Assault

When people hear the phrase “assault and battery,” they often envision two distinct criminal offenses: one encompassing threats of harm and the other involving actual physical violence. However, it's crucial to understand that under Texas law, the legal landscape is structured differently. The term “battery” is not used to define a separate criminal offense. Instead, both the act of threatening harm and/or the act of causing physical harm are typically consolidated under the broader legal definition of assault. This fundamental difference is key to comprehending how such charges are prosecuted in the state.

This post aims to provide a comprehensive breakdown of what constitutes assault under the Texas Penal Code, delve into the varying degrees of severity and their classifications, and outline the potential penalties that individuals accused of these offenses may face. We will also explore related offenses like aggravated assault and common legal defenses.

Defining Assault in Texas: A Three-Pronged Approach

The Texas Penal Code § 22.01 provides a specific and multifaceted definition of assault. A person commits assault if they engage in any of the following actions:

• Causing Bodily Injury: Intentionally, knowingly, or recklessly causing bodily injury to another person. This includes a spouse, and the term "recklessly" implies a conscious disregard of a substantial and unjustifiable risk that the injury will occur. Bodily injury itself is defined broadly as physical pain, illness, or any impairment of physical condition. This means even an act causing temporary pain, without visible marks, could qualify.
• Threatening Imminent Bodily Injury: Intentionally or knowingly threatening another person (including a spouse) with imminent bodily injury. The key here is the "imminent" nature of the threat; it must be a threat of harm that is about to happen. The threat can be conveyed through words, gestures, or a combination of both.
• Causing Offensive or Provocative Physical Contact: Intentionally or knowingly causing physical contact with another person when they know—or should reasonably believe—that the other person will regard the contact as offensive or provocative. This prong does not require any injury. Examples could include an unwanted touch, a shove that doesn't cause pain but is clearly offensive, or spitting on someone.

Because this statutory definition of assault encompasses both verbal or gestural threats (with no physical harm necessarily resulting) and actual physical contact that might or might not cause bodily injury, Texas law effectively subsumes what many other jurisdictions would categorize separately as “battery” into its singular assault statute.

Degrees of Assault and Their Corresponding Penalties: A Spectrum of Severity

Assault charges in Texas are not one-size-fits-all. The severity of the charge and the potential penalties depend heavily on the specific circumstances of the incident, the harm caused, the identity of the victim, and the defendant's prior criminal history.

• A. Class C Misdemeanor Assault
  • What It Is: This is the lowest level of assault. It typically involves situations where an individual threatens someone with imminent bodily injury but does not actually cause any physical harm, or where they cause physical contact that is deemed offensive or provocative but does not result in bodily injury. Examples could include a verbal threat of immediate harm or an unwelcome, offensive touch.
  • Penalties: A Class C misdemeanor is punishable by a fine of up to $500. While there is no jail time associated with a Class C misdemeanor conviction itself, failure to pay the fine or adhere to court orders can lead to further legal complications.

• B. Class A Misdemeanor Assault
  • What It Is: This is a more serious charge and is often filed when the assault results in actual bodily injury to another person, and the circumstances do not elevate it to a felony. As previously noted, bodily injury is defined as physical pain, illness, or any impairment of physical condition. This could range from a bruise or scratch to more significant, but not life-threatening, injuries.
  • Penalties: A Class A misdemeanor carries significantly steeper penalties, including potential confinement in county jail for up to one year and/or a fine of up to $4,000.

• C. Enhanced Misdemeanors and Felony Assault: When Circumstances Escalate the Charge The gravity of an assault charge can be substantially increased, elevating it from a lower-level misdemeanor to a higher-level misdemeanor or even a felony, based on several critical factors. These factors often relate to the identity of the victim, the defendant's prior criminal record, or the specific nature and context of the incident.
  • Assault Against a Public Servant:
    • If the victim of the assault is a public servant (such as a police officer, firefighter, emergency medical services (EMS) personnel, correctional officer, or even a process server) who is lawfully discharging an official duty, and the defendant knows the person is a public servant, the charge can be enhanced. An assault that might otherwise be a Class A misdemeanor can become a third-degree felony if it results in bodily injury to a public servant.
    • Penalties for a third-degree felony include imprisonment for 2 to 10 years and a fine of up to $10,000.

