Next Part V.T.C.A., Penal Code � 22.

02 Vernon's Texas Statutes and Codes Annotated Currentness Penal Code (Refs & Annos) Title 5. Offenses Against The Person (Refs & Annos) Chapter 22. Assaultive Offenses (Refs & Annos) � 22.02. Aggravated Assault

(a) A person commits an offense if the person commits assault as defined in � 22.01 and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault. (b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if: (1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or (2) regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed: (A) by a public servant acting under color of the servant's office or employment; (B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; (C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or (D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer. (c) The actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer. (d) In this section, "security officer" means a commissioned security officer as

defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code. CREDIT(S) Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 367, ch. 164, � 2, eff. Sept. 1, 1979; Acts 1979, 66th Leg., p. 1521, ch. 655, � 2, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 349, ch. 79, � 1, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 5311, ch. 977, � 2, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 223, � 1, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 18, � 3, eff. April 14, 1987; Acts 1987, 70th Leg., ch. 1101, � 12, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 939, �� 1 to 3, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 334, � 2, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 903, � 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1019, � 3, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 788, � 3, eff. Sept. 1, 2005. HISTORICAL AND STATUTORY NOTES 2006 Electronic Pocket Part Update 2003 Legislation Acts 2003, 78th Leg., ch. 1019 added subsec. (b)(4); in subsec. (c), inserted the references to a security officer; and added subsec. (d). Section 4 of Acts 2003, 78th Leg., ch. 1019 provides: "This Act takes effect September 1, 2003, and applies only to an offense committed on or after that date. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date." 2005 Legislation Acts 2005, 79th Leg., ch. 788, rewrote subsec. (b), which formerly read: "(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the offense is committed: "(1) by a public servant acting under color of the servant's office or employment; "(2) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; "(3) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or "(4) against a person the actor knows is a security officer while the officer is performing a duty as a security officer." Section 7 of Acts 2005, 79th Leg., ch. 788 provides:

"The change in law made by this Act applies only to an offense committed on or after September 1, 2005. An offense committed before September 1, 2005, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this section, an offense was committed before September 1, 2005, if any element of the offense occurred before that date." 2003 Main Volume Acts 1979, 66th Leg., ch. 164, � 2, in subsec. (a), added in subd. (1) ", including his spouse". Acts 1979, 66th Leg., ch. 655, � 2, in subd. (2) deleted "in the lawful discharge of official duty" following "peace officer", inserted a colon following "is a peace officer", and added pars. (A) and (B), added a new subd. (3), and renumbered former subd. (3) as subd. (4). Acts 1983, 68th Leg., ch. 79, � 1, in subsec. (a) in the introductory language of subd. (2) inserted "or a jailer or guard employed at a municipal or county jail or by the Texas Department of Corrections" and added ", jailer, or guard", in subd. (2)(A) inserted "jailer, or guard", and in subd. (2)(B) substituted "an" for "the peace officer's" preceding "exercise of official power," inserted "an" preceding "official duty" and inserted ", jailer, or guard". Section 3 of Acts 1983, 68th Leg., p. 351, ch. 79, provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1983] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Acts 1983, 68th Leg., ch. 977, � 2, in subsec. (a) in two places in the introductory language and in the introductory language of subds. (2) and (3) substituted "the person" for "he" and in subd. (1) substituted "the person's" for "his". Section 13 of the 1983 amendatory act provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1983] of this Act. "(b) An offense committed before the effective date of this Act is covered by the law in effect at the time the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date." Acts 1985, 69th Leg., ch. 223, � 1, in subd. (a)(2), inserted "threatens with a deadly weapon or" and in subsec. (c) added ", unless the offense . . . the second degree". Section 2 of the 1985 amendatory act provides: "(a) The change in law made by this Act applies only to the punishment for an

offense committed on or after the effective date [Sept. 1, 1985] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Acts 1987, 70th Leg., ch. 18, in subsec. (a)(2), inserted the references to facilities authorized by articles 5115d and 6166g-2 of the Revised Statutes. Acts 1987, 70th Leg., ch. 1101, inserted references to a member or employee of the Board of Pardons and Paroles throughout the section. Section 19 of Acts 1987, 70th Leg., ch. 1101 provides: "(a) The changes in law made by �� 12 and 13 of this Act apply only to offenses committed on or after the effective date [Sept. 1, 1987] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Acts 1989, 71st Leg., ch. 939, �� 1 to 3 reenacted subsec. (a) in order to reconcile the 1987 amendments; in subsec. (a), subd. (2) inserted "or threatens to cause bodily injury" following "weapon"; in subsec. (c) substituted "first" for "second" preceding "degree."; and added subsec. (d). Section 6 of the 1989 amendatory act provides: "(a) The change in law made by � 1 of this Act applies only to an offense committed on or after the effective date [Sept. 1, 1989] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of � 1 of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Acts 1991, 72nd Leg., ch. 334, � 2, in subsec. (a), rewrote subd. (2), which formerly read: "threatens with a deadly weapon or threatens to cause bodily injury or causes bodily injury to a member or employee of the Board of Pardons and Paroles, a peace officer, or a jailer or guard employed at a municipal or county jail, by the Texas Department of Corrections, or by a correctional facility authorized by Article 5115d, Revised Statutes, or Article 6166g-2, Revised Statutes, when the person knows or has been informed the person assaulted is a member or employee of the Board of Pardons and Paroles, a peace officer, or a jailer or guard: "(A) while the member or employee of the Board of Pardons and Paroles, peace officer, jailer, or guard is lawfully discharging an official duty; or "(B) in retaliation for or on account of an exercise of official power or performance of an official duty as a member or employee of the Board of Pardons

and Paroles, a peace officer, or a jailer or guard; or" Section 4 of Acts 1991, 72nd Leg., ch. 334 provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1991] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Acts 1991, 72nd Leg., ch. 903, � 1 rewrote subsec. (d), which prior thereto read: "A person commits an offense if the person commits assault as defined in � 22.01 of this code and the person threatens with a deadly weapon or causes serious bodily injury to an adult probation officer or to an employee of a community rehabilitation center or court residential treatment center operated by an adult probation department: "(1) while the officer or employee is acting in the lawful discharge of an official duty; or "(2) in retaliation for or on account of an exercise of official power or performance of an official duty by the officer or employee." Section 5 of Acts 1991, 72nd Leg., ch. 903, provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Acts 1993, 73rd Leg., ch. 900, � 1.01 rewrote the section, which formerly read: "(a) A person commits an offense if the person commits assault as defined in � 22.01 of this code and the person: "(1) causes serious bodily injury to another, including the person's spouse; "(2) threatens with a deadly weapon or threatens to cause bodily injury or causes bodily injury to a member of the Board of Pardons and Paroles or the Texas Board of Criminal Justice, an employee of the pardons and paroles division of the Texas Department of Criminal Justice, an employee of the Windham Schools, a peace officer, or a jailer, guard, or other employee of a municipal or county jail, the institutional division of the Texas Department of Criminal Justice, or a correctional facility authorized by Subchapter F, Chapter 351, Local Government Code or Chapter 495, Government Code, when the person knows or has been informed the person assaulted is a member of the Board of Pardons and Paroles or the Texas

Board of Criminal Justice, an employee of the pardons and paroles division, an employee of the Windham Schools, a peace officer, or a jailer, guard, or other employee: "(A) while the member of the Board of Pardons and Paroles or Texas Board of Criminal Justice, employee of the pardons and paroles division, employee of the Windham Schools, peace officer, jailer, guard, or other employee is lawfully discharging an official duty; or "(B) in retaliation for or on account of an exercise of official power or performance of an official duty as a member of the Board of Pardons and Paroles or Texas Board of Criminal Justice, an employee of the pardons and paroles division, an employee of the Windham Schools, a peace officer, or a jailer, guard, or other employee; or "(3) causes bodily injury to a participant in a court proceeding when the person knows or has been informed the person assaulted is a participant in a court proceeding: "(A) while the injured person is lawfully discharging an official duty; or "(B) in retaliation for or on account of the injured person's having exercised an official power or performed an official duty as a participant in a court proceeding; or "(4) uses a deadly weapon. "(b) The actor is presumed to have known the person assaulted was a peace officer if he was wearing a distinctive uniform indicating his employment as a peace officer. "(c) An offense under this section is a felony of the third degree, unless the offense is committed under Subdivision (2) of Subsection (a) of this section and the person uses a deadly weapon, in which event the offense is a felony of the first degree. "(d) A person commits an offense if the person commits assault as defined in � 22.01 of this code and the person threatens with a deadly weapon or causes serious bodily injury to an officer employed by a community supervision and corrections department, an employee of a community corrections facility operated by or for a community supervision and corrections department and listed in � 6, Article 42.13, Code of Criminal Procedure, a juvenile probation officer, or an employee of a juvenile probation department or a juvenile detention center: "(1) while the officer or employee is acting in the lawful discharge of an official duty; or "(2) in retaliation for or on account of an exercise of official power or performance of an official duty by the officer or employee." Prior Laws: Rev.P.C.1879, arts. 496, 498, 499, 500, 507 to 511, 512, 610, 611. Rev.P.C.1895, arts. 601, 603, 604, 605, 612 to 615, 616, 617, 715, 716, 793.

