By Deandra Grant, J.D., M.S. (Pharmaceutical Science), ACS-CHAL Forensic Lawyer-Scientist
If you have been arrested for assault in Fort Worth or anywhere in Tarrant County, the first thing you need to understand is that an arrest is not a conviction. Texas law provides a range of statutory defenses that, when properly raised and supported by evidence, can result in an acquittal, a dismissal, or a reduction to a lesser charge. But these defenses are not generic concepts. They are codified in the Texas Penal Code with specific elements that must be established. Understanding those elements, and how they apply to the facts of your case, is the difference between an effective defense and a plea to something you could have beaten.
This article walks through the major defenses available in Texas assault cases — with the actual statutory provisions, the legal standards, and the strategic considerations that matter in Tarrant County.
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Understanding the Charge: Texas Assault Under Penal Code §22.01
Before discussing defenses, it is important to understand what the prosecution must prove. Under Texas Penal Code §22.01(a), a person commits assault if they:
- (1) Intentionally, knowingly, or recklessly cause bodily injury to another person, including the person’s spouse
- (2) Intentionally or knowingly threaten another with imminent bodily injury, including the person’s spouse
- (3) Intentionally or knowingly cause physical contact with another when the person knows or should reasonably believe the other will regard the contact as offensive or provocative
The classification of the offense depends on the circumstances. Assault by threat (§22.01(a)(2)) and assault by offensive contact (§22.01(a)(3)) are Class C misdemeanors which are the lowest level, punishable by a fine only. Assault causing bodily injury (§22.01(a)(1)) is a Class A misdemeanor, punishable by up to one year in jail and a fine of up to $4,000. However, the charge escalates significantly based on who the alleged victim is and the defendant’s history:
- Assault causing bodily injury against a family or household member with a prior family violence conviction becomes a third-degree felony under §22.01(b)(2) — 2 to 10 years in prison
- Assault against a public servant, security officer, or emergency services worker is a third-degree felony under §22.01(b)(1)
- Assault by strangulation or occlusion of the airway against a family or household member is a third-degree felony under §22.01(b)(2-b)
- Aggravated assault — assault causing serious bodily injury or involving a deadly weapon — is charged under §22.02, a second-degree felony (2 to 20 years), elevated to a first-degree felony (5 to 99 years or life) if committed against a family member, public servant, or witness
The prosecution must prove every element of the charged offense beyond a reasonable doubt. If they cannot, the appropriate verdict is not guilty. The defenses below provide the legal framework for challenging the state’s case.
Self-Defense: Penal Code §9.31 and §9.32
Self-defense is the most commonly raised defense in Texas assault cases, and it is one of the most misunderstood. Texas law provides a robust right of self-defense, but it has specific requirements and limitations.
Use of Non-Deadly Force (§9.31)
Under Penal Code §9.31(a), a person is justified in using force against another when and to the degree the person reasonably believes the force is immediately necessary to protect themselves against the other’s use or attempted use of unlawful force. The key elements are:
- Reasonable belief: The defendant must have genuinely believed force was necessary, and that belief must be one that a reasonable person in the same circumstances would have shared. This is an objective-subjective standard which means the belief must be both genuine and reasonable.
- Immediately necessary: The force must have been needed at that moment. Preemptive strikes based on a general fear of future harm do not qualify. Nor does retaliatory force after the threat has passed.
- Proportionate: The force used must be proportionate to the threat faced. You cannot respond to a verbal threat with a fist, or to a push with a weapon, and claim self-defense.
Texas has no duty to retreat. Under §9.31(e), a person who has a right to be present at the location where force is used, who has not provoked the other person, and who is not engaged in criminal activity at the time has no duty to retreat before using force. This is Texas’s “stand your ground” provision. You are not required to run away before defending yourself.
Limitations on self-defense: Self-defense is not available to a person who provoked the other party’s attack (§9.31(b)(4)), who was engaged in criminal activity at the time, or who consented to the use of force. If the defendant was the initial aggressor, the self-defense claim is significantly weakened unless the defendant abandoned the encounter and communicated that abandonment to the other party before the other party continued the attack.
Use of Deadly Force (§9.32)
Deadly force (force intended or known to cause death or serious bodily injury) is justified under a narrower set of circumstances. Under §9.32(a), a person is justified in using deadly force if they would be justified in using non-deadly force under §9.31, and they reasonably believe deadly force is immediately necessary to protect themselves against the other’s use or attempted use of unlawful deadly force, or to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
Castle Doctrine (§9.31(a) and §9.32(b))
Texas’s Castle Doctrine creates a presumption that the defendant’s belief in the necessity of force (including deadly force) was reasonable if the other person unlawfully and with force entered or was attempting to enter the defendant’s occupied habitation, vehicle, or place of business, or was attempting to forcibly remove the defendant from those locations. Under the Castle Doctrine, the defendant does not have to prove that their belief was reasonable. The presumption shifts the burden to the state to overcome it.
Defense of a Third Person: Penal Code §9.33
Under §9.33, a person is justified in using force or deadly force to protect a third person if, under the circumstances as the actor reasonably believes them to be, the third person would be justified in using force or deadly force to protect themselves, and the actor reasonably believes their intervention is immediately necessary to protect the third person.
