22 02 Aggravated Assault

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V.T.C.A., Penal Code � 22.02
Vernon's Texas Statutes and Codes Annotated Currentness
Penal Code (Refs & Annos)
Title 5. Offenses Against The Person (Refs & Annos)
Chapter 22. Assaultive Offenses (Refs & Annos)
� 22.02. Aggravated Assault
(a) A person commits an offense if the person commits assault as defined in �

22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, except that
the offense is a felony of the first degree if:
(1) the actor uses a deadly weapon during the commission of the assault and causes
serious bodily injury to a person whose relationship to or association with the
defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or
(2) regardless of whether the offense is committed under Subsection (a)(1) or

(a)(2), the offense is committed:
(A) by a public servant acting under color of the servant's office or employment;
(B) against a person the actor knows is a public servant while the public servant
is lawfully discharging an official duty, or in retaliation or on account of an
exercise of official power or performance of an official duty as a public servant;
(C) in retaliation against or on account of the service of another as a witness,

prospective witness, informant, or person who has reported the occurrence of a
crime; or
(D) against a person the actor knows is a security officer while the officer is
performing a duty as a security officer.
(c) The actor is presumed to have known the person assaulted was a public servant
or a security officer if the person was wearing a distinctive uniform or badge
indicating the person's employment as a public servant or status as a security
officer.
(d) In this section, "security officer" means a commissioned security officer as

defined by Section 1702.002, Occupations Code, or a noncommissioned security
officer registered under Section 1702.221, Occupations Code.
CREDIT(S)
Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1979, 66th Leg., p. 367, ch. 164, � 2, eff. Sept. 1, 1979; Acts 1979, 66th Leg.,
p. 1521, ch. 655, � 2, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 349, ch. 79, �
1, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 5311, ch. 977, � 2, eff. Sept. 1,
1983; Acts 1985, 69th Leg., ch. 223, � 1, eff. Sept. 1, 1985; Acts 1987, 70th
Leg., ch. 18, � 3, eff. April 14, 1987; Acts 1987, 70th Leg., ch. 1101, � 12, eff.
Sept. 1, 1987; Acts 1989, 71st Leg., ch. 939, �� 1 to 3, eff. Sept. 1, 1989; Acts
1991, 72nd Leg., ch. 334, � 2, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 903,
� 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1,
1994; Acts 2003, 78th Leg., ch. 1019, � 3, eff. Sept. 1, 2003; Acts 2005, 79th
Leg., ch. 788, � 3, eff. Sept. 1, 2005.
HISTORICAL AND STATUTORY NOTES
2006 Electronic Pocket Part Update

2003 Legislation
Acts 2003, 78th Leg., ch. 1019 added subsec. (b)(4); in subsec. (c), inserted the
references to a security officer; and added subsec. (d).
Section 4 of Acts 2003, 78th Leg., ch. 1019 provides:
"This Act takes effect September 1, 2003, and applies only to an offense committed
on or after that date. An offense committed before the effective date of this Act
is covered by the law in effect when the offense was committed, and the former law
is continued in effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element of the offense
occurred before that date."
2005 Legislation
Acts 2005, 79th Leg., ch. 788, rewrote subsec. (b), which formerly read:
"(b) An offense under this section is a felony of the second degree, except that
the offense is a felony of the first degree if the offense is committed:
"(1) by a public servant acting under color of the servant's office or employment;
"(2) against a person the actor knows is a public servant while the public servant
is lawfully discharging an official duty, or in retaliation or on account of an
exercise of official power or performance of an official duty as a public servant;
"(3) in retaliation against or on account of the service of another as a witness,

prospective witness, informant, or person who has reported the occurrence of a
crime; or
"(4) against a person the actor knows is a security officer while the officer is
performing a duty as a security officer."

"The change in law made by this Act applies only to an offense committed on or
after September 1, 2005. An offense committed before September 1, 2005, is covered
by the law in effect when the offense was committed, and the former law is
continued in effect for that purpose. For the purposes of this section, an offense
was committed before September 1, 2005, if any element of the offense occurred
before that date."
2003 Main Volume
Acts 1979, 66th Leg., ch. 164, � 2, in subsec. (a), added in subd. (1) ",
including his spouse".
Acts 1979, 66th Leg., ch. 655, � 2, in subd. (2) deleted "in the lawful discharge
of official duty" following "peace officer", inserted a colon following "is a
peace officer", and added pars. (A) and (B), added a new subd. (3), and renumbered
former subd. (3) as subd. (4).
Acts 1983, 68th Leg., ch. 79, � 1, in subsec. (a) in the introductory language of
subd. (2) inserted "or a jailer or guard employed at a municipal or county jail or
by the Texas Department of Corrections" and added ", jailer, or guard", in subd.
(2)(A) inserted "jailer, or guard", and in subd. (2)(B) substituted "an" for "the
peace officer's" preceding "exercise of official power," inserted "an" preceding
"official duty" and inserted ", jailer, or guard".
Section 3 of Acts 1983, 68th Leg., p. 351, ch. 79, provides:
"(a) The change in law made by this Act applies only to an offense committed on or
after the effective date [Sept. 1, 1983] of this Act. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date.
"(b) An offense committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and the former law is continued in
effect for this purpose."
Acts 1983, 68th Leg., ch. 977, � 2, in subsec. (a) in two places in the
introductory language and in the introductory language of subds. (2) and (3)
substituted "the person" for "he" and in subd. (1) substituted "the person's" for
"his".
Section 13 of the 1983 amendatory act provides:
after the effective date [Sept. 1, 1983] of this Act.
law in effect at the time the offense was committed, and the former law is
continued in effect for that purpose. For purposes of this section, an offense is
committed before the effective date of this Act if any element of the offense
occurs before the effective date."
Acts 1985, 69th Leg., ch. 223, � 1, in subd. (a)(2), inserted "threatens with a
deadly weapon or" and in subsec. (c) added ", unless the offense . . . the second
degree".
"(a) The change in law made by this Act applies only to the punishment for an
offense committed on or after the effective date [Sept. 1, 1985] of this Act. For
purposes of this section, an offense is committed before the effective date of
this Act if any element of the offense occurs before the effective date.
Acts 1987, 70th Leg., ch. 18, in subsec. (a)(2), inserted the references to
facilities authorized by articles 5115d and 6166g-2 of the Revised Statutes.
Acts 1987, 70th Leg., ch. 1101, inserted references to a member or employee of the
Board of Pardons and Paroles throughout the section.
"(a) The changes in law made by �� 12 and 13 of this Act apply only to offenses
committed on or after the effective date [Sept. 1, 1987] of this Act. For purposes
of this section, an offense is committed before the effective date of this Act if
any element of the offense occurs before the effective date.
Acts 1989, 71st Leg., ch. 939, �� 1 to 3 reenacted subsec. (a) in order to
reconcile the 1987 amendments; in subsec. (a), subd. (2) inserted "or threatens to
cause bodily injury" following "weapon"; in subsec. (c) substituted "first" for
"second" preceding "degree."; and added subsec. (d).
"(a) The change in law made by � 1 of this Act applies only to an offense
committed on or after the effective date [Sept. 1, 1989] of this Act. For purposes
of this section, an offense is committed before the effective date of this Act if
any element of the offense occurs before the effective date.
"(b) An offense committed before the effective date of � 1 of this Act is covered
by the law in effect when the offense was committed, and the former law is
continued in effect for this purpose."
Acts 1991, 72nd Leg., ch. 334, � 2, in subsec. (a), rewrote subd. (2), which
formerly read:
"threatens with a deadly weapon or threatens to cause bodily injury or causes

bodily injury to a member or employee of the Board of Pardons and Paroles, a peace
officer, or a jailer or guard employed at a municipal or county jail, by the Texas
Department of Corrections, or by a correctional facility authorized by Article
5115d, Revised Statutes, or Article 6166g-2, Revised Statutes, when the person
knows or has been informed the person assaulted is a member or employee of the
Board of Pardons and Paroles, a peace officer, or a jailer or guard:
"(A) while the member or employee of the Board of Pardons and Paroles, peace
officer, jailer, or guard is lawfully discharging an official duty; or
"(B) in retaliation for or on account of an exercise of official power or

performance of an official duty as a member or employee of the Board of Pardons
and Paroles, a peace officer, or a jailer or guard; or"
Section 4 of Acts 1991, 72nd Leg., ch. 334 provides:
after the effective date [Sept. 1, 1991] of this Act. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date.
Acts 1991, 72nd Leg., ch. 903, � 1 rewrote subsec. (d), which prior thereto read:
"A person commits an offense if the person commits assault as defined in � 22.01
of this code and the person threatens with a deadly weapon or causes serious
bodily injury to an adult probation officer or to an employee of a community
rehabilitation center or court residential treatment center operated by an adult
probation department:
"(1) while the officer or employee is acting in the lawful discharge of an

official duty; or
"(2) in retaliation for or on account of an exercise of official power or

performance of an official duty by the officer or employee."
Section 5 of Acts 1991, 72nd Leg., ch. 903, provides:
after the effective date of this Act. For purposes of this section, an offense is
committed before the effective date of this Act if any element of the offense
occurs.
Acts 1993, 73rd Leg., ch. 900, � 1.01 rewrote the section, which formerly read:
"(a) A person commits an offense if the person commits assault as defined in �

22.01 of this code and the person:
"(1) causes serious bodily injury to another, including the person's spouse;
"(2) threatens with a deadly weapon or threatens to cause bodily injury or causes
bodily injury to a member of the Board of Pardons and Paroles or the Texas Board
of Criminal Justice, an employee of the pardons and paroles division of the Texas
Department of Criminal Justice, an employee of the Windham Schools, a peace
officer, or a jailer, guard, or other employee of a municipal or county jail, the
institutional division of the Texas Department of Criminal Justice, or a
correctional facility authorized by Subchapter F, Chapter 351, Local Government
Code or Chapter 495, Government Code, when the person knows or has been informed
the person assaulted is a member of the Board of Pardons and Paroles or the Texas
Board of Criminal Justice, an employee of the pardons and paroles division, an
employee of the Windham Schools, a peace officer, or a jailer, guard, or other
employee:
"(A) while the member of the Board of Pardons and Paroles or Texas Board of
Criminal Justice, employee of the pardons and paroles division, employee of the
Windham Schools, peace officer, jailer, guard, or other employee is lawfully
discharging an official duty; or
"(B) in retaliation for or on account of an exercise of official power or

performance of an official duty as a member of the Board of Pardons and Paroles or
Texas Board of Criminal Justice, an employee of the pardons and paroles division,
an employee of the Windham Schools, a peace officer, or a jailer, guard, or other
employee; or
"(3) causes bodily injury to a participant in a court proceeding when the person
knows or has been informed the person assaulted is a participant in a court
proceeding:
"(A) while the injured person is lawfully discharging an official duty; or
"(B) in retaliation for or on account of the injured person's having exercised an

official power or performed an official duty as a participant in a court
proceeding; or
"(4) uses a deadly weapon.
"(b) The actor is presumed to have known the person assaulted was a peace officer
if he was wearing a distinctive uniform indicating his employment as a peace
officer.
"(c) An offense under this section is a felony of the third degree, unless the
offense is committed under Subdivision (2) of Subsection (a) of this section and
the person uses a deadly weapon, in which event the offense is a felony of the
first degree.
"(d) A person commits an offense if the person commits assault as defined in �

