Aggravated Assault with a Deadly Weapon Charges in Texas

Here in Texas, aggravated assault with a deadly weapon charges are very serious, so today I want to give interested parties and individuals facing these charges a detailed breakdown of these charges, defining what "deadly weapon" means and exploring some defense strategies.

Is aggravated assault with a deadly weapon a specific charge under Texas law?

Not exactly. Why? Because the exact phrase "aggravated assault with a deadly weapon" does not appear verbatim in the Texas Penal Code.

Instead, what we know as aggravated assault with a deadly weapon (AA/DW) is "assembled" from § 22.02 Aggravated Assault, specifically subsection (a)(2).¹

Take a look below, and I'll show what the Texas Penal Code actually says:

A person commits an offense [aggravated assault] if the person commits assault as defined in Sec. 22.01 and the person:
- causes serious bodily injury to another, including the person's spouse; or
- uses or exhibits a deadly weapon during the commission of the assault.²

So, what this section is saying is actually pretty simple: A person's actions must first clear the bar for an assault charge to commit aggravated assault, and a person must either cause serious bodily injury or commit aggravated assault.

Individuals who are convicted of aggravated assault with a deadly weapon (AA/DW) charges in the state of Texas face up to 20 years in prison and steep fines.

I say this at the beginning of every article, and I'm saying it again: Should you find yourself facing these charges or placed under arrest, invoke your right to remain silent, contact an attorney as soon as possible, and do not speak to law enforcement without an attorney present.

Most AA/DW charges are going to be classified as a second-degree felony.

It's punishable by 2 to 20 years in prison and fines up to $10,000¹. It's also what we call a "3G" offense, which means individuals convicted must serve at least half of the prison sentence before they're eligible to apply for parole.

Charges can be elevated to a first-degree felony under certain conditions.

How does a second-degree felony charge move to a first-degree charge? It's about the identity of the alleged victim, and also firing a weapon from a motor vehicle.

Let's get to identity first. Using a deadly weapon to cause bodily harm to a public servant performing official duties, a family or household member,⁴ a government contractor, a security officer on duty, or a witness, informant, or prospective witness will lead to a first-degree felony.³

How about a motor vehicle? I'll spare you the full text. Suffice it to say, if the term "drive-by" is descriptive of the charges a person faces, it's likely to be elevated to a first-degree felony.⁵

Individuals convicted of first-degree felony assault with a deadly weapon face a minimum of five years in prison, all the way up to life in prison.

In Texas, there are three ways prosecutors can bring AA/DW charges.

Assault someone while using or displaying a weapon.
Threaten someone with bodily injury while exhibiting a deadly weapon, even if you never make physical contact with them.
Discharge a firearm from a vehicle toward a house, building, or another car, even if it's unoccupied.¹

Notice that in situations two and three, no one was actually assaulted or harmed. That doesn't matter. Threatening someone with a weapon is legally equivalent to causing them injury.

"Deadly weapon" doesn't just mean a gun or knife.

I want to spend some time talking about what the law counts as a deadly weapon in Texas, because it's not necessarily what you'd think.

To keep it simple, the law in Texas breaks down "deadly weapon" into three essential categories:

Firearms
Anything purpose-made to inflict death or bodily injury, from brass knuckles and knives to explosives
Any object capable of causing death or serious bodily injury through the manner of its use or intended use

Objects are determined to be a "deadly weapon" based on how they are used, not how they are supposed to be used.

I'm referring to the third category above here, and I want to zoom in a bit so you know what the law says.

State law defines "capable of" broadly, so if you think about it, there'd be no limit on what's deadly and what's not. Except there is, and the item of controversy is right at the end of the sentence: "manner of use."

A monkey wrench is built to be used as a tool, but it’s made of steel, and it’s heavy. Same with a rolling pin. Same with a frying pan. How about a cellphone? There have been multiple cases involving cellphones throughout the country. Most anything can be a deadly weapon. It depends on how it’s used.

An individual may also be charged if they're driving a vehicle aggressively toward someone. It makes sense. A vehicle is certainly capable of causing death or serious harm, and if it is used in that manner, then it's a deadly weapon.

Let's say a person holds a dull butter knife to someone's throat. Or, they swing a flashlight at someone's head. In our everyday use of the word, you wouldn't think of those objects as being "deadly." But once an individual uses an object in an aggressive and damaging action, an ordinary object instantly becomes "deadly."

This law still has limits. Objects have to be used or displayed.

If an object is present in an individual's pocket but never brandished, there are avenues we can explore to keep that deadly weapon enhancement charge off a person's criminal record.

The following examples may not meet the standards necessary for the state to bring first-degree felony charges:

Mentioning a gun during an assault
Showing, but not using, an object in a way that's capable of causing death or serious injury

Why aren't we talking about a second-degree felony? Because in both cases, the item was not used. I should add that, of course, both examples above could earn an individual a criminal charge, but it's unlikely to be a second- or first-degree felony.

Glatfelter v. State shows conviction is a real possibility, regardless of the weapon.

Let's look at a real case to see how the charge plays out with a jury. In 2020, a man, Mr. Glatfelter, was convicted of assault with a deadly weapon after he wielded a water meter key (a heavy metal tool) and threw it at a City of Paris employee who was sitting in their car. The tool struck a tree branch and fell in the street.

Notice that in this situation, there were no injuries, and the employee was not struck. So, what are we dealing with here?

Lieutenant Doug Murphy of the Paris Police Department testified that if thrown, the tool could “absolutely” have caused death or serious bodily injury.⁶ — Justice Ralph K. Burgess

Glatfelter appealed, but he was denied. He was sentenced to twelve years in prison.

Prosecutors use the threat of prison to force quick plea deals.

An aggravated assault with a deadly weapon charge gives prosecutors a lot of leverage. Since those convicted face up to 20 years in prison, the state will often pressure defendants into taking a plea deal for a lesser charge.

If you or a loved one has been charged with aggravated assault with a deadly weapon, there are four primary defense strategies you need to know about.

No two cases are the same, but in general, Gold Legal and other law firms have four types of strategies at their disposal. I want to emphasize here that you do have options.

1. Self-Defense

Self-defense is the most common strategy lawyers will use to protect the accused. Texas law gives you the right to use force to protect your person, and that includes displaying a weapon if you think it's necessary. You do not have a duty to retreat if you are in a place you have a right to be in, such as your home.⁷

And though it's rare, there are even situations where you can use deadly force to protect your property in Texas.

2. Challenging the weapon classification

Yes, Texas gives prosecutors a lot of latitude in determining what a deadly weapon is. However, the state still must prove that the object, whatever it is, is capable of causing serious injury or death.

3. Lack of intent

If a weapon was displayed completely by accident, the prosecution cannot meet its burden of proof.

Similarly, if the alleged victim misinterpreted an innocent action, like reaching for a phone, we will work to get charges dismissed or secure a 'not guilty' plea.

4. Insufficient evidence

Remember: The prosecution has the burden of proof here. They need to prove beyond a reasonable doubt that assault with a deadly weapon took place.

We will scour witness statements and closely examine the physical evidence, including any video footage.

If there are contradictions or a lack of evidence, the legal threshold cannot be met, and we will prove that.

Facing aggravated assault with a deadly weapon charges in Texas? Call Gold Legal now.

If you or a person you know has been accused of assault or is facing a deadly weapon enhancement, you can't afford to wait. The state is already building its case, so the time to hire a lawyer who will fight to protect your rights is now.

Contact Gold Legal, PLLC today.

Kandi Gilder, Attorney at Law
Founder
Gold Legal, PLLC

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