What is Aggravated Assault in Texas?

June 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Aggravated assault can happen one of two ways.  For either way, an assault must be committed pursuant to Tex.Pen.C 22.01 AND one of the following two circumstances must have occurred:

1.  the person 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.

“Serious bodily injury” is defined by Texas Penal Code Section 1.07(46) 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.”

Aggravated assault is a 2nd degree felony and carries with it a prison term of between 2 and 20 years in the Texas Department of Corrections and a fine not to exceed $10,000.

Aggravated assault can be a 1st degree felony where the accused utilizes a deadly weapon during the assault and causes bodily injury to a member of their family or someone they are in a dating relationship with.

Though there are obviously many factual variations of how an aggravated assault can take place, they usually occur when a normal assault under Penal Code 22.01(1) causes injury above and beyond ordinary bodily injury (hence rising to the level of serious bodily injury), or (2) is an instance where someone is threatened with immanent bodily injury (22.01(2)) — and a deadly weapon is used or exhibited when that person was threatened.

Another big issue in aggravated assault cases is often what constitutes a “deadly weapon.”  Under Texas Penal Code Section 1.07(17) as (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

The first definition is somewhat clear as to what constitutes a deadly weapon, but the entire issue of an aggravated assault case often turns on the definition of subsection (B) above.  For example, a rock, candlestick, or any other object you can think of could be argued to qualify as a deadly weapon based on how it was being used at the time of the alleged assault.

In either event, an aggravated assault is an extremely serious charge and should never be taken lightly.  You should seek skilled legal representation.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific case you should consult with an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Texas Criminal Punishment Levels

June 25, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Offense Levels in Texas (updated as of January, 2018):

Class C Misdemeanors:  Punishable by a fine not to exceed $500:

  • Traffic offenses
  • Assault by contact
  • Drug paraphernalia
  • Disorderly conduct (other than firearm related)
  • Theft under $100 (unless theft committed by check)
  • Insufficient funds
  • Minor in possession (MIP)
  • Minor in Consumption

Class B Misdemeanors: Fine not to exceed $2,000 and not more than 180 days confinement in county jail:

  • DWI (72 hours minimum jail; 6 days minimum with open container)
  • Possession of Marijuana (less than 2 oz.)
  • Theft over $100 but less than $750
  • Theft by check (over $20 but less than $500)
  • Criminal mischief over $100 but less than $750 (vandalism)
  • Violation of a protective order
  • Indecent exposure
  • Racing on a public road
  • Prostitution
  • Disorderly Conduct with Firearms (display or discharge)

Class A Misdemeanors:  Fine not to exceed $4,000 and not more than 180 days confinement in county jail:

  • DWI (2nd offense) (minimum 72-hours jail)
  • DWI over 0.15 BAC
  • Possession of marijuana (between 2 oz. and 4 oz.)
  • Possession of dangerous drugs (usually the possession of legal drugs without a valid prescription)
  • Assault causing bodily injury
  • Theft between $750 and $2,500 (whether by check or otherwise)
  • Criminal mischief over $750 but less than $2,500
  • Evading on foot

State Jail Felonies:  Fine not to exceed $10,000 and confinement in state jail institution for no less than 180 days and no more than 2 years.

  • Possession of controlled substance less than 1 gram (typically methamphetamine, cocaine or heroin)
  • Credit card abuse (using another person’s credit card without authorization)
  • Third theft conviction of any amount
  • Theft between $2,500 and $30,000
  • Forgery
  • DWI with a minor under the age of 15 in the vehicle
  • Evading with a vehicle
  • Car Theft (Unauthorized Use of a Motor Vehicle)

Third Degree Felonies:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 10 years.

  • Possession of controlled substance between 1 and 4 grams;
  • Aggravated assault
  • Assault causing bodily injury (enhanced from prior finding of family violence)
  • Burglary of a building
  • Theft between $30,000 and $150,000
  • DWI (3rd offense)
  • Indecency with a child (by exposure)
  • Solicitation of a minor

Second Degree Felonies: Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 20 years:

  • Possession of a controlled substance over 4 grams but less than 200 grams
  • Burglary of a habitation
  • Aggravated assault with a deadly weapon
  • Theft between $150,000 and $300,000
  • Indecency with a child (by contact)
  • Injury to a child
  • Sexual Assault of a Child (Under 17 but not 14)
  • Sexual Assault
  • Attempted murder
  • Intoxicated manslaughter

First Degree Felony:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 5 years and no more than 99 years.

  • Murder
  • Possession of a controlled substance over 200 grams
  • Possession of a controlled substance between 4 and 200 grams with intent to distribute
  • Arson
  • Theft over $300,000
  • Aggravated Sexual Assault of a Child
  • Aggravated Sexual Assault of a Child under 6 (25 – Life w/o Parole)
  • Continuous Sexual Abuse of a Child or Young Children (25 – Life w/o Parole)

It should be understood that though many of these offenses carry mandatory minimum jail sentences, virtually every offense other than Murder has provisions whereby sentence may be probated or suspended for community supervision (probation).