22.01 of this code and the person threatens with a deadly weapon or causes serious
bodily injury to an officer employed by a community supervision and corrections
department, an employee of a community corrections facility operated by or for a
community supervision and corrections department and listed in � 6, Article 42.13,
Code of Criminal Procedure, a juvenile probation officer, or an employee of a
juvenile probation department or a juvenile detention center:
"(1) while the officer or employee is acting in the lawful discharge of an

official duty; or
"(2) in retaliation for or on account of an exercise of official power or

performance of an official duty by the officer or employee."
Prior Laws:
Rev.P.C.1879, arts. 496, 498, 499, 500, 507 to 511, 512, 610, 611.
Rev.P.C.1895, arts. 601, 603, 604, 605, 612 to 615, 616, 617, 715, 716, 793.
Rev.P.C.1911, arts. 1022, 1024, 1025, 1026, 1033, 1034, 1035, 1036, 1037, 1038,
1145, 1146, 1239.
Acts 1931, 42nd Leg., p. 95, ch. 61.
Acts 1939, 46th Leg., p. 240, � 1.
Acts 1949, 51st Leg., p. 1131, ch. 582.
Acts 1950, 51st Leg., 1st C.S., p. 51, ch. 11, �� 1, 2.
Acts 1955, 54th Leg., p. 1143, ch. 430, � 1.
Acts 1961, 57th Leg., p. 706, ch. 331, � 1.
Acts 1971, 62nd Leg., p. 2809, ch. 911, � 2.
Vernon's Ann.P.C. (1925) arts. 1147 to 1149, 1151, 1159, 1160, 1166 to 1168, 1259
to 1260a, 1339.
CROSS REFERENCES
"Actor" defined, see V.T.C.A., Penal Code � 1.07.
"Bodily injury" defined, see V.T.C.A., Penal Code � 1.07.
Consent as defense, see V.T.C.A., Penal Code � 22.06.
"Deadly weapon" defined, see V.T.C.A., Penal Code � 1.07.
DNA records, inmates sentenced for offenses under this section, samples or
specimens required, see V.T.C.A., Government Code �� 411.148, 411.150
"Firearm" defined, see V.T.C.A., Penal Code � 46.01.
Organized criminal activity, see V.T.C.A., Penal Code � 71.02.
"Peace officer" defined, see V.T.C.A., Penal Code � 1.07.
"Person" defined, see V.T.C.A., Penal Code � 1.07.
Presumption explained, see V.T.C.A., Penal Code � 2.05.
Punishment,
First degree felony, see V.T.C.A., Penal Code � 12.32.
Second degree felony, see V.T.C.A., Penal Code � 12.33.
Resisting arrest or search, see V.T.C.A., Penal Code � 38.03.
"Serious bodily injury" defined, see V.T.C.A., Penal Code � 1.07.
Testimony of child victim of offense under this section, see Vernon's Ann.C.C.P.
art. 38.071.
Weapons offenses, see V.T.C.A., Penal Code � 46.01 et seq.
LAW REVIEW COMMENTARIES
Annual survey of Texas law:
Assault offenses. Shirley W. Butts, 35 Sw.L.J. 511 (1981).
Criminal law--Aggravated assault. Mike McColloch and David W. Coody, 37 Sw.L.J.

388 (1983).
Changes in criminal law. Kenneth W. Sparks, 21 Hous.Law. 20 (1983).
Futility of eloquence: Selected Texas family violence legislation 1979- 1991.

Steve Russell, 33 S.Tex.L.Rev. 353 (1992).
Texas Equal Rights Amendment in courts--1972-1977: A review and proposed

principles of interpretation. Rodric B. Schoen, 15 Hous.L.Rev. 537 (1978).
Wife abuse legislation. 7 T.Marshall L.Rev. 282 (1982).
LIBRARY REFERENCES
2003 Main Volume
Assault and Battery 54 to 58, 82, 100.
Westlaw Topic No. 37.
C.J.S. Assault and Battery �� 80, 114 to 115, 130.
RESEARCH REFERENCES
2006 Electronic Pocket Part Update

ALR Library
119 ALR, Federal 319, What Constitutes "Violent Felony" for Purpose of Sentence
Enhancement Under Armed Career Criminal Act (18 U.S.C.A. � 924(E)(1)).
19 ALR 5th 823, Kicking as Aggravated Assault, or Assault With Dangerous or Deadly
Weapon.
5 ALR 5th 243, Sufficiency of Bodily Injury to Support Charge of Aggravated

Assault.
50 ALR 4th 1081, Lesser-Related State Offense Instructions: Modern Status.
31 ALR 4th 504, Power or Duty of State Court, Which Has Accepted Guilty Plea, to
Set Aside Such Plea on Its Own Initiative Prior to Sentencing or Entry of
Judgment.
89 ALR 3rd 1026, Automobile as Dangerous or Deadly Weapon Within Meaning of
Assault or Battery Statute.
58 ALR 3rd 662, Consent as Defense to Charge of Criminal Assault and Battery.
89 ALR 2nd 540, Plea of Nolo Contendere or Non Vult Contendere.
92 ALR 2nd 635, Intent to Do Physical Harm as Essential Element of Crime of

Assault With Deadly or Dangerous Weapon.
52 ALR 2nd 1337, What Amounts to Reckless Driving of Motor Vehicle Within Statute
Making Such a Criminal Offense.
169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to

Explain and Define Offense Charged.
137 ALR 504, Malice and Want of Probable Cause as Element or Factor of Action for
False Imprisonment.
112 ALR 1303, Right of Owner of Easement of Way to Make Improvements or Repairs
Thereon.
103 ALR 1041, Defendant's Right to Elect as to Punishment Where Statutory

Provision as to Punishment is Changed After Commission of Offense, But Before
Conviction.
48 ALR 746, What Constitutes Offense of Obstructing or Resisting Officer.
Encyclopedias
TX Jur. 3d Assault & Battery � 2, Elements.
TX Jur. 3d Automobiles � 452, Driver's Duty to Render Aid.
TX Jur. 3d Criminal Law � 191, Felony Murder.
TX Jur. 3d Criminal Law � 325, Degree of the Offense; Voluntary Release of Victim.
TX Jur. 3d Criminal Law � 408, Lesser Included Offenses.
TX Jur. 3d Criminal Law � 409, Definitions.
TX Jur. 3d Criminal Law � 413, Assault by Threats -- Imminent Bodily Injury.
TX Jur. 3d Criminal Law � 415, Assault by Threats -- Use of Weapon in Threatening

Manner.
TX Jur. 3d Criminal Law � 418, Injury to Person Other Than One Accused Intended to
Injure; Transferred Intent.
TX Jur. 3d Criminal Law � 420, Serious Bodily Injury.
TX Jur. 3d Criminal Law � 422, Public Servant's Lawful Discharge of Official Duty.
TX Jur. 3d Criminal Law � 424, Accused's Knowledge that Person Assaulted is Public
Servant.
TX Jur. 3d Criminal Law � 426, What Constitutes a Deadly Weapon.
TX Jur. 3d Criminal Law � 428, What Constitutes a Deadly Weapon -- Knives.
TX Jur. 3d Criminal Law � 429, What Constitutes a Deadly Weapon -- Motor Vehicles.
TX Jur. 3d Criminal Law � 430, What Constitutes a Deadly Weapon -- Other

Instruments; Parts of Accused's Body.
TX Jur. 3d Criminal Law � 431, in General; Assault.
TX Jur. 3d Criminal Law � 432, Aggravated Assault.
TX Jur. 3d Criminal Law � 446, Presumption that Accused Knew that Person Assaulted
was Public Servant.
TX Jur. 3d Criminal Law � 458, Aggravating Circumstances -- Causing Serious Bodily

Injury.
TX Jur. 3d Criminal Law � 460, in General; Culpable Mental State.
TX Jur. 3d Criminal Law � 463, Aggravating Circumstances -- Using Deadly Weapon.
TX Jur. 3d Criminal Law � 465, in General; Degree of Offense.
TX Jur. 3d Criminal Law � 466, in General; Degree of Offense -- Evidence.
TX Jur. 3d Criminal Law � 477, in General; Degree of Offense.
TX Jur. 3d Criminal Law � 1539, Generally; Reckless Driving.
TX Jur. 3d Criminal Law � 1742, Probation Revocation Proceedings.
TX Jur. 3d Criminal Law � 1788, Right of State; Defendant's Bail.
TX Jur. 3d Criminal Law � 1838, Same Act or Transaction.
TX Jur. 3d Criminal Law � 1842, Greater and Lesser Included Offenses.
TX Jur. 3d Criminal Law � 1903, Necessity.
TX Jur. 3d Criminal Law � 1937, Consent; Commission of Crime.
TX Jur. 3d Criminal Law � 2690, What Constitutes Sufficient Notice.
TX Jur. 3d Criminal Law � 2733, Manner and Means of Committing Offense.
TX Jur. 3d Criminal Law � 3242, When Charge is Not Required.
TX Jur. 3d Criminal Law � 3243, Sufficiency of Evidence.
TX Jur. 3d Criminal Law � 3250, Alibi.
TX Jur. 3d Criminal Law � 3263, Extent of Force.

