Aggravated Assault Lawyer Houston, TX

If you are accused of aggravated assault in or around you should see an aggravated assault criminal defense lawyer today. Here is some information on aggravated assault in Texas. The facts in the memo are fictional,but the legal principles are valid.

Memorandum

Issue

In Texas, a person commits aggravated assault when he assaults another person with a deadly weapon or when he assaults another person and causes serious bodily injury. When a defendant is charged with aggravated assault,he may be entitled to a jury charge on self-defense,depending on the circumstances. In our case,the complainant,Sandoval,took a swing at the defendant first,but he missed. The defendant,Whitmore,then pushed Sandoval to the ground and severely injured him by beating him with his fists. The first set of issues is whether the state can charge Whitmore with aggravated assault with serious bodily injury or aggravated assault with a deadly weapon. Another issue is whether Whitmore can raise the issue of self-defense and whether he is entitled to a jury instruction on self-defense.

Short Answer

Whitmore can be charged with aggravated assault with serious bodily injury because Sandoval’s injuries were consistent with other injuries recognized by courts as serious bodily injury. Whitmore can also be charged with aggravated assault with a deadly weapon because his fists were used to cause the serious bodily injury. With the facts available,it appears that the defendant will not be entitled to a jury charge on self-defense because he used a deadly weapon to repel non-deadly force. However,if the defendant testifies that he believed he was repelling deadly force,he may be entitled to a jury charge.

Statement of Facts

On September 8,2014 Justine Bates called 911 to report an altercation. She reported that Alex Sandoval arrived at a vehicle and exclaimed loudly,“what the hell are you doing to my car.”She then saw a person arise from a bent-over position and later identified that person as Roger Whitmore. After arising from the bent-over position,Whitmore began walking toward Sandoval. Sandoval then took a swing at Whitmore,but missed. Whitmore pushed Sandoval to the ground,straddled him and punched him in his head multiple times with his fists. Bates said the beating was so severe,she feared Sandoval might die. Whitmore stopped beating Sandoval after she yelled out loud. The medical report indicated that Sandoval sustained multiple lacerations to the face and four facial fractures. In addition,Sandoval suffered an eye injury which will require further surgery.

Sandoval says he does not remember much before the assault. He vaguely remembers thinking Whitmore was vandalizing his car before the incident began. Whitmore’s attorney said he might raise the issue of self-defense,but the facts do not provide much information about Whitmore’s perspective on the incident.

Discussion

Aggravated Assault—Serious Bodily Injury

The first issue is whether the injuries sustained by Sandoval satisfy the serious bodily injury element of aggravated assault. Courts have held that serious bodily injury occurs when a defendant causes facial asymmetry or impairment of a bodily member. Courts have also held that between three and five facial fractures constitute serious bodily injury. Sandoval currently suffers both facial asymmetry and the impairment of a bodily member because his eye does not close properly. He also suffered four facial fractures,which puts him within the range of facial fractures found to constitute serious bodily injury. Accordingly,our defendant can be charged with aggravated assault using the element of serious bodily injury.

Serious permanent disfigurement or impairment of a bodily member qualify as serious bodily injury. Tex. Penal Code Ann. § 1.07 (West 2011). A bodily member is “any part of the body.” Coshatt v. State,744 S.W.2d 633,635 (Tex. App.—Dallas 1987,pet. ref’d) (emphasis original). Scarring is not sufficient on its own to establish serious permanent disfigurement. E.g.,Hernandez v. State,946 S.W.2d 108,113 (Tex. App.—El Paso 1997,no pet.);McCoy v. State,932 S.W.2d 720,724 (Tex. App.—Fort Worth 1996,pet. ref’d). Some courts have held that five facial fractures and an eye injury qualify as serious bodily injury. Pitts v. State,742 S.W.2d 420,421 (Tex. App.—Dallas 1987,no pet.). However,a defendant can cause serious bodily injury with as little as three facial fractures and an eye injury. Moore v. State,802 S.W.2d 367,369 (Tex. App.—Dallas 1990,pet. ref’d).