Rev.P.C.1911, arts. 1022, 1024, 1025, 1026, 1033, 1034, 1035, 1036, 1037, 1038, 1145, 1146, 1239. Acts 1931, 42nd Leg., p. 95, ch. 61. Acts 1939, 46th Leg., p. 240, � 1. Acts 1949, 51st Leg., p. 1131, ch. 582. Acts 1950, 51st Leg., 1st C.S., p. 51, ch. 11, �� 1, 2. Acts 1955, 54th Leg., p. 1143, ch. 430, � 1. Acts 1961, 57th Leg., p. 706, ch. 331, � 1. Acts 1971, 62nd Leg., p. 2809, ch. 911, � 2. Vernon's Ann.P.C. (1925) arts. 1147 to 1149, 1151, 1159, 1160, 1166 to 1168, 1259 to 1260a, 1339. CROSS REFERENCES "Actor" defined, see V.T.C.A., Penal Code � 1.07. "Bodily injury" defined, see V.T.C.A., Penal Code � 1.07. Consent as defense, see V.T.C.A., Penal Code � 22.06. "Deadly weapon" defined, see V.T.C.A., Penal Code � 1.07. DNA records, inmates sentenced for offenses under this section, samples or specimens required, see V.T.C.A., Government Code �� 411.148, 411.150 "Firearm" defined, see V.T.C.A., Penal Code � 46.01. Organized criminal activity, see V.T.C.A., Penal Code � 71.02. "Peace officer" defined, see V.T.C.A., Penal Code � 1.07. "Person" defined, see V.T.C.A., Penal Code � 1.07. Presumption explained, see V.T.C.A., Penal Code � 2.05. Punishment, First degree felony, see V.T.C.A., Penal Code � 12.32. Second degree felony, see V.T.C.A., Penal Code � 12.33. Resisting arrest or search, see V.T.C.A., Penal Code � 38.03. "Serious bodily injury" defined, see V.T.C.A., Penal Code � 1.07. Testimony of child victim of offense under this section, see Vernon's Ann.C.C.P. art. 38.071.

Weapons offenses, see V.T.C.A., Penal Code � 46.01 et seq. LAW REVIEW COMMENTARIES Annual survey of Texas law: Assault offenses. Shirley W. Butts, 35 Sw.L.J. 511 (1981). Criminal law--Aggravated assault. Mike McColloch and David W. Coody, 37 Sw.L.J. 388 (1983). Changes in criminal law. Kenneth W. Sparks, 21 Hous.Law. 20 (1983). Futility of eloquence: Selected Texas family violence legislation 1979- 1991. Steve Russell, 33 S.Tex.L.Rev. 353 (1992). Texas Equal Rights Amendment in courts--1972-1977: A review and proposed principles of interpretation. Rodric B. Schoen, 15 Hous.L.Rev. 537 (1978). Wife abuse legislation. 7 T.Marshall L.Rev. 282 (1982). LIBRARY REFERENCES 2003 Main Volume Assault and Battery 54 to 58, 82, 100. Westlaw Topic No. 37. C.J.S. Assault and Battery �� 80, 114 to 115, 130. RESEARCH REFERENCES 2006 Electronic Pocket Part Update ALR Library 119 ALR, Federal 319, What Constitutes "Violent Felony" for Purpose of Sentence Enhancement Under Armed Career Criminal Act (18 U.S.C.A. � 924(E)(1)). 19 ALR 5th 823, Kicking as Aggravated Assault, or Assault With Dangerous or Deadly Weapon. 5 ALR 5th 243, Sufficiency of Bodily Injury to Support Charge of Aggravated Assault. 50 ALR 4th 1081, Lesser-Related State Offense Instructions: Modern Status. 31 ALR 4th 504, Power or Duty of State Court, Which Has Accepted Guilty Plea, to Set Aside Such Plea on Its Own Initiative Prior to Sentencing or Entry of Judgment.

89 ALR 3rd 1026, Automobile as Dangerous or Deadly Weapon Within Meaning of Assault or Battery Statute. 58 ALR 3rd 662, Consent as Defense to Charge of Criminal Assault and Battery. 89 ALR 2nd 540, Plea of Nolo Contendere or Non Vult Contendere. 92 ALR 2nd 635, Intent to Do Physical Harm as Essential Element of Crime of Assault With Deadly or Dangerous Weapon. 52 ALR 2nd 1337, What Amounts to Reckless Driving of Motor Vehicle Within Statute Making Such a Criminal Offense. 169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged. 137 ALR 504, Malice and Want of Probable Cause as Element or Factor of Action for False Imprisonment. 112 ALR 1303, Right of Owner of Easement of Way to Make Improvements or Repairs Thereon. 103 ALR 1041, Defendant's Right to Elect as to Punishment Where Statutory Provision as to Punishment is Changed After Commission of Offense, But Before Conviction. 48 ALR 746, What Constitutes Offense of Obstructing or Resisting Officer. Encyclopedias TX Jur. 3d Assault & Battery � 2, Elements. TX Jur. 3d Automobiles � 452, Driver's Duty to Render Aid. TX Jur. 3d Criminal Law � 191, Felony Murder. TX Jur. 3d Criminal Law � 325, Degree of the Offense; Voluntary Release of Victim. TX Jur. 3d Criminal Law � 408, Lesser Included Offenses. TX Jur. 3d Criminal Law � 409, Definitions. TX Jur. 3d Criminal Law � 413, Assault by Threats -- Imminent Bodily Injury. TX Jur. 3d Criminal Law � 415, Assault by Threats -- Use of Weapon in Threatening Manner. TX Jur. 3d Criminal Law � 418, Injury to Person Other Than One Accused Intended to Injure; Transferred Intent. TX Jur. 3d Criminal Law � 420, Serious Bodily Injury. TX Jur. 3d Criminal Law � 422, Public Servant's Lawful Discharge of Official Duty. TX Jur. 3d Criminal Law � 424, Accused's Knowledge that Person Assaulted is Public Servant.

TX Jur. 3d Criminal Law � 426, What Constitutes a Deadly Weapon. TX Jur. 3d Criminal Law � 428, What Constitutes a Deadly Weapon -- Knives. TX Jur. 3d Criminal Law � 429, What Constitutes a Deadly Weapon -- Motor Vehicles. TX Jur. 3d Criminal Law � 430, What Constitutes a Deadly Weapon -- Other Instruments; Parts of Accused's Body. TX Jur. 3d Criminal Law � 431, in General; Assault. TX Jur. 3d Criminal Law � 432, Aggravated Assault. TX Jur. 3d Criminal Law � 446, Presumption that Accused Knew that Person Assaulted was Public Servant. TX Jur. 3d Criminal Law � 458, Aggravating Circumstances -- Causing Serious Bodily Injury. TX Jur. 3d Criminal Law � 460, in General; Culpable Mental State. TX Jur. 3d Criminal Law � 461, Lesser Included Offenses. TX Jur. 3d Criminal Law � 463, Aggravating Circumstances -- Using Deadly Weapon. TX Jur. 3d Criminal Law � 465, in General; Degree of Offense. TX Jur. 3d Criminal Law � 466, in General; Degree of Offense -- Evidence. TX Jur. 3d Criminal Law � 477, in General; Degree of Offense. TX Jur. 3d Criminal Law � 775, Lesser Included Offenses. TX Jur. 3d Criminal Law � 1539, Generally; Reckless Driving. TX Jur. 3d Criminal Law � 1742, Probation Revocation Proceedings. TX Jur. 3d Criminal Law � 1788, Right of State; Defendant's Bail. TX Jur. 3d Criminal Law � 1838, Same Act or Transaction. TX Jur. 3d Criminal Law � 1842, Greater and Lesser Included Offenses. TX Jur. 3d Criminal Law � 1903, Necessity. TX Jur. 3d Criminal Law � 1937, Consent; Commission of Crime. TX Jur. 3d Criminal Law � 2690, What Constitutes Sufficient Notice. TX Jur. 3d Criminal Law � 2733, Manner and Means of Committing Offense. TX Jur. 3d Criminal Law � 3242, When Charge is Not Required. TX Jur. 3d Criminal Law � 3243, Sufficiency of Evidence. TX Jur. 3d Criminal Law � 3250, Alibi. TX Jur. 3d Criminal Law � 3263, Extent of Force.

TX Jur. 3d Criminal Law � 3357, Trial Error, Generally -- Argument or Conduct of Counsel. TX Jur. 3d Criminal Law � 3497, to Rebut Defense -- Particular Applications. TX Jur. 3d Criminal Law � 4011, Identity of Accused or Victim. TX Jur. 3d Criminal Law � 4015, Right to and Necessity for Hearing on Motion for New Trial. TX Jur. 3d Criminal Law � 4049, Cumulative or Corroborative Evidence. TX Jur. 3d Family Law � 1756, Criminal Responsibility of Parent for Death or Serious Injury of a Child. TX Jur. 3d Family Law � 2007, Aggravated Circumstances. TX Jur. 3d Nuisances � 8, Generally; Public Nuisances -- as Classified by Statute. Treatises and Practice Aids Charlton, 6 Tex. Prac. Series � 1.6, Definitions. Charlton, 6 Tex. Prac. Series � 13.2, Assault and Aggravated Assault. Charlton, 6 Tex. Prac. Series App. A, Appendix A. Penal Code. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.5, Aggravated Assault -Serious Bodily Injury. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.6, Aggravated Assault -by Use of a Deadly Weapon. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.7, Aggravated Assault -With a Motor Vehicle. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.8, Aggravated Assault -Committed by a Public Servant. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.9, Aggravated Assault -Committed on a Public Servant. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.10, Aggravated Assault -- Committed in Retaliation. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 102.3, Presumptions. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 102.4, List of Statutory Presumptions. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 116.4, Aggravated Assault -- by Use of a Deadly Weapon. Elliott and Saint-Paul, 14 Tex. Prac. Series � 63.28, Nuisances. Morgan and Gaither, 29 Tex. Prac. Series � 111, Special Requirements for a Petition Filed Under the Violent and Habitual Offender (Determinate Sentence)