TX Jur. 3d Criminal Law � 3357, Trial Error, Generally -- Argument or Conduct of
Counsel.
TX Jur. 3d Criminal Law � 3497, to Rebut Defense -- Particular Applications.
TX Jur. 3d Criminal Law � 4011, Identity of Accused or Victim.
TX Jur. 3d Criminal Law � 4015, Right to and Necessity for Hearing on Motion for
New Trial.
TX Jur. 3d Criminal Law � 4049, Cumulative or Corroborative Evidence.
TX Jur. 3d Family Law � 1756, Criminal Responsibility of Parent for Death or

Serious Injury of a Child.
TX Jur. 3d Family Law � 2007, Aggravated Circumstances.
TX Jur. 3d Nuisances � 8, Generally; Public Nuisances -- as Classified by Statute.
Treatises and Practice Aids
Charlton, 6 Tex. Prac. Series � 1.6, Definitions.
Charlton, 6 Tex. Prac. Series � 13.2, Assault and Aggravated Assault.
Charlton, 6 Tex. Prac. Series App. A, Appendix A. Penal Code.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.5, Aggravated Assault --
Serious Bodily Injury.
by Use of a Deadly Weapon.
With a Motor Vehicle.
Committed by a Public Servant.
Committed on a Public Servant.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.10, Aggravated Assault
-- Committed in Retaliation.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 102.3, Presumptions.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 102.4, List of Statutory
Presumptions.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 116.4, Aggravated Assault
-- by Use of a Deadly Weapon.
Elliott and Saint-Paul, 14 Tex. Prac. Series � 63.28, Nuisances.
Morgan and Gaither, 29 Tex. Prac. Series � 111, Special Requirements for a
Petition Filed Under the Violent and Habitual Offender (Determinate Sentence)
Statute.
Dix and Dawson, 40 Tex. Prac. Series � 3.29, Special Rules -- Aggravated Offenses.
Dix and Dawson, 43 Tex. Prac. Series � 31.155, Gollihar's Revision of Surplusage
and Variance Law -- Materiality of Variances -- in General.
NOTES OF DECISIONS
In general 2
Admissibility of evidence 66
Aggravated assault as lesser included offense, generally 52
Aggravated assault as lesser included offense, instructions 122
Aggravated assault as lesser included offense, sufficiency of evidence 89
Assault as lesser included offense, instructions 120
Beer bottle, deadly weapon 21
Bodily injury, sufficiency of evidence 69
Capability of causing death, deadly weapon 18
Capability of causing death, firearms as deadly weapons 25
Cause of injury, motor vehicle assault 36
Cause of injury, sufficiency of evidence 70
Club, deadly weapon 20
Clubs as deadly weapons, sufficiency of evidence 77
Construction with other law 3
Culpable mental state
Culpable mental state - In general 7
Culpable mental state - Generally, instructions 100
Culpable mental state - Indictment information, or complaint, indictment,
information or complaint 43
Culpable mental state - Intent 8
Culpable mental state - Jury questions 92
Culpable mental state - Recklessness 9
Culpable mental state - Sufficiency of evidence 68

Deadly conduct as lesser included offense, instructions 121.5
Deadly weapon
Deadly weapon - In general 17
Deadly weapon - Beer bottle 21
Deadly weapon - Capability of causing death 18
Deadly weapon - Club 20
Deadly weapon - Plastic bag 22.5
Deadly weapon - Fists or hands 22
Deadly weapon - Generally, sufficiency of evidence 76
Deadly weapon - Indictment, information, or complaint, indictment, information
or complaint 46
Deadly weapon - Instructions 104
Deadly weapon - Jury questions 94
Deadly weapon - Threat of imminent bodily injury 12
Deadly weapon - Wounds inflicted, generally 19
Deadly weapon per se
Deadly weapon per se - Instructions 105
Defense of third person, defenses 60
Defense of third person, instructions 111
Defense of third person, jury questions 99
Defenses
Defenses - In general 56
Defenses - Defense of third person 60
Defenses - Duress 59
Defenses - Generally, instructions 108
Defenses - Generally, sufficiency of evidence 88
Defenses - Intoxication 57
Defenses - Protection of property 58
Discharge of duties, public servants 40

Discharge of duties, sufficiency of evidence 85
Disfigurement, serious bodily injury 15
Disfigurement, sufficiency of evidence 74
Double jeopardy 5
Duress, defenses 59
Duty to retreat, instructions 115
Effect of former penal code 4
Effective assistance of counsel 126
Elements of offense, generally 6
Exhibition, firearms as deadly weapons 26
Expert testimony, sufficiency of evidence 90
Extraneous offenses, instructions 115.5
Firearms as deadly weapons 23-27, 78
Firearms as deadly weapons - In general 23
Firearms as deadly weapons - Capability of causing death 25
Firearms as deadly weapons - Exhibition 26
Firearms as deadly weapons - Sufficiency of evidence 78
Firearms as deadly weapons - Use 24
Firearms as deadly weapons - Wounds inflicted 27
Fists or hands as deadly weapons, sufficiency of evidence 79
Fists or hands, deadly weapon 22
Guilty plea 54
Identity of assailant, jury questions 97
Identity of assailant, sufficiency of evidence 87
Impairment of function, serious bodily injury 16
Impairment of function, sufficiency of evidence 75
Indictment, information or complaint 42-50
Indictment, information or complaint - In general 42
Indictment, information or complaint - Culpable mental state, indictment

information, or complaint 43
Indictment, information or complaint - Deadly weapon, indictment, information,
or complaint 46
Indictment, information or complaint - Issues, proof and variance, indictment,
Indictment, information or complaint - Lesser included offenses, indictment,
Indictment, information or complaint - Motor vehicle assault, indictment,
Indictment, information or complaint - Public servants, indictment,
Indictment, information or complaint - Serious bodily injury, indictment,
Indictment, information or complaint - Threat of imminent bodily injury,
indictment, information, or complaint 45
Injury to victim, threat of imminent bodily injury 11
Instructions 100-122
Instructions - Aggravated assault as lesser included offense 122
Instructions - Assault as lesser included offense 120
Instructions - Culpable mental state, generally 100
Instructions - Deadly conduct as lesser included offense 121.5
Instructions - Deadly weapon 104
Instructions - Deadly weapons per se 105
Instructions - Defense of third person 111
Instructions - Defenses, generally 108
Instructions - Duty to retreat 115
Instructions - Extraneous offenses 115.5
Instructions - Intent 101
Instructions - Misdemeanor assault 121

Instructions - Motor vehicle assault 106
Instructions - Multiple assailants 116
Instructions - Mutual combat 119
Instructions - Prior conviction 114.5
Instructions - Protection of property 110
Instructions - Provocation by accused 117
Instructions - Public servants 107
Instructions - Punishment 114
Instructions - Reasonable belief 113
Instructions - Recklessness 100.5
Instructions - Self-defense, generally 112
Instructions - Serious bodily injury 103
Instructions - Terroristic threat as lesser included offense 120.5
Instructions - Threat of imminent bodily injury 102
Instructions - Verbal provocation by victim 118
Instructions - Voluntary intoxication 109
Intent, culpable mental state 8
Intent, instructions 101
Intoxication, defenses 57
Issues, proof and variance, indictment, information, or complaint, indictment,
Jury questions 92-99
Jury questions - Culpable mental state 92
Jury questions - Deadly weapon 94
Jury questions - Defense of third person 99
Jury questions - Identity of assailant 97
Jury questions - Motor vehicle assault 95
Jury questions - Public servants 96
Jury questions - Self defense 98

Jury questions - Serious bodily injury 93
Knives as deadly weapons 28-30, 80
Knives as deadly weapons - In general 28
Knives as deadly weapons - Sufficiency of evidence 80
Knives as deadly weapons - Use 29
Knives as deadly weapons - Wounds inflicted 30
Knowledge, public servants 39
Knowledge, sufficiency of evidence 84
Lawfulness, public servants 41
Lawfulness, sufficiency of evidence 86
Lesser included offenses, generally 51
Lesser included offenses, indictment, information, or complaint, indictment,
Misdemeanor assault, instructions 121
Motor vehicle assault
Motor vehicle assault - In general 34
Motor vehicle assault - Cause of injury 36
Motor vehicle assault - Indictment, information, or complaint, indictment,
Motor vehicle assault - Instructions 106
Motor vehicle assault - Jury questions 95
Motor vehicle assault - Passengers 37
Motor vehicle assault - Recklessness 35
Motor vehicle assault - Sufficiency of evidence 82
Motor vehicles as deadly weapons 31-33, 81
Motor vehicles as deadly weapons - In general 31
Motor vehicles as deadly weapons - Sufficiency of evidence 81
Motor vehicles as deadly weapons - Use 32
Motor vehicles as deadly weapons - Wounds inflicted 33

Multiple assailants, instructions 116
Mutual combat, instructions 119
Mutual combat, self defense 65
New trial 91.5
Parties 53
Passengers, motor vehicle assault 37
Plastic bag, deadly weapon 22.5
Presumptions and burden of proof 55
Prior conviction, instructions 114.5
Protection of property, defenses 58
Protection of property, instructions 110
Provocation by accused, instructions 117
Provocation by accused, self defense 63
Public servants
Public servants - In general 38
Public servants - Discharge of duties 40
Public servants - Generally, sufficiency of evidence 83
Public servants - Indictment, information, or complaint, indictment,
Public servants - Instructions 107
Public servants - Jury questions 96
Public servants - Knowledge 39
Public servants - Lawfulness 41
Punishment, instructions 114
Reasonable belief, instructions 113
Reasonable belief, self defense 62
Recklessness, culpable mental state 9
Recklessness, instructions 100.5
Recklessness, motor vehicle assault 35

Review, sufficiency of evidence 91
Risk of death, serious bodily injury 14
Risk of death, sufficiency of evidence 73
Self defense 61-65, 98
Self defense - In general 61
Self defense - Jury questions 98
Self defense - Mutual combat 65
Self defense - Provocation by accused 63
Self defense - Reasonable belief 62
Self defense - Verbal provocation by victim 64
Self-defense, generally, instructions 112
Sentence and punishment 124
Serious bodily injury
Serious bodily injury - In general 13
Serious bodily injury - Disfigurement 15
Serious bodily injury - Generally, sufficiency of evidence 72
Serious bodily injury - Impairment of function 16
Serious bodily injury - Indictment, information, or complaint, indictment,
Serious bodily injury - Instructions 103
Serious bodily injury - Jury questions 93
Serious bodily injury - Risk of death 14
Sufficiency of evidence 67-91
Sufficiency of evidence - In general 67
Sufficiency of evidence - Aggravated assault as lesser included offense 89
Sufficiency of evidence - Bodily injury 69
Sufficiency of evidence - Cause of injury 70
Sufficiency of evidence - Clubs as deadly weapons 77
Sufficiency of evidence - Culpable mental state 68

