Assault vs Aggravated Assault: What’s the Difference?

Assault vs Aggravated Assault: What’s the Difference? When people compare assault vs. aggravated assault in Texas, the difference comes down to one added fact: serious bodily injury, or using or showing a deadly weapon.

That fact usually moves the charge from a misdemeanor to a second-degree felony, raising the possible punishment from up to a year in jail to as much as 20 years in prison.

What Counts as Assault in Texas?

Under Section 22.01 of the Texas Penal Code, assault takes three forms, and each starts at a different grade:

Form of assault	Required mental state	Starting grade
Causing bodily injury	Intentional, knowing, or reckless	Class A misdemeanor
Threatening imminent bodily injury	Intentional or knowing	Class C misdemeanor
Physical contact the person knows or should believe the other will find offensive or provocative	Intentional or knowing	Class C misdemeanor

Bodily injury is a low bar. Texas defines it as physical pain, illness, or any impairment of physical condition, so a shove that causes pain can qualify. The two Class C forms are punishable by a fine of up to $500 under Section 12.23 of the Texas Penal Code, with no jail time, although the offensive-contact form is a Class A misdemeanor when the person contacted is elderly or disabled.

What Makes an Assault Aggravated?

Under Section 22.02 of the Texas Penal Code, aggravated assault is an assault plus one of two facts: causing serious bodily injury, or using or exhibiting a deadly weapon during the assault. Section 1.07 of the Texas Penal Code defines both terms:

Serious bodily injury: An injury that creates a substantial risk of death, causes death, or causes serious permanent disfigurement or protracted loss or impairment of the function of any body part or organ.
Deadly weapon: A firearm or anything designed, made, or adapted to cause death or serious bodily injury, or anything that is capable of causing death or serious bodily injury in the way it is used or intended to be used.

The second half of the deadly weapon definition is why an aggravated charge does not require a gun or knife. Depending on how it was used, a vehicle, a bottle, or even a person’s hands or feet can be alleged as a deadly weapon, and no one has to be hurt when a weapon is used or shown. Aggravated assault is a second-degree felony by default and becomes a first-degree felony in narrower situations, such as causing serious bodily injury to a family member or dating partner with a deadly weapon, or assaulting a public servant on duty.

Assault vs Aggravated Assault: Key Differences

Side by side, the bodily-injury form of assault and aggravated assault compare this way:

	Assault (bodily injury)	Aggravated assault
What the State must prove	Bodily injury, which can be pain alone	Serious bodily injury, or using or showing a deadly weapon
Starting grade	Class A misdemeanor	Second-degree felony
Punishment range	Up to 1 year in jail and a fine up to $4,000 (Section 12.21)	2 to 20 years in prison and a fine up to $10,000 (Section 12.33)
Where the case is heard	A county-level misdemeanor court	A district court, which hears felony cases

Because the gap in punishment is so large, many cases turn on the one fact that separates the two charges: how serious the injury really was, or whether an ordinary object was used in a way that makes it a deadly weapon.

When Can Assault Be a Felony Without Being Aggravated?

Some bodily-injury assaults are third-degree felonies, punishable by 2 to 10 years in prison under Section 12.34 of the Texas Penal Code, even with no weapon and no serious injury. That can happen in several situations, including when the person assaulted is:

A public servant performing an official duty, or targeted because of that role
A family member, household member, or dating partner, and the accused has a qualifying prior family violence conviction
A family member, household member, or dating partner whose breathing or blood circulation was impeded by pressure on the throat or neck or by blocking the nose or mouth, often called strangulation

When a family violence case involves both a qualifying prior conviction and strangulation, the charge rises to a second-degree felony, the same starting grade as aggravated assault.

Can an Assault Charge Be Upgraded After an Arrest?

Can an Assault Charge Be Upgraded After an Arrest? Yes. The charge at arrest is not always the charge that goes forward. Medical records may show an injury was more serious than it first appeared, or an object at the scene may later be alleged to be a deadly weapon. A felony charge is generally presented to a grand jury, which decides whether the evidence supports an indictment for the felony, so the facts gathered in the first weeks after an arrest can shape which charge the accused ultimately faces.

Get Help With Assault vs Aggravated Assault Charges

Not knowing which side of the assault vs aggravated assault line your charge falls on makes an already stressful arrest harder. At The Love DuCote Law Firm LLC, we defend clients facing assault and aggravated assault charges in Sugar Land, Fort Bend, Houston, Harris County, and Katy, Texas, and one of our managing partners is a former Fort Bend County prosecutor. Our past results include aggravated assault with a deadly weapon charges that were dismissed or reduced to a misdemeanor. Call 832-662-1294 or contact us to talk about the charge you are facing and the evidence behind it.

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Assault vs Aggravated Assault: What’s the Difference?

What Counts as Assault in Texas?

What Makes an Assault Aggravated?

Assault vs Aggravated Assault: Key Differences

When Can Assault Be a Felony Without Being Aggravated?

Can an Assault Charge Be Upgraded After an Arrest?

Get Help With Assault vs Aggravated Assault Charges

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