Statute. Dix and Dawson, 40 Tex. Prac. Series � 3.29, Special Rules -- Aggravated Offenses. Dix and Dawson, 43 Tex. Prac. Series � 31.155, Gollihar's Revision of Surplusage and Variance Law -- Materiality of Variances -- in General. NOTES OF DECISIONS In general 2 Admissibility of evidence 66 Aggravated assault as lesser included offense, generally 52 Aggravated assault as lesser included offense, instructions 122 Aggravated assault as lesser included offense, sufficiency of evidence 89 Assault as lesser included offense, instructions 120 Beer bottle, deadly weapon 21 Bodily injury, sufficiency of evidence 69 Capability of causing death, deadly weapon 18 Capability of causing death, firearms as deadly weapons 25 Cause of injury, motor vehicle assault 36 Cause of injury, sufficiency of evidence 70 Club, deadly weapon 20 Clubs as deadly weapons, sufficiency of evidence 77 Construction with other law 3 Culpable mental state Culpable mental state - In general 7 Culpable mental state - Generally, instructions 100 Culpable mental state - Indictment information, or complaint, indictment, information or complaint 43 Culpable mental state - Intent 8 Culpable mental state - Jury questions 92 Culpable mental state - Recklessness 9 Culpable mental state - Sufficiency of evidence 68

Deadly conduct as lesser included offense, instructions 121.5 Deadly weapon Deadly weapon - In general 17 Deadly weapon - Beer bottle 21 Deadly weapon - Capability of causing death 18 Deadly weapon - Club 20 Deadly weapon - Plastic bag 22.5 Deadly weapon - Fists or hands 22 Deadly weapon - Generally, sufficiency of evidence 76 Deadly weapon - Indictment, information, or complaint, indictment, information or complaint 46 Deadly weapon - Instructions 104 Deadly weapon - Jury questions 94 Deadly weapon - Threat of imminent bodily injury 12 Deadly weapon - Wounds inflicted, generally 19 Deadly weapon per se Deadly weapon per se - Instructions 105 Defense of third person, defenses 60 Defense of third person, instructions 111 Defense of third person, jury questions 99 Defenses Defenses - In general 56 Defenses - Defense of third person 60 Defenses - Duress 59 Defenses - Generally, instructions 108 Defenses - Generally, sufficiency of evidence 88 Defenses - Intoxication 57 Defenses - Protection of property 58 Discharge of duties, public servants 40

Discharge of duties, sufficiency of evidence 85 Disfigurement, serious bodily injury 15 Disfigurement, sufficiency of evidence 74 Double jeopardy 5 Duress, defenses 59 Duty to retreat, instructions 115 Effect of former penal code 4 Effective assistance of counsel 126 Elements of offense, generally 6 Exhibition, firearms as deadly weapons 26 Expert testimony, sufficiency of evidence 90 Extraneous offenses, instructions 115.5 Firearms as deadly weapons 23-27, 78 Firearms as deadly weapons - In general 23 Firearms as deadly weapons - Capability of causing death 25 Firearms as deadly weapons - Exhibition 26 Firearms as deadly weapons - Sufficiency of evidence 78 Firearms as deadly weapons - Use 24 Firearms as deadly weapons - Wounds inflicted 27 Fists or hands as deadly weapons, sufficiency of evidence 79 Fists or hands, deadly weapon 22 Guilty plea 54 Identity of assailant, jury questions 97 Identity of assailant, sufficiency of evidence 87 Impairment of function, serious bodily injury 16 Impairment of function, sufficiency of evidence 75 Indictment, information or complaint 42-50 Indictment, information or complaint - In general 42 Indictment, information or complaint - Culpable mental state, indictment

information, or complaint 43 Indictment, information or complaint - Deadly weapon, indictment, information, or complaint 46 Indictment, information or complaint - Issues, proof and variance, indictment, information, or complaint 50 Indictment, information or complaint - Lesser included offenses, indictment, information, or complaint 49 Indictment, information or complaint - Motor vehicle assault, indictment, information, or complaint 47 Indictment, information or complaint - Public servants, indictment, information, or complaint 48 Indictment, information or complaint - Serious bodily injury, indictment, information, or complaint 44 Indictment, information or complaint - Threat of imminent bodily injury, indictment, information, or complaint 45 Injury to victim, threat of imminent bodily injury 11 Instructions 100-122 Instructions - Aggravated assault as lesser included offense 122 Instructions - Assault as lesser included offense 120 Instructions - Culpable mental state, generally 100 Instructions - Deadly conduct as lesser included offense 121.5 Instructions - Deadly weapon 104 Instructions - Deadly weapons per se 105 Instructions - Defense of third person 111 Instructions - Defenses, generally 108 Instructions - Duty to retreat 115 Instructions - Extraneous offenses 115.5 Instructions - Intent 101 Instructions - Misdemeanor assault 121

Instructions - Motor vehicle assault 106 Instructions - Multiple assailants 116 Instructions - Mutual combat 119 Instructions - Prior conviction 114.5 Instructions - Protection of property 110 Instructions - Provocation by accused 117 Instructions - Public servants 107 Instructions - Punishment 114 Instructions - Reasonable belief 113 Instructions - Recklessness 100.5 Instructions - Self-defense, generally 112 Instructions - Serious bodily injury 103 Instructions - Terroristic threat as lesser included offense 120.5 Instructions - Threat of imminent bodily injury 102 Instructions - Verbal provocation by victim 118 Instructions - Voluntary intoxication 109 Intent, culpable mental state 8 Intent, instructions 101 Intoxication, defenses 57 Issues, proof and variance, indictment, information, or complaint, indictment, information or complaint 50 Jury questions 92-99 Jury questions - Culpable mental state 92 Jury questions - Deadly weapon 94 Jury questions - Defense of third person 99 Jury questions - Identity of assailant 97 Jury questions - Motor vehicle assault 95 Jury questions - Public servants 96 Jury questions - Self defense 98

Jury questions - Serious bodily injury 93 Knives as deadly weapons 28-30, 80 Knives as deadly weapons - In general 28 Knives as deadly weapons - Sufficiency of evidence 80 Knives as deadly weapons - Use 29 Knives as deadly weapons - Wounds inflicted 30 Knowledge, public servants 39 Knowledge, sufficiency of evidence 84 Lawfulness, public servants 41 Lawfulness, sufficiency of evidence 86 Lesser included offenses, generally 51 Lesser included offenses, indictment, information, or complaint, indictment, information or complaint 49 Misdemeanor assault, instructions 121 Motor vehicle assault Motor vehicle assault - In general 34 Motor vehicle assault - Cause of injury 36 Motor vehicle assault - Indictment, information, or complaint, indictment, information or complaint 47 Motor vehicle assault - Instructions 106 Motor vehicle assault - Jury questions 95 Motor vehicle assault - Passengers 37 Motor vehicle assault - Recklessness 35 Motor vehicle assault - Sufficiency of evidence 82 Motor vehicles as deadly weapons 31-33, 81 Motor vehicles as deadly weapons - In general 31 Motor vehicles as deadly weapons - Sufficiency of evidence 81 Motor vehicles as deadly weapons - Use 32 Motor vehicles as deadly weapons - Wounds inflicted 33

Multiple assailants, instructions 116 Mutual combat, instructions 119 Mutual combat, self defense 65 New trial 91.5 Parties 53 Passengers, motor vehicle assault 37 Plastic bag, deadly weapon 22.5 Presumptions and burden of proof 55 Prior conviction, instructions 114.5 Protection of property, defenses 58 Protection of property, instructions 110 Provocation by accused, instructions 117 Provocation by accused, self defense 63 Public servants Public servants - In general 38 Public servants - Discharge of duties 40 Public servants - Generally, sufficiency of evidence 83 Public servants - Indictment, information, or complaint, indictment, information or complaint 48 Public servants - Instructions 107 Public servants - Jury questions 96 Public servants - Knowledge 39 Public servants - Lawfulness 41 Punishment, instructions 114 Reasonable belief, instructions 113 Reasonable belief, self defense 62 Recklessness, culpable mental state 9 Recklessness, instructions 100.5 Recklessness, motor vehicle assault 35

Review, sufficiency of evidence 91 Risk of death, serious bodily injury 14 Risk of death, sufficiency of evidence 73 Self defense 61-65, 98 Self defense - In general 61 Self defense - Jury questions 98 Self defense - Mutual combat 65 Self defense - Provocation by accused 63 Self defense - Reasonable belief 62 Self defense - Verbal provocation by victim 64 Self-defense, generally, instructions 112 Sentence and punishment 124 Serious bodily injury Serious bodily injury - In general 13 Serious bodily injury - Disfigurement 15 Serious bodily injury - Generally, sufficiency of evidence 72 Serious bodily injury - Impairment of function 16 Serious bodily injury - Indictment, information, or complaint, indictment, information or complaint 44 Serious bodily injury - Instructions 103 Serious bodily injury - Jury questions 93 Serious bodily injury - Risk of death 14 Sufficiency of evidence 67-91 Sufficiency of evidence - In general 67 Sufficiency of evidence - Aggravated assault as lesser included offense 89 Sufficiency of evidence - Bodily injury 69 Sufficiency of evidence - Cause of injury 70 Sufficiency of evidence - Clubs as deadly weapons 77 Sufficiency of evidence - Culpable mental state 68

