What makes assault a felony charge?

Assault can be a misdemeanor or felony depending on the specific allegations. In Texas, these charges can range from a Class C (Ticket Only) offense to a First-Degree Felony (up to Life in prison). The seriousness and possible sentence depends on several factors:

• Characteristics of the alleged victim;
• The manner and means of the conduct;
• Criminal history of the accused;
• The severity of the injury caused; and
• The mental state of the accused.

These factors may individually or in combination cause a charge to be prosecuted as a felony. The law related to criminal charges and possible enhancements can be very complex. The charge may change throughout the criminal justice process. For instance:

1. Police may arrest someone for Third-Degree Felony Impeding Breathing Domestic Violence case;
2. After the case is filed, the District Attorney may see that the person accused has a recent prior arrest for family violence, so the DA decides to file the complaint as a Continuous Family Violence (3rd Degree) charge;
3. Once the case is presented to the Grand Jury, and because the alleged victim says there was some permanent damage done to her neck, the Grand Jury indicts the case as an Aggravated Assault with Serious Bodily Injury (2nd Degree);
4. Finally, a criminal defense attorney is able to demonstrate to the prosecutor that the alleged victim is not a very credible witness and the alleged injuries were caused by an accident the day before. Ultimately, a plea agreement is reached for credit for time served on a misdemeanor charge.

Even some criminal defense attorneys may have a difficult time parsing out all of the different enhancement or aggravated factors in these cases. Before making any decisions about an actual criminal case, you need to speak with an attorney that is an expert in criminal law.

Basic Elements

Most criminal charges for assault are found in Chapter 22 of the Texas Penal Code (“Assaultive Offenses”). The basic elements are in Texas Penal Code Section 22.01, a person commits an offense if he:

1. Intentionally, knowingly, or recklessly causes bodily injury to another;
2. Intentionally or knowingly threatens another with imminent bodily injury; or
3. Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

From these basic elements, other “aggravating” factors can make a misdemeanor assault into a felony.

Enhanced to Felony

Most felony assaults are the same as the misdemeanor plus one or more aggravating (making a problem or offense worse or more serious) elements. These are all charges for which a person can be sent to prison and have a permanent criminal record.

Felony Domestic Violence Charges

Most felony domestic or family violence charges are 3rd Degree assaults. The punishment range for a 3rd Degree is a minimum of 2 years in prison and a maximum of 10 years in prison. The most common are:

1. Impeding Breath or Circulation (i.e. Choking, Strangulations, Suffocation);
2. Assault of a Family Member with a Prior Conviction for Family Violence;
3. Continuous Family Violence.

Special Victim

Often a case is enhanced to a felony charge because the alleged victim is fits within a particular vulnerable or protected class. These cases have a range of severity:

• Injury to a Child (person younger than 16);
• Assault on a Public Servant (i.e. police officer);
• Injury to a Disabled or Elderly Person

Aggravated Assault

A charge can be considered “aggravated” depending on how an assault is committed or the extent of the injuries. The elements of these charges include the “basic” or misdemeanor elements listed above. Additionally, the person must have:

1. Caused serious bodily injury; or
2. Used or exhibited a deadly weapon during the commission of the offense.

Bodily injury means physical pain, illness, or weakening or damaging of a physical condition.

Serious bodily injury means bodily injury that creates a substantial risk of death or causes death, serious permanent disfigurement, or protracted (lasting for a long time or longer than expected or usual) loss or impairment of the function of any bodily member or organ.

A Deadly Weapon is: (1) a firearm; (2) anything manifestly (in a way that is clear or obvious to the eye or mind) designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (3) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Penalties for Felony Assaults

Generally, a felony is any criminal offense for which a person can be sentenced to more than one year imprisonment. In Texas, felonies range from the State Jail Felony (lowest level) to a Capital Felony (death penalty is possible). However, unless someone is murdered, a person accused cannot receive the death penalty. So, the highest level for an assault charge is a First Degree Felony.

1. First-Degree Felony – prison for 5-99 years or life; $10,000 fine
2. Second-Degree Felony – prison for 2-20 years; $10,000 fine
3. Third-Degree Felony – prison for 2-10 years; $10,000 fine
4. State Jail Felony- prison for 180 days to 2 years; $10,000 fine

If you or a loved one is facing an assault prosecution or investigation, submit this form to contact an attorney to discuss the possible charges, penalties, and defenses. Our criminal defense firm is located Downtown Fort Worth, but we represent clients throughout Texas.