This defense applies in situations where you intervened to protect someone else from an attack — a spouse, a child, a friend, or even a stranger. The standard is the same reasonableness standard as self-defense: you must have reasonably believed that the person you were protecting was in danger and that your use of force was immediately necessary and proportionate.
Lack of Intent: Challenging the Mental State Element
Assault under §22.01(a)(1) requires that the defendant “intentionally, knowingly, or recklessly” caused bodily injury. Assault by threat under §22.01(a)(2) requires “intentionally or knowingly.” Each of these mental states has a specific legal definition under Penal Code §6.03:
- Intentionally: The person’s conscious objective or desire was to cause the result
- Knowingly: The person was aware that their conduct was reasonably certain to cause the result
- Recklessly: The person was aware of but consciously disregarded a substantial and unjustifiable risk that the result would occur
If the contact or injury was genuinely accidental (i.e. not the product of intentional, knowing, or reckless conduct) the prosecution cannot prove the required mental state. An accidental bump during an argument, an inadvertent injury during horseplay, or a reflexive movement that happens to make contact with another person may not satisfy any of these mental state requirements. The defense must present evidence and argument showing that the defendant’s conduct did not rise to the level of the required culpable mental state.
Consent: Penal Code §22.06
Under §22.06, the victim’s effective consent is a defense to assault if the conduct did not threaten or inflict serious bodily injury, or if the victim knew the conduct was a risk of their occupation, a recognized medical treatment, or a recognized sporting event. This defense arises most commonly in cases involving mutual combat, contact sports, or rough physical activity where both parties were voluntarily participating.
Consent is not a defense if the victim was legally incapable of giving consent (due to age, mental incapacity, or intoxication), if the consent was obtained by force, threat, or deception, or if the conduct caused or threatened serious bodily injury. The consent defense is narrower than many people expect. It does not apply to every situation where both parties were “willing participants.”
Challenging the Family Violence Designation
In Tarrant County assault cases involving a family or household member, one of the most important strategic questions is not just whether the defendant committed an assault, but whether the offense carries a family violence finding. As we have discussed in other articles on this site, an affirmative finding of family violence under CCP Article 42.013 triggers permanent collateral consequences: the federal firearms ban under 18 U.S.C. §922(g)(9), ineligibility for nondisclosure under Government Code §411.081, and felony enhancement for any future family violence offense under §22.01(b)(2).
In some cases, the most effective defense strategy is to negotiate a reduction to a charge that avoids the family violence designation entirely. A plea to Class C assault by offensive contact under §22.01(a)(3), if not involving a family or household member designation, or to disorderly conduct under §42.01, carries a fine but avoids the affirmative finding. This approach requires the defense attorney to present a compelling case to the prosecutor for why the family violence designation is not appropriate, which may involve evidence that the relationship does not meet the Family Code §71.003-71.006 definitions, that the alleged victim’s account is not credible, or that the evidence supports a lesser charge.
Case Results
Challenging the Sufficiency of the Evidence
The prosecution bears the burden of proving every element of the offense beyond a reasonable doubt. If the evidence does not meet that burden, the defendant is entitled to an acquittal. Common evidentiary challenges in Tarrant County assault cases include:
- Witness credibility: If the case depends on the alleged victim’s testimony and there are reasons to doubt that testimony (i.e. prior inconsistent statements, motive to fabricate, contradictory physical evidence) the defense can challenge credibility through cross-examination and impeachment
- Inconsistent physical evidence: If the alleged injuries are not consistent with the described mechanism of assault, or if the injuries could have resulted from an accident, self-infliction, or a pre-existing condition, this undercuts the prosecution’s theory
- Digital evidence: Text messages, call logs, social media posts, GPS data, and surveillance footage can all support or undermine the prosecution’s case. Doug Huff’s Garrett Discovery digital forensics training allows our team to analyze this evidence at a level most defense attorneys cannot
- Lack of corroboration: If the prosecution’s case rests entirely on one person’s uncorroborated accusation with no physical evidence, no independent witnesses, and no documentary support, the defense can argue that the evidence is insufficient to prove guilt beyond a reasonable doubt
False Accusations
False accusations of assault, particularly in the family violence context, are a documented reality of the criminal justice system. They arise in contested divorces, child custody disputes, landlord-tenant conflicts, workplace disputes, and relationship breakdowns. The accuser may be motivated by anger, revenge, a desire to gain leverage in a civil proceeding, or an attempt to obtain a protective order for strategic reasons.
Defending against a false accusation requires thorough investigation: obtaining and preserving text messages and communications that reveal the accuser’s motive, identifying witnesses who can contradict the accuser’s version of events, documenting the accuser’s history of making threats or false reports, and analyzing the timeline and physical evidence for inconsistencies. This investigation must begin immediately after the arrest because evidence disappears, witnesses forget, and social media posts get deleted.
Assault Defense in Fort Worth and Tarrant County
Deandra Grant Law has an office in Fort Worth at 4500 Airport Freeway, Suite 101, directly serving Tarrant County. We have defended assault cases in the Tarrant County courts for over 30 years( from Class C misdemeanor assault by contact to first-degree felony aggravated assault) and we understand the local courts, the prosecution’s approach, and the evidence the state will bring.
If you have been charged with assault in Fort Worth or Tarrant County, call (214) 225-7117 or visit texasdwisite.com for a free consultation.
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