Sufficiency of evidence - Deadly weapon, generally 76 Sufficiency of evidence - Defenses, generally 88 Sufficiency of evidence - Discharge of duties 85 Sufficiency of evidence - Disfigurement 74 Sufficiency of evidence - Expert testimony 90 Sufficiency of evidence - Firearms as deadly weapons 78 Sufficiency of evidence - Fists or hands as deadly weapons 79 Sufficiency of evidence - Identity of assailant 87 Sufficiency of evidence - Impairment of function 75 Sufficiency of evidence - Knives as deadly weapons 80 Sufficiency of evidence - Knowledge 84 Sufficiency of evidence - Lawfulness 86 Sufficiency of evidence - Motor vehicle assault 82 Sufficiency of evidence - Motor vehicles as deadly weapons 81 Sufficiency of evidence - Public servants, generally 83 Sufficiency of evidence - Review 91 Sufficiency of evidence - Risk of death 73 Sufficiency of evidence - Serious bodily injury, generally 72 Sufficiency of evidence - Threat of imminent bodily injury 71 Terroristic threat as lesser included offense, instructions 120.5 Threat of imminent bodily injury Threat of imminent bodily injury - In general 10 Threat of imminent bodily injury - Deadly weapons 12 Threat of imminent bodily injury - Indictment, information, or complaint, indictment, information or complaint 45 Threat of imminent bodily injury - Injury to victim 11 Threat of imminent bodily injury - Instructions 102 Threat of imminent bodily injury - Sufficiency of evidence 71 Use, firearms as deadly weapons 24

Use, knives as deadly weapons 29 Use, motor vehicles as deadly weapons 32 Validity 1 Verbal provocation by victim, instructions 118 Verbal provocation by victim, self defense 64 Verdict 123 Voluntary intoxication, instructions 109 Waiver 125 Wounds inflicted, firearms as deadly weapons 27 Wounds inflicted, generally, deadly weapon 19 Wounds inflicted, knives as deadly weapons 30 Wounds inflicted, motor vehicles as deadly weapons 33

1. Validity Terms "physical pain" "illness" and "impairment of physical condition" as used in subsec. (a)(7) of � 1.07 defining what is meant by phrase "bodily injury" as used in provision of this section stating that person commits aggravated assault when he causes bodily injury to peace officer in lawful discharge of official duty are terms of common usage and, when construed according to fair import of their terms, are not so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application, so that this section is not unconstitutional on ground that it is so vague as to be violative of due process. Ramirez v. State (Cr.App. 1975) 518 S.W.2d 546. Assault And Battery 54; Constitutional Law 258(3.1) Rational connection or nexus between legislative goal of insuring safety of peace officers and statutory means chosen to effectuate this end exists, and thus this section denominating offense of aggravated assault on a peace officer as a thirddegree felony did not deny equal protection to defendant, who contended that statute did not advance a "compelling governmental interest" by increasing range of punishment for otherwise misdemeanor offense merely because victim was peace officer. Williams v. State (Cr.App. 1979) 588 S.W.2d 593. Assault And Battery 48; Constitutional Law 250.1(2) This section which denominates offense of aggravated assault on peace officer as third-degree felony, thus categorizing peace officers as class of assaulted victims with respect to whom a higher penalty is imposed for offense committed against class member by person who is otherwise legally responsible for his criminal conduct, does not offend equal protection clause or any provision of bill of rights in the Texas Constitution. Williams v. State (Cr.App. 1979) 588 S.W.2d 593. Assault And Battery 48; Constitutional Law 250.1(2)

Limitation of the right of self-defense against an unlawful arrest is a necessary complement to statute defining crime of aggravated assault on a police officer and is a reasonable and legitimate exercise of police power, and thus assault statute is not unconstitutional, despite claim that requiring an arrestee to await actual use of greater force by a police officer than necessary to effect an illegal arrest before arrestee can defend against such arrest is violative of equal protection rights afforded by Fourteenth Amendment of the United States Constitution. Salinas v. State (App. 13 Dist. 1985) 687 S.W.2d 67. Assault And Battery 67; Constitutional Law 81; Constitutional Law 250.2(1) Defendant was not denied due process when convicted under this section providing same penalty for threatening police officer with deadly weapon and causing bodily injury to police officer, on grounds that under � 15.01 attempts carried less penalty than completed offense; this section was clear on its face and defendant offered no cohesive or persuasive argument to support reading of � 15.01 instead of or in conjunction with this section. Damian v. State (App. 14 Dist. 1989) 776 S.W.2d 659, petition for discretionary review refused. Constitutional Law 258(3.1); Assault And Battery 54 Statutory amendment which elevated classification of offense of aggravated assault from third-degree felony to second-degree felony was not unconstitutional, either on its face or as applied to defendant who had fired deadly weapon at carload of people. Morales v. State (App. 13 Dist. 1997) 951 S.W.2d 59, rehearing overruled. Assault And Battery 60 Statutory amendment which elevated classification of offense of aggravated assault from third-degree felony to second-degree felony did not violate Equal Protection Clause. Nieto v. State (App. 10 Dist. 1999) 990 S.W.2d 874, petition for discretionary review refused. Assault And Battery 60; Constitutional Law 250.1(2) Statute prescribing offense of aggravated assault, to which defendant pled guilty, was not void, and thus original plea proceeding to aggravated assault was not void and defendant could not appeal issues relating to plea proceeding; defendant's complaint concerned procedural rule governing how and when judgment could be rendered on plea, not rule governing offense. Garza v. State (App. 1 Dist. 2002) 2002 WL 31429799, Unreported, petition for discretionary review refused. Criminal Law 1026.10(4) 2. In general Word "and," as used in statute providing that person commits offense of aggravated assault if he or she commits simple assault and uses deadly weapon during commission thereof, has same meaning as phrases "as well as" and "at the same time." Wade v. State (App. 10 Dist. 1997) 951 S.W.2d 886, petition for discretionary review refused. Statutes setting forth offenses of aggravated assault with serious bodily injury and intoxication assault were not in pari materia, and thus state was not required to prosecute defendant under the more specific provision for intoxication assault, but instead had discretion as to which offense to prosecute, though both statutes shared element that defendant's actions cause serious bodily injury to another; provisions did not apply to same class of people, were designed to serve different purposes, appeared in different chapters of Penal Code, and were not intended to be considered together. Burke v. State (Cr.App. 2000) 28 S.W.3d 545, on remand 80 S.W.3d 82. Criminal Law 29(9); Statutes 223.2(35)

3. Construction with other law Offenses of reckless aggravated assault with serious bodily injury and intoxication assault were "same offense" for double jeopardy purposes, where both offenses arose from single traffic accident involving single victim; thus, imposing convictions for both offenses violated due process and due course of law, even though sentences were concurrent. Burke v. State (App. 2 Dist. 1999) 6 S.W.3d 312, petition for discretionary review granted, vacated 28 S.W.3d 545, on remand 80 S.W.3d 82. Double Jeopardy 141 False arrest claim arising from arrest that allegedly occurred when arrestee had confrontation with police officer and others at county jail was barred by arrestee's conviction for aggravated assault of officer, which necessarily implied that probable cause existed for arrest at that time. Sappington v. Bartee, C.A.5 (Tex.)1999, 195 F.3d 234. False Imprisonment 7(5); False Imprisonment 13 Existence of Vernon's Ann.P.C. (1925) art. 1148a pertaining to the offense of intentional infliction of physical injury on children 14 years of age or younger did not bar conviction of defendant for castration under Vernon's Ann.P.C. (1925) art. 1168, even though defendant's victim was a child. Crocker v. State (Cr.App. 1978) 573 S.W.2d 190. Criminal Law 29(12) Offense of aggravated assault is clearly distinguishable from offense of resisting arrest, so that, in context of peace officer's attempt to arrest an actor, two statutes do not describe and make punishable same conduct. Milligan v. State (App. 11 Dist. 1993) 859 S.W.2d 117, rehearing denied, petition for discretionary review refused. Criminal Law 29(9) Prosecutor had discretion to prosecute defendant either under resisting arrest statute or aggravated assault of police officer statute, as neither statute was a special statute and both were aimed at different aspects of criminal activity that might occur in single transaction. Milligan v. State (App. 11 Dist. 1993) 859 S.W.2d 117, rehearing denied, petition for discretionary review refused. Criminal Law 29(9) Statute defining aggravated assault on a peace officer was constitutional as applied to defendant despite his contention that his conduct also violated resisting arrest statute. Milligan v. State (App. 11 Dist. 1993) 859 S.W.2d 117, rehearing denied, petition for discretionary review refused. Assault And Battery 48 City ordinance making it illegal to, in any manner oppose, molest, abuse or interrupt a police officer in the execution of his duty, which also made it unlawful for any person to "assault" or "strike" such a police officer, was partially preempted by V.T.C.A., Penal Code �� 22.01 and 22.02, prohibiting assault and aggravated assault. City of Houston, Tex. v. Hill, U.S.Tex.1987, 107 S.Ct. 2502, 482 U.S. 451, 96 L.Ed.2d 398. Municipal Corporations 592(1) Ordinance punishing negligent collision with motor vehicle was not in conflict with statute making negligent collision with person aggravated assault. Ex parte Mooney (Cr.App. 1927) 106 Tex.Crim. 156, 291 S.W. 246. Automobiles 318 There were no factors leading to conclusion that Legislature did not intend to permit multiple punishments for aggravated kidnapping and aggravated assault convictions arising out of same criminal transaction; aggravated kidnapping was

