What is the difference between aggravated assault vs. assault in Texas?

The term “assault” is one of the most commonly used terms in the Texas criminal statutory scheme and common law jurisprudence. Although it is frequently used, its meaning is not always uniform since the word is not statutorily defined. The term is more of a generic word, and is used in a wide variety of ways to describe specific types of criminal conduct.

In most instances, assaultive behavior involves some form of violent physical contact, but not necessarily.   

Types of Crimes Where the Term ‘Assault’ is Directly Used 

In general, we have two levels of misdemeanor assaults, ranging from Class ‘C’ assaults punishable by a fine only, to Class ‘A’ assaults, punishable by up to a year in the county jail and a fine not to exceed $4000.  On the felony end of the spectrum, we have Aggravated Assault, which is a more serious version of the misdemeanor category. The Penal Code also uses the generic term assault to name various other types of crimes, such as Indecent Assault, Sexual Assault, Aggravated Sexual Assault, and Intoxication Assault, etc.  Each of these crimes describes behavior quite different from one another.

All felony convictions carry a penalty range which includes incarceration in the Texas Department of Corrections (i.e. the penitentiary), not simply the county jail, along with a fine not to exceed $10,000.  As we shall see, even some of the misdemeanor-variety assaultive behavior can become a felony, depending on the factual circumstances of the case.

What Constitutes a Misdemeanor (‘Simple’) Assault Case?

Section 22.01 of the Texas Penal Code recites that:

A person commits an offense if the person:

  • intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
  • intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
  • intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

The second two offenses listed above are usually deemed Class ‘C’ misdemeanor offenses. They are often referred to as Assault by Threat, and Offensive Touching, respectively. These Class ‘C’ assaults can become higher level offenses if directed at certain protected classes of individuals, like the elderly or disabled.

The first offense on the list is called Assault with Bodily Injury, or sometimes just simple assault.  It is usually a Class ‘A’ misdemeanor, carrying a jail term of up to one year. This crime is what most of us think about when we hear the term assault. A simple assault can also be charged as a serious felony offense if committed against protected classes of individuals (such as public servants, elderly, etc.), or in repeated family violence situations, or if there is any impeding of the normal breathing or circulation of the victim by strangulation or blocking the person’s nose or mouth.

 From a prosecution standpoint, the proof of bodily injury is a very low standard, meaning that it’s easy to prove. A bodily injury is defined by the Code simply as any physical pain, illness, or any impairment of physical condition. So during trial, if the prosecutor asks the victim of the crime: “Did it hurt when . . . ?” or “Did you feel pain when . . . ?” – and the victim responds affirmatively, then the prosecutor has established his burden to prove the element of bodily injury as a matter of law.

What Constitutes a Felony Aggravated Assault Case?

In contrast to a simple assault, the Texas Penal Code §22.02 provides that an assault is an Aggravated Assault when a person commits an assault, and the person:

  • causes serious bodily injury to another, including the person’s spouse; or
  • uses or exhibits a deadly weapon during the commission of the assault.

 A serious bodily injury is an injury which creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Again, this is a statutory definition. Similarly, a deadly weapon is defined by statute as:

  • a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
  • anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Note that the weapon does not necessarily have to be used; it can simply be exhibited

The crime of Aggravated Assault (with or without a deadly weapon) is a Second Degree felony, punishable by 2-20 years in the Texas Department of Corrections, and a fine not to exceed $10,000.  Just as with the misdemeanor offenses, there are also multiple factual situations which can cause this Second Degree to be punished as a First Degree felony. Furthermore, if a deadly weapon is charged and proved, there are enhanced parole consequences for the person convicted.

Illustrative Scenarios

Let’s see how this statutory scheme works under the following scenarios: 

Example #1: The defendant and victim get into a verbal conflict. The defendant loses his temper and punches the victim in the face with his fist hard enough for the impact to cause pain to the victim. What crime, if any, has the defendant committed?

Answer:  By virtue of the punching the victim in the face, the blow constituted an assault. At this point the charge against the defendant would be a misdemeanor Class ‘A’ simple assault, as discussed above.

Example #2:  In the same fact pattern as Example #1, the blow to the face was hard enough not only to cause pain, but to break the victim’s eye socket.  Is this now still a simple assault? Or an Aggravated Assault?

Answer:  Under the case law interpreting the statutory definition of serious bodily injury, the breaking of a bone is generally considered a protracted loss or impairment of the function of any bodily member or organ. As such, this would fit the statutory elements of an Aggravated Assault. Defendant could be prosecuted as a felon.

Example # 3: In the same fact pattern as Example #1, the defendant was holding a pistol in his other hand as he punched the victim, but never fired or even pointed the pistol at the victim. Is this an Aggravated Assault, or a simple assault? 

Answer:  Aggravated Assault.  By having the pistol in his hand during the commission of the assault, the defendant was exhibiting a deadly weapon. The deadly weapon does not actually have to be directly used. Therefore, under this fact pattern all the elements of Aggravated Assault have been met.     

Example #4:  In the same fact pattern as Example #3, except that instead of punching the victim with his fist, the defendant merely raised his pistol and pointed it at the victim during the heated argument. No shots were fired. What, if any, crime has the defendant committed? 

Answer:  Pointing a pistol at the victim during a heated argument would be a threatening act, hence an assault.  And, since a deadly weapon was used or exhibited during the commission of the assault, the actions meet the elements of an Aggravated Assault. Note that the crime charged would be the same whether the defendant fired a shot, or not (unless, of course, the shot fired caused the death of the victim, in which case the charge would be Murder).

How can I get more information about this topic?

If you are charged with a criminal offense you should contact a competent defense attorney skilled in the practice of criminal law immediately in order to begin work on your defense.  The Bigham Law Firm has the attorneys with the experience and resources to properly represent you in these difficult types of criminal defense cases.  

If you would like more information about how to protect yourself in any criminal case, please call the Bigham Law Firm at (979) 743-4153 for a free consultation.


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Ken Bigham Jr. has nearly three decades of experience navigating the law to protect his clients from unfair treatment by insurance companies, the government and corporations. He believes that Bigham Law’s purpose is to provide outstanding value to its clients and compassionate service to its community. 


This firm gave me my life back. Before Ken and his team I almost gave up hope and caved. He gave me back a chance to finish my schooling, move past what was done to me, and handed back the tools I needed to be a man.

Here I am now a father to a beautiful little girl and building a small business. I can say if I didn’t meet Ken, the story would have been not quite the same. Nothing but love and appreciation from me and my family.

J.S. 2019

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