Courts have considered facial fractures accompanied with eye injuries to be serious bodily injury. The victim in Moore,for example,suffered a fractured cheekbone in three places as well as an injury to her eye. Moore at 369. Moore turned to the victim and punched her in the face with his fist while trying to escape from a robbery. Moore at 368. In addition to the three fractures,the victim suffered an eye injury,which required surgery. Moore at 369. The victim’s surgeon testified that without surgery the victim’s face would have been asymmetrical and her eye muscles would have been discoordinated. Id. Moore argued that serious bodily injury had not occurred because the victim’s surgery was successful. Id. The court disagreed and held that that serious bodily injury had occurred because the injuries were disfiguring when they were inflicted. Moore at 370.

Other courts have evaluated injuries similar to those in Moore and have held that similar wounds qualify as serious bodily injury. In Pitts,the victim suffered five facial fractures and profuse bleeding. Pitts at 421. He required multiple surgeries to repair the damage. Id. The surgeon testified that without surgery,the victim would have suffered displacement of his eye,as well as double vision. Id. at 422. He further testified that the victim would have been unable to breathe normally through his nose without surgery. Id. The court held that the injuries were sufficiently severe to qualify as serious bodily injury,explaining that such a holding is “reasonable”and “rational”within the law. Id.

In both Moore and Pitts,the victim received treatment,without which the victim’s injuries would have been seriously disfiguring. In Moore,the victim would have suffered asymmetry of the face and impairment of her eye without the initial surgery. Similarly,the victim in Pitts would have suffered facial asymmetry and permanent eye impairment without surgery. In both of those cases,the disfigurement and the eye injury were completely mitigated by surgery. Despite an initial surgery,Sandoval continues to exhibit asymmetry of the face because he is unable to close one eye. Additionally,his eye is still impaired because it continues to exhibit a lack of mobility. This suggests that because Sandoval’s disfigurement and impairment are worse than the injuries of both other victims,a court will find that his injuries qualify as serious bodily injuries.

Aside from the disfigurement and impairment,the courts will likely consider the similarities in the victims’ facial fractures. In Moore,the complainant suffered three facial fractures. The complainant in Pitts suffered five. Sandoval suffered four. Sandoval’s injuries are within the range of injuries that courts have characterized as serious bodily injury. Accordingly,a court will likely find that Sandoval’s injuries qualify as serious bodily injuries.

In sum,Whitmore can be charged with aggravated assault using the element of serious bodily injury. The nature and the degree of Sandoval’s injuries are in keeping with what courts normally consider a rational definition of serious bodily injury. As a consequence,the courts will likely find that the element of serious bodily injury exists in our case.

Aggravated Assault—Hands as Deadly Weapons

The second issue is whether hands or fists can satisfy the deadly weapon element of aggravated assault. Hands and fists can be deadly weapons when they are used to cause serious bodily injury. Our defendant’s hands were used as deadly weapons because his hands caused fractures,bruising,bleeding and lacerations. It is very likely that the court will hold our defendant can be charged with aggravated assault with a deadly weapon.

The Texas Penal Code (the code) states that a person commits aggravated assault when he commits an assault while using or exhibiting a deadly weapon. Tex. Penal Code Ann. § 22.02(a)2 (West 2009). A deadly weapon can be anything that is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(A) (West 2007). See also Chambless v. State,411 S.W.3d 499,503 (Tex. Crim. App. 2013). The courts have clarified that objects not considered deadly weapons per se can be deadly weapons by their “use or intended use.”Hill v. State,913 S.W.2d 581,582 (Tex. Crim. App. 1996) (holding that chains and locks were deadly weapons when used to restrain victim who starved to death) (emphasis in original);Garza v. State,695 S.W.2d 726,728 (Tex. App.—Dallas 1985,pet. granted),aff’d,725 S.W.2d 256 (Tex. Crim. App. 1987) (holding that a belt buckle is a deadly weapon when a prisoner uses it to hit a detention officer). Stated differently,aggravated assault is committed with a deadly weapon when something is used in a way that is capable of causing serious bodily injury,even when that weapon is not listed as a deadly weapon in the code.