Sufficiency of evidence - Deadly weapon, generally 76
Sufficiency of evidence - Defenses, generally 88
Sufficiency of evidence - Discharge of duties 85
Sufficiency of evidence - Disfigurement 74
Sufficiency of evidence - Expert testimony 90
Sufficiency of evidence - Firearms as deadly weapons 78
Sufficiency of evidence - Fists or hands as deadly weapons 79
Sufficiency of evidence - Identity of assailant 87
Sufficiency of evidence - Impairment of function 75
Sufficiency of evidence - Knives as deadly weapons 80
Sufficiency of evidence - Knowledge 84
Sufficiency of evidence - Lawfulness 86
Sufficiency of evidence - Motor vehicle assault 82
Sufficiency of evidence - Motor vehicles as deadly weapons 81
Sufficiency of evidence - Public servants, generally 83
Sufficiency of evidence - Review 91
Sufficiency of evidence - Risk of death 73
Sufficiency of evidence - Serious bodily injury, generally 72
Sufficiency of evidence - Threat of imminent bodily injury 71
Terroristic threat as lesser included offense, instructions 120.5
Threat of imminent bodily injury
Threat of imminent bodily injury - In general 10
Threat of imminent bodily injury - Deadly weapons 12
Threat of imminent bodily injury - Indictment, information, or complaint,
indictment, information or complaint 45
Threat of imminent bodily injury - Injury to victim 11
Threat of imminent bodily injury - Instructions 102
Threat of imminent bodily injury - Sufficiency of evidence 71
Use, firearms as deadly weapons 24

Use, knives as deadly weapons 29
Use, motor vehicles as deadly weapons 32
Validity 1
Verbal provocation by victim, instructions 118
Verbal provocation by victim, self defense 64
Verdict 123
Voluntary intoxication, instructions 109
Waiver 125
Wounds inflicted, firearms as deadly weapons 27
Wounds inflicted, generally, deadly weapon 19
Wounds inflicted, knives as deadly weapons 30
Wounds inflicted, motor vehicles as deadly weapons 33
1. Validity
Terms "physical pain" "illness" and "impairment of physical condition" as used in

subsec. (a)(7) of � 1.07 defining what is meant by phrase "bodily injury" as used
in provision of this section stating that person commits aggravated assault when
he causes bodily injury to peace officer in lawful discharge of official duty are
terms of common usage and, when construed according to fair import of their terms,
are not so vague that men of common intelligence must necessarily guess at their
meaning and differ as to their application, so that this section is not
unconstitutional on ground that it is so vague as to be violative of due process.
Ramirez v. State (Cr.App. 1975) 518 S.W.2d 546. Assault And Battery 54;
Constitutional Law 258(3.1)
Rational connection or nexus between legislative goal of insuring safety of peace

officers and statutory means chosen to effectuate this end exists, and thus this
section denominating offense of aggravated assault on a peace officer as a third-
degree felony did not deny equal protection to defendant, who contended that
statute did not advance a "compelling governmental interest" by increasing range
of punishment for otherwise misdemeanor offense merely because victim was peace
officer. Williams v. State (Cr.App. 1979) 588 S.W.2d 593. Assault And Battery 48;
Constitutional Law 250.1(2)
This section which denominates offense of aggravated assault on peace officer as

third-degree felony, thus categorizing peace officers as class of assaulted
victims with respect to whom a higher penalty is imposed for offense committed
against class member by person who is otherwise legally responsible for his
criminal conduct, does not offend equal protection clause or any provision of bill
of rights in the Texas Constitution. Williams v. State (Cr.App. 1979) 588 S.W.2d
593. Assault And Battery 48; Constitutional Law 250.1(2)
Limitation of the right of self-defense against an unlawful arrest is a necessary
complement to statute defining crime of aggravated assault on a police officer and
is a reasonable and legitimate exercise of police power, and thus assault statute
is not unconstitutional, despite claim that requiring an arrestee to await actual
use of greater force by a police officer than necessary to effect an illegal
arrest before arrestee can defend against such arrest is violative of equal
protection rights afforded by Fourteenth Amendment of the United States
Constitution. Salinas v. State (App. 13 Dist. 1985) 687 S.W.2d 67. Assault And
Battery 67; Constitutional Law 81; Constitutional Law 250.2(1)
Defendant was not denied due process when convicted under this section providing
same penalty for threatening police officer with deadly weapon and causing bodily
injury to police officer, on grounds that under � 15.01 attempts carried less
penalty than completed offense; this section was clear on its face and defendant
offered no cohesive or persuasive argument to support reading of � 15.01 instead
of or in conjunction with this section. Damian v. State (App. 14 Dist. 1989) 776
S.W.2d 659, petition for discretionary review refused. Constitutional Law
258(3.1); Assault And Battery 54
Statutory amendment which elevated classification of offense of aggravated assault

from third-degree felony to second-degree felony was not unconstitutional, either
on its face or as applied to defendant who had fired deadly weapon at carload of
people. Morales v. State (App. 13 Dist. 1997) 951 S.W.2d 59, rehearing overruled.
Assault And Battery 60
Statutory amendment which elevated classification of offense of aggravated assault

from third-degree felony to second-degree felony did not violate Equal Protection
Clause. Nieto v. State (App. 10 Dist. 1999) 990 S.W.2d 874, petition for
discretionary review refused. Assault And Battery 60; Constitutional Law
250.1(2)
Statute prescribing offense of aggravated assault, to which defendant pled guilty,

was not void, and thus original plea proceeding to aggravated assault was not void
and defendant could not appeal issues relating to plea proceeding; defendant's
complaint concerned procedural rule governing how and when judgment could be
rendered on plea, not rule governing offense. Garza v. State (App. 1 Dist. 2002)
2002 WL 31429799, Unreported, petition for discretionary review refused. Criminal
Law 1026.10(4)
2. In general
Word "and," as used in statute providing that person commits offense of aggravated
assault if he or she commits simple assault and uses deadly weapon during
commission thereof, has same meaning as phrases "as well as" and "at the same
time." Wade v. State (App. 10 Dist. 1997) 951 S.W.2d 886, petition for
discretionary review refused.
Statutes setting forth offenses of aggravated assault with serious bodily injury
and intoxication assault were not in pari materia, and thus state was not required
to prosecute defendant under the more specific provision for intoxication assault,
but instead had discretion as to which offense to prosecute, though both statutes
shared element that defendant's actions cause serious bodily injury to another;
provisions did not apply to same class of people, were designed to serve different
purposes, appeared in different chapters of Penal Code, and were not intended to
be considered together. Burke v. State (Cr.App. 2000) 28 S.W.3d 545, on remand 80
S.W.3d 82. Criminal Law 29(9); Statutes 223.2(35)
3. Construction with other law
Offenses of reckless aggravated assault with serious bodily injury and

intoxication assault were "same offense" for double jeopardy purposes, where both
offenses arose from single traffic accident involving single victim; thus,
imposing convictions for both offenses violated due process and due course of law,
even though sentences were concurrent. Burke v. State (App. 2 Dist. 1999) 6 S.W.3d
312, petition for discretionary review granted, vacated 28 S.W.3d 545, on remand
80 S.W.3d 82. Double Jeopardy 141
False arrest claim arising from arrest that allegedly occurred when arrestee had
confrontation with police officer and others at county jail was barred by
arrestee's conviction for aggravated assault of officer, which necessarily implied
that probable cause existed for arrest at that time. Sappington v. Bartee, C.A.5
(Tex.)1999, 195 F.3d 234. False Imprisonment 7(5); False Imprisonment 13
Existence of Vernon's Ann.P.C. (1925) art. 1148a pertaining to the offense of

intentional infliction of physical injury on children 14 years of age or younger
did not bar conviction of defendant for castration under Vernon's Ann.P.C. (1925)
art. 1168, even though defendant's victim was a child. Crocker v. State (Cr.App.
1978) 573 S.W.2d 190. Criminal Law 29(12)
Offense of aggravated assault is clearly distinguishable from offense of resisting

arrest, so that, in context of peace officer's attempt to arrest an actor, two
statutes do not describe and make punishable same conduct. Milligan v. State (App.
11 Dist. 1993) 859 S.W.2d 117, rehearing denied, petition for discretionary review
refused. Criminal Law 29(9)
Prosecutor had discretion to prosecute defendant either under resisting arrest

statute or aggravated assault of police officer statute, as neither statute was a
special statute and both were aimed at different aspects of criminal activity that
might occur in single transaction. Milligan v. State (App. 11 Dist. 1993) 859
S.W.2d 117, rehearing denied, petition for discretionary review refused. Criminal
Law 29(9)
Statute defining aggravated assault on a peace officer was constitutional as

applied to defendant despite his contention that his conduct also violated
resisting arrest statute. Milligan v. State (App. 11 Dist. 1993) 859 S.W.2d 117,
rehearing denied, petition for discretionary review refused. Assault And Battery
48
City ordinance making it illegal to, in any manner oppose, molest, abuse or
interrupt a police officer in the execution of his duty, which also made it
unlawful for any person to "assault" or "strike" such a police officer, was
partially preempted by V.T.C.A., Penal Code �� 22.01 and 22.02, prohibiting
assault and aggravated assault. City of Houston, Tex. v. Hill, U.S.Tex.1987, 107
S.Ct. 2502, 482 U.S. 451, 96 L.Ed.2d 398. Municipal Corporations 592(1)
Ordinance punishing negligent collision with motor vehicle was not in conflict
with statute making negligent collision with person aggravated assault. Ex parte
Mooney (Cr.App. 1927) 106 Tex.Crim. 156, 291 S.W. 246. Automobiles 318
There were no factors leading to conclusion that Legislature did not intend to
permit multiple punishments for aggravated kidnapping and aggravated assault
convictions arising out of same criminal transaction; aggravated kidnapping was
first-degree felony, while aggravated assault was second-degree, offenses were not
contained in same statute, were not phrased in alternative, were not similarly
named, and the gravamen of the offenses were not the same. Hawkins v. State (App.
7 Dist. 2003) 2003 WL 1561942, Unreported, petition stricken, petition for
discretionary review refused. Criminal Law 29(13)
4. Effect of former penal code
Conduct proscribed by subd. (4) of Vernon's Ann.P.C. (1925) art. 1147 (now, this
section), under which defendant was charged and convicted of aggravated assault,
also constituted an offense under the assault section of the new Penal Code,
despite contention that savings provision of new Penal Code required that
information be dismissed. Moore v. State (Cr.App. 1975) 530 S.W.2d 314. Assault
And Battery 54
Prior judicial opinions on meaning of "deadly weapon" do have instructional

