7.6. Aggravated assault--By use of a deadly weapon[FN1] [Commencement Form, Ch. 1] A.B.

did then and there intentionally and knowingly [or recklessly] use a deadly weapon, to wit: [specify], firearm [or manifestly designed, made and adapted for the purpose of inflicting death and serious bodily injury, or that in the manner of its use and intended use was capable of causing death and serious bodily injury] and did then and there intentionally and knowingly cause bodily injury to C.D. by [specify the manner and means, such as: shooting him with the firearm] [or did then and there intentionally and knowingly threaten C.D. with imminent bodily injury by the use of said deadly weapon]. [Conclusion and Signature Form, Ch. 1] Notes West's Key Number Digest West's Key Number Digest, Assault and Battery 78 Legal Encyclopedias C.J.S., Assault and Battery § 101

[FNa] Former Presiding Judge, Court of Criminal Appeals, Austin, Texas. [FNb] Former District Attorney and Senior District Judge, Austin, Texas. [FNc] Board Certified Criminal Law Specialist, Austin, Texas and Past President of the Texas Defense Lawyers Association.

-------------------------------------------------------------------------------[FN1] V.T.C.A., Penal Code § 22.02(a)(2). Where indictment alleges defendant “did cause bodily injury by striking victim and did then and there use a deadly weapon, a knife” the indictment tracks the statute and is sufficient even though it does not specifically allege the defendant caused the injury by using a deadly weapon. Johnson v. State, 91 S.W.3d 413 (Tex.App.—Waco 2002). The acts of recklessness must be alleged. Vernon's Ann.C.C.P. art. 21.15. Information alleging that defendant used pistol, a deadly weapon, to intentionally threaten imminent bodily injury sufficiently alleged aggravated assault with deadly weapon. Pacheco v. State, 529 S.W.2d 77 (Tex.Cr.App.1975). Form approved. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975). A knife is not a deadly weapon per se. Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975). Where unnecessary matter is descriptive of that which is legally essential to charge a crime, failure of proof as alleged constitutes a fatal variance, i.e.: allegation

of “Ruger” pistol is not proved by “Luger” pistol. Weaver v. State, 551 S.W.2d 419 (Tex.Cr.App.1977). Failure to name the person assaulted is error. Ex parte Lewis, 544 S.W.2d 430 (Tex.Cr.App.1976). An air pistol is not a deadly weapon per se. Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1976). Indictment need not negative the antique or curio exception. Wright v. State, 582 S.W.2d 845 (Tex.Cr.App.1979). From the manner of its use a knife may be a deadly weapon. Hawkins v. State, 605 S.W.2d 586 (Tex.Cr.App.1980). While indictments alleging a culpable mental element for either the underlying assault or the aggravating factor, it is better practice to allege a culpable mental state for each. Pass v. State, 634 S.W.2d 857 (Tex.App.1982 pet. ref'd). See also Lugo–Lugo v. State, 650 S.W.2d 72 (Tex.Cr.App.1983).