Even though fists are not listed in the code as a deadly weapon in the code,they can become deadly weapons depending upon the evidence shown. Turner v. State,664 S.W.2d 86,90 (Tex. Crim. App. 1983);Lane v. State,151 S.W.3d 188,191 (Tex. Crim. App. 2004). In Lane,the Texas Court of Criminal appeals held that fists and feet,in combination,can be used as deadly weapons within the meaning of the code. Lane at 192. In Petruccelli the court held that fists alone can be used as a deadly weapon. Petruccelli v. State,174 S.W.3d 761,770 (Tex. App.—Waco 2005,pet. ref’d.). The court in Petrucelli said in dictum that even without causing serious bodily injury,a defendant uses a deadly weapon when he uses an object in a way that could have been used to inflict serious bodily injury. Petruccelli at 770 (Tex. App. 2005). Even so,it is clear from both Lane and Petrucelli that the extent of a complainant’s injuries are of primary consideration when deciding if fists have been used as deadly weapons. Lane at 190;Petruccelli at 770.

Courts have found that fists and feet,when used in conjunction,can be used as deadly weapons. In Lane,the defendant struck the complainant in the head with his fist. Lane at 192. As a result,the complainant fell to the ground,and Lane began kicking the complainant with his feet. Id. Testimony from a paramedic,a nurse and two police officers confirmed that a closed fist or a foot could inflict serious bodily injury. Id. In this case,the complainant suffered from a loss of consciousness,considerable pain and bruising to the scalp and the right temple. Id. at 190. The court held that the defendant’s hands and feet were used as a deadly weapon because they had been used to inflict serious bodily injury. Id.

Other courts have held that hands alone,without the use of feet,can be used as deadly weapons. For example,in Petruccelli the defendant used only his hands to attack his wife,after he came home from a night of drinking. Petruccelli,770. She was bruised severely in her head and different parts of her body. Id. Months later,she still had difficulty walking,and she suffered loss of memory and vision. Petruccelli at 766. The court stated in dictum that even if the defendant had not caused serious bodily injury,his hands would have been deadly weapons because they were”capable of causing serious bodily injury in the way they were used.” Id. at 770 (emphasis added). In other words,a defendant uses a deadly weapon if he uses his fist in a similar way to Petrucelli,even if the defendant does not cause serious bodily injury. In the end,the court found that Petruccelli used his hands as deadly weapons because the bodily injury sustained by the victim was serious. Id.

A court will find significant similarities between our case and Lane. Sandoval suffered similar injuries to the victim in Lane,and Whitmore caused those injuries in a way similar to Lane. The complainant in Lane was beaten unconscious and suffered bruising in the head and severe pain,as did Sandoval. In our case,Sandoval fell to the ground,after which the defendant continued beating the victim. The victim in Lane was also beaten after he fell to the ground. The similarities in the injuries and the manner in which they were inflicted suggests that a court will likely find that Whitmore’s hands were used as deadly weapons.

While Lane used both his hands and his feet,other defendants caused serious bodily injury with their fist alone. Like Whitmore,Petruccelli used only his hands to beat his victim. Petruccelli’s victim suffered long-term injuries which were more severe than the complainant in our case,but the initial injuries were similar. Both victims initially suffered bruising,lacerations,bleeding and unconsciousness. Because the injuries were initially similar,the court will find that the injuries were similar. See,e.g.,Brown v. State,605 S.W.2d 572,575 (Tex. Crim. App. 1980) (holding that the impairing quality of bodily injury is measured when it was inflicted).

The Petruccelli court also provided dicta which supports the deadly weapon notion in our case. The court in Petruccelli said that even if a defendant does not cause serious bodily injury,his weapon is deadly if it is used in a way capable of causing serious bodily injury. The paramedic,nurse and police testimony in Lane reveal that fists are capable of inflicting serious bodily injury if used in a certain manner. Furthermore,Whitmore used his fists in substantially the same style as Petruccelli. The evidence and testimony in both cases show that Whitmore was capable of inflicting serious bodily injury. Most importantly,Whitmore did cause serious bodily injury. In sum,Whitmore satisfied both the substantive holding and the dicta in Petrucelli. Consequently,a court will likely find that his fists were used as deadly weapons.

