Updated: September 14, 2021; Original: November 6, 2020
When most people imagine an assault, they think of one person physically harming another. We are all familiar with the bar fights and fistfights being categorized as an assault because someone is physically injured. But can you be charged with Assault in Texas if there was no physical injury? No bruising? No pain? What about if you do not actually touch the person at all? What if it is merely an exchange of words between two people and someone overreacts? These are some examples of fact scenarios where an assault case has arisen.
It is critical to know what Texas law says about assault. What are the specific elements of the crime of assault? We all know that the general crime of assault requires the State of Texas to prove beyond a reasonable doubt that you intentionally or knowingly contacted another person in a manner that caused physical pain.
But what is physical pain? Does it require proof of bruising? Medical records? Bleeding? Is it necessary to show specific evidence of an injury? Technically, no! Under Texas law, the State of Texas can proceed with a criminal charge of assault if the alleged victim claims “it hurt.” What if there is no redness around the claimed injury? It doesn’t matter when it comes to you being arrested. If the police officer at the scene believes the alleged victim’s claim of pain, an assault case will be filed.
However, any assault case that has no proof of injury becomes a difficult case for the prosecutor to prove beyond a reasonable doubt. Why? Because the alleged victim may have many reasons for a motive to fabricate or lie about an injury. Does the alleged victim have prior criminal history of being assaultive? Did the alleged victim have a motive to lie about being hurt for a child custody or divorce matter? There can be a multitude of reasons why someone would lie about an assault and your criminal defense attorney could expose those reasons during a jury trial.
In this post, we are going to focus on two types of assaults that do not require proof of injury: Assault By Threat and Assault By Contact.
According to Texas assault law, you do not have to touch another person to commit assault — you just have to threaten them to such an extent as to make them in fear for their life. This type of assault in Texas is called assault by threat, and it occurs when someone “intentionally or knowingly threatens another with imminent serious bodily injury or death.” (You can also be charged if you threaten another person’s spouse.)
Does that seem a bit broad? Could you really be charged with assault for, say, yelling “I’m going to kill you!” to your friend after they prank you?
Technically, the answer is yes.
However, there is good news: there’s a lot that goes into proving assault by threat. Let’s dive into how these types of cases work and what kind of penalties you could find yourself up against if charged. We’ll start with charges and penalties.
The most common assault by threat charge you will find in Texas is an Aggravated Assault by Threat. Under Texas law, you can be charged with this 2nd degree felony assault charge if the State of Texas can prove you intentionally or knowingly threatened another person with serious bodily injury or death and deadly weapon was used in the commission of the crime.
Aggravated Assault By Threat is punishable by a minimum of 2 years and a maximum of 20 years in the Texas Department of Corrections prison system and up to a $10,000 fine. A 2nd degree felony is a very serious charge that must be handled aggressively by your criminal defense attorney.
For example: You are driving home from work, and someone cuts in front of you and slams on their brakes. You have to take evasive action to avoid a collision, so you pull over on the side of the road. In the process of doing so, the other car pulls over as well. You then see the person in the other car get out and start to charge you aggressively. You are a concealed handgun license hold in Texas and have been trained on how to respond to an aggressor, so you step out of your vehicle and take a defensive stance with your weapon. You never point the gun at the person, but you make it clear that you do not want an altercation over a road rage incident. The police then show up shortly after and find that you are the one with the gun and the other person now claims he is a victim and that your actions made him in fear of serious bodily injury or death.
The example above illustrates how you could be acting in self-defense and completely reasonable and legal in your response but if the police see that you are the one with a gun, they will many times choose to believe the alleged victim and place you under arrest for Aggravated Assault by Threat.
What is Assault by Contact in Texas?
Under Texas law, to be charged and convicted of Assault by Contact, the prosecutor must prove beyond a reasonable doubt that you intentionally or knowingly contacted the alleged victim and that the contact was “offensive.”
What is “offensive” contact? We have no idea! What is offensive to one person may be not be offensive to another. For example: what if you are walking down the grocery store aisle and accidentally bump into someone in the aisle? You had no intention to do so but the other person is super sensitive and is now “offended.” So much so, they call the police and claim that you assaulted them in the contact. In your mind, you know that you did nothing wrong. However, if the police officer chooses to believe this alleged victim, you could be cited for the criminal offense of Assault By Contact.
What is the punishment for Assault By Contact in Texas?
Unless the alleged victim is in a protected category (elderly, disabled, pregnant, or an athlete), the charge you face for Assault By Contact is a Class C misdemeanor, the maximum penalty for which is a $500 fine. In other words, you can not face a jail sentence, only a fine.