first-degree felony, while aggravated assault was second-degree, offenses were not contained in same statute, were not phrased in alternative, were not similarly named, and the gravamen of the offenses were not the same. Hawkins v. State (App. 7 Dist. 2003) 2003 WL 1561942, Unreported, petition stricken, petition for discretionary review refused. Criminal Law 29(13) 4. Effect of former penal code Conduct proscribed by subd. (4) of Vernon's Ann.P.C. (1925) art. 1147 (now, this section), under which defendant was charged and convicted of aggravated assault, also constituted an offense under the assault section of the new Penal Code, despite contention that savings provision of new Penal Code required that information be dismissed. Moore v. State (Cr.App. 1975) 530 S.W.2d 314. Assault And Battery 54 Prior judicial opinions on meaning of "deadly weapon" do have instructional significance under new Penal Code, particularly in view of fact that legislature apparently codified prior case law definition of the term. Mosley v. State (Cr.App. 1976) 545 S.W.2d 144. Assault And Battery 56 5. Double jeopardy Appellate brief sufficiently raised claim that conviction for both reckless aggravated assault with serious bodily injury and intoxication assault violated double jeopardy, even though defendant phrased his issues as due course of law and due process violations, rather than as double jeopardy violation. Burke v. State (App. 2 Dist. 1999) 6 S.W.3d 312, petition for discretionary review granted, vacated 28 S.W.3d 545, on remand 80 S.W.3d 82. Criminal Law 1130(2) Defendant did not waive appellate review of claim that double jeopardy precluded convictions for both reckless aggravated assault with serious bodily injury and intoxication assault; even though he did not object at trial on double jeopardy grounds, he did raise issue in motion for new trial, and thus, trial court had opportunity to rule on that complaint. Burke v. State (App. 2 Dist. 1999) 6 S.W.3d 312, petition for discretionary review granted, vacated 28 S.W.3d 545, on remand 80 S.W.3d 82. Criminal Law 1030(2); Criminal Law 1064(1) Proper remedy for double jeopardy violation arising from convictions for both reckless aggravated assault with serious bodily injury and intoxication assault, both emanating from single traffic accident involving single victim, was to vacate conviction for reckless aggravated assault and affirm conviction for intoxication assault; former offense was general and latter was specific, and prayer for relief in state's original brief asked that intoxication assault conviction be affirmed if court determined that reckless aggravated assault conviction were improper. Burke v. State (App. 2 Dist. 1999) 6 S.W.3d 312, petition for discretionary review granted, vacated 28 S.W.3d 545, on remand 80 S.W.3d 82. Double Jeopardy 141 Defendant convicted of aggravated kidnapping and aggravated assault was not tried and convicted of the "same offense" for double jeopardy purposes; abduction was not an element of aggravated assault and use or exhibit of a deadly weapon was not an element of aggravated kidnapping as alleged. Duvall v. State (App. 3 Dist. 2001) 59 S.W.3d 773, petition for discretionary review refused. Double Jeopardy 149

Convictions for aggravated assault and criminal mischief, arising out of same incident in which defendant attempted to back stolen semi-trailer tractor over police car, did not implicate double jeopardy, where each offense contained element the other did not; aggravated assault required proof that individual was threatened with imminent bodily injury, that deadly weapon was displayed or used during the assault, and that offense was committed against a public servant while servant was lawfully discharging official duty, which criminal mischief did not, and criminal mischief required proof of damage to tangible property without effective consent of owner, which aggravated assault did not. Mallett v. State (Cr.App. 2001) 65 S.W.3d 59, on remand 2003 WL 367564. Double Jeopardy 141 Offense of deadly conduct based on discharge of a firearm at, or in direction of, one or more individuals was lesser included offense of aggravated assault for purposes of double jeopardy claim because elements required to prove deadly conduct were same as elements required for aggravated assault; both offenses required showing that defendant acted knowingly and evidence that defendant shot gun in direction of group of persons and hit one person causing him bodily injury proved both aggravated assault and deadly conduct. Honeycutt v. State (App. 4 Dist. 2002) 82 S.W.3d 545, petition for discretionary review refused. Double Jeopardy 162 Defendant's convictions for arson and aggravated assault with a deadly weapon did not subject defendant to multiple punishments for same offense to constitute double jeopardy violation, even though defendant claimed bodily injury allegation that was used to increase punishment level of arson charge, was same criminal act used to charge aggravated assault; element of arson was starting a fire and offense of aggravated assault did not contain such element, and aggravated assault was an offense against person while arson was an offense against property. Anderson v. State (App. 10 Dist. 2003) 2003 WL 21666093, Unreported, petition for discretionary review refused, certiorari denied 124 S.Ct. 2420, 541 U.S. 1077, 158 L.Ed.2d 989. Double Jeopardy 141 No double jeopardy violation occurred due to defendant's prosecution for aggravated assault on a peace officer and subsequent prosecution for unauthorized use of vehicle; aggravated assault on a peace officer and unauthorized use of a motor vehicle shared none of the same elements, and the two offenses involves separate and distinct acts. Barnes v. State (App. 5 Dist. 2003) 2003 WL 1090475, Unreported, petition stricken, petition for discretionary review refused. Double Jeopardy 141 Offenses of aggravated kidnapping and aggravated assault each contained unique element, and thus double jeopardy did not prevent multiple punishments for aggravated kidnapping and aggravated assault convictions arising out of same criminal transaction; abduction was element of aggravated kidnapping but not aggravated assault, and causing, or threatening to cause, bodily injury was element of aggravated assault but not aggravated kidnapping. Hawkins v. State (App. 7 Dist. 2003) 2003 WL 1561942, Unreported, petition stricken, petition for discretionary review refused. Double Jeopardy 149 Conviction for intoxication assault required vacation under principles of double jeopardy, where defendant was convicted of both intoxication assault and aggravated assault in a case involving the same accident and the same victim, and the most serious punishment was imposed for the aggravated assault conviction. Sylva v. State (App. 13 Dist. 2004) 2004 WL 42370, Unreported, petition for discretionary review refused. Double Jeopardy 141 6. Elements of offense, generally

Any circumstances of aggravation in the manner or character of the assault or battery, by which it exceeds the incidents or consequences of a common assault or battery, will render the assault of an aggravated nature. Norton v. State (1855) 14 Tex. 387. Throwing refuse of slaughterhouse in face of employee constituted aggravated assault and battery. Indemnity Ins. Co. of North America v. Scott (Civ.App. 1925) 278 S.W. 347, error granted, affirmed 298 S.W. 414. Assault And Battery 54 Voluntary assault with instrument capable of producing death, where there were no extenuating circumstances, was "assault with intent to murder." Rose v. State (Cr.App. 1933) 123 Tex.Crim. 261, 58 S.W.2d 526. Homicide 725 Death of victim was not essential element of offense of assault to murder with malice. Rawlins v. State (Cr.App. 1971) 466 S.W.2d 308. Homicide 725 Person commits aggravated assault under subd. (a)(1) of this section when he intentionally, knowingly, or recklessly causes serious bodily injury to another. Boney v. State (Cr.App. 1978) 572 S.W.2d 529. Assault And Battery 54 Testimony by defendant's wife that she was shot by defendant in the hand, the mouth, the head, and the lung contained all of the elements necessary to prove offenses of aggravated assault and attempted murder alleged in the indictment. Pereida v. State (App. 13 Dist. 1985) 694 S.W.2d 371. Assault And Battery 91.6(3); Homicide 1168 The State no longer must prove the ability to commit a battery for an accused to be convicted of assault. Miller v. State (App. 13 Dist. 1987) 741 S.W.2d 501, petition for discretionary review refused. To gain conviction for aggravated assault, state was required to prove that defendant intentionally or knowingly threatened victim with imminent bodily injury and exhibited deadly weapon during episode. Villatoro v. State (App. 7 Dist. 1995) 897 S.W.2d 943, petition for discretionary review refused. Assault And Battery 54 Aggravated assault is committed if person commits assault and uses deadly weapon. Castillo v. State (App. 14 Dist. 1995) 899 S.W.2d 391. Assault And Battery 56 Trial court's failure to make affirmative deadly-weapon finding in judgment of conviction for aggravated assault following plea agreement did not render judgment and sentence void, despite defendant's claim that absence of affirmative deadlyweapon finding "removed" an essential element of the charged offense; indictment clearly charged offense of aggravated assault, defendant judicially confessed to committing aggravated assault, and any deadly-weapon finding was relevant only to the punishment to be imposed, not to the existence of an essential element charged by the indictment. Hoang v. State (App. 5 Dist. 2004) 2004 WL 1472221, Unreported. Criminal Law 995(3) 7. Culpable mental state--In general To strike one so that he falls fracturing his skull is not aggravated assault. Calvert v. State (Cr.App. 1914) 75 Tex.Crim. 229, 170 S.W. 744. One who shot and wounded an officer believing that he was attempting to rob him,

