By Texas Criminal Defense Lawyer Jeremy Rosenthal
Believe it or not this arrest is more common than you might think. The name of the charge alone has a shock and a stigma which often doesn’t match — because it is frequently the result of over-charging or a mis-understanding by law enforcement of what really happened.
Frequent Fact Scenarios for Aggravated Assault with a Deadly Weapon
It is common to see arguments or actual fights where someone is alleged to brandish a weapon or sometimes just an object charged as aggravated assault with a deadly weapon in Texas. These might arise in domestic or family situations, road rage or road stalking situations, or even common altercations in public places like restaurants, bars, or even sporting events.
Sometimes aggravated assault with a deadly weapon can be filed where there is a serious bodily injury caused by the “deadly weapon” as well. This might include someone getting pistol whipped or even hit with a car.
What is the Law about Aggravated Assault with a Deadly Weapon?
Aggravated Assault with a Deadly Weapon is defined by Texas Penal Code 22.02. That provision provides,
(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:
(1) causes serious bodily injury to another, including the person’s spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
Under 22.01, an assault can be committed several ways including where someone “intentionally or knowingly threatens another with imminent bodily injury”
So AADW is committed where someone threatens another with imminent bodily injury where they use or exhibit a deadly weapon… or where they actually cause serious bodily injury to another while they use or exhibit a deadly weapon.
Many aggravated assaults are merely assaults with serious bodily injury.
Why This Gets Over-Charged So Much
There are two reasons I see.
First is because prosecutors can label limitless things and objects as deadly weapons because the definition is broad. Prosecutors frequently label obvious things such as knives, guns or hatchets ad deadly weapons but when they get more creative they can label things such as hands, cars, or coffee mugs as deadly weapons. Taken to the logical extreme they could allege a twinkie is deadly weapon given the right set of facts.
Second is because they minimize the term “imminent” in the statute. Imminent danger is defined by Black’s Law Dictionary in part as, “….immediate danger, such as must be Instantly met, such as cannot be guarded against It calling for the assistance of others or the protection of the law…” It is not uncommon to see situations where police make an arrest based on the mere display of an object they consider a deadly weapon regardless of the surrounding circumstances or context.
In the defense of law enforcement — their standard to arrest is “probable cause” and if they encounter a situation where they think someone could be seriously hurt they often don’t have much choice but to take someone to jail for no other reason than prevent a catastrophic situation unlikely as it may be.
There are Defenses To Aggravated Assault with a Deadly Weapon
First and foremost — the state has to prove all charges beyond a reasonable doubt. That’s not a given. A criminal defense lawyer must dispute essential elements of the case however they can.
Also a person can use deadly force in certain situations. Deadly force is defined in Texas as force that is intended or known by the person using it to cause death or serious bodily injury or force that in the manner of its use or intended use is capable of causing death or serious bodily injury.
Situations where deadly force may be used are listed in Texas Penal Code 9.32 .
More defenses are available for non-aggravated assaults because a person cannot use deadly force to defend themselves from non-deadly force and defense of property is far more limiting when it comes to deadly force. Additionally a person cannot consent to aggravated assault as a matter of law though they could consent to assault causing bodily injury (such as an athletic event or a mutual fight).
The Bottom Line
Aggravated assault cases with deadly weapons can be winnable. This is because they arise from so many different situations and the law allows prosecutors much leniency in how the cases are charged. Just because a prosecutor thinks it’s a good idea to charge a case, however, doesn’t mean they’ll win. Have a lawyer who knows how to handle these types of charges.
*Jeremy Rosenthal is an attorney licensed in Texas and is Board Certified in Criminal Law. Nothing in this article is intended to be legal advice. For legal advice about this or any other topic please contact an attorney directly.