Because of this, it may be tempting to simply take the charges, pay the fine, and move on with your life. This, however, would be a mistake.
Because convictions always matter, especially a conviction for an assault case. Not only would you then have to live with a criminal record, but you would also find yourself in a potentially tougher position if you were ever charged again. This is because a previous conviction can increase charges and penalties for subsequent assault charges.
For example: If you received an Assault by Contact – Family Member citation and decided it was not that big of a deal so you paid the fine and moved on, you could be at risk for being charged with a felony in the future. What if after paying the fine, you got into an argument with your brother and that led to the police showing and arresting you? Now that you have an Assault By Contact – Family Member citation conviction on your record, you could be facing a felony domestic violence charge.
In other words, the true risk and penalty is not just the $500 fine, it’s the collateral damages you must live with if you choose to pay the fine and take a conviction.
Moreover, assault by threat charges are pretty hard to prove if you have a knowledgeable Texas criminal lawyer who knows how to argue against them.
Challenging Texas Assault by Threat Charges
One of the most important terms in the definition mentioned above is “imminent bodily injury.” Under the Texas Penal Code, “bodily injury” means “physical pain, illness, or any impairment of physical condition.”
Moreover, according to precedent, the threat in question doesn’t have to be communicated verbally. For example, if someone were to run their finger across their neck in a throat-cutting motion while glaring at another person, that could reasonably be interpreted as a threat.
Both of those things sound bad for anyone charged with this crime, right? Here’s where things get a bit more favorable, though.
Can Prosecutors Prove Knowledge and Intent?
To convict someone of assault by threat, the prosecutor must be able to prove that they acted “intentionally or knowingly.” According to how this has generally been interpreted, this means not only that the defendant knew they were engaging in the behavior in question, but also that they knew it would be perceived as a genuine threat.
Using the example of the person using a “throat-cutting” gesture, there are a couple of different possible defenses right off the bat.
What If The Contact Or Gesture Was Mistaken?
For one, the defendant could claim that the gesture was misinterpreted. Perhaps they were just scratching their neck. In a situation where the defendant and the alleged knew each other and were otherwise on friendly terms, they could make the argument that they never thought the gesture would be taken seriously. It was meant as a joke.
What if the contact was mistaken as well? How many times have we misinterpreted someone’s actions only to learn that they were not directing their comments or contact toward us at all?
Contact Was Not Offensive
If you are facing a charge of Assault by Contact, your criminal defense attorney may be able to argue that the contact that took place between the parties was not offensive. In addition to intent, mentioned above, what exactly about the contact made it offensive? It is one thing if someone spits on you, but merely touching someone does not necessarily constitute offensive contact under the law. You have a right to a jury trial in the situation and your experience criminal defense lawyer may be able to convince the jury that your case is petty and should be thrown out.
What if you have been charged with Aggravated Assault by Threat and the implied threat of the weapon in your hand was done solely for the purpose of defending yourself from aggressive actions by the alleged victim? We see this happen all the time. It is not a crime to use your weapon to defend yourself if the alleged victim was presenting themselves in a manner that reasonably led to you being fear of imminent serious bodily injury or death.
For example: pulling out a weapon, pointing the weapon and taking a defensive stance because someone drove up on you quickly and aggressively pulled out something that looked like a gun, is not a crime. You were not the aggressor and you only made use of the weapon to defend yourself from a perceived serious harm.
Important: It is critical to know that when it comes to the defense of self-defense, the State of Texas must prove beyond a reasonable doubt that you did not act in self-defense. In other words, if you claim the affirmative defense of self-defense, the prosecutor will have to convince the jury beyond a reasonable doubt that the actions you took were NOT reasonable self-defense. They will be required to prove a negative!
These are just examples, and every case is different, but they give you a sense of the various pathways open to someone battling these types of charges.
What If The Victim Wants To Drop The Charges?
If you have been charged with assault by threat or assault by contact and you have learned that the alleged victim does not want to prosecute, the alleged victim should contact your criminal attorney.
The best criminal defense attorneys that specialize in assault charges know that this provides an opportunity to have the alleged victim provide an affidavit of non-prosecution. An affidavit of non-prosecution is a form that can be used for the alleged victim to provide a clear presentation of the events that took place. For instance, if the alleged victim was not offended by the contact, the affidavit should reflect that fact. Your criminal defense lawyer can now use this piece of evidence and provide leverage in negotiating a result that saves you from being convicted and having this charge on your permanent criminal record.
About the Author:
After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. He has been named one of the 3 Best DUI Lawyers in Fort Worth, recognized by Expertise, National Trial Lawyers, Avvo, and others, and he is Lead Counsel rated.