It is very likely that a court will find a court will find that aggravated assault with a deadly weapon is an appropriate charge in our case. Our defendant used his hands similar to the way Lane and Petruccelli used their hands. Furthermore,our defendant caused injuries similar to the ones caused by Lane and Petruccelli. For these reasons,a court will likely find that Whitmore used his hands as deadly weapons.

Self-Defense and Jury Charges Based On The Available Facts

Another issue in our case is whether the defendant may raise self-defense and whether he will get a jury charge on the issue. When a defendant repels non-deadly force with a deadly weapon,a jury charge on self-defense is not required. The facts available suggest that Sandoval initially used non-deadly force against Whitmore because the Sandoval threw only one punch and because the complaint lost the ability to continue his attack. The defendant used a deadly weapon to repel the complainant because the bodily injuries sustained by the defendant were serious. Based on the facts available,the courts will likely find that a jury instruction on self-defense is not necessary.

The use of force is justified as self-defense when and to the degree the defendant reasonably believes force is required to defend against an aggressor’s use of unlawful force. Tex. Penal Code Ann. § 9.31(b) (West 2007). See also Morales v. State,357 S.W.3d 1,5 (Tex. Crim. App. 2011). Deadly weapons may be used for self-defense if an aggressor is using unlawful deadly force. Id. Fists may be considered deadly weapons if they cause serious physical injury. Lane at 191;Turner at 90. The defendant’s right of self-defense ceases when the danger has ceased. Brendendick v. State,34 S.W. 115,115 (Tex. Crim. App. 1896). However,when an aggressor intends only a simple battery,a defendant has no right at all to use deadly force. See Tex. Penal Code Ann. § 9.32(a)2 (West 2007). When a defendant uses deadly weapons against an aggressor who only intends a simple battery,his force is not justified,and he is not entitled to a jury instruction on self-defense. E.g.,Starks v. State,127 S.W.3d 127,131 (Tex. App.—Houston [1st Dist.] 2003,pet. ref’d,untimely filed). See also Murphy v. State,700 S.W.2d 747,750 (Tex. App.—Dallas 1985,pet. dism’d).

Self-defense instructions are not required when a defendant uses deadly force to repel a simple assault. In Starks,the defendant was convicted of aggravated assault after a defense witnesses testified that the victim,Lee,had behaved aggressively toward the defendant first. Starks at 129. After Lee’s initial aggression,however,he was brutally beaten by Starks with his hands. Id. Lee spent four days in the hospital and lost several teeth. Id. He had to be intubated to help with his breathing. Id. Neither the prosecution nor the defense presented any testimony that Lee had used deadly force at any time. Id. at 133. In the light most favorable to the defendant,Lee had only hit the defendant one time. Id. Starks used his fist as a deadly weapon in response to Lee’s non-deadly force. Id. The court held that the defendant was not entitled to an instruction on self-defense because self-defense is not available when an actor uses deadly force to repel non-deadly force. Id.

Courts often consider what the defendant believed about the force he was repelling. If the defendant’s belief is not reasonable,he will not be entitled to an instruction on self-defense. In Murphy,the defendant appealed his murder conviction on the grounds that he was entitled to an instruction on self-defense. Murphy at 750. The court noted that the defendant’s use of deadly force would have been justified if he reasonably believed deadly force was necessary to protect himself against the decedent’s use of deadly force. Id. Murphy was the only one to testify on his own behalf. Id. He testified that the decedent had “poked” at him with a knife,cutting his left hand and his wrist. Id. The defendant stated that he knocked the knife out of the decedent’s hands and that she began to pull his hair. Id. When Murphy stabbed the decedent,the decedent had not regained possession of the knife or any other weapon. Id. Even if the defendant had testified that he feared the hair-pulling would cause him serious bodily harm,such testimony would not be persuasive to “anyone,” the court said in dictum. Id. Instructions were not required in this case because the initial threat by the decedent was neutralized when she lost control of the knife. Id. As a result,the court found that the defendant could not have reasonably believed a deadly weapon was immediately necessary for his defense. Id.

