What Qualifies As “Assault” In Texas?

Posted on Mar 13, 2023 by Todd Ver Weire


Assault.  That single word receives a lot of attention week in and week out, not just by law enforcement, lawyers, and judges, but with ever increasing frequency, in the sports world.  

Texas criminal courts – be mindful that the definition used in civil cases is a bit different – defines assault as the intentional or reckless causing of bodily injury to another person, or the intentional or reckless threat of bodily harm to another person. 

To add further confusion to what most folks would consider a simple word to define, under Texas law, when we add the language “causes bodily injury” an assault takes on a whole different meaning.  Before diving down that rabbit hole, let’s look at the three basic ways assault is defined in Texas Criminal Courts: 

An assault occurs if a person: 

  • Intentionally, knowingly, or recklessly cause bodily injury to another person;
  • Intentionally or knowingly threaten another person with imminent bodily injury; or
  • Intentionally or knowingly cause physical contact with another person when the person knows or should reasonably believe that the other person will regard the contact as offensive or provocative.

So, if you cause physical contact, not bodily injury but physical contact – in an intentional or knowing manner, you committed an assault if the other person regards the contact as offensive.  Hmm, does this mean that bumping someone at a bar is an assault – it could be if you did it intentionally after they ignored you.  If it stops right there, and cooler heads prevail, you may be o.k.  However, if copious amounts of alcohol were consumed, or someone had a really bad day, it is possible that they make such a stink that you are charged with a misdemeanor assault.  

Now, let us dive a little into that rabbit hole “bodily injury”.  It sounds pretty serious – as in there is blood, open cuts, or something more.  And yes, all of those types of things are bodily injury.  Here is where Texas Criminal Courts have taken a phrase – bodily injury – and torqued it all out of reason.  Under current Texas law, meaning as of February 2023, bodily injury also includes a bruise (a little more believable to be an injury as they can last a while), a red mark (something like when you squeeze your kids arm too long but goes away within a minute or two) or, and here is where it gets a really wonky – causes physical pain.  Really, talk about legal wiggle room.  So, if you tap someone and they saw owe, that hurt, and a reasonable group of folks agree, that is an assault bodily injury – you have now graduated to a Class A or B misdemeanor.  If you happen to do that to a family member (think parent, grandparent, sibling, child), current or past romantic partner, or roommate, you are looking at a Class A misdemeanor and can go to jail for up to year.  Yep, that slap across Johnny’s backside can be considered an assault, causing bodily injury, family violence.  

If you are charged with an assault bodily injury, and the magic words family violence are added, welcome to a new kind of torment.  You can lose your job, be evicted, not be able to find a new place to live, and while there is currently a lot of debate among the various federal courts about the right to keep you from possessing a weapon, right now state judges in the larger cities and counites in Texas are not allowing a person accused of such a crime to possess a firearm.  Yes, I understand the arguments on both sides of the issue; however, I do want to point out that at least one U.S. Circuit Court of Appeals, the Fifth Circuit Court of Appeals specifically, has stated that denying someone subject to a domestic violence protective order the right to possess firearms is a violation of their Second Amendment rights.  Now, whether that decision survives an appeal to the U.S. Supreme Court, or even is recognized by the State courts that the Fifth Circuit covers is yet to be seen.  I am simply pointing out that at present, in State courts in Texas, be aware that you could lose the right to possess firearms while the criminal case winds through the criminal justice system.  In a state that likes to hunt, and just carry firearms in general, that is a significant issue. 

Now, let’s say the bodily injury is more severe – think broken bone, or surgery required to repair the damage – then you are looking at a felony, with the possibility of significant prison time.  Depending upon the severity of the injury, you could be facing two to twenty years, or more, in prison.  I say or more because if you use a deadly weapon – and in Texas darn near any implement that you swing at someone can be a deadly weapon, including your fists, and cause serious bodily injury, you could face 5 to 99 years in prison.  

As you can see, in Texas it can be better to use words to resolve a situation, as opposed to your fists, or pistol, or hammer.  However, if push comes to shove, so to speak, and you find yourself in a mele, there may be some defenses that you can rely upon.  

The most common defense to an assault charge is that of self-defense.  In other words, I was defending myself from this yahoo that decided to start swinging at me, is bigger than me and started poking me in the chest so I felt threatened, or pulled out a knife so I shot him.  The key to any self-defense claim is whether or not the amount of force used is deemed reasonable when taking into consideration the force used against you. 

Now, unlike a lot of states, in Texas, the defendant does NOT have to take the stand to prove self-defense.  If there is video footage showing the other person as the aggressor, that could be enough.  The other interesting fact about a claim of self-defense in Texas is that the defendant does not have to prove that the force used was reasonable. Rather, in the great state of Texas, if a self-defense issue arises, it is up to the State, in other words the prosecutors, to prove beyond a reasonable doubt that the force you used to defend yourself was not reasonable.  

Some other notable defenses that could come up, although not as frequently as some would think are defense of others – my friend/brother/cousin/shoot even stranger – was getting the crud kicked out of them so I stepped in to stop it.  The hard part here is you don’t necessarily know who started it, so unless you saw who started it, you may be better off not getting involved.

Another not frequently used defense is defense of property. Yes, rustlers in Texas are still frowned upon, and you can use force to protect your property. However, using deadly force to do so may cause an issue.  Like a number of other states, if someone is breaking into your house, and you are in fear for your safety, you don’t have to run away, you can stand, hold your ground, and use deadly force to protect yourself and those in the house.  Don’t go dragging someone into the house, or hang them in a window, that is just dumb, and could very likely result in you getting charged with both an aggravated assault charge, and possibly a tampering with evidence charge if the prosecutor is really annoyed.    

I say all of this because I hope you can see how devastating an assault charge can be, and how the impacts can vary depending upon the nature of the injury, and if anything was used – and yes, a car is a deadly weapon in Texas, just like the hammer in your toolbox.  I hope that if you find yourself in a situation where someone is mad and screaming at you, you simply turn and walk away.  The loss of a little machismo is a whole lot easier than the loss if you are arrested and charged with an assault type crime.