significance under new Penal Code, particularly in view of fact that legislature
apparently codified prior case law definition of the term. Mosley v. State
(Cr.App. 1976) 545 S.W.2d 144. Assault And Battery 56
5. Double jeopardy
Appellate brief sufficiently raised claim that conviction for both reckless
aggravated assault with serious bodily injury and intoxication assault violated
double jeopardy, even though defendant phrased his issues as due course of law and
due process violations, rather than as double jeopardy violation. Burke v. State
(App. 2 Dist. 1999) 6 S.W.3d 312, petition for discretionary review granted,
vacated 28 S.W.3d 545, on remand 80 S.W.3d 82. Criminal Law 1130(2)
Defendant did not waive appellate review of claim that double jeopardy precluded
convictions for both reckless aggravated assault with serious bodily injury and
intoxication assault; even though he did not object at trial on double jeopardy
grounds, he did raise issue in motion for new trial, and thus, trial court had
opportunity to rule on that complaint. Burke v. State (App. 2 Dist. 1999) 6 S.W.3d
312, petition for discretionary review granted, vacated 28 S.W.3d 545, on remand
80 S.W.3d 82. Criminal Law 1030(2); Criminal Law 1064(1)
Proper remedy for double jeopardy violation arising from convictions for both
reckless aggravated assault with serious bodily injury and intoxication assault,
both emanating from single traffic accident involving single victim, was to vacate
conviction for reckless aggravated assault and affirm conviction for intoxication
assault; former offense was general and latter was specific, and prayer for relief
in state's original brief asked that intoxication assault conviction be affirmed
if court determined that reckless aggravated assault conviction were improper.
Burke v. State (App. 2 Dist. 1999) 6 S.W.3d 312, petition for discretionary review
granted, vacated 28 S.W.3d 545, on remand 80 S.W.3d 82. Double Jeopardy 141
Defendant convicted of aggravated kidnapping and aggravated assault was not tried
and convicted of the "same offense" for double jeopardy purposes; abduction was
not an element of aggravated assault and use or exhibit of a deadly weapon was not
an element of aggravated kidnapping as alleged. Duvall v. State (App. 3 Dist.
2001) 59 S.W.3d 773, petition for discretionary review refused. Double Jeopardy
149
Convictions for aggravated assault and criminal mischief, arising out of same
incident in which defendant attempted to back stolen semi-trailer tractor over
police car, did not implicate double jeopardy, where each offense contained
element the other did not; aggravated assault required proof that individual was
threatened with imminent bodily injury, that deadly weapon was displayed or used
during the assault, and that offense was committed against a public servant while
servant was lawfully discharging official duty, which criminal mischief did not,
and criminal mischief required proof of damage to tangible property without
effective consent of owner, which aggravated assault did not. Mallett v. State
(Cr.App. 2001) 65 S.W.3d 59, on remand 2003 WL 367564. Double Jeopardy 141
Offense of deadly conduct based on discharge of a firearm at, or in direction of,

one or more individuals was lesser included offense of aggravated assault for
purposes of double jeopardy claim because elements required to prove deadly
conduct were same as elements required for aggravated assault; both offenses
required showing that defendant acted knowingly and evidence that defendant shot
gun in direction of group of persons and hit one person causing him bodily injury
proved both aggravated assault and deadly conduct. Honeycutt v. State (App. 4
Dist. 2002) 82 S.W.3d 545, petition for discretionary review refused. Double
Jeopardy 162
Defendant's convictions for arson and aggravated assault with a deadly weapon did
not subject defendant to multiple punishments for same offense to constitute
double jeopardy violation, even though defendant claimed bodily injury allegation
that was used to increase punishment level of arson charge, was same criminal act
used to charge aggravated assault; element of arson was starting a fire and
offense of aggravated assault did not contain such element, and aggravated assault
was an offense against person while arson was an offense against property.
Anderson v. State (App. 10 Dist. 2003) 2003 WL 21666093, Unreported, petition for
discretionary review refused, certiorari denied 124 S.Ct. 2420, 541 U.S. 1077, 158
L.Ed.2d 989. Double Jeopardy 141
No double jeopardy violation occurred due to defendant's prosecution for

aggravated assault on a peace officer and subsequent prosecution for unauthorized
use of vehicle; aggravated assault on a peace officer and unauthorized use of a
motor vehicle shared none of the same elements, and the two offenses involves
separate and distinct acts. Barnes v. State (App. 5 Dist. 2003) 2003 WL 1090475,
Unreported, petition stricken, petition for discretionary review refused. Double
Jeopardy 141
Offenses of aggravated kidnapping and aggravated assault each contained unique

element, and thus double jeopardy did not prevent multiple punishments for
aggravated kidnapping and aggravated assault convictions arising out of same
criminal transaction; abduction was element of aggravated kidnapping but not
aggravated assault, and causing, or threatening to cause, bodily injury was
element of aggravated assault but not aggravated kidnapping. Hawkins v. State
(App. 7 Dist. 2003) 2003 WL 1561942, Unreported, petition stricken, petition for
discretionary review refused. Double Jeopardy 149
Conviction for intoxication assault required vacation under principles of double

jeopardy, where defendant was convicted of both intoxication assault and
aggravated assault in a case involving the same accident and the same victim, and
the most serious punishment was imposed for the aggravated assault conviction.
Sylva v. State (App. 13 Dist. 2004) 2004 WL 42370, Unreported, petition for
discretionary review refused. Double Jeopardy 141
6. Elements of offense, generally

Any circumstances of aggravation in the manner or character of the assault or
battery, by which it exceeds the incidents or consequences of a common assault or
battery, will render the assault of an aggravated nature. Norton v. State (1855)
14 Tex. 387.
Throwing refuse of slaughterhouse in face of employee constituted aggravated

assault and battery. Indemnity Ins. Co. of North America v. Scott (Civ.App. 1925)
278 S.W. 347, error granted, affirmed 298 S.W. 414. Assault And Battery 54
Voluntary assault with instrument capable of producing death, where there were no
extenuating circumstances, was "assault with intent to murder." Rose v. State
(Cr.App. 1933) 123 Tex.Crim. 261, 58 S.W.2d 526. Homicide 725
Death of victim was not essential element of offense of assault to murder with
malice. Rawlins v. State (Cr.App. 1971) 466 S.W.2d 308. Homicide 725
Person commits aggravated assault under subd. (a)(1) of this section when he
intentionally, knowingly, or recklessly causes serious bodily injury to another.
Boney v. State (Cr.App. 1978) 572 S.W.2d 529. Assault And Battery 54
Testimony by defendant's wife that she was shot by defendant in the hand, the
mouth, the head, and the lung contained all of the elements necessary to prove
offenses of aggravated assault and attempted murder alleged in the indictment.
Pereida v. State (App. 13 Dist. 1985) 694 S.W.2d 371. Assault And Battery
91.6(3); Homicide 1168
The State no longer must prove the ability to commit a battery for an accused to
be convicted of assault. Miller v. State (App. 13 Dist. 1987) 741 S.W.2d 501,
petition for discretionary review refused.
To gain conviction for aggravated assault, state was required to prove that
defendant intentionally or knowingly threatened victim with imminent bodily injury
and exhibited deadly weapon during episode. Villatoro v. State (App. 7 Dist. 1995)
897 S.W.2d 943, petition for discretionary review refused. Assault And Battery 54
Aggravated assault is committed if person commits assault and uses deadly weapon.
Castillo v. State (App. 14 Dist. 1995) 899 S.W.2d 391. Assault And Battery 56
Trial court's failure to make affirmative deadly-weapon finding in judgment of

conviction for aggravated assault following plea agreement did not render judgment
and sentence void, despite defendant's claim that absence of affirmative deadly-
weapon finding "removed" an essential element of the charged offense; indictment
clearly charged offense of aggravated assault, defendant judicially confessed to
committing aggravated assault, and any deadly-weapon finding was relevant only to
the punishment to be imposed, not to the existence of an essential element charged
by the indictment. Hoang v. State (App. 5 Dist. 2004) 2004 WL 1472221, Unreported.
Criminal Law 995(3)
7. Culpable mental state--In general
To strike one so that he falls fracturing his skull is not aggravated assault.
Calvert v. State (Cr.App. 1914) 75 Tex.Crim. 229, 170 S.W. 744.
One who shot and wounded an officer believing that he was attempting to rob him,
is not guilty of assault with intent to murder, or even of an aggravated assault.
Walker v. State (Cr.App. 1921) 90 Tex.Crim. 56, 232 S.W. 509. Assault And Battery
69
Offense of castration was not reduced to lower degree of assault, because of

anger, rage, or excitement of accused at time. Ramirez v. State (Cr.App. 1931) 119
Tex.Crim. 362, 40 S.W.2d 138, certiorari denied 52 S.Ct. 36, 284 U.S. 659, 76
L.Ed. 558. Mayhem 1
Person commits aggravated assault if he intentionally, knowingly, or recklessly

causes serious bodily injury to another. Sledge v. State (App. 5 Dist. 1993) 860
S.W.2d 710, petition for discretionary review refused. Assault And Battery 54
In prosecution for aggravated assault with deadly weapon, state was not required
to prove culpable mental state in connection with aggravating element of use of
deadly weapon; culpable mental states of intent, knowledge, and recklessness
relate to assault element of causing bodily injury to another, and second culpable
mental state is not required to be included with deadly weapon element. Butler v.
State (App. 2 Dist. 1996) 928 S.W.2d 286, rehearing overruled, petition for
discretionary review refused. Assault And Battery 56
Evidence was legally and factually sufficient to support defendant's conviction

for aggravated assault; defendant's oral responses to court's questions at plea
hearing in which defendant admitted criminal participation was judicial confession
of guilt. Honeycutt v. State (App. 4 Dist. 2002) 82 S.W.3d 545, petition for
discretionary review refused. Criminal Law 538(3)
In prosecution for aggravated assault, trial court acted within its discretion in
excluding evidence of troubled marital relationship between defendant and alleged
victim, despite defendant's claim that such evidence was probative of his state of
mind and motivation for his actions; defendant's state of mind and motivation were
irrelevant to his culpability for the offense of aggravated assault. Novillo v.
State (App. 3 Dist. 2004) 2004 WL 1264299, Unreported. Criminal Law 341
8. ---- Intent, culpable mental state
If the assault was voluntary, committed with deliberate design, and with an
instrument capable of producing death, in such manner as evidenced an intention to
take life, and there were no extenuating circumstances, it was an assault with
intent to murder. Yanez v. State (1858) 20 Tex. 656.
Where collision between defendant's automobile and that in which injured party was
riding was an accident brought about by defendant's negligence and without intent
to commit an assault, there could have been no conviction under former statute
which defined assault and battery. Coffey v. State (Cr.App. 1917) 82 Tex.Crim.
481, 200 S.W. 384. Automobiles 319
Where accused shot at an automobile and seriously injured an occupant, it was not
necessary for accused to have entertained the specific intent to kill in order to
make him guilty of assault, as one who shoots wantonly and recklessly into a car
or building known to him to be occupied need not have the specific intent to kill
any particular person in order to make him guilty of murder. Salisbury v. State
(Cr.App. 1921) 90 Tex.Crim. 438, 235 S.W. 901. Assault And Battery 49
One intentionally inflicting injuries without specific intent to kill would be