  • Assault Involving Family Violence:
    • Texas law takes domestic violence very seriously. If an assault involves a family member, household member, or someone with whom the defendant has or had a dating relationship, the penalties can be enhanced, especially with prior convictions.
    • A first offense of assault causing bodily injury to a family member is typically a Class A misdemeanor. However, if the defendant has a previous conviction for an offense involving family violence (including assault against a family member, violation of a protective order, or stalking), a subsequent assault against a family member causing bodily injury can be charged as a third-degree felony.
    • Furthermore, if the assault involves impeding the normal breathing or circulation of the blood of a family member or household member by applying pressure to the throat or neck (strangulation or choking) or by blocking the nose or mouth (suffocation), this act itself can elevate the charge. Such an offense can be a third-degree felony, or even a second-degree felony if the defendant has a previous conviction for a similar offense.
    • Penalties for a second-degree felony range from 2 to 20 years in prison and a fine of up to $10,000.

  • Assault Against Elderly& or Disabled Individuals:
    • Assault committed against an elderly individual (defined as someone 65 years of age or older) or a disabled individual can also lead to enhanced charges. Depending on the severity of the injury and the defendant's intent, these offenses can be prosecuted as felonies, reflecting the state's interest in protecting vulnerable populations.

Aggravated Assault: A More Serious Offense

Distinct from simple assault, though closely related, is the offense of aggravated assault, as defined under Texas Penal Code § 22.02. This charge signifies a more severe form of assault. A person commits aggravated assault if, during the commission of an assault (as previously defined), they either:

• Cause serious bodily injury to another person (including their spouse). Serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
• Use or exhibit a deadly weapon during the commission of the assault. A deadly weapon can be a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
• Penalties for Aggravated Assault:
  • Generally, aggravated assault is classified as a second-degree felony. This carries a potential punishment of 2 to 20 years in prison and a fine of up to $10,000.

• Enhanced Aggravated Assault Charges:
  • Similar to simple assault, aggravated assault charges can be further enhanced under specific circumstances. For instance, if the aggravated assault is committed against a public servant acting in their official capacity, or involves discharging a firearm from a motor vehicle towards a habitation, building, or vehicle and causing serious bodily injury, the charge can be elevated to a first-degree felony.
  • A first-degree felony is punishable by imprisonment for 5 to 99 years, or life, and a fine of up to $10,000.

Exploring Possible Legal Defenses in Assault Cases

Facing an assault charge does not automatically mean conviction. The Texas legal system provides for due process and various defenses that, if applicable to the facts of the case, could lead to charges being reduced or dismissed. Common defenses in assault cases include:

• Self-Defense (Texas Penal Code Chapter 9): This is one of the most common defenses. A defendant may argue that their actions were justified because they reasonably believed that the force they used was immediately necessary to protect themselves from the other person's use or attempted use of unlawful force. The amount of force used in self-defense must be reasonable in relation to the perceived threat.
• Defense of Others (Texas Penal Code Chapter 9): Similar to self-defense, a person is justified in using force to protect another individual if they reasonably believe the other person would be justified in using force to protect themselves, and the defendant reasonably believes their intervention is immediately necessary.
• Lack of Intent (Mens Rea): For most assault charges, the prosecution must prove a culpable mental state (intentionally, knowingly, or recklessly). If the contact or threat was purely accidental, and the defendant did not possess the requisite intent to cause harm, threaten, or make offensive contact, this could be a defense. For example, if bodily injury occurred due to an unforeseeable accident rather than intentional or reckless conduct.
• Mistaken Identity / Alibi: The defendant may argue they are not the person who committed the act in question or were wrongly identified by witnesses. An alibi defense would involve presenting evidence that the defendant was elsewhere when the alleged assault occurred.
• Consent: While not applicable in many assault scenarios (one cannot generally consent to serious bodily injury), in limited circumstances involving offensive contact or minor bodily injury (e.g., a contact sport), consent might be a factor.

It is absolutely critical to understand that the viability and success of these defenses are highly dependent on the specific, unique facts and circumstances of each individual case. Gathering evidence, witness testimony, and understanding the nuances of Texas self-defense laws (including the Castle Doctrine and Stand Your Ground principles, where applicable) are vital. Therefore, consulting with an experienced criminal defense attorney is paramount to thoroughly investigate the case, identify all possible defenses, and develop an effective and tailored defense strategy.

