Assaults, and Defenses
- Gary Smotherman, II
- Jun 23
- 9 min read
Every week, without fail, my office gets a call about assault. Often times, the call starts with "they charged me with assault," and that's never enough information.
At my office, we care about factors that you may not initially think are important like the who, what, when, where and why questions, but it makes a big difference in the charges filed— and also our fee to represent you.
A non-exhaustive list of questions a criminal defense lawyer will want to know about an assault case:
What kind of assault? Did you touch someone? Threaten to touch someone? Did you lung at someone or buck at someone? Did you brandish a firearm during an argument? Were you arroused by the contact (full disclosure: we rarely take sex assault cases).
Did you intend to make the contact that was made?
Who did you make contact with? Were they under the age of 18? over the age of 65? Pregnant? Disabled? Family member? Dating relationship? Cop? Judge? Security Officer? Correctional Officer? Did religion matter? Did race matter? Is this gang related?
Was there a weapon? Was it brandished? Was it used? Is it a deadly weapon?
Are there witnesses? Are any of the witnesses police or security officers? Are any of the witnesses family members of yours or the person accusing you of assault?
Is it on camera?
Were you defending yourself? Were you defending someone you are the guardian of? Did the parties agree to fight? Did somoene take something that belonged to you? Were you performing a citizen's arrest? Were you intervening in an assault that was already taking place?
Are there injuries? Are the injuries consistent with the claims made in the police report or the 911 call?
A non-exhaustive list of questions a lawyer will want to know about YOU if you're charged with assault:
Do you know this person? Has this happened before with this person? Has this happened before with anyone else? Were you sober? Can/will this happen again (especially while you're on bond)? Did you talk about this on social media? Are there mental health concerns at play? Are you a felon? Do you have any criminal history and how long ago was your last encounter with law enforcement?
The part about your wallet:
It's not enough to just call in and say "I've got an assault case."
I might be charging you (for the pre-trial fee) as little as $1,500 (flat) for a Class C assault where no one was hurt but the contact is classified as "harmful or offensive." I might be charging you $7,500 for Assault of a Family Member with Impeding Breath/Circulation. The legal fees would be $10,000 and up for agravated assault, or aggravated assault with a deadly weapon, or assault of a pregnant person, or injury to a child, or elder abuse. For class B and A misdemeanor assaults in Harris County, Galveston County and Fort Bend County, you can expect to get a lawyer bill for about $3,500- $5,000. For the state jail felony assaults (like if you've been previously convicted of assault and you're charged with assault again) in those counties, expect it to be $5,500- $7,500.
If you have an assault case outside of those counties, the only difference in the costs is for travel costs and travel time. Every 3rd degree and under has a trial fee of $2,500. It varies for 2nd and 1st degree felonies, but it's higher.
Assaults
Okay lets dive in because I know you didn't come here just to read about assault cases and the Firm's fees. We'll start from the bottom of the harm/offensiveness of the assaults and work our way up!
Title 5 Chapter 22 of the Texas Penal Code is the section that concerns assaults and offenses against the person.
Harmful ("Provocative") or Offensive Contact- Class C Misdemeanor:
Texas Penal Code § 22.01(a)(3)- Causing physical contact that you know (or you would reasonably believe) will be offensice or provocative.
This isn't much. Basically, if you touch someone, and they don't like it. This could be moving someone in your way on a subway train, this could be pushing. This isn't much, the person that's complaining to the police just has to not want it and not like it.
Causing Bodily Injury- Class B Misdemeanor:
Texas Penal Code § 22.01- Intentionally, knowingly or recklessly causing bodily injury, or the threat of bodily injury. It's important to note: in Texas "pain" is an inujry. You don't have to leave a mark, you don't have to break a bone, they don't even have to turn red from the contact. If the police interview the complainer, all they have to do is say "it hurt" (causing pain) for law enforcement to develop probable cause for Class B Assault.
Family Violence or Previous Assault Convictions- Class A Misdemeanors:
Texas Penal Code § 22.01- This is the exact statute of the class B, except with the presence of a familial relation, a dating relationship, or anyone you live with. This is your parents or adult children, siblings, grand parents if not older than 65, spouse, significant other, even the person you met for the first time on a dating app, and also your roomates and housemates.
Also, if you have been previously convicted of an assault before, and you're accused of assault once more, you will be facing a class A misdemeanor regardless of whether the complaining party is a family memeber or not.
Third Degree Felony Assaults:
The misdemeanor assaults are elevated to a 3rd degree felony based on the classification of the victim, OR the history of the accused defendant, OR the classification of the contact.
If the person accused of the assault has prior convictions (2 or more)(or if it's just one, but the conviction was recorded less than 12 months ago), the contact gets escalated to a felony.
If the person complaining of the assault is a public servant, emergency service responder, security officer, or government contractor performing their official duties the assault is classified as a felony but eh degree of the felony will depend on the intent of the actor and the nature of the injuries sustained by the complainant. This is the same analysis for the Elderly (over 65), Child (under 14), Pregnant and Disabled.
Also, if the assault takes place in a domestic relationship (anyone you live with) and involves the allegation of choking or strangulation where the person making the outcry's breath or circulation is impeded the charge jumps from a Class A misdemenor to a 3rd Dregree felony.