guilty of no greater offense than aggravated assault. Black v. State (Cr.App.
1939) 137 Tex.Crim. 516, 132 S.W.2d 267. Assault And Battery 54
A voluntary assault, committed with deliberate design to kill and with instrument
capable of producing death was "assault with intent to murder", in absence of
extenuating circumstances. Watts v. State (Cr.App. 1947) 151 Tex.Crim. 349, 207
S.W.2d 94. Homicide 725
9. ---- Recklessness, culpable mental state
Where defendant fired into a small room packed with people in reckless disregard
of human life, with intent to kill some one, and did shoot some one, his
conviction of assault to murder was proper. Williams v. State (Cr.App. 1915) 77
Tex.Crim. 563, 179 S.W. 710. Homicide 727
A person's driving of automobile in manner showing reckless disregard for life of

one run upon or over thereby shows evil disposition warranting inference that
driver intended natural or probable consequences of his act on his trial for
assault with intent to murder. Duhon v. State (Cr.App. 1939) 136 Tex.Crim. 404,
125 S.W.2d 550. Automobiles 353(13); Automobiles 353(13); Automobiles 353(13)
Failure to request a lesser included offense instruction in the jury instruction

on aggravated assault precluded State from asserting on appeal culpable mental
state of recklessness that was not alleged in the indictment. Reed v. State
(Cr.App. 2003) 117 S.W.3d 260, on remand 2004 WL 225547. Criminal Law 1032(5)
10. Threat of imminent bodily injury--In general
One who calls another a liar, and picks up his gun, was not conclusively guilty of
an assault with intent to murder. Stevens v. State (Cr.App. 1898) 38 Tex.Crim.
550, 43 S.W. 1005. Homicide 734
In prosecution for aggravated assault, evidence that victim was bystander who was
struck by stray bullet aimed by defendant at third party and which did not
establish that defendant threatened bystander with imminent bodily injury was
insufficient to support conviction. Benjamin v. State (Cr.App. 1981) 621 S.W.2d
617. Assault And Battery 91.6(3)
In order to prove assault by verbal threats, State had to show that defendant
threatened police officer with imminent bodily injury. Hill v. State (App. 11
Dist. 1992) 844 S.W.2d 937. Assault And Battery 48
Showing of "imminent" bodily injury as required to prove assault by verbal threats

means a danger which must be instantly met and which is near at hand, in that it
is on the verge of happening. Hill v. State (App. 11 Dist. 1992) 844 S.W.2d 937.
To constitute offense under statute providing that person who intentionally or

knowingly threatens another with imminent bodily injury commits aggravated
assault, threats may be conveyed by action as well as words. De Leon v. State
(App. 13 Dist. 1993) 865 S.W.2d 139. Assault And Battery 54
11. ---- Injury to victim, threat of imminent bodily injury

Mere fact that defendant allegedly actually stabbed victim did not mean that
victim could not also have suffered threat of imminent bodily injury. Horn v.
State (Cr.App. 1983) 647 S.W.2d 283. Assault And Battery 58
Evidence of actual bodily injury to victim is insufficient to support indictment

allegation that defendant "threatened" victim, in aggravated assault prosecution.
Tullos v. State (App. 13 Dist. 1985) 698 S.W.2d 488, petition for discretionary
review refused. Assault And Battery 91.4
12. ---- Deadly weapons, threat of imminent bodily injury
If the weapon as used was calculated to alarm, it was immaterial that it did not,
in fact, alarm the party threatened. Coker v. State (App. 1886) 2 S.W. 615.
Where defendant and his brother, being armed with rifles, intercepted an editor on
the public road, and demanded a written retraction of an article reflecting on
defendant's brother, the editor hesitated, defendant threw a shell into his rifle,
and the retraction was signed, the offense of assault was complete. Ray v. State
(Cr.App. 1893) 21 S.W. 540. Assault And Battery 56
Where defendant, armed with a knife, advanced in an angry and threatening manner
with intent to alarm the injured party, he was guilty of an assault. Atteberry v.
State (Cr.App. 1894) 33 Tex.Crim. 88, 25 S.W. 125. Assault And Battery 53
Shooting to frighten or to inflict injury without killing is an aggravated

assault. Young v. State (Cr.App. 1912) 68 Tex.Crim. 580, 151 S.W. 1046. Homicide
727
One who shot into the back of an automobile to scare and not to kill, could be
guilty of an aggravated assault, under Rev.P.C.1911, art. 1013 (now, � 22.01 and
this section). Salisbury v. State (Cr.App. 1921) 90 Tex.Crim. 438, 235 S.W. 901.
Where defendant appeared, unauthorized, late at night, in back of freezer of

restaurant holding a shotgun, and where he put one hand over victim's mouth while
holding shotgun in other hand, in close proximity to victim's body, fears of
victim, who stated that she felt threatened with imminent bodily injury, were
reasonable and justified under circumstances. Gaston v. State (App. 5 Dist. 1983)
672 S.W.2d 819. Assault And Battery 56
A person commits aggravated assault if the person intelligently or knowingly

threatens with a deadly weapon a peace officer who is acting in the lawful
discharge of an official duty. Torres v. State (App. 2 Dist. 1995) 905 S.W.2d 440.
Evidence was insufficient to show that baseball bat juvenile was carrying when she
approached victim was used in manner capable of causing death or serious bodily
injury, and thus, bat was not deadly weapon, as required to support adjudication
for aggravated assault by threat, despite evidence that juvenile held bat up over
shoulder; juvenile was not within striking distance of victim, juvenile never
swung bat at victim, and victim never felt threatened with imminent bodily injury.
In re S.B. (App. 2 Dist. 2003) 117 S.W.3d 443. Assault And Battery 56; Infants
153
13. Serious bodily injury--In general
"Serious bodily injury", showing that assault on injured person was aggravated,
means injury giving rise to apprehension of danger to life, health or limb.
Gonzales v. State (1943) 146 Tex.Crim. 108, 172 S.W.2d 97; Svidlow v. State (1922)
90 Tex.Crim. 510, 236 S.W. 101; Cain v. State (1940) 138 Tex.Crim. 573, 138 S.W.2d
102; Silva v. State (1949) 152 Tex.Crim. 545, 215 S.W.2d 887.
Evidence of employee team leader's assault on employee fast-food worker would not
establish aggravated sexual assault or aggravated assault, although team leader
pushed worker against restroom wall, pulled down her pants, and attempted to have
sexual intercourse with her. Valdez v. Church's Fried Chicken, Inc., W.D.Tex.1988,
683 F.Supp. 596. Assault And Battery 54
The injury and not the means was the criterion by which the aggravation was
determined. Hyde v. State (Cr.App. 1914) 74 Tex.Crim. 480, 168 S.W. 535.
Defendant who twice struck the prosecuting witness in the jaw with his fists,
knocking him down, without causing serious bodily injury and without causing an
abrasion of the skin, was not guilty of aggravated assault by premeditated design
and by a use of means calculated to inflict serious bodily injury. Adair v. State
(Cr.App. 1920) 88 Tex.Crim. 254, 226 S.W. 413. Assault And Battery 54
Where nowhere in hospital records admitted or in victim's own testimony was there
any evidence that victim's injuries created substantial risk of death nor was
there any evidence of permanent disfigurement, and since victim's own testimony as
to his temporary amnesia was itself insufficient to show any "protracted loss or
impairment" of any bodily member or organ, it was highly questionable that
evidence was sufficient to show serious bodily injury necessary to constitute
charged felony of aggravated assault, and thus trial court should have withdrawn
defendants' guilty pleas on its own motion. Sanchez v. State (Cr.App. 1976) 543
S.W.2d 132. Criminal Law 274(8)
Although ample evidence was presented to support verdict of guilt of aggravated

assault by use of deadly weapon, evidence was insufficient to prove serious bodily
injury of complainant who was shot in buttocks, back, and thigh; complaining
witness never testified to extent of his injuries, nor was any evidence shown in
medical records that those injuries created substantial risk of death, or caused
death, permanent disfigurement, or protracted loss or impairment of functions of
any bodily member or organ. Williams v. State (Cr.App. 1985) 696 S.W.2d 896.
Assault And Battery 91.7
What facts constitute a serious bodily injury, within meaning of aggravated

assault statute, can only be determined on ad hoc basis. Madden v. State (App. 10
Dist. 1995) 911 S.W.2d 236, petition for discretionary review refused. Assault And
Battery 54
Whether injury is serious bodily injury, required for aggravated assault against
public servant conviction, is determined on an ad hoc basis. McCoy v. State (App.
2 Dist. 1996) 932 S.W.2d 720, petition for discretionary review refused. Assault
And Battery 54
Whether an injury constitutes serious bodily injury for aggravated assault

purposes must be determined on a case-by-case basis. Nash v. State (App. 2 Dist.
2003) 123 S.W.3d 534, rehearing overruled, petition for discretionary review
refused. Assault And Battery 54
14. ---- Risk of death, serious bodily injury
Death is a "serious injury". Thompson v. State (Cr.App. 1942) 144 Tex.Crim. 321,
162 S.W.2d 728.
In regard to charge of aggravated assault arising from infliction of serious

bodily injury, an injury, to constitute a serious bodily injury, must be grave,
not trivial, and must give rise to apprehension of danger to life, health, or
limb, but it is not required that the injury be such as may result in death.
Jackson v. State (Cr.App. 1959) 168 Tex.Crim. 51, 323 S.W.2d 442. Assault And
Battery 54
Defendant, who inflicted two nearly perpendicular stab wounds in spine of victim
so that knife transgressed bony canal that surrounds spinal canal and also the
covering of spinal cord itself, and so that tip of blade was found nearly four and
one half inches deep within victim's body causing serious injury from which
paralysis or death might be expected, was guilty of assault with intent to murder
with malice. Washington v. State (Cr.App. 1971) 471 S.W.2d 409. Homicide 732
Basilar skull fracture was serious bodily injury for purposes of this section
given evidence that one in four persons suffering such injury contracts meningitis
entailing substantial risk of death, regardless of fact that injury did not
deteriorate to meningitis. Goodman v. State (App. 14 Dist. 1986) 710 S.W.2d 169.
15. ---- Disfigurement, serious bodily injury
"Serious bodily injury" was such as gave rise to apprehension, an injury which was
attended with danger; biting off a small portion of the rim of the ear was not
inflicting serious bodily injury. George v. State (1891) 21 Tex.Crim. 315, 17 S.W.
351; Halsell v. State (1892) 29 Tex.Crim. 22, 18 S.W. 418.
Where the entire ear had been removed from the head of the injured party during
fight with defendant, the injury was in fact a "serious bodily injury", and
failure to define that term in criminal prosecution was not reversible error.
Abercrombie v. State (Cr.App. 1951) 156 Tex.Crim. 547, 244 S.W.2d 512. Criminal
Law 1173.2(2)
Fractured nose constituted serious bodily injury for purposes of this section,
regardless of fact that bone was set and disfigurement or impairment of function
did not result. Goodman v. State (App. 14 Dist. 1986) 710 S.W.2d 169. Assault And
Battery 54
"Serious bodily injury" required for aggravated assault conviction means bodily
injury that causes serious permanent disfigurement. Sabedra v. State (App. 13
Dist. 1992) 838 S.W.2d 761, rehearing overruled, petition for discretionary review
16. ---- Impairment of function, serious bodily injury
Serious bodily injury, relied on in a prosecution for aggravated assault, is