Consequences Beyond Criminal Penalties: The Ripple Effect of an Assault Conviction

A conviction for assault in Texas can have profound and lasting repercussions that extend far beyond court-imposed fines and potential imprisonment. These collateral consequences can significantly impact a person’s future:

• Permanent Criminal Record: An assault conviction, particularly a felony, creates a permanent criminal record that is accessible through background checks. This can severely limit opportunities for employment (especially in certain professions like teaching, healthcare, or law enforcement), housing (as landlords often run checks), and higher education.
• Issuance of Protective Orders: Victims of assault, especially in family violence cases, may seek and obtain protective orders (also known as restraining orders) against the defendant. These orders can legally prohibit the defendant from contacting the victim, going near their residence or workplace, or possessing a firearm, often for extended periods (e.g., two years, or sometimes longer). Violating a protective order is a separate criminal offense.
• Loss of Civil Rights: Certain convictions, predominantly felonies, can lead to the loss or restriction of fundamental civil rights. This includes the right to vote (until the sentence, including parole or probation, is fully discharged) and the right to possess firearms under both federal and state law.
• Immigration Consequences: For non-U.S. citizens, an assault conviction can have severe immigration consequences, potentially leading to deportation, denial of naturalization, or inability to re-enter the United States.
• Professional Licensing Issues: Many professions require state licenses (e.g., doctors, nurses, lawyers, teachers, real estate agents). An assault conviction can jeopardize an existing license or prevent an individual from obtaining one.
• Social Stigma: The social stigma associated with an assault conviction can affect personal relationships and standing in the community.

Conclusion: Navigating Assault Charges in Texas Requires Expertise

In summary, under Texas law, the traditional concept of “battery” is effectively integrated within the broader offense of “assault”. This legal framework makes it essential for anyone facing such allegations to understand precisely how Texas law defines and penalizes a wide array of threatening or harmful behaviors.

Whether an assault charge is classified as a misdemeanor or a felony, it invariably carries the potential for serious penalties, including substantial fines, incarceration (in county jail or state prison), and a host of long-term collateral consequences that can shape an individual's future. Given the complexities of the law, the nuances of evidence, and the severity of potential outcomes, facing an assault charge alone is a daunting prospect.

Facing assault charges in Texas can be overwhelming, with serious consequences that can impact your life for years to come. Don't navigate this complex legal challenge alone. If you or someone you know is confronting assault charges, the time to act is now. It is absolutely imperative to secure the counsel of a qualified and experienced criminal defense attorney immediately.

At Howard Lotspeich Alexander & Williams, PLLC (HLAW), our knowledgeable attorneys are ready to:

• Meticulously analyze the specific details of your case.
• Clearly explain your rights and the charges you face.
• Thoroughly explore all available defenses.
• Skillfully navigate the intricate Texas legal system on your behalf.
• Advocate zealously to protect your rights and fight for the best possible outcome.

Your future is too important to leave to chance. Contact Howard Lotspeich Alexander & Williams, PLLC (HLAW) today for a confidential consultation. Let our experience work for you.

Is the Class C charge of Assault (Offensive Contact) a lesser-included offense of the Class A charge of Assault (Bodily Injury)?

In short, the answer is most likely No.

An offensive-contact assault not a lesser-included offense of a bodily-injury assault because the offenses have different elements.

The Court of Criminal Appeals, whose opinions are controlling in Texas, held that an offensive-contact assault is not a lesser-included offense (“LIO”) of a bodily-injury assault because what the state was required to prove for one offense differed from what the state had to prove for the other (McKithan v. State, 324 S.W.3d 582, 583, 591 (Tex. Crim. App. 2010)). For a Class A misdemeanor bodily-injury assault, the state must prove that bodily injury (or pain) occurred; the statute does not require the state to prove that the contact was offensive or provocative (Tex. Penal Code § 22.01(a)(1), (a)(3)). An offense is not an LIO if the state must prove different elements for each offense (McKithan, 324 S.W.3d at 583, 591). It is not enough that “proof of the charged [] offense may also” show the other offense; the State must be “required to prove these offenses in establishing the charged offenses” (Id. at 593).