is not guilty of assault with intent to murder, or even of an aggravated assault. Walker v. State (Cr.App. 1921) 90 Tex.Crim. 56, 232 S.W. 509. Assault And Battery 69 Offense of castration was not reduced to lower degree of assault, because of anger, rage, or excitement of accused at time. Ramirez v. State (Cr.App. 1931) 119 Tex.Crim. 362, 40 S.W.2d 138, certiorari denied 52 S.Ct. 36, 284 U.S. 659, 76 L.Ed. 558. Mayhem 1 Person commits aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another. Sledge v. State (App. 5 Dist. 1993) 860 S.W.2d 710, petition for discretionary review refused. Assault And Battery 54 In prosecution for aggravated assault with deadly weapon, state was not required to prove culpable mental state in connection with aggravating element of use of deadly weapon; culpable mental states of intent, knowledge, and recklessness relate to assault element of causing bodily injury to another, and second culpable mental state is not required to be included with deadly weapon element. Butler v. State (App. 2 Dist. 1996) 928 S.W.2d 286, rehearing overruled, petition for discretionary review refused. Assault And Battery 56 Evidence was legally and factually sufficient to support defendant's conviction for aggravated assault; defendant's oral responses to court's questions at plea hearing in which defendant admitted criminal participation was judicial confession of guilt. Honeycutt v. State (App. 4 Dist. 2002) 82 S.W.3d 545, petition for discretionary review refused. Criminal Law 538(3) In prosecution for aggravated assault, trial court acted within its discretion in excluding evidence of troubled marital relationship between defendant and alleged victim, despite defendant's claim that such evidence was probative of his state of mind and motivation for his actions; defendant's state of mind and motivation were irrelevant to his culpability for the offense of aggravated assault. Novillo v. State (App. 3 Dist. 2004) 2004 WL 1264299, Unreported. Criminal Law 341 8. ---- Intent, culpable mental state If the assault was voluntary, committed with deliberate design, and with an instrument capable of producing death, in such manner as evidenced an intention to take life, and there were no extenuating circumstances, it was an assault with intent to murder. Yanez v. State (1858) 20 Tex. 656. Where collision between defendant's automobile and that in which injured party was riding was an accident brought about by defendant's negligence and without intent to commit an assault, there could have been no conviction under former statute which defined assault and battery. Coffey v. State (Cr.App. 1917) 82 Tex.Crim. 481, 200 S.W. 384. Automobiles 319 Where accused shot at an automobile and seriously injured an occupant, it was not necessary for accused to have entertained the specific intent to kill in order to make him guilty of assault, as one who shoots wantonly and recklessly into a car or building known to him to be occupied need not have the specific intent to kill any particular person in order to make him guilty of murder. Salisbury v. State (Cr.App. 1921) 90 Tex.Crim. 438, 235 S.W. 901. Assault And Battery 49 One intentionally inflicting injuries without specific intent to kill would be guilty of no greater offense than aggravated assault. Black v. State (Cr.App.

1939) 137 Tex.Crim. 516, 132 S.W.2d 267. Assault And Battery

54

A voluntary assault, committed with deliberate design to kill and with instrument capable of producing death was "assault with intent to murder", in absence of extenuating circumstances. Watts v. State (Cr.App. 1947) 151 Tex.Crim. 349, 207 S.W.2d 94. Homicide 725 9. ---- Recklessness, culpable mental state Where defendant fired into a small room packed with people in reckless disregard of human life, with intent to kill some one, and did shoot some one, his conviction of assault to murder was proper. Williams v. State (Cr.App. 1915) 77 Tex.Crim. 563, 179 S.W. 710. Homicide 727 A person's driving of automobile in manner showing reckless disregard for life of one run upon or over thereby shows evil disposition warranting inference that driver intended natural or probable consequences of his act on his trial for assault with intent to murder. Duhon v. State (Cr.App. 1939) 136 Tex.Crim. 404, 125 S.W.2d 550. Automobiles 353(13); Automobiles 353(13); Automobiles 353(13) Failure to request a lesser included offense instruction in the jury instruction on aggravated assault precluded State from asserting on appeal culpable mental state of recklessness that was not alleged in the indictment. Reed v. State (Cr.App. 2003) 117 S.W.3d 260, on remand 2004 WL 225547. Criminal Law 1032(5) 10. Threat of imminent bodily injury--In general One who calls another a liar, and picks up his gun, was not conclusively guilty of an assault with intent to murder. Stevens v. State (Cr.App. 1898) 38 Tex.Crim. 550, 43 S.W. 1005. Homicide 734 In prosecution for aggravated assault, evidence that victim was bystander who was struck by stray bullet aimed by defendant at third party and which did not establish that defendant threatened bystander with imminent bodily injury was insufficient to support conviction. Benjamin v. State (Cr.App. 1981) 621 S.W.2d 617. Assault And Battery 91.6(3) In order to prove assault by verbal threats, State had to show that defendant threatened police officer with imminent bodily injury. Hill v. State (App. 11 Dist. 1992) 844 S.W.2d 937. Assault And Battery 48 Showing of "imminent" bodily injury as required to prove assault by verbal threats means a danger which must be instantly met and which is near at hand, in that it is on the verge of happening. Hill v. State (App. 11 Dist. 1992) 844 S.W.2d 937. Assault And Battery 48 To constitute offense under statute providing that person who intentionally or knowingly threatens another with imminent bodily injury commits aggravated assault, threats may be conveyed by action as well as words. De Leon v. State (App. 13 Dist. 1993) 865 S.W.2d 139. Assault And Battery 54 11. ---- Injury to victim, threat of imminent bodily injury

Mere fact that defendant allegedly actually stabbed victim did not mean that victim could not also have suffered threat of imminent bodily injury. Horn v. State (Cr.App. 1983) 647 S.W.2d 283. Assault And Battery 58 Evidence of actual bodily injury to victim is insufficient to support indictment allegation that defendant "threatened" victim, in aggravated assault prosecution. Tullos v. State (App. 13 Dist. 1985) 698 S.W.2d 488, petition for discretionary review refused. Assault And Battery 91.4 12. ---- Deadly weapons, threat of imminent bodily injury If the weapon as used was calculated to alarm, it was immaterial that it did not, in fact, alarm the party threatened. Coker v. State (App. 1886) 2 S.W. 615. Where defendant and his brother, being armed with rifles, intercepted an editor on the public road, and demanded a written retraction of an article reflecting on defendant's brother, the editor hesitated, defendant threw a shell into his rifle, and the retraction was signed, the offense of assault was complete. Ray v. State (Cr.App. 1893) 21 S.W. 540. Assault And Battery 56 Where defendant, armed with a knife, advanced in an angry and threatening manner with intent to alarm the injured party, he was guilty of an assault. Atteberry v. State (Cr.App. 1894) 33 Tex.Crim. 88, 25 S.W. 125. Assault And Battery 53 Shooting to frighten or to inflict injury without killing is an aggravated assault. Young v. State (Cr.App. 1912) 68 Tex.Crim. 580, 151 S.W. 1046. Homicide 727 One who shot into the back of an automobile to scare and not to kill, could be guilty of an aggravated assault, under Rev.P.C.1911, art. 1013 (now, � 22.01 and this section). Salisbury v. State (Cr.App. 1921) 90 Tex.Crim. 438, 235 S.W. 901. Assault And Battery 54 Where defendant appeared, unauthorized, late at night, in back of freezer of restaurant holding a shotgun, and where he put one hand over victim's mouth while holding shotgun in other hand, in close proximity to victim's body, fears of victim, who stated that she felt threatened with imminent bodily injury, were reasonable and justified under circumstances. Gaston v. State (App. 5 Dist. 1983) 672 S.W.2d 819. Assault And Battery 56 A person commits aggravated assault if the person intelligently or knowingly threatens with a deadly weapon a peace officer who is acting in the lawful discharge of an official duty. Torres v. State (App. 2 Dist. 1995) 905 S.W.2d 440. Assault And Battery 54 Evidence was insufficient to show that baseball bat juvenile was carrying when she approached victim was used in manner capable of causing death or serious bodily injury, and thus, bat was not deadly weapon, as required to support adjudication for aggravated assault by threat, despite evidence that juvenile held bat up over shoulder; juvenile was not within striking distance of victim, juvenile never swung bat at victim, and victim never felt threatened with imminent bodily injury. In re S.B. (App. 2 Dist. 2003) 117 S.W.3d 443. Assault And Battery 56; Infants 153

13. Serious bodily injury--In general "Serious bodily injury", showing that assault on injured person was aggravated, means injury giving rise to apprehension of danger to life, health or limb. Gonzales v. State (1943) 146 Tex.Crim. 108, 172 S.W.2d 97; Svidlow v. State (1922) 90 Tex.Crim. 510, 236 S.W. 101; Cain v. State (1940) 138 Tex.Crim. 573, 138 S.W.2d 102; Silva v. State (1949) 152 Tex.Crim. 545, 215 S.W.2d 887. Evidence of employee team leader's assault on employee fast-food worker would not establish aggravated sexual assault or aggravated assault, although team leader pushed worker against restroom wall, pulled down her pants, and attempted to have sexual intercourse with her. Valdez v. Church's Fried Chicken, Inc., W.D.Tex.1988, 683 F.Supp. 596. Assault And Battery 54 The injury and not the means was the criterion by which the aggravation was determined. Hyde v. State (Cr.App. 1914) 74 Tex.Crim. 480, 168 S.W. 535. Defendant who twice struck the prosecuting witness in the jaw with his fists, knocking him down, without causing serious bodily injury and without causing an abrasion of the skin, was not guilty of aggravated assault by premeditated design and by a use of means calculated to inflict serious bodily injury. Adair v. State (Cr.App. 1920) 88 Tex.Crim. 254, 226 S.W. 413. Assault And Battery 54 Where nowhere in hospital records admitted or in victim's own testimony was there any evidence that victim's injuries created substantial risk of death nor was there any evidence of permanent disfigurement, and since victim's own testimony as to his temporary amnesia was itself insufficient to show any "protracted loss or impairment" of any bodily member or organ, it was highly questionable that evidence was sufficient to show serious bodily injury necessary to constitute charged felony of aggravated assault, and thus trial court should have withdrawn defendants' guilty pleas on its own motion. Sanchez v. State (Cr.App. 1976) 543 S.W.2d 132. Criminal Law 274(8) Although ample evidence was presented to support verdict of guilt of aggravated assault by use of deadly weapon, evidence was insufficient to prove serious bodily injury of complainant who was shot in buttocks, back, and thigh; complaining witness never testified to extent of his injuries, nor was any evidence shown in medical records that those injuries created substantial risk of death, or caused death, permanent disfigurement, or protracted loss or impairment of functions of any bodily member or organ. Williams v. State (Cr.App. 1985) 696 S.W.2d 896. Assault And Battery 91.7 What facts constitute a serious bodily injury, within meaning of aggravated assault statute, can only be determined on ad hoc basis. Madden v. State (App. 10 Dist. 1995) 911 S.W.2d 236, petition for discretionary review refused. Assault And Battery 54 Whether injury is serious bodily injury, required for aggravated assault against public servant conviction, is determined on an ad hoc basis. McCoy v. State (App. 2 Dist. 1996) 932 S.W.2d 720, petition for discretionary review refused. Assault And Battery 54 Whether an injury constitutes serious bodily injury for aggravated assault purposes must be determined on a case-by-case basis. Nash v. State (App. 2 Dist. 2003) 123 S.W.3d 534, rehearing overruled, petition for discretionary review refused. Assault And Battery 54