supported by proof that the injuries inflicted on the assaulted stiffened one of
his fingers. Branch v. State (Cr.App. 1895) 35 Tex.Crim. 304, 33 S.W. 356. Assault
And Battery 91.7
A dislocation of complaining witness' shoulder inflicted by defendant while

forcibly putting him out of a door in the post office, which hurt a great deal,
required a sling for several weeks, and continued to hurt at trial six months
later, which had been put in place while complainant was under anesthetics, and
which, while not necessarily permanent, would expose the joint to greater chance
of a subsequent dislocation, was a serious injury. Robey v. State (Cr.App. 1913)
73 Tex.Crim. 9, 163 S.W. 713.
Serious bodily injury relied on to support conviction for aggravated assault may
be shown by proof that the assaulted person suffered from a blow on the head after
the external effects had disappeared. Tucker v. State (Cr.App. 1922) 91 Tex.Crim.
538, 239 S.W. 978. Assault And Battery 91.7
Evidence that injuries resulting from an assault consisted of bruises and

abrasions on the head, which injuries did not cause incapacitation, was
insufficient to establish infliction of a "serious bodily injury" justifying
conviction for aggravated assault. Cain v. State (Cr.App. 1940) 138 Tex.Crim. 573,
138 S.W.2d 102. Assault And Battery 91.7
Where defendant knew that another person was wearing eyeglasses and deliberately
struck him in the eye, as result of which eye was destroyed, though all that such
other person was trying to do was to prevent defendant and his companion from
assaulting a third person, defendant was properly convicted of willful or
malicious maiming. Corson v. State (Cr.App. 1945) 148 Tex.Crim. 630, 190 S.W.2d
726. Mayhem 1
Injury to assault victim, who suffered broken finger and two black eyes, incurred
total medical expenses of $400 to $500, and still had some dysfunction in broken
finger nearly three and a half months after assault, constituted protracted loss
or impairment of function of a bodily member satisfying definition of serious
bodily injury required for aggravated assault. Allen v. State (App. 13 Dist. 1987)
736 S.W.2d 225, petition for discretionary review refused. Assault And Battery 54
Victim suffered serious bodily injury, within meaning of aggravated assault

statute, where he suffered a protracted impairment of a bodily member; victim was
shot in the hip with a .45 caliber handgun, was hospitalized for day and a half,
could not walk for a month after the shooting, and had permanent scar tissue where
bullet entered and exited his body. Madden v. State (App. 10 Dist. 1995) 911
S.W.2d 236, petition for discretionary review refused. Assault And Battery 54
Evidence was sufficient to show that sister of defendant's ex-wife suffered severe
bodily injury during assault, in order to sustain conviction for aggravated
assault; injury from cut to finger prevented her from closing hand and caused pain
throughout entire arm, injury prevented her from performing household activities,
and it continued to affect her six months after assault. Nunez v. State (App. 13
Dist. 2003) 117 S.W.3d 309, rehearing overruled. Assault And Battery 91.7
17. Deadly weapon--In general
To make the throwing of a hot coffee pot on a person an aggravated assault, it

must have been thrown so as to make it a deadly weapon or it must have inflicted
serious bodily injury. Clark v. State (1911) 63 Tex.Crim. 579, 140 S.W. 779;
Bagley v. State (1912) 67 Tex.Crim. 574, 150 S.W. 773; Shelton v. State (1912) 68
Tex.Crim. 124, 150 S.W. 940.
An assault with a deadly weapon is necessarily an aggravated assault. Johnson v.

State (1913) 70 Tex.Crim. 294, 156 S.W. 1164; Hunt v. State (1879) 6 Tex.Crim.
663.
The desire to kill is not proof that the weapon was "deadly". Pleasant v. State
(1940) 140 Tex.Crim. 267, 144 S.W.2d 545; Ammann v. State (1942) 145 Tex.Crim. 34,
165 S.W.2d 744.
An unlawful assault with a deadly weapon, not in self-defense, is aggravated

assault. Hamilton v. State (Cr.App. 1910) 60 Tex.Crim. 258, 131 S.W. 1127. Assault
And Battery 54; Assault And Battery 56
The word "instrument" included any means by which one could disfigure, such as
carbolic acid. Lee v. State (Cr.App. 1912) 66 Tex.Crim. 567, 148 S.W. 567.
Mere presence of deadly weapon, under proper circumstances, can be enough to

instill fear and threaten person with bodily injury, for purposes of aggravated
assault statute. De Leon v. State (App. 13 Dist. 1993) 865 S.W.2d 139. Assault And
Battery 56
Intent to cause death or serious bodily injury need not be proved to sustain a
deadly weapon finding unless the weapon used does not meet the statutory
definition of deadly weapon and must be proved under alternative definition, under
which deadly weapon includes anything that in its manner of use or intended use is
capable of causing death or serious bodily injury. Torres v. State (App. 2 Dist.
1995) 905 S.W.2d 440. Assault And Battery 56; Assault And Battery 91.6(2)
Aggravated assault does not normally require state to prove both that defendant
caused serious bodily injury and that defendant used deadly weapon. Madden v.
State (App. 10 Dist. 1995) 911 S.W.2d 236, petition for discretionary review
"Use" of deadly weapon, for purposes of offense of aggravated assault, extends to

any employment of deadly weapon, even its simple possession, if such possession
facilitates aggravated assault; thus, deadly weapon can be "used" in aggravated
assault without directly causing bodily injury. Wade v. State (App. 10 Dist. 1997)
951 S.W.2d 886, petition for discretionary review refused.
Almost anything can be a deadly weapon, for the purposes of a prosecution for
aggravated assault, depending upon the evidence shown. Lane v. State (Cr.App.
2004) 151 S.W.3d 188. Assault And Battery 56
Defendant could be convicted of aggravated assault with a deadly weapon if jurors

found that defendant intentionally or knowingly caused bodily injury to victim by
striking victim with a stick, a branch, or an object unknown, and defendant did
then and there use or exhibit a deadly weapon, to-wit, a stick, a branch, or an
object unknown which in the manner of its use or intended use was capable of
causing death or serious bodily injury. Thompson v. State (App. 3 Dist. 2005) 183
S.W.3d 787, petition for discretionary review filed. Assault And Battery 56
Separate affirmative deadly weapon finding was not required for defendant's
conviction for aggravated assault; while use of a deadly weapon was an element of
offense of aggravated assault, deadly weapon finding had no effect on
guilt/innocence stage of trial, nor did it affect assessment of punishment, state
met its burden of proving each element of offense, including use of a deadly
weapon, and trial court's decision not to make separate deadly weapon finding had
no effect on defendant's conviction. Navarro v. State (App. 3 Dist. 2002) 2002 WL
31258705, Unreported, petition for discretionary review refused. Criminal Law
255.4
18. ---- Capability of causing death, deadly weapon
If the charge is that the assault was committed with a deadly weapon, it must be
proved that the weapon was deadly when used in the manner in which it was used, or
attempted to be used. Hunt v. State (1879) 6 Tex.Crim. 663; Key v. State (1882) 12
Tex.Crim. 506; Wilson v. State (1883) 15 Tex.Crim. 150; Hilliard v. State (1884)
17 Tex.Crim. 210; McGrew v. State (1885) 19 Tex.Crim. 302.
It is only necessary to prove that the instrument used was capable of producing
death in the manner in which it was used. Givens v. State (Cr.App. 1896) 35
Tex.Crim. 563, 34 S.W. 626.
To commit aggravated assault, weapon used need not be functioning during assault;
what is necessary is that defendant be using a deadly weapon to intentionally or
knowingly threaten another with imminent bodily injury. Gaston v. State (App. 5
Dist. 1983) 672 S.W.2d 819. Assault And Battery 56
Intent to cause death or serious bodily injury need not be proved to sustain a
deadly weapon finding unless the weapon used does not meet the statutory
definition of deadly weapon and must be proved under alternative definition, under
which deadly weapon includes anything that in its manner of use or intended use is
capable of causing death or serious bodily injury. Torres v. State (App. 2 Dist.
1995) 905 S.W.2d 440. Assault And Battery 56; Assault And Battery 91.6(2)
Evidence that defendant used metal walking cane to choke ex-wife was sufficient to
show that he used deadly weapon during commission of assault, and thus, was
sufficient to support conviction for aggravated assault. Nunez v. State (App. 13
Dist. 2003) 117 S.W.3d 309, rehearing overruled. Assault And Battery 91.6(2)
19. ---- Wounds inflicted, generally, deadly weapon
In prosecution for aggravated assault, evidence was insufficient to show beyond

reasonable doubt that instrument was "deadly weapon," in absence of medical
testimony showing serious nature of wounds. De La Hay v. State (Cr.App. 1936) 131
Tex.Crim. 407, 99 S.W.2d 941.
In prosecution for assault with intent to murder, nature of wounds inflicted may
justify inference that a deadly weapon was used. Hunter v. State (Cr.App. 1954)
161 Tex.Crim. 225, 275 S.W.2d 803. Homicide 998
Where, in prosecution for aggravated assault with deadly weapon, the deadly nature
of weapon is issue, jury will not be allowed to infer deadliness solely from
superficial wounds, even though those wounds may have required suturing; thus,
State must provide trier of fact with some evidence, normally through expert
testimony, that weapon was used or intended to be used in such way that it was
capable of causing death or serious bodily injury. Danzig v. State (Cr.App. 1977)
546 S.W.2d 299. Assault And Battery 91.6(2)
An instrument sufficient to inflict two stab wounds, one requiring 20 stitches, on