Granted, seven years before McKithan, the Court of Criminal Appeals stated that an offensive-contact assault is an LIO “of (a)(1), because [it is] proved by less than all the facts required to prove (a)(1), specifically, physical injury” (Reed v. State, 117 S.W.3d 260, 267 (Tex. Crim. App. 2003)). However, the Court of Criminal Appeals seemed to move away from this categorical view in McKithan.

Additionally, the appeals court presiding over cases in Tarrant County, the Second Court of Appeals, held that an offensive-contact assault “is not, under the circumstances of this case, a lesser-included offense of assault causing bodily injury” (Welsh v. State, 2009 Tex. App. LEXIS 3592, *4-5 (Tex. App—Fort Worth May 21, 2009)). Other courts echo this sentiment. For example, in Norman v. State, the appeals court held that the trial court did not make a mistake when it refused to instruct the jury on offensive-contact assaults as a LIO of bodily-injury assaults because offensive-contact assaults have a unique element (2019 Tex. App. LEXIS 6690, *16-17 (Tex. App—Amarillo August 1, 2019). And one Houston court stated that “[b]ecause offensive-contact assault is not within the proof necessary to establish bodily-injury assault, it is not a lesser-included offense” (Washington v. State, 2019 Tex. App. LEXIS 5409, *12 (Tex. App—Houston June 27, 2019)).

Thus, offensive-contact assaults are not considered LIOs of assaults causing bodily. An assault under § 22.01(a)(3) has elements unique to it, so one cannot prove an assault under § 22.01(a)(1) by establishing the elements of assault under § 22.01(a)(3).

Tarrant County Trial Court Admits Testimony in Violation of the Confrontation Clause

The Second Court of Appeals recently released a memorandum opinion, which reversed a defendant’s conviction due to a confrontation clause violation. The issue was whether the trial court (Criminal District Court Number 1, Tarrant County) erred in allowing an officer to testify about certain statements the alleged victim made regarding a prior assault allegation.

McDowell v. State—2nd Court of Appeals (2018)

The Facts—Defendant Was Convicted for Felony Domestic Violence

On August 21, 2016, officers were alerted to a domestic disturbance in progress. When officers arrived at the scene they made contact with the victim and the victim’s friend who had reported the disturbance. While talking with the two females, officers noticed multiple bruises on the victim and learned that the suspect (i.e. Defendant), who had allegedly assaulted the victim, was still inside the home. Officers subsequently entered the residence and arrested Defendant.

At trial, dash-cam video showing the accusations made by the two females was admitted. In addition, one of the officers testified to additional statements made by the victim suggesting that the defendant had a history of violence. These additional statements, however, were not included in the dash cam video. Defendant objected to these statements under Crawford because the victim did not appear at trial. Nonetheless, the trial court allowed the out-of-court statements to be admitted over objection.

In addition to the officer’s testimony regarding the hearsay statements, the jury heard from two other witnesses about the cycle of domestic violence. The State then referenced this testimony in relation to Defendant’s history of domestic violence during closing arguments. As a result, Defendant was convicted. Defendant later appealed his conviction arguing that the trial court erred when it allowed the officer to testify to the victim’s statements in violation of the confrontation clause of the 6th Amendment.

Court of Appeals Reverses and Remands Case—Holding the Trial Court Erred in Admitting the Officer’s Testimony

Generally, the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial. In determining whether certain statements were testimonial in nature, “the Court looks to see whether circumstances were present at the time the statements were made that would indicate the existence of an ongoing emergency.” If such circumstances existed, the statements are admissible.

Here, the victim did not appear at trial. As such, the Court of Appeals attempted to analyze whether the victim’s statements were testimonial in nature by determining whether they were made during the ongoing emergency. However, the Court was unable to do so because there was no evidence from the State regarding when these statements were made. The Court concluded that without knowing the timing at which the statements were made, there was no way to determine the existence of an ongoing emergency. The Court explained that once there is an objection to the admission of evidence on confrontation grounds the burden shifts to the State. Here, the State was silent in regard to the confrontation objection. And, without the State providing more evidence, the Court could not conclude that the statements were nontestimonial. Accordingly, the Court held that the trial court erred in admitting the statements.

The Court then conducted a harm analysis to determine whether the error impacted the jury’s verdict, which would require a reversal. In making its determination, the Court noted that the majority of the officer’s testimony was based on the inadmissible statements. These statements portrayed a history of violence rather than just one instance. Further, the other witnesses’ testimony hinged on these inadmissible statements. Thus, because the inadmissible statements were a crucial part in establishing the elements of the offense, the Court could not say beyond a reasonable doubt that the trial court’s error did not contribute to Defendant’s conviction and, therefore, a reversal was required.

