from aggravated offenses such as robbery, assault or murder.
You may also use the claim of protecting a third person and the use of deadly force was necessary to protect the third person and your intervention was necessary for their protection.
Another claim could be the protection of life or health (Penal Code 9.34 (b)) the defendant can use force and deadly force on another to a degree they reasonably believe is necessary to preserve another’s life in an emergency.
A good example of this would be seeing a child getting abducted and the defendant having a concealed carry license and discharging his weapon to save the child, which would show their use of deadly force to protect a third-party person from danger he deemed reasonable to protect.
You could also claim a defense of property. According to Penal Code section 9.42, you are justified in using deadly force against another to protect land or tangible, moveable property. This type of defense can be used to prevent arson, burglary, theft, criminal mischief or aggravated robbery. The defendant may also use it to prevent the other person from fleeing immediately after the crimes were committed.
This claim can be a bit tricky because you need substantial evidence that the force used to protect your property was necessary. There have been cases where the Texas law of “Stand your ground” is overturned and not upheld in court.
One example of this case would be the Raul Rodriguez case (Lozano, 2012). Prosecutors made Rodriguez out as the aggressor, and they said that he could have left the neighbors safely without violence. Rodriguez’s defense did try to argue that he was defending himself when one of the men lunged at him and he did not have a lot of time to respond.
It’s important to note that in this case, the defense attorney did not produce any type of witness during the trial and maybe if they had, the ruling of the case could have been different. The witnesses that his defense did produce were during the punishment phase of the case, but this was after the jury had already convicted him.
Another “Stand your Ground” case that was overturned was the Terry Turner case (Lambe, 2021). The defendant claims he got up from bed and noticed an idled car with the headlights off sitting in their driveway. He then grabbed his pistol to confront the idling car in his driveway. Although he thought the driver had a gun and shot in self-defense, later on, it came to light that the driver had no weapon. It is important to note that just because this law exists, does not mean there are no repercussions. To use this defense option, you must have solid evidence to support you.
General Criminal Procedure of Aggravated Assault
If you are accused of aggravated assault, you have the right to a speedy and impartial jury, meaning that you will have an unbiased jury to give you the best possible outcome in your case. If you cannot afford a criminal attorney, then a court-appointed attorney will be assigned to you by the court. Although this is beneficial to those that cannot afford a criminal attorney, it can be detrimental to the defendant because these types of attorneys appointed by the court are not specialized in this type of case and are assigned randomly.
When the court assigns you an attorney, you will be given a court-assigned attorney within one to three working business days to allow enough time for the attorney to review your case and the charges you are being charged with, to allow for the court-assigned attorney to better prepare for your court trial.
A good criminal attorney should counsel you ahead of time to prepare you for your court hearing and appearance in your case. They will help you understand the charges you are being charged with and the kind of plea bargains that may or may not be available to you.
In certain types of criminal cases, a bond is available. A bond is essentially an agreement or a contract. A bond is posted on a defendant’s behalf, usually by a bail bond company to secure his or her release. Many states, including the State of Texas, allow private bail bondsmen to help the alleged defendant create a bond agreement. This type of bond is called a surety bond. Under the terms of a bail bond, the defendant must pay ten percent (10%) of the total bail amount to the bail bondsman, who will then pay the defendant’s bail with the court. The defendant can then be released from jail.
There is also a bond called a cash bond. In this type of bond, the defendant can pay the full amount of the bond and receive most of it back at the end of the defendant’s case. However, there may not be a personal bond available to you for an aggravated assault charge, also known as a felony in the State of Texas.
Bail is another way a defendant can be released from custody while awaiting trial. Bail is money a defendant must pay to be released from custody as the defendant awaits his or her trial. A defendant with pending warrants is usually not eligible for bail.
The Criminal Justice Court will decide if the defendant is qualified for bail or bond. The Criminal Justice Court will then notify the defendant of its decision within 48 hours after he or she is arrested and if he or she will be granted a personal cash bond or surety bond with or without conditions attached. The defendant will also be notified if they are denied bail.
After all that has been dealt with, you will then have a preliminary hearing. This is a trial before the actual court proceedings. Evidence and arguments will be presented to a judge without a jury to see if there is sufficient evidence to proceed with your case. This is the best opportunity to try to dismiss the aggravated assault charges. The criminal defense lawyer might also be able to cross-examine any witnesses provided by the prosecution. After all the evidence is presented, your defense lawyer can then submit a motion to suppress evidence, whether certain witnesses can testify or if the judge should dismiss charges due to lack of evidence.
If your case is not dismissed by this time, then you will stand trial in front of a judge and jury. There, the prosecutor will present evidence and witnesses first, to which the defense attorney will then present its evidence and witnesses. After the defense attorney delivers the closing argument, the jury will then deliberate and return with a verdict.
The Sentencing for Aggravated Assault
If convicted, the sentencing for aggravated assault is 2-20 years of imprisonment and up to $10,000 in fines for a first-degree charge. Whereas a second-degree charge can be up to five to life in prison. If convicted, the goal objective would be to try to get the minimum mandatory sentencing possible. In this type of case, it would be two to five years.
There might be a possibility of probation depending on the judge. To be granted probation, a prosecutor and defendant must both agree to waive a jury trial. Only consider this option if your defense attorney talks to you about it and you fully understand the implications that come with agreeing to waive a jury trial. The Law Office of Bryan Fagan has plenty of good criminal defense attorneys that understand the implications of probation and can help you make the best decision available to you.
Need help? Call us now!
If you or someone you know has been charged with a crime, at the Law Office of Bryan Fagan, we have multiple attorneys with the knowledge and know-how experience in Criminal Law who can help you navigate the court system. We offer free consultations via Zoom, phone or in person to provide you with as much information as possible. That way, you have the best defense strategies available to you. Call us now at: 281- 810-9760.
