Domestic Violence Charges – Blog 2:  What is an Assault?

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

To understand domestic violence charges, it begins with understanding their main legal components.

There is an assault and along with the assault, the prosecution attempts to seek an affirmative finding of family violence.  The law and ingredients of assault itself do not change merely because of the relationship of the accuser and the accused.

My goal today is to give a very broad perspective on the assaultive component exclusively so the readers can understand generally how these codes work together in my continuing series about domestic violence charges.  Assault cases, however, each have unique nuances which could take them out of some of my broad generalizations.

Assault is a Result Based Offense

All crimes have what are known as elements – or units of proof.  Elements are a checklist of everything which must be proven to a jury beyond a reasonable doubt if the State is seeking a conviction.  Assault is generally covered by Texas Penal Code Chapter 22.  The assault family of criminal charges are easy to understand because with only a few exceptions – every element is the same except for one.  The element which is different is the result or what type of harm the assault inflicts.

The elements of assault in Texas are:

  • The defendant (identity);
  • on or about a certain date;
  • in the county where venue is sought;
  • in the state of texas;
  • Knowingly, intentionally or recklessly caused;
  • Some type of harm –
    • Offensive contact (class c misdemeanor – fine only)
    • Bodily injury (class a misdemeanor – up to 1 year county jail)
    • Serious bodily injury (2nd degree felony – 2 to 20 years TDC)
    • Death (Murder has it’s own family of charges – but homicide is essentially assault which causes death).

An example I give my clients is this:  Let’s say I punch someone in the arm.  If it just annoys the victim then I’ve committed a class c offensive contact assault.  If it causes them to say ouch then I’ve committed a class a assault with bodily injury.  If the punch causes them serious bodily injury then I’ve committed a 2nd degree felony (aggravated assault) and if the punch causes them to die, then I’ve committed some type of homicide.

The action remains the same – and only the result of the action is different.  But it is the result which dictates the level of charge hence assault is a result based offense.

Further Defining the Degrees of Harm

Offensive contact is legally defined as contact which would be considered offensive or provocative.  An example could be spitting on someone.  In reality we see “offensive contact” in cases where the police don’t think much of an assault so they list some type of grabbing or pushing as “offensive” rather than causing bodily injury.

Bodily injury is legally defined as physical pain, illness, or any impairment of physical condition.  Most domestic violence arrests fall in this category.

Serious bodily injury is defined as injury which 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.

Slight variations on Assault General Rules

A few charges were crafted differently by the legislature in Texas.  I’ll cover those later on in this series as well but assault by threat, assault by impeding breath or choking, and aggravated assault with a deadly weapon are also assault offenses but those are defined by the manner in which they are committed in addition to the result.

Assault Charges Allow for the Same Defenses

I’ll be discussing defenses to assault charges later in this series too.  But it is worth noting that all of the defenses to assault such as self defense or consent are to some degree applicable regardless of the result.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

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