Assault is one of the most commonly charged crimes in Travis County and one of the most misunderstood. Many people who are charged with assault are surprised to find that the offense can range from a minor Class C misdemeanor all the way to a first-degree felony carrying up to 99 years in prison, depending on the circumstances.
If you have been charged with assault in Austin or Travis County, understanding exactly what you are facing and what defenses are available is the first step toward protecting yourself.
Brian Erskine is a board-certified criminal defense attorney in Austin with over 20 years of experience defending assault charges in Travis County courts. This post covers every level of assault charge in Texas, the penalties attached to each, and the defenses that can get charges reduced or dismissed.
How Texas Law Defines Assault
Under Texas Penal Code § 22.01, a person commits assault if they:
- Intentionally, knowingly, or recklessly cause bodily injury to another person including their spouse
- Intentionally or knowingly threaten another person with imminent bodily injury including their spouse
- Intentionally or knowingly cause physical contact with another person when the person knows or should reasonably believe the other will regard the contact as offensive or provocative
Notice that definition number 2 covers threats alone no physical contact is required. In Texas, threatening someone in a way that makes them fear immediate injury is assault, even if you never touch them. And definition number 3 covers offensive contact pushing, shoving, or spitting on someone can constitute assault even when no injury results.
Class C Misdemeanor Assault The Lowest Level
What it covers: Threatening someone with imminent bodily injury, or making offensive physical contact without causing injury.
Penalty:
- Fine up to $500
- No jail time
- No probation
A Class C misdemeanor assault is the lowest level of the offense it is the equivalent of a traffic ticket in terms of punishment. However, do not be deceived by the low penalty. A Class C assault conviction still goes on your permanent criminal record and can be seen by employers, landlords, and licensing boards. It can also be used to enhance future assault charges to higher levels.
Class A Misdemeanor Assault Bodily Injury
What it covers: Intentionally, knowingly, or recklessly causing bodily injury to another person. “Bodily injury” under Texas law means physical pain, illness, or any impairment of physical condition a bruise, a scratch, or even pain without visible marks can qualify.
Penalty:
- Up to 1 year in county jail
- Fine up to $4,000
- Probation possible for eligible defendants
This is the most common assault charge filed in Travis County. Arguments, bar fights, and physical altercations between people who know each other even minor ones frequently result in Class A misdemeanor assault charges.
Elevated to Class A: A Class C assault (offensive contact) is elevated to Class A when the victim is elderly (65 or older) or disabled.
Third-Degree Felony Assault When the Stakes Get Much Higher
Certain circumstances elevate a misdemeanor assault to a third-degree felony, carrying 2 to 10 years in state prison and a fine up to $10,000.
Third-degree felony assault applies when:
- The assault causes bodily injury and the victim is a public servant (police officer, firefighter, EMT, judge, or other government employee) acting in their official capacity
- The assault causes bodily injury to a family member or household member and the defendant has a prior conviction for family violence assault
- The assault involves strangulation or suffocation of a family or household member or dating partner even without visible injury
- The victim is a security officer acting in their official capacity
- The victim is an emergency services worker
The strangulation provision is particularly important. In Texas, any assault involving strangulation or suffocation of a domestic partner even if it leaves no visible marks is automatically a third-degree felony. This is one of the most aggressively prosecuted assault offenses in Travis County.
Second-Degree Felony Assault Aggravated Assault
Aggravated assault under Texas Penal Code § 22.02 is a second-degree felony carrying 2 to 20 years in state prison and a fine up to $10,000.
Aggravated assault applies when a person commits assault and:
- Causes serious bodily injury to another person “serious bodily injury” means injury that creates a substantial risk of death, causes permanent disfigurement, or causes extended loss of use of a body part or organ
- Uses or exhibits a deadly weapon during the assault a deadly weapon includes firearms, knives, and any object used in a way capable of causing death or serious injury (a car, a baseball bat, a bottle)
Even displaying a weapon during a threatening encounter without striking anyone can constitute aggravated assault in Texas if the other person feared serious injury.
First-Degree Felony Assault The Most Serious Level
Aggravated assault is elevated to a first-degree felony carrying 5 to 99 years in state prison when:
- The victim is a family or household member or dating partner and the assault causes serious bodily injury or involves a deadly weapon (aggravated assault family violence)
- The assault is committed against a public servant and causes serious bodily injury or involves a deadly weapon
- The defendant uses a deadly weapon and causes serious bodily injury to a person they know is a security officer or emergency worker
- The assault is committed by a street gang member against someone not in the gang
A first-degree felony assault conviction in Texas can result in a life sentence.
Deadly Conduct in Texas A Separate But Related Charge
- Deadly conduct under Texas Penal Code § 22.05 is a charge that is frequently filed alongside or instead of assault when a weapon is involved but no physical contact or injury occurred.
- Class A misdemeanor deadly conduct: Recklessly engaging in conduct that places another person in imminent danger of serious bodily injury.
- Third-degree felony deadly conduct: Knowingly discharging a firearm at or in the direction of a person, vehicle, building, or habitation regardless of whether anyone is injured.
Firing a gun into the air in a residential area, shooting toward a vehicle during a road rage incident, or pointing a loaded weapon at someone can all result in deadly conduct charges in Texas. Because no injury is required, this charge is often added when physical evidence of harm is lacking.
Assault Family Violence A Special Category
Assault family violence (AFV) is not a separate offense in Texas it is a designation applied to an assault when the victim is a family member, household member, or someone the defendant has or has had a dating relationship with.