Other points:

There are some offenses referred to as “hybrid” offenses which mean they can straddle boundaries of punishment — but for the most part the levels remain fairly consistent.  Some offenses like Driving While Intoxicated raise the minimum punishment level but are still considered to be in that general category.

Also many offenses are subject to what are known as enhancements.  Enhancements are other surrounding factors that can enhance — or increase the base punishment level for certain offenses.  The enhancement can be for something surrounding the transaction (like possession of drugs in a drug free zone), or as is often the case because of prior criminal history.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific issue you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Texas Assault/ Family Violence Common Legal Issues

June 23, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Assault is governed by Texas Penal Code Section 22.01(a)(1).  That section provides that someone has committed the offense of assault if the person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.”  At first blush, this statute looks scarily broad but in Dallas and Collin Counties in Texas, these cases are among the hardest to successfully prosecute.

What is the Definition of “Bodily Injury?”

Texas Penal Code 1.07(a)(8) defines “bodily injury” as physical pain, illness, or any impairment of physical condition.”  Again, scarily broad.  But not to worry.  There are plenty of strong defenses and other mountains the prosecution has to climb if they want to convict someone.

Self Defense

Self defense can absolutely be an affirmative defense in assault cases alleging “bodily injury.”  Section 9.31(a) defines self defense as stating in part, “a person is justified in using force against another when an to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful forces…”  While words enough are never alone to provoke a self-defense claim, it may be established liberally as well with the conduct of the victim.

Consent

A less prominent affirmative defense is consent.  A consent defense is just like it sounds — that the person assaulted agreed on being assaulted to the extent of causing bodily injury.  A person can never legally consent to aggravated assault or worse (causing serious bodily injury or the use of a weapon).  The classic law-school example of consent is where athletes (such as football players) routinely hit one another in the course of an event.  Another example could potentially be where the “victim” provokes an assault by inviting someone to hit them (perhaps by physically “bowing-up” to the accused).

Confrontation Clause Issues — Testimony of “Victim” is Usually Necessary

Though every case and factual circumstance is unique, the victim generally has to testify against the accused in an assault case to satisfy all the legal elements of the prosecution’s case.  The confrontation clause in the U.S. Constitution mandates that we get to face our accusers in open court.  Prior to 2004, the prosecution could successfully prosecute assault cases by calling police officers as witnesses to testify as to what the “victim” said at the scene even though the witness wasn’t in court.  Although that is technically known as “hearsay,” the court’s held that the statements usually fall within the “excited utterance” exception to the hearsay rule.

In 2004, a U.S. Supreme Court case called Crawford v. Washington, 541 U.S. 36 (2004) held (and I’m overly-generalizing) that a person’s right to confront accusers can over-ride some of the less established hearsay exceptions — such as an excited utterance.

In English, this means that unless the State can otherwise prove all the elements of their case through other witnesses (perhaps other people that witnessed the alleged assault), then if the victim does not testify, the prosecution’s case is probably going to be legally insufficient and will result in an acquittal.  As a note of caution, though, this rule of evidence can be un-intentionally waived by people that represent themselves or even by lawyers that don’t know what they’re doing.  You should also know that it is illegal to tamper with or otherwise intimidate a witness… and is frankly it’s a worse offense than the underlying assault charge itself.

Juror Attitudes

Prosecutors also have a hard time with assault cases for the reason that many jurors are hesitant to have the government get involved in the personal lives of others.  When they see a reluctant “victim” being forced to testify by the state or when they simply can’t tell who was really at fault in the altercation then they generally render the right verdict — which is NOT GUILTY.

Affirmative Finding of Family Violence

Perhaps an over-riding concern in a family assault case (whether it be a class c misdemeanor assault or a class a as discussed above) is the State’s attempt to hang on your record what is called an “affirmative finding of family violence.”  That finding is bad news.

Texas Family Code Sections 71.0021, 71.003, and 71.004 in conjunction with Penal Code 22.01(b)(2)(A) can cause an affirmative finding of family violence to enhance a second offense from a misdemeanor to a third-degree felony.  Simply because you get deferred adjudication does not mean this affirmative finding goes away.

In summary

People often make the mistake of under-estimating the degree of difficulty and the level of consequences of a family violence/ assault allegation.  Having a lawyer that knows what they’re doing is invaluable and can potentially save you mountains of headaches down the road.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice regarding any specific case, you should consult with an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Texas Possession of Marijuana Common Legal Issues

June 22, 2010

Texas Penal Code Section 481.121 makes the possession of marijuana a criminal offense.  Sounds simple, right… if there were drugs where you were and the police found them then you’re guilty, right?  Not exactly.  Remember, not only does the state have to prove beyond all reasonable doubt every element of this charge, but they may also have to prove whatever mechanism the used to attain the marijuana (the search) was lawful.