14. ---- Risk of death, serious bodily injury Death is a "serious injury". Thompson v. State (Cr.App. 1942) 144 Tex.Crim. 321, 162 S.W.2d 728. In regard to charge of aggravated assault arising from infliction of serious bodily injury, an injury, to constitute a serious bodily injury, must be grave, not trivial, and must give rise to apprehension of danger to life, health, or limb, but it is not required that the injury be such as may result in death. Jackson v. State (Cr.App. 1959) 168 Tex.Crim. 51, 323 S.W.2d 442. Assault And Battery 54 Defendant, who inflicted two nearly perpendicular stab wounds in spine of victim so that knife transgressed bony canal that surrounds spinal canal and also the covering of spinal cord itself, and so that tip of blade was found nearly four and one half inches deep within victim's body causing serious injury from which paralysis or death might be expected, was guilty of assault with intent to murder with malice. Washington v. State (Cr.App. 1971) 471 S.W.2d 409. Homicide 732 Basilar skull fracture was given evidence that one in entailing substantial risk deteriorate to meningitis. Assault And Battery 54 serious bodily injury for purposes of this section four persons suffering such injury contracts meningitis of death, regardless of fact that injury did not Goodman v. State (App. 14 Dist. 1986) 710 S.W.2d 169.

15. ---- Disfigurement, serious bodily injury "Serious bodily injury" was such as gave rise to apprehension, an injury which was attended with danger; biting off a small portion of the rim of the ear was not inflicting serious bodily injury. George v. State (1891) 21 Tex.Crim. 315, 17 S.W. 351; Halsell v. State (1892) 29 Tex.Crim. 22, 18 S.W. 418. Where the entire ear had been removed from the head of the injured party during fight with defendant, the injury was in fact a "serious bodily injury", and failure to define that term in criminal prosecution was not reversible error. Abercrombie v. State (Cr.App. 1951) 156 Tex.Crim. 547, 244 S.W.2d 512. Criminal Law 1173.2(2) Fractured nose constituted serious bodily injury for purposes of this section, regardless of fact that bone was set and disfigurement or impairment of function did not result. Goodman v. State (App. 14 Dist. 1986) 710 S.W.2d 169. Assault And Battery 54 "Serious bodily injury" required for aggravated assault conviction means bodily injury that causes serious permanent disfigurement. Sabedra v. State (App. 13 Dist. 1992) 838 S.W.2d 761, rehearing overruled, petition for discretionary review refused. Assault And Battery 54 16. ---- Impairment of function, serious bodily injury Serious bodily injury, relied on in a prosecution for aggravated assault, is supported by proof that the injuries inflicted on the assaulted stiffened one of

his fingers. Branch v. State (Cr.App. 1895) 35 Tex.Crim. 304, 33 S.W. 356. Assault And Battery 91.7 A dislocation of complaining witness' shoulder inflicted by defendant while forcibly putting him out of a door in the post office, which hurt a great deal, required a sling for several weeks, and continued to hurt at trial six months later, which had been put in place while complainant was under anesthetics, and which, while not necessarily permanent, would expose the joint to greater chance of a subsequent dislocation, was a serious injury. Robey v. State (Cr.App. 1913) 73 Tex.Crim. 9, 163 S.W. 713. Serious bodily injury relied on to support conviction for aggravated assault may be shown by proof that the assaulted person suffered from a blow on the head after the external effects had disappeared. Tucker v. State (Cr.App. 1922) 91 Tex.Crim. 538, 239 S.W. 978. Assault And Battery 91.7 Evidence that injuries resulting from an assault consisted of bruises and abrasions on the head, which injuries did not cause incapacitation, was insufficient to establish infliction of a "serious bodily injury" justifying conviction for aggravated assault. Cain v. State (Cr.App. 1940) 138 Tex.Crim. 573, 138 S.W.2d 102. Assault And Battery 91.7 Where defendant knew that another person was wearing eyeglasses and deliberately struck him in the eye, as result of which eye was destroyed, though all that such other person was trying to do was to prevent defendant and his companion from assaulting a third person, defendant was properly convicted of willful or malicious maiming. Corson v. State (Cr.App. 1945) 148 Tex.Crim. 630, 190 S.W.2d 726. Mayhem 1 Injury to assault victim, who suffered broken finger and two black eyes, incurred total medical expenses of $400 to $500, and still had some dysfunction in broken finger nearly three and a half months after assault, constituted protracted loss or impairment of function of a bodily member satisfying definition of serious bodily injury required for aggravated assault. Allen v. State (App. 13 Dist. 1987) 736 S.W.2d 225, petition for discretionary review refused. Assault And Battery 54 Victim suffered serious bodily injury, within meaning of aggravated assault statute, where he suffered a protracted impairment of a bodily member; victim was shot in the hip with a .45 caliber handgun, was hospitalized for day and a half, could not walk for a month after the shooting, and had permanent scar tissue where bullet entered and exited his body. Madden v. State (App. 10 Dist. 1995) 911 S.W.2d 236, petition for discretionary review refused. Assault And Battery 54 Evidence was sufficient to show that sister of defendant's ex-wife suffered severe bodily injury during assault, in order to sustain conviction for aggravated assault; injury from cut to finger prevented her from closing hand and caused pain throughout entire arm, injury prevented her from performing household activities, and it continued to affect her six months after assault. Nunez v. State (App. 13 Dist. 2003) 117 S.W.3d 309, rehearing overruled. Assault And Battery 91.7 17. Deadly weapon--In general To make the throwing of a hot coffee pot on a person an aggravated assault, it must have been thrown so as to make it a deadly weapon or it must have inflicted serious bodily injury. Clark v. State (1911) 63 Tex.Crim. 579, 140 S.W. 779; Bagley v. State (1912) 67 Tex.Crim. 574, 150 S.W. 773; Shelton v. State (1912) 68

Tex.Crim. 124, 150 S.W. 940. An assault with a deadly weapon is necessarily an aggravated assault. Johnson v. State (1913) 70 Tex.Crim. 294, 156 S.W. 1164; Hunt v. State (1879) 6 Tex.Crim. 663. The desire to kill is not proof that the weapon was "deadly". Pleasant v. State (1940) 140 Tex.Crim. 267, 144 S.W.2d 545; Ammann v. State (1942) 145 Tex.Crim. 34, 165 S.W.2d 744. An unlawful assault with a deadly weapon, not in self-defense, is aggravated assault. Hamilton v. State (Cr.App. 1910) 60 Tex.Crim. 258, 131 S.W. 1127. Assault And Battery 54; Assault And Battery 56 The word "instrument" included any means by which one could disfigure, such as carbolic acid. Lee v. State (Cr.App. 1912) 66 Tex.Crim. 567, 148 S.W. 567. Mere presence of deadly weapon, under proper circumstances, can be enough to instill fear and threaten person with bodily injury, for purposes of aggravated assault statute. De Leon v. State (App. 13 Dist. 1993) 865 S.W.2d 139. Assault And Battery 56 Intent to cause death or serious bodily injury need not be proved to sustain a deadly weapon finding unless the weapon used does not meet the statutory definition of deadly weapon and must be proved under alternative definition, under which deadly weapon includes anything that in its manner of use or intended use is capable of causing death or serious bodily injury. Torres v. State (App. 2 Dist. 1995) 905 S.W.2d 440. Assault And Battery 56; Assault And Battery 91.6(2) Aggravated assault does not normally require state to prove both that defendant caused serious bodily injury and that defendant used deadly weapon. Madden v. State (App. 10 Dist. 1995) 911 S.W.2d 236, petition for discretionary review refused. Assault And Battery 54 "Use" of deadly weapon, for purposes of offense of aggravated assault, extends to any employment of deadly weapon, even its simple possession, if such possession facilitates aggravated assault; thus, deadly weapon can be "used" in aggravated assault without directly causing bodily injury. Wade v. State (App. 10 Dist. 1997) 951 S.W.2d 886, petition for discretionary review refused. Almost anything can be a deadly weapon, for the purposes of a prosecution for aggravated assault, depending upon the evidence shown. Lane v. State (Cr.App. 2004) 151 S.W.3d 188. Assault And Battery 56 Defendant could be convicted of aggravated assault with a deadly weapon if jurors found that defendant intentionally or knowingly caused bodily injury to victim by striking victim with a stick, a branch, or an object unknown, and defendant did then and there use or exhibit a deadly weapon, to-wit, a stick, a branch, or an object unknown which in the manner of its use or intended use was capable of causing death or serious bodily injury. Thompson v. State (App. 3 Dist. 2005) 183 S.W.3d 787, petition for discretionary review filed. Assault And Battery 56 Separate affirmative deadly weapon finding was not required for defendant's conviction for aggravated assault; while use of a deadly weapon was an element of offense of aggravated assault, deadly weapon finding had no effect on guilt/innocence stage of trial, nor did it affect assessment of punishment, state met its burden of proving each element of offense, including use of a deadly weapon, and trial court's decision not to make separate deadly weapon finding had

