Assault with a deadly weapon is usually charged as a second-degree felony and punishable by fines up to $10,000 and a prison sentence of 2 to 20 years. Under certain circumstances, this can even be elevated to a first-degree felony.

These circumstances include violence against a security officer, a family member or partner, a public servant, or in retaliation against a witness in a criminal case. When this becomes a first-degree felony, the penalties can be five to 99 years or life in prison with fines up to $10,000.

In addition, under Sec. 22.02 of the Texas Penal Code assault with a deadly weapon (aggravated assault) may be charged as a first-degree felony if:

• Seriously bodily injury is caused to a spouse, ex-spouse, domestic partner, co-parent, family member or someone they have are dating as defined by Sec. 71.0021, 71.003 and 71.004 of the Family Code);
• The person is a public servant and acting under “the color of the servant’s office or employment; or
• The person is in a motor vehicle and knowingly and recklessly discharges a firearm in the direction of a habitation, building, or occupied vehicle, causing serious bodily injury to another person.

Serious bodily injury is defined under Sec. 1.07(a)(46) of the Texas Penal Code as an 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.”

Possible Assault with a Deadly Weapon Charges Defenses

Determining the best defense for the case is our job as your criminal defense lawyer in Texas. We have the experience needed to determine what strategy will work best for you. When a case involves an accusation of assault with a deadly weapon, we may be able to apply one of the following assault with a deadly weapon charges defenses to your case.

1. Self Defense: In Texas, it is permissible to use force as self-protection.
2. Lack of a Deadly Weapon: If it can be proven that a deadly weapon was not present during the assault then the charges made against you can be reduced or dropped.
3. Lack of Intent: Charges can be reduced or dismissed if it can be proven there was no intent beyond your particular action.
4. Mistaken Identity: In some cases, a witness may mistake you for another person, or they may not be able to provide a solid identification.
5. Unaware that the victim was a public servant: Your charges may be reduced to a lesser charge if the prosecutor is unable to show that you knew that the victim was a public servant. Under Sec. 22.02, a person is “presumed to have known the person assaulted was a public servant or security officer if the person was wearing a distinctive uniform or badge.”
6. Insufficient evidence: In all criminal cases, a prosecutor must prove beyond a reasonable doubt that all elements of the crime were present. Without the necessary evidence, including eyewitness testimony, a prosecutor may be unable to meet this burden.
7. Consent: Under Section 22.06, consent is a defense to assaultive conductive. Consent can be determined if the “(1) conduct did not threaten or inflict serious bodily injury; or (2) if the victim knew the conduct was a risk of:
   1. His occupation; 
   2. Recognized medical treatment; or
   3. A scientific experiment conducted by recognized methods.”