The holdings in Starks and Murphy suggest that a jury instruction is not required in our case,based on the facts available. The complainants in both Starks and Murphy were accused of being the initial aggressors. Starks is similar to our case because the complainant was accused of throwing and landing only one punch against the defendant. Sandoval is accused of throwing only one punch,and Sandoval’s punch did not even land. The decedent in Murphy caused mild injury to the defendant with a weapon,but she was soon incapable of causing further harm because the defendant took the knife from her. These facts are similar to our facts because Sandoval became incapable of causing harm after he was unconscious. In both cases,the courts held that a jury instruction was not necessary because the initial force used by the injured person was either non-deadly or because the threat of force was neutralized. These cases will provide a strong basis for a court to find that an instruction on self-defense is not necessary in our case.

In sum,it is very likely Whitmore will not be entitled to a jury instruction on self-defense. In Starks and Murphy both defendants used a deadly weapon to repel a non-lethal attack. Whitmore did the same. Based on the facts available it appears that the defendant in our case used his fists as a deadly weapon to repel a non-deadly attack. Consequently,the courts will find support for not requiring a jury instruction in our case. However,Whitmore’s beliefs at the time of the incident may provide additional facts and may change a court’s holding regarding instructions. Therefore,in order to have a complete prediction regarding jury instructions,it is critical to explore Whitmore’s beliefs at the time of the incident.

Self-Defense and the Unknown Variable—Possible Jury Charge by Way of The Defendant’s Testimony

The issue regarding jury instructions has been discussed using the available facts. However,a new issue will arise if Whitmore testifies he believed he was repelling a deadly attack. A jury instruction is required when a defendant reasonably testifies that he believed he was repelling deadly force. Because Whitmore’s position is not currently available,it is only possible to apply the law by examining possible scenarios. While speculative,such discussion is necessary because it could have a significant application in the area of jury instructions. Unfortunately,without more information regarding the defendant’s beliefs,a conclusive prediction regarding jury instructions on self-defense is not possible.

The law regarding jury instructions is particularly sensitive to the defendant’s belief at the time of the incident. For example,a defendant may be entitled to a jury charge even when the force against which he is defending is not illegal. Semaire v. State,612 S.W.2d 528,530 (Tex. Crim. App. 1980);Hamel v. State,916 S.W.2d 491,494 (Tex. Crim. App. 1996). If a defendant believes he is repelling illegal deadly force,he is entitled to a jury instruction. Id. However,“some evidence must show” that the defendant reasonably believed deadly force was justified. Reed v. State,703 S.W.2d 380,382 (Tex.App.-Dallas 1986,pet. ref’d) (emphasis in original). A defendant is entitled to a jury instruction on self-defense,when the evidence is “strong,feeble,unimpeached,or contradicted,and even if the trial court is of the opinion that the testimony is not entitled to belief.” Warren v. State,565 S.W.2d 931,933 (Tex. Crim. App. 1978). See also Rodriquez v. State,544 S.W.2d 382,384 (Tex. Crim. App. 1976) (holding that the court’s opinion regarding the truth of the defendant’s testimony does not negate his right to an instruction when his testimony raises the issue). The defendant’s testimony alone may be sufficient to require a jury charge. Warren at 934. The code presumes that a defendant’s belief regarding necessary force is reasonable when the defendant is not engaged in crime. See Tex. Penal Code Ann. § 9.31(a)(3) (West 2007).

Even so,some courts have found a defendant’s belief reasonable even when he was engaged in criminal activity. In Semaire,for example the defendant forcibly entered the apartment in which his estranged wife was staying. Semaire at 530. When Semaire arrived at the apartment,his wife refused to open the door. Id. He became infuriated,and he “busted” in. Id. After he entered,he saw his wife put her hands in the air,and he thought she was going to shoot him. Id. He quickly grabbed his revolver and shot her,and she died later from the wounds. Id. The court could not deduce from the evidence that any force used by his wife was necessarily lawful. Id. Such a finding would require an assessment of her reasonable beliefs “about the necessity to defend herself or her property,just as the appellant’s claim to self-defense depends on his reasonable beliefs.” Id. at 531. The court cited the Model Penal Code,indicating that it is irrelevant whether the defendant was attacked using actual illegal force. Id. at 530. Instead,the question is whether the defendant reasonably believed the force he was repelling was illegal. Id. The court decided that the question before it was not whether the wife’s use of force was illegal but whether the defendant believed the decedent’s force was illegal. Id. The court considered such a question to be one for the jury. Id. Accordingly,the court found error in the trial court’s refusal of a jury instruction and reversed its decision. Id. In sum,the court said that if a defendant believes he was being attacked with illegal,deadly force he is entitled to an instruction on self-defense.