Put Up Your Dukes! Here's What Texans Need to Know Before They Decide to Engage in a Fistfight.

It's no secret that folks don't always get along. Sometimes, especially down in Texas, arguments can lead to fights. When two adults decide to go to fisticuffs, they can reasonably assume that one (or both) of them are going to get hit. But, are the bruises and black eyes the end of it? Can either of these heroes be charged with a criminal offense for their part in the fight? Maybe. It depends.

Consent as a Defense to a Texas Assault Charge

Section § 22.06 of the Texas Penal Code governs consent as a defense to assaultive conduct. This section allows a party accused of assault or aggravated assault or deadly conduct in violation of sections § 22.01, § 22.02 or § 22.05 of the penal code to assert consent of the victim as an affirmative defense to prosecution so long as serious bodily injury is not inflicted and the assaultive conduct is not a requirement of membership in a criminal street gang. While Section § 22.06 is a defense, it does not grant an actor automatic immunity from prosecution. Ultimately, whether both parties to a fistfight demonstrate consent or the reasonable appearance of consent is a fact-intensive inquiry and is a matter for a jury to decide.

-An Illustration-

In Miller v. State, a father and his adult son engaged in fisticuffs over the usual father-son trivialities. The son admitted in an affidavit to egging his father on, inviting him to “come on, hit me,” lunging at his father in a threatening manner and pushing him. The father hit his adult son, bloodying his face and loosening some teeth. After their fight, the bloodied son was discovered by police offers conducting a routine traffic stop. The father was charged with assault in violation of the Texas Penal Code § 22.01. At trial, the father requested a jury instruction on consent but was denied. He was convicted of assault and appealed. The Court of Appeals, Houston 14^th District, reversed the trial court, finding that a jury instruction on consent was appropriate given the facts of the case.[1]

What Constitutes Consent to a Fistfight in Texas?

The consent defense to assaultive conduct applies both when the victim gives effective consent to engage in mutual combat as well as when the actor has a “reasonable belief” of the victim's consent.[2] When evaluating whether a consent defense might apply, courts look to the circumstantial evidence surrounding the fracas. This evidence is evaluated in the light most favorable to the defendant and must merely support the defense's assertion of the victim's consent, it does not necessarily have to be believable. Evaluating the credibility of the alleged consent is a question for the jury.[3]

Though juries must be given instruction on consent if the evidence calls for it, the “true meaning” of a combatant's words are a variable to be considered. In a decision decided on a technicality the court recognized that words like “go ahead,” “come on,” “slap me,” “do it” were not indicative of consent but were “a backhanded warning of potentially dire consequences to the threatener” in those particular circumstances.[4] The court agreed, however, that this is a question for juries to consider with a consent instruction.

In Miller v. State, the victim son, invited his father to “come on, hit me.” The son later explained to police that he was “all jazzed up” and eager for a fight. The victim then kicked and punched his father before his father punched his son. The appellate court took the provocations of the victim to be a part of the calculus for determining mutuality.[5] It is also notable that no parties called the police, that the police encountered the situation through happenstance and pressed charges on their own authority.

What Constitutes "Serious Bodily Harm" Under Texas Law?

Consent is not a defense to assaultive conduct that results in serious bodily harm. Serious bodily harm is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”[6] Courts have not produced a definitive demarcation line on what types of assaultive conduct constitute serious bodily harm and what fall short. Serious bodily harm is evaluated on a case-by-case basis[7] accounting for the “disfiguring and impairing quality of the bodily injury.”[8] Injuries are evaluated at the time of the infliction, irrespective of subsequent ameliorating treatment.[9]

Courts have found that the loss of teeth can constitute a serious bodily harm when paired with a sore neck and a week-long hospital stay[10] however, so far, courts have only found the loosening of teeth to rise to the level of serious bodily injury when paired with other serious injuries including fractured facial bones.[11] Blows to the head may or may not constitute serious bodily harm depending on whether they lead to concussion. Similarly, memory loss may or may not constitute serious bodily harm depending on whether it is a product of concussion.[12] Ultimately, if the State alleges serious bodily harm, it is a question of fact for the jury to decide.[13]

In Miller v. State, the state did not allege serious bodily harm and the Court found that the loosening of teeth and the temporary loss of consciousness with no accompanying memory loss did not rise to the level of serious bodily harm.