Second Degree Felony Assaults:
Generally, there are only a few ways to catch a 2nd degree felony assault under the Texas Penal Code.
Long story short:
If the assault involves a deadly weapon, or if the injuries are serious (there's no brightline definition of what constitutes serious injuries, but if the person goes to the hosptial for more than a couple of stiches) you'll probably see it filed as a second degree.
If you have previously been convicted of a felony assault and get charged with a felony assault again, your 3rd degree assault can technically be enhanced to a 2nd degree.
First Degree Assaults:
Always involves special circumstances (like the victim being a judge or a police officer) and serious injuries. Often times these cases will get filed as 2nd or 3rd degree assaults when the injuries are not the most serious. For reference, I think of this like aggravated assault being a second degree felony, except I have a special victim that the legislature has specifically tried to protect.
Technically, murder is an assault where the injury is death. But that will get it's own blog post down the road.
Defenses
Not all assault charges in Texas have the same defenses available. While there are general defenses that apply across many asault cases, certain defenses are specific to the type of assault or the context in which it occured. Here's a breakdown:
Generally, these are the defenses that can apply broadly:
Self Defense— justified if the actor reasonably believed force was immediately necessary to protect against another's use or attempted use of unlawful force. This is not available if the actor provoked the person or if the actor was engaged in criminal activity.
Defense of Others— like self defense, but used to protect a 3rd party. The same limitations apply.
Defense of Property— allows for use of force necessary to protect land or tangible moveable property. This one is tricky, because it basically allows you to stop somone from entering your property or from taking your property but it's genreally limited to pushing and restraining. The interpretation from the courts in Harris County and Galveston County is that if you throw a punch, you've used excessive force to protect property.
Consent— usually implied in competitive contact sports, or mutual combat where both parties agree to fight. Consent only works if there is not serious bodily injury.
Lack of intent— most assault offenses require the specific intent, or knowledge, to meet the intent element of the charge. If you accidentally contact someone, it can negate the offense being classified as assaultive.
Alibi or Mistaken Identity— absence and misidentification are full defenses.
Limited or Conditional Defenses:
Public Servants and Emergency Personnel— assaults on public servants limit the availability of self defense if the actor knew the person was a peace officer or judge acting in official duty. Simply put: you can't defend yourself against people you know to be law enforcement. But if they're in plain clothes, or if you don't see a badge, or if they don't identify themselves as police then you can claim self defense.
Family Violence and Domestic Assaults— consent usually does not apply in domestic or dating relationship cases. The public policy interests and mandatory arrest protocols make the assertion of this defense impractical.
Aggravated Assault or Use of a Deadly Weaopn— Self defense is still available but much more scrutinized. The use of deadly force must meet higher thresholds like risk of death, kidnapping, sexual assault. In other words, you cant bring a weapon into a fist fight unless losing the fist fight means you would reasonably die, be kidnapped, or raped.
Injury to a Child, Elderly, or Disabled Persons— Consent is not a defense for this assault. Resasonable discipline my be a defense for injury to a child, but it is only available to the guardians of the child and is a very fact intensive analysis that considers the child's age, the disciplinary issues that led to the disciplinary event that caused the injury, the nature of the injury, and the reasonableness of the discipline in full context of the circumstances at play.
Affirmative Defenses
These don't deny the act occured, but claim the defendant shouldn't be held criminally liable. It's important to note that the burden of proof shift to the defendant when it comes to asserting affirmative defenses. These are relatively self explanatory, I will be brief.
Insanity— there are 3 types of insanity. You might not know right from wrong. You may not have known what you were doing when the events transpired, or you might be clinically insane and need to be housed in a ward facility.
Duress— this is someone coercing you to do something you didn't want to do. Duress comes into play when someone says "if you don't hit that lady crossing the street, I'm going to shoot you."
Entrapment— this is the most complicated affirmative defense to conceptualize. It involves the idea that a government actor encouraged you to commit a crime that you would not have commited without the encouragment of the actor. You see this a lot in drug cases where an undercover cop enticed the defendant to do something criminal like sell drugs, buy drugs or do drugs.
Mistake of Fact— to the extent that it would negate the specific intent or the knowledge of the assault.
Intoxication— not so fast! The intoxication has to be involuntary. It's more like "Someone slipped something in my drink" than it is "I didn't mean to get that drunk." Pretty hard to meet the shifted burden on this one without someone to say they saw the drink get spiked or the person who did the spiking coming to court with an explanation about why they spiked your drink.
Don't try this on your own
I understand that assault charges are very fact based, and no one will know the facts as well as you or the person you're charged with assaulting. With that being said, it's never a good idea to face a serious charge on your own. It can be tempting to try to save some money and represent yourself because you've browsed the internet and found some helpful information, but you will still need the strategy and experience of a criminal defense attorney. Whether it be defending your innocence or doing damage control, the team at The Smotherman Law Firm are the people you want in your corner fighting for you— or protecting you.
Shoot us a text, email myself or the office, or fill out the form at the bottom of the home page to get started with a free consultation where we will take your information, look up your case information, hear your side of the story and provide you with the important information regarding next steps if you would like us to take your case.
Stay safe.
-Gary Smotherman, II, Esq.
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