By Criminal Defense Lawyer Jeremy Rosenthal
(972) 369-0577
Most aggravated assaults with a deadly weapon are where someone threatens a person with something like a knife, gun or some other object. We see domestic cases frequently where the police arrest a spouse or partner who grabbed something like a scissors or a kitchen knife during a heated argument and was alleged to threaten the other.
Aggravated Assault with a deadly weapon is a charge which leaves a mental impression by its name that doesn’t always match reality. For that reason, I’ve worked with lots of folks who were stunned to have been charged with it. It goes without saying aggravated assault with a deadly weapon cases can also be far more serious than simply one spouse being momentarily threatened by an object.
Like choking, it is an assaultive offense which is based on it’s conduct as much or more than the result – which is why I wanted to talk about it separately in my continuing series of blogs about defending domestic violence. Most assault offenses are strictly result-based.
The Law on Aggravated Assault with a Deadly Weapon
This charge is committed where someone uses or exhibits a “deadly weapon” during the commission of an assault. A “deadly weapon” under Texas law is any item for which the use or intended use could cause serious bodily injury or death.
Remember, an “assault” can be a situation where there is physical contact – or where there is an imminent threat. So a situation where a knife, gun, scissors, an ash tray, a picture frame, a vase, or anything else are used to threaten another person – it could be construed as aggravated assault with a deadly weapon.
Another area of confusion on these cases is whether the deadly weapon is used “during the commission” of an assault. Let’s say someone has a weapon at one point during the incident but the assault occurs at a different point. For instance, a couple is arguing and one has a weapon in their waistband. The weapon is never displayed. Moments later that partner hits the other one with their hand. Many prosecutors would argue the weapon was used “during the commission” of the assault hence aggravated assault with a deadly weapon.
Aggravated assault with a deadly weapon is a 2nd degree felony and punishable between 2 and 20 years in prison and a fine not to exceed $10,000.
Folks who do plead guilty or are convicted o aggravated assault with a deadly weapon can still be given deferred adjudication or probation. The charge, however, does limit eligibility and defendants who go to trial must have a jury approve probation – and the accused cannot have been convicted of a felony in this state or any other state.
Good News/ Bad News with Agg. Assault w/ Deadly Weapon
The good news with these types of charges is it can be easy to carve out lesser-included offenses. That means at trial a jury frequently has the opportunity to acquit someone of the higher offense and potentially convict of a misdemeanor assault instead.
The flip side of the coin — the bad news — is for the same reason aggravated assault with a deadly weapon give the prosecution lots of plea bargaining leverage. They can take a weak aggravated assault with a deadly weapon case and make into a strong misdemeanor or lower felony charge.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of legal specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.