Jury Instructions On Consent Are Mandatory When Supported By Evidence

In a prosecution for assault, aggravated assault, or deadly conduct in violation of sections § 22.01, § 22.02, or § 22.05 of the Texas Penal Code, the judge must give the jury an instruction on consent and, when charged by the prosecution, serious bodily injury, if the accused has raised any evidence supporting the defense.[14]

“An accused has the right to an instruction on any defense raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of the evidence.”[15]

It is the purview of the jury to determine whether or not the accused had a reasonable belief of consent before engaging in combative behavior. Once the issue of consent is submitted to the jury, the court shall charge the jury that reasonable doubt on the issue requires that the defendant be acquitted.[16]

-Conclusion-

Though a fistfight between consenting adults may well fall into the excepted area carved out by Section § 22.06 of the Texas Penal Code, there are many pitfalls that ought to be avoided. When two parties enter into combat it can sometimes be difficult to establish the mutuality of consent. While consent can be implied from the actions of the participating parties including threatening and inviting speech or belligerent physical action, the more explicit the assertion of consent, the better. If there is sufficient doubt about one party's eagerness to enter into combat, the consent defense may not apply.

Additionally, when engaging in consensual mutual combat, care must be taken by both parties to not traverse the divide between simple assault and serious bodily harm. Because of the nebulous nature of what constitutes serious bodily harm and the unpredictability in how courts interpret the statute, this can be an especially tricky area to navigate. The difference between a loose tooth and a lost tooth may mark the difference between whether § 22.06 applies.

Finally, both the consent of the parties as well as the gravity of the injuries inflicted are questions for a jury to decide. Though § 22.06 should be introduced as an instruction for a jury to consider when supported by evidence, a person accused of assault still may likely have to undertake the time and expense of a criminal prosecution.

 

[1]          Miller v. State, 312 S.W.3d 209 (Tex. App. - Houston [14^th District] 2010).

[2]          § 22.06.

[3]          312 S.W.3d at 212.

[4]          Allen v. State, 253 S.W.3d 260, 268 (Tex. Crim. App. 2008).

[5]          312 S.W.3d at 211.

[6]          Tex. Penal Code Ann. § 1.07 (West).

[7]          312 S.W.3d at 213.

[8]          Blea v. State, 483 S.W.3d 29, 34–35 (Tex. Crim. App. 2016).

[9]          Goodman v. State, 710 S.W.2d 169, 170 (Tex.App.-Houston [14th Dist.] 1986, no pet.).

[10]        Hatfield v. State, 377 S.W.2d 647, 648 (Tex. Crim. App. 1964).

[11]        Pitts v. State, 742 S.W.2d 420, 421 (Tex. App. - Dallas 1987).

[12]        Powell v. State, 939 S.W.2d 713, 718 (Tex.App.-El Paso 1997, no pet.).

[13]        312 S.W.3d at 213.

[14]        Tex. Penal Code Ann. § 2.03 (West).

[15]        Id. at 212.

[16]        § 2.03.

Texas Hate Crimes

One of the highest-profile hate crimes in the nation to occur in recent years involved the unprovoked massacre of a historic South Carolina church carried out by Dylann Roof.  Shortly, thereafter, there was the largest mass shooting in American history that occurred in Orlando at a gay night club.  These terrible incidents opened up the flood gates for a national dialogue on the real prevalence and impact of hate crimes in the nation.

In the state of Texas, hate crimes are no less of an issue than any other area of the nation, and their investigation remains a top priority for investigators and social interest groups working against them. The available statistics on hate crime frequency in Texas illustrate the ongoing need for officials to continue their heavy investment of effort in working against discrimination-motivated victimization based on race, religion, gender, sexual orientation, and all other personal identifiers.

Legal Definition of Hate Crime in Texas

Under Article 42.014 of the Texas Code of Criminal Procedure, a hate crime occurs if the:

defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. 

The FBI defines a hate crime as "a criminal offense against a person or property motivated in whole or in part by an offender's bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity."