Much like the Semaire court,the court in Hamel cited the defendant’s own testimony as sufficient evidence to require a jury instruction. Hamel at 493. In Hamel the complainant had previously ransacked the home of the defendant’s sister. Id. at 492. The defendant and the complainant confronted each other at that house. Id. The complainant threatened to get a gun from his car in order to shoot the defendant. Id. When it appeared to the defendant that the complainant was leaving to his car to retrieve the gun,the defendant began beating the complainant with a tire thumper. Id. The court noted that the defendant’s own testimony sufficiently raised the self-defense issue,because he believed deadly force was immediately necessary to protect himself against the complainant’s use of deadly force. Id. However,the court made it clear that the defendant would not have been entitled to a self-defense charge if he was acting exclusively on the complainant’s threat. Id. See also Tex. Penal Code Ann. § 9.31(b)(1) (West 2007). The court held that the defendant was entitled to a charge of self-defense because the defendant’s testimony indicated that he believed the complainant’s actions constituted an overt physical act towards carrying out his threat. Id.

Applying the law to our case could have an impact on jury instructions if Whitmore testifies he believed he was repelling an impending deadly attack. Whitmore could allege,for example,that Sandoval threatened to beat him and then get a gun from his car. In such a case,Whitmore could be entitled to a jury instructions because a deadly threat would have been made,and Sandoval’s punch would have acted as an overt act toward that end. Such a scenario would be very similar to the events in Hamel,and would likely entitle Whitmore to a jury instruction on self-defense.

The code would presume such a belief to be reasonable only if Whitmore were not engaged in crime. However,the holding in Semaire shows that even without such a presumption,a defendant’s testimony regarding his belief can still be reasonable when he is engaged in criminal activity. The facts imply that Whitmore was vandalizing Sandoval’s car at the time of the incident. Even if this is true,Whitmore still may be entitled to jury instructions,because Semaire had forcibly entered the apartment in which his wife was staying and was entitled to jury instructions. The court in Semaire was exceptionally clear in its holding. In Semaire,it was a question for the jury as to whether Semaire’s wife had the right to use force initially,even though Semaire had broken into the apartment. Likewise,if Whitmore testifies that Sandoval threatened him with a weapon,it will be a question for the jury as to whether Whitmore’s belief was reasonable.

It is telling that neither the Semaire nor the Hamel opinions reveal whether the complainant actually had a pistol. The courts in both cases focused more on the defendant’s perception rather than on whether the complainant actually had a weapon. Both cases indicate that even if Whitmore’s testimony is incredible to the trial court,the defendant would be entitled to a jury instruction if Whitmore’s testimony indicates he believed he was repelling deadly force. The jury instructions may very well turn on what the defendant will allege his beliefs were at the time he commenced his attack. Further inquiries in this area are required if a more thorough prediction on jury instructions is needed.

In sum,it is not possible to fully conclude whether a jury instruction will be permitted without knowing the defendant’s beliefs at the time. Based on the facts available,it does not appear that Whitmore is entitled to a jury instruction. However,jury instructions could be required,depending on Whitmore’s testimony.

Conclusion

In conclusion,the defendant in our case can be charged with aggravated assault using either or both of the serious bodily injury or deadly weapon elements. He can be charged with aggravated assault using the deadly weapon element because his hands were capable of being used and were used to inflict serious bodily injury. The defendant can also be charged with aggravated assault using the element of serious bodily injury because courts have ruled that injuries similar to Sandoval’s are serious bodily injuries. Based on the facts currently available,the defendant will not be entitled to a jury charge on self-defense because he used a deadly weapon to repel non-deadly force. However,if Whitmore testifies that he believed Sandoval threatened him with deadly force,he will likely be entitled to a jury charge,even if the court does not believe his testimony merits belief.