no effect on defendant's conviction. Navarro v. State (App. 3 Dist. 2002) 2002 WL 31258705, Unreported, petition for discretionary review refused. Criminal Law 255.4 18. ---- Capability of causing death, deadly weapon If the charge is that the assault was committed with a deadly weapon, it must be proved that the weapon was deadly when used in the manner in which it was used, or attempted to be used. Hunt v. State (1879) 6 Tex.Crim. 663; Key v. State (1882) 12 Tex.Crim. 506; Wilson v. State (1883) 15 Tex.Crim. 150; Hilliard v. State (1884) 17 Tex.Crim. 210; McGrew v. State (1885) 19 Tex.Crim. 302. It is only necessary to prove that the instrument used was capable of producing death in the manner in which it was used. Givens v. State (Cr.App. 1896) 35 Tex.Crim. 563, 34 S.W. 626. To commit aggravated assault, weapon used need not be functioning during assault; what is necessary is that defendant be using a deadly weapon to intentionally or knowingly threaten another with imminent bodily injury. Gaston v. State (App. 5 Dist. 1983) 672 S.W.2d 819. Assault And Battery 56 Intent to cause death or serious bodily injury need not be proved to sustain a deadly weapon finding unless the weapon used does not meet the statutory definition of deadly weapon and must be proved under alternative definition, under which deadly weapon includes anything that in its manner of use or intended use is capable of causing death or serious bodily injury. Torres v. State (App. 2 Dist. 1995) 905 S.W.2d 440. Assault And Battery 56; Assault And Battery 91.6(2) Evidence that defendant used metal walking cane to choke ex-wife was sufficient to show that he used deadly weapon during commission of assault, and thus, was sufficient to support conviction for aggravated assault. Nunez v. State (App. 13 Dist. 2003) 117 S.W.3d 309, rehearing overruled. Assault And Battery 91.6(2) 19. ---- Wounds inflicted, generally, deadly weapon In prosecution for aggravated assault, evidence was insufficient to show beyond reasonable doubt that instrument was "deadly weapon," in absence of medical testimony showing serious nature of wounds. De La Hay v. State (Cr.App. 1936) 131 Tex.Crim. 407, 99 S.W.2d 941. In prosecution for assault with intent to murder, nature of wounds inflicted may justify inference that a deadly weapon was used. Hunter v. State (Cr.App. 1954) 161 Tex.Crim. 225, 275 S.W.2d 803. Homicide 998 Where, in prosecution for aggravated assault with deadly weapon, the deadly nature of weapon is issue, jury will not be allowed to infer deadliness solely from superficial wounds, even though those wounds may have required suturing; thus, State must provide trier of fact with some evidence, normally through expert testimony, that weapon was used or intended to be used in such way that it was capable of causing death or serious bodily injury. Danzig v. State (Cr.App. 1977) 546 S.W.2d 299. Assault And Battery 91.6(2) An instrument sufficient to inflict two stab wounds, one requiring 20 stitches, on a person armed with a pipe or gun is a "deadly weapon" for purposes of this

section. Hart v. State (Cr.App. 1979) 581 S.W.2d 675. Assault And Battery 20. ---- Club, deadly weapon

56

Whenever there are such circumstances of aggravation attending the commission of the offense, as the use of bludgeons, missiles, weapons, or instruments of any kind capable of inflicting injury beyond what may ordinarily be inflicted by a blow with the fist and used in such manner as to be likely to inflict such injury, and especially where so used as to cause a wounding, the offense must be deemed to be an aggravated assault. Norton v. State (1855) 14 Tex. 387. Evidence was insufficient to sustain conviction for an aggravated assault shown to have been committed with a stick, in view of the failure of the evidence to show that the stick was per se a deadly weapon, or was by the manner of its use a weapon calculated to inflict death, or serious bodily injury, or that serious bodily injury was in fact inflicted therewith. Wilson v. State (Cr.App. 1923) 95 Tex.Crim. 620, 255 S.W. 627. Assault And Battery 91.6(2); Assault And Battery 91.7 Defendant was guilty of aggravated assault, if inflicting a serious injury on injured party with either bottle or club. Fitch v. State (Cr.App. 1925) 102 Tex.Crim. 253, 277 S.W. 150. Assault And Battery 54 Baseball bat is not "deadly weapon" per se, for purpose of aggravated assault statute [� 22.02]. Hughes v. State (App. 4 Dist. 1987) 739 S.W.2d 458. Assault And Battery 56 21. ---- Beer bottle, deadly weapon Beer bottle should not always be considered a deadly weapon, or the act of hitting someone with a bottle inevitably the cause of serious bodily harm, for purposes of elevating offense to aggravated assault. Ferrel v. State (App. 14 Dist. 2000) 16 S.W.3d 861, petition for discretionary review granted, reversed 55 S.W.3d 586, on remand 2002 WL 480594. Assault And Battery 54 22. ---- Fists or hands, deadly weapon An "aggravated assault" could be committed with the fist, where the assault was made with premeditated design and serious bodily injury resulted. Thompson v. State (1942) 144 Tex.Crim. 321, 162 S.W.2d 728; Watson v. State (1947) 149 Tex.Crim. 643, 197 S.W.2d 1018. If an assault be committed with the fist and serious bodily injury results from the blow itself, the offense becomes aggravated. Thompson v. State (Cr.App. 1942) 144 Tex.Crim. 321, 162 S.W.2d 728. Assault And Battery 54 Ordinarily use merely of hands, fist or other members of body will not constitute an aggravated assault. Ohlrich v. State (Cr.App. 1956) 162 Tex.Crim. 502, 287 S.W.2d 478. Assault And Battery 54 Where 39-year-old defendant's joint attack with her husband upon 62-year-old woman resulted in victim sustaining severe contusions of buttocks, sprained and contused

shoulder, contusions of legs and chest, two black eyes and other injuries, defendant was properly convicted of assault with intent to kill rather than aggravated assault. Gipson v. State (Cr.App. 1966) 403 S.W.2d 794. Homicide

734

Hands are not deadly weapons per se but can become deadly weapons in the manner of their use depending upon the evidence. Jefferson v. State (App. 3 Dist. 1998) 974 S.W.2d 887. Assault And Battery 56 Evidence was sufficient to show that defendant used hands and feet as "deadly weapons," as required to support conviction for aggravated assault; defendant punched victim in head and face with closed fists and kicked her in back and chest, which resulted in victim sustaining concussion to brain, bruising, and temporary loss of consciousness, and which caused her to suffer nausea, vomiting, dizziness and considerable pain for hours after assault. V.T.C.A., Penal Code ���� 1.07(a)(17), Lane v. State (Cr.App. 2004) 151 S.W.3d 188. Assault And Battery 56 Evidence proved that defendant used or exhibited his hands as deadly weapons capable of causing death or serious bodily injury so as to establish deadly weapon element of aggravated assault; defendant made numerous admissions that he hit victim, and there was medical testimony that victim's injuries were consistent with being beaten multiple times with someone's hands. Petruccelli v. State (App. 10 Dist. 2005) 2005 WL 552513, withdrawn and superseded on rehearing 174 S.W.3d 761, petition for discretionary review refused 184 S.W.3d 747, petition for certiorari filed 2006 WL 1523790. Assault And Battery 92(3) Jury's finding that defendant acted recklessly in committing aggravated assault was consistent with finding that defendant intended to use his hands or feet in a manner in which they would be capable of causing death or serious bodily injury, in prosecution for aggravated assault with a deadly weapon; defendant committed aggravated assault by causing serious bodily injury to victim by repeatedly kicking and stomping him with his hands and feet, he acted recklessly because he was aware of but consciously disregarded fact that victim would die, and he intended to use his hands and feet in that they would be capable of causing serious bodily injury or death of victim. Martinez v. State (App. 13 Dist. 2003) 2003 WL 22859800, Unreported. Criminal Law 878(4) 22.5. ---- Plastic bag, deadly weapon Evidence was factually sufficient to support finding that defendant threatened and caused bodily injury to victim while and by using and exhibiting a deadly weapon, as required to support aggravated assault with a deadly weapon conviction; testimony indicated that defendant took a plastic bag, placed it over victim's head, pressed it against her mouth, and pinched victim's nose with his fingers in an attempt to suffocate her, and that during such attempt victim was unable to draw a breath. Marinos v. State (App. 3 Dist. 2006) 186 S.W.3d 167, rehearing overruled, petition for discretionary review filed. Assault And Battery 91.6(2) 23. Firearms as deadly weapons--In general Presenting a fire-arm in a condition for immediate use accompanied by an avowal of an intention to kill the party assaulted, is an assault. Johnson v. State (1885) 19 Tex.Crim. 545. Where accused shot his victim with a shotgun at a distance of 75 feet, the shotgun

was a "deadly weapon per se" justifying an inference of an intent to kill. Burks v. State (Cr.App. 1942) 145 Tex.Crim. 15, 165 S.W.2d 460. Homicide 908 Jury was deemed to have made finding that defendant used deadly weapon when he shot victim with .25 caliber pistol, which was deadly weapon by design, as required to support conviction for aggravated assault, where guilty verdict was based on application paragraph that explicitly required the jury to find that defendant used deadly weapon in commission of assault. Dawson v. State (App. 10 Dist. 2003) 2003 WL 23120062, Unreported. Assault And Battery 91.6(3)

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