Out of all the FBI Civil Rights program's priorities, hate crimes are the highest on the program's list. The FBI considers those who perpetuate and preach intolerance and hatred to be catalysts for terrorism, and the Bureau treats them as such.

The Texas Hate Crimes Act, recorded in Chapter 411.046 of the Texas Government Code, categorizes any crimes that are perceivably motivated by "prejudice, hatred, or advocacy of violence" as hate crimes. Like the FBI's classification determiners, these crimes are linked to any prejudices directed at gender, gender identity, religion, disability, race, ethnicity, sexual orientation, disability and religion.

The following statistics collected by the Texas Department of Public Safety are the most recent available for comprehensive insight into hate crime prevalence, locations, offenders, victims and offenses in the state of Texas.

What is the Penalty for a Hate Crime Offense in Texas?

In a criminal case, if the judge or jury makes an affirmative finding that the offense is a Hate Crime, Section 12.47 of the Texas Penal Code outlines the punishment enhancement.  For offenses other than a Class A Misdemeanor or First Degree Felony, the underlying offense is enhanced to the next higher category of offense. For instance, if the offense is a Class B Misdemeanor and the jury returns an affirmative finding that the offense was motivated by prejudice toward the victim's race, the offense is increased to a Class A Misdemeanor.  First Degree Felonies are not enhanced under Section 12.47 because they already carry a penalty range of 5-99 years in prison. If the underlying offense is a Class A Misdemeanor, it will remain a Class A Misdemeanor but the minimum jail sentence is increased to 180 days. Enhancements for hate crimes are limited to offenses under Title 5 of the Texas Penal Code, or Section 28.02, 28.03, or 28.08, Texas Penal Code."

Texas Hate Crime Volume

The Texas DPS reported that there were 166 reports of hate crimes in 2014. The hate crimes involved 198 offenders and 190 victims. The most common bias was race and ethnicity, the second most common bias was sexual orientation, and the third most common bias was religiously-motivated. The 2014 figure on hate crime reports was a 23 percent increase from the 2013 figure.

Texas Hate Crime Locations

The DPS reported that hate crimes most commonly occurred in residential homes, at 30.4 percent. Next to residences, the second-most frequent places for hate crimes to occur were roads/highways/streets/alleys, at 16.1 percent. The third most frequent areas for hate crimes to occur were parking lots and garages, at 12.5 percent.

Texas Hate Crime Offenders

The DPS hate crime report's data on offenders showed that the 198 hate crime offenders were 67.7 percent white, 18.7 percent black, 1.5 percent Asian, 1.0 percent multiracial, and 11.1 percent unknown. The information on Texas hate crime offender demographics was analyzed with the understanding that hate crimes can be perpetuated by different offenders sharing the same race.

Texas Hate Crime Victims

The DPS report's data on hate crime victims categorized the victims based on the following categories: individual, business, financial institution, government, religious organization, society/public, "other", and unknown. Individuals were the most frequent victim type, at 84.2 percent. The second most frequent victim type was "business", at 8.4 percent, followed by government and religious victims at 3.2 percent.

Specific Texas Hate Crime Offenses

The most common type of hate crime offense was simple assault, at 15 percent. The second most frequent hate crime offense was vandalism, at 25.7 percent, followed by intimidation at 18.6 percent.

History of Nationwide Hate Crime Investigation by the FBI

The FBI has historically investigated hate crimes in which the offending party was motivated by the national origin, religion, or ethnicity of the victim. The role of the FBI in hate crime investigation was notably increased after the Civil Rights Act of 1964. In the past, investigators were restricted to cases in which the victim of a hate crime was engaging in an activity under federal protection.

After the 2009 Hate Crimes Prevention Act of 2009, investigators gained a freedom to investigate hate crimes without as much red tape. In addition, the 2009 act also gave investigators clearance to freely investigate hate crimes committed out of a bias against the sexual orientation, gender, disability or gender identity of the victim.

Conclusion

Though the time and manpower investment in hate crime investigation remains heavy, the need for vigilance remains high. According to the FBI's 2015 report, there were 5,479 hate crime incidents nationwide in 2014; these incidents involved 6,418 offenses to the Uniform Crime Reporting (UCR) program, creating 6,727 victims nationwide. Though the figure was down from the 2013 rate, in which there were 5,928 incidents and 6,933 offenses, the issue remains a top priority for investigators in Texas and the nation at large all year round.