a person armed with a pipe or gun is a "deadly weapon" for purposes of this
section. Hart v. State (Cr.App. 1979) 581 S.W.2d 675. Assault And Battery 56
20. ---- Club, deadly weapon
Whenever there are such circumstances of aggravation attending the commission of

the offense, as the use of bludgeons, missiles, weapons, or instruments of any
kind capable of inflicting injury beyond what may ordinarily be inflicted by a
blow with the fist and used in such manner as to be likely to inflict such injury,
and especially where so used as to cause a wounding, the offense must be deemed to
be an aggravated assault. Norton v. State (1855) 14 Tex. 387.
Evidence was insufficient to sustain conviction for an aggravated assault shown to

have been committed with a stick, in view of the failure of the evidence to show
that the stick was per se a deadly weapon, or was by the manner of its use a
weapon calculated to inflict death, or serious bodily injury, or that serious
bodily injury was in fact inflicted therewith. Wilson v. State (Cr.App. 1923) 95
Tex.Crim. 620, 255 S.W. 627. Assault And Battery 91.6(2); Assault And Battery
91.7
Defendant was guilty of aggravated assault, if inflicting a serious injury on

injured party with either bottle or club. Fitch v. State (Cr.App. 1925) 102
Tex.Crim. 253, 277 S.W. 150. Assault And Battery 54
Baseball bat is not "deadly weapon" per se, for purpose of aggravated assault
statute [� 22.02]. Hughes v. State (App. 4 Dist. 1987) 739 S.W.2d 458. Assault And
Battery 56
21. ---- Beer bottle, deadly weapon
Beer bottle should not always be considered a deadly weapon, or the act of hitting
someone with a bottle inevitably the cause of serious bodily harm, for purposes of
elevating offense to aggravated assault. Ferrel v. State (App. 14 Dist. 2000) 16
S.W.3d 861, petition for discretionary review granted, reversed 55 S.W.3d 586, on
remand 2002 WL 480594. Assault And Battery 54
22. ---- Fists or hands, deadly weapon
An "aggravated assault" could be committed with the fist, where the assault was
made with premeditated design and serious bodily injury resulted. Thompson v.
State (1942) 144 Tex.Crim. 321, 162 S.W.2d 728; Watson v. State (1947) 149
Tex.Crim. 643, 197 S.W.2d 1018.
If an assault be committed with the fist and serious bodily injury results from
the blow itself, the offense becomes aggravated. Thompson v. State (Cr.App. 1942)
144 Tex.Crim. 321, 162 S.W.2d 728. Assault And Battery 54
Ordinarily use merely of hands, fist or other members of body will not constitute
an aggravated assault. Ohlrich v. State (Cr.App. 1956) 162 Tex.Crim. 502, 287
S.W.2d 478. Assault And Battery 54
Where 39-year-old defendant's joint attack with her husband upon 62-year-old woman
resulted in victim sustaining severe contusions of buttocks, sprained and contused
shoulder, contusions of legs and chest, two black eyes and other injuries,
defendant was properly convicted of assault with intent to kill rather than
aggravated assault. Gipson v. State (Cr.App. 1966) 403 S.W.2d 794. Homicide 734
Hands are not deadly weapons per se but can become deadly weapons in the manner of
their use depending upon the evidence. Jefferson v. State (App. 3 Dist. 1998) 974
S.W.2d 887. Assault And Battery 56
Evidence was sufficient to show that defendant used hands and feet as "deadly
weapons," as required to support conviction for aggravated assault; defendant
punched victim in head and face with closed fists and kicked her in back and
chest, which resulted in victim sustaining concussion to brain, bruising, and
temporary loss of consciousness, and which caused her to suffer nausea, vomiting,
dizziness and considerable pain for hours after assault. V.T.C.A., Penal Code ��
1.07(a)(17), Lane v. State (Cr.App. 2004) 151 S.W.3d 188. Assault And Battery 56
Evidence proved that defendant used or exhibited his hands as deadly weapons
capable of causing death or serious bodily injury so as to establish deadly weapon
element of aggravated assault; defendant made numerous admissions that he hit
victim, and there was medical testimony that victim's injuries were consistent
with being beaten multiple times with someone's hands. Petruccelli v. State (App.
10 Dist. 2005) 2005 WL 552513, withdrawn and superseded on rehearing 174 S.W.3d
761, petition for discretionary review refused 184 S.W.3d 747, petition for
certiorari filed 2006 WL 1523790. Assault And Battery 92(3)
Jury's finding that defendant acted recklessly in committing aggravated assault

was consistent with finding that defendant intended to use his hands or feet in a
manner in which they would be capable of causing death or serious bodily injury,
in prosecution for aggravated assault with a deadly weapon; defendant committed
aggravated assault by causing serious bodily injury to victim by repeatedly
kicking and stomping him with his hands and feet, he acted recklessly because he
was aware of but consciously disregarded fact that victim would die, and he
intended to use his hands and feet in that they would be capable of causing
serious bodily injury or death of victim. Martinez v. State (App. 13 Dist. 2003)
2003 WL 22859800, Unreported. Criminal Law 878(4)
22.5. ---- Plastic bag, deadly weapon
Evidence was factually sufficient to support finding that defendant threatened and
caused bodily injury to victim while and by using and exhibiting a deadly weapon,
as required to support aggravated assault with a deadly weapon conviction;
testimony indicated that defendant took a plastic bag, placed it over victim's
head, pressed it against her mouth, and pinched victim's nose with his fingers in
an attempt to suffocate her, and that during such attempt victim was unable to
draw a breath. Marinos v. State (App. 3 Dist. 2006) 186 S.W.3d 167, rehearing
overruled, petition for discretionary review filed. Assault And Battery 91.6(2)
23. Firearms as deadly weapons--In general
Presenting a fire-arm in a condition for immediate use accompanied by an avowal of

an intention to kill the party assaulted, is an assault. Johnson v. State (1885)
19 Tex.Crim. 545.
Where accused shot his victim with a shotgun at a distance of 75 feet, the shotgun
was a "deadly weapon per se" justifying an inference of an intent to kill. Burks
v. State (Cr.App. 1942) 145 Tex.Crim. 15, 165 S.W.2d 460. Homicide 908
Jury was deemed to have made finding that defendant used deadly weapon when he
shot victim with .25 caliber pistol, which was deadly weapon by design, as
required to support conviction for aggravated assault, where guilty verdict was
based on application paragraph that explicitly required the jury to find that
defendant used deadly weapon in commission of assault. Dawson v. State (App. 10
Dist. 2003) 2003 WL 23120062, Unreported. Assault And Battery 91.6(3)
(C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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V.T.C.A., Penal Code � 22.02

Vernon's Texas Statutes and Codes Annotated Currentness

Penal Code (Refs & Annos)

Title 5. Offenses Against The Person (Refs & Annos)

Chapter 22. Assaultive Offenses (Refs & Annos)

� 22.02. Aggravated Assault

(a) A person commits an offense if the person commits assault as defined in �

(2) regardless of whether the offense is committed under Subsection (a)(1) or

(C) in retaliation against or on account of the service of another as a witness,

(d) In this section, "security officer" means a commissioned security officer as

HISTORICAL AND STATUTORY NOTES

2006 Electronic Pocket Part Update

Section 4 of Acts 2003, 78th Leg., ch. 1019 provides:

"(3) in retaliation against or on account of the service of another as a witness,

Section 7 of Acts 2005, 79th Leg., ch. 788 provides:

2003 Main Volume

Section 3 of Acts 1983, 68th Leg., p. 351, ch. 79, provides:

Section 13 of the 1983 amendatory act provides:

Section 2 of the 1985 amendatory act provides:

Section 19 of Acts 1987, 70th Leg., ch. 1101 provides:

Section 6 of the 1989 amendatory act provides:

"threatens with a deadly weapon or threatens to cause bodily injury or causes

"(B) in retaliation for or on account of an exercise of official power or

Section 4 of Acts 1991, 72nd Leg., ch. 334 provides:

"(1) while the officer or employee is acting in the lawful discharge of an

"(2) in retaliation for or on account of an exercise of official power or

Section 5 of Acts 1991, 72nd Leg., ch. 903, provides:

"(a) A person commits an offense if the person commits assault as defined in �

"(B) in retaliation for or on account of an exercise of official power or

"(A) while the injured person is lawfully discharging an official duty; or

"(B) in retaliation for or on account of the injured person's having exercised an

"(4) uses a deadly weapon.

"(d) A person commits an offense if the person commits assault as defined in �

"(1) while the officer or employee is acting in the lawful discharge of an

"(2) in retaliation for or on account of an exercise of official power or

Acts 1931, 42nd Leg., p. 95, ch. 61.

Acts 1939, 46th Leg., p. 240, � 1.

Acts 1949, 51st Leg., p. 1131, ch. 582.

Acts 1950, 51st Leg., 1st C.S., p. 51, ch. 11, �� 1, 2.

Acts 1955, 54th Leg., p. 1143, ch. 430, � 1.

Acts 1961, 57th Leg., p. 706, ch. 331, � 1.

Acts 1971, 62nd Leg., p. 2809, ch. 911, � 2.

"Actor" defined, see V.T.C.A., Penal Code � 1.07.

"Bodily injury" defined, see V.T.C.A., Penal Code � 1.07.

Consent as defense, see V.T.C.A., Penal Code � 22.06.

"Deadly weapon" defined, see V.T.C.A., Penal Code � 1.07.

"Firearm" defined, see V.T.C.A., Penal Code � 46.01.

Organized criminal activity, see V.T.C.A., Penal Code � 71.02.

"Peace officer" defined, see V.T.C.A., Penal Code � 1.07.

"Person" defined, see V.T.C.A., Penal Code � 1.07.

Presumption explained, see V.T.C.A., Penal Code � 2.05.

First degree felony, see V.T.C.A., Penal Code � 12.32.

Second degree felony, see V.T.C.A., Penal Code � 12.33.

Resisting arrest or search, see V.T.C.A., Penal Code � 38.03.

"Serious bodily injury" defined, see V.T.C.A., Penal Code � 1.07.

LAW REVIEW COMMENTARIES

Annual survey of Texas law:

Assault offenses. Shirley W. Butts, 35 Sw.L.J. 511 (1981).

Criminal law--Aggravated assault. Mike McColloch and David W. Coody, 37 Sw.L.J.

Changes in criminal law. Kenneth W. Sparks, 21 Hous.Law. 20 (1983).

Futility of eloquence: Selected Texas family violence legislation 1979- 1991.

Texas Equal Rights Amendment in courts--1972-1977: A review and proposed