What is the Legal Definition of Possession?

Texas Penal Code Section 1.07(39) defines “possession” as “actual care custody, control or management.”  Proving this for the prosecution is harder than it may seem.  In other words, it’s not enough to prove that someone was merely in close proximity to the drugs.  The state must prove that the accused somehow ACTUALLY took some action to control the paraphernalia in question.  Take for example where a car with 4 passengers is pulled over.  A passenger in the back seat has marijuana in his pocket — gets nervous — and tosses the marijuana underneath the driver’s seat.  After an eventual search of the car – let’s assume the driver gets charged with marijuana possession.  The prosecution must still prove at trial that the driver exercised actual care, custody, control, or management of the marijuana in question.  If the only evidence is that the drugs were found near the driver, the driver in this scenario may be acquitted of possession of marijuana.

Were the Police Allowed to Search?

That is always a question which must be reviewed in great detail.  Everyone within our country’s borders are free from unreasonable searches and seizures based on the 4th Amendment to the U.S. Constitution.  Your remedy from an illegal search or seizure is through what is known as the exclusionary rule.  That rule blocks anything and everything attained illegally by police or the government from coming into evidence at trial.  With no evidence at trial, the prosecution loses because they have the burden of proof.

Though I could write about this all day, there are two main kinds of searches.  With or without a search warrant.  A search can be as simple as a pat-down by and officer or a full scale digging of a car or house.  Most searches are without a warrant and the law actually presumes those searches to be unreasonable.  The state must prove their reason to search fits within an exception by clear and convincing evidence if the defendant challenges the search.  A search warrant is presumed reasonable, but is more difficult and time consuming for the police to attain.  You can still challenge a search warrant if it was done improperly.

The word “illegal” with searches tend to throw people too.  Think of it more like an “illegal procedure” penalty in a football game and not some action that will get the police officer thrown in jail himself for doing it wrong.

Judges can and do frequently throw out illegal searches for drugs, marijuana, and other paraphernalia whether they are from cars, houses, and even illegal searches in schools.

Punishment Ranges — What Level Offense is it in Texas?

The punishment for possession of marijuana depends on the amount alleged to have been possessed though other surrounding circumstances can kick up the punishment range such as possession a school zone or possession with intent to distribute.  Otherwise the punishment ranges are as follows:

A usable quantity but less than 2 ounces is a class b misdemeanor;

More than two ounces but less than four is a class a misdemeanor;

More than four but less than five is a state jail felony;

More than five pound but less than 50 pounds is a third degree felony;

More than 50 pounds but less than 2,000 pounds is a second degree felony;

Over 2,000 pounds is a first degree felony.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Computer Crimes: Breach of Computer Security

June 21, 2010

Section 33.03 of the Texas Penal Code covers the breach of computer security — generally known as hacking.  That law makes it a crime for someone to knowingly access a computer, computer network, or computer system without the effective consent of the owner.

As you can tell by reading the language above, this is an extremely broad law with tons of different of applications that can apply to many different circumstances.  It can cover situations where a hacker is trying to access a bank, the government, or even arguably someone else’s facebook account.  It plainly prohibits a person simply getting on someone else’s computer without their knowing — and it would probably prohibit an employee from accessing a computer system of their employer where they have exceeded access although there are other laws that cover that particular scenario.

If the offense is committed without the person obtaining any benefit, then it’s a class b misdemeanor which is the equivalent of a drunk driving charge or possession of a usable quantity of marijuana but less than two ounces.

If the alleged offense attains a benefit, defrauds or harms another, alters, damages, or deletes property, then the offense is charged based on the dollar amount of damages done.

$1,500 or less is a class a misdemeanor, the equivalent of assault charges;

$1,500 to $20,000 is a state jail felony;

$20,000 to $100,000 is a third degree felony;

$100,000 to $200,000 is a second degree felony, the equivalent of aggravated assault with a deadly weapon;

over $200,000 is a first degree felony, the equivalent of murder or aggravated sexual assault of a child.

Punishment for breach of computer security can be extremely steep!!  I’m not an expert in corporate computer systems, by my gut tells me their damages add up QUICKLY in the event someone accesses or deletes their files.

There are tons of legal issues which pertain to proving this type of offense including but not limited to search and seizure issues and highly complex evidentiary issues that accompany computer crimes.  This is the type of offense that typically drive prosecutors crazy — because they can be highly technical and very difficult to prove.  A good lawyer can create a lot of value by working diligently on your case!

If you’re charged with a computer crime, then getting a competent and qualified lawyer is a must!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about you own specific situation, you should consult an attorney.

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