What are the Charges for Assault With a Deadly Weapon?
Under Section 22.02 of the Texas Penal Code, ADW (assault with a deadly weapon) is normally a second-degree felony. Under state law, a deadly weapon is not just a knife or gun. Instead, a deadly weapon could be almost any object that, if used a certain way and in certain circumstances, could be a deadly weapon. That definition includes items like golf clubs or baseball bats and perhaps even items like frying pans and coffee decanters.
A second-degree felony means a minimum of two years in prison and a maximum of 20 years. Other second-degree felonies include intoxication manslaughter, online solicitation of a minor under 14, and robbery. Probation may be available in these cases, but it is not guaranteed. In the eyes of many judges, prosecutors, and jurors, these defendants did not make mistakes. They are bad people.
The consequences are severe, but ADW prosecutions have many moving parts. Generally, the more complex the case is, the easier it is for a Fort Worth criminal defense attorney to resolve it successfully. That is especially true since prosecutors must prove every element of ADW, and any other criminal offense, beyond any reasonable doubt.
Tarrant County prosecutors are very aggressive. They press the most serious charges the facts could possibly support. For an assistant district attorney, obtaining many convictions for serious crimes is the only way to move up the corporate ladder. Therefore, if there is any indication an enhancement might apply, count on that enhancement appearing in charging instruments. Some common issues include:
- Public Servants: This enhancement only applies to police officers and other public servants if they are “lawfully discharging an official duty.” So, if the stop was illegal, this enhancement is inapplicable.
- Security Officers: Not all nightclub bouncers or other such individuals are security guards for purposes of this law. Instead, the person must be registered under the Occupations Code. That registration must be current and in good standing.
- Drive-By Shooting: These acts constitute ADW if the defendant knowingly discharges a firearm in the direction of a habitation or building (it’s hard to see these things in the dark), is reckless about whether the structure is occupied, and seriously injures someone in that building. Two out of three will not do.
Once again, the state has the burden of proof to establish that the enhancement applies. Frequently, there is not enough evidence on this point or on the assault itself.
Lack of credible evidence is usually the most effective defense in these matters. A Fort Worth criminal defense attorney does not have to “prove” the defendant is “innocent.” An attorney must only create a reasonable doubt as to the defendant’s guilt.
Aggravated assault cases usually involve civilian witnesses. Police officers rarely witness assaults firsthand. Over time, these witnesses often lose interest in the case and refuse to cooperate with prosecutors. Without this material witness, the state is hard-pressed to prove its case.
Witness credibility could be an issue as well. Many months after the incident, many witnesses do not have any independent recollection of the event (they cannot recall any details that are not in the police report). If that is the case, the witness is legally incompetent to testify or loses significant credibility with jurors if they do take the stand.
Contact a Diligent Tarrant County Lawyer
An assault arrest is not the same thing as an assault conviction. For a confidential consultation with an experienced criminal defense attorney in Fort Worth, contact the Law Office of Kyle Whittaker. Virtual, home, and jail visits are available.