This designation matters because:
- It triggers mandatory arrest policies in Texas police are required to make an arrest when they respond to a family violence call and find probable cause to believe an assault occurred
- A protective order is typically issued automatically, which can prevent you from returning to your home or seeing your children
- A conviction for AFV cannot be expunged in Texas it stays on your record permanently
- A second AFV conviction elevates the charge from a misdemeanor to a third-degree felony
- An AFV conviction permanently affects your right to possess firearms under federal law (the Lautenberg Amendment)
Many people charged with assault family violence are shocked by how aggressively the case is prosecuted even when the alleged victim does not want to press charges. In Texas, the state prosecutes family violence cases. The alleged victim does not get to drop the charges. The prosecutor makes that decision.
7 Defenses That Can Beat an Assault Charge in Texas
Defense 1: Self-Defense
Texas has strong self-defense laws. Under Texas Penal Code § 9.31, a person is justified in using force against another person when they reasonably believe the force is immediately necessary to protect themselves against the other person’s use of unlawful force.
Texas does not require you to retreat before using force in self-defense the Castle Doctrine extends this right to any place you have a legal right to be. If you reasonably believed you were about to be attacked and used proportional force to defend yourself, self-defense is a complete defense to assault.
Defense 2: Defense of Others
Texas law also justifies using force to protect a third person from unlawful force as long as you reasonably believed the third person would have been justified in defending themselves. Stepping in to stop an attack on a family member, friend, or stranger can justify conduct that would otherwise be assault.
Defense 3: False Accusation
False assault accusations happen in contentious divorces, custody disputes, neighbor conflicts, and workplace disagreements. Motivated accusers sometimes exaggerate or fabricate claims of assault for leverage in civil matters. An experienced defense attorney investigates the accuser’s motive, looks for inconsistencies in their account, and challenges the credibility of the accusation.
Defense 4: Lack of Intent
Texas assault law requires intentional, knowing, or reckless conduct. If the physical contact was genuinely accidental a collision during a sporting event, bumping into someone in a crowd, an accident during a medical procedure it does not satisfy the intent element of assault. Lack of intent is a legitimate and frequently successful defense.
Defense 5: Mutual Combat
If both parties willingly engaged in a fight without either party claiming self-defense mutual combat may be relevant to the defense. While Texas does not have a formal mutual combat statute, evidence that the alleged victim was an equal participant in the altercation can significantly undermine the prosecution’s case and affect charging decisions and jury verdicts.
Defense 6: The Victim Recanted or Is Uncooperative
While the prosecution can proceed without the alleged victim’s cooperation in Texas, a recanting or uncooperative victim makes the case significantly harder to prove. An attorney can use this as leverage in plea negotiations and at trial. Evidence of the alleged victim’s changed account goes directly to the credibility of the prosecution’s case.
Defense 7: Insufficient Evidence
The prosecution must prove every element of assault beyond a reasonable doubt. In many cases particularly those involving no physical injuries, no witnesses, and no video the evidence comes down to one person’s word against another’s. Brian Erskine examines every piece of evidence in the case and aggressively challenges any element the prosecution cannot prove beyond a reasonable doubt.
What Happens After an Assault Arrest in Travis County
After an assault arrest in Austin, the process moves quickly:
- Booking and magistration. You are booked into the Travis County jail. A magistrate sets bond and issues any protective orders within 24 to 48 hours.
- Protective order. In family violence cases, a magistrate’s order of emergency protection (MOEP) is typically issued automatically at magistration, prohibiting contact with the alleged victim and sometimes requiring you to leave your home.
- Bond conditions. Bond conditions in assault cases often include no contact with the alleged victim and no possession of firearms. Violating these conditions results in immediate bond revocation.
- Grand jury (felony cases). Felony assault cases are presented to a grand jury for indictment before proceeding to district court.
- Plea negotiations or trial. Your attorney negotiates with the prosecutor or prepares for trial depending on the strength of the evidence and your goals.
Frequently Asked Questions
Can an assault charge be expunged in Texas?
If the charge is dismissed, you were acquitted, or you successfully completed deferred adjudication for a non-family-violence assault, you may be eligible for expunction or non-disclosure. Assault family violence convictions and deferred adjudications cannot be sealed or expunged in Texas.
Can the alleged victim drop assault charges in Texas?
No. In Texas, assault charges are filed by the state not the victim. The prosecutor decides whether to proceed. However, a recanting or uncooperative victim significantly weakens the prosecution’s case and often leads to reduced charges or dismissal.
What is the difference between assault and aggravated assault in Texas?
Regular assault involves intentionally causing bodily injury, threatening imminent harm, or making offensive contact. Aggravated assault involves serious bodily injury or the use or display of a deadly weapon. Aggravated assault carries significantly higher penalties up to 20 years for a second-degree felony and up to 99 years for a first-degree felony.
Does an assault conviction affect gun rights in Texas?
Yes. A felony assault conviction results in permanent loss of the right to possess firearms under Texas and federal law. An assault family violence conviction even a misdemeanor also permanently strips firearm rights under the federal Lautenberg Amendment, regardless of the misdemeanor classification.
Can I be charged with assault if I never touched anyone?
Yes. In Texas, threatening someone with imminent bodily injury constitutes assault even without physical contact. Deadly conduct charges can also be filed when a weapon is discharged toward someone without any contact occurring.
Talk to an Austin Assault Defense Attorney Today
Assault charges in Texas range from manageable to life-altering depending on the circumstances but all of them carry real consequences for your record, your rights, and your future. The earlier you have a board-certified criminal defense attorney reviewing your case, the more options you have.
Brian Erskine offers free, confidential consultations for assault charges in Austin and Travis County. Call 512-359-3030 today no obligation, no pressure, just honest answers about your case and your options.
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