7.6.

Aggravated assault--By use of a deadly weapon[FN1]

[Commencement Form, Ch. 1] A.B. did then and there intentionally and
knowingly [or
recklessly] use a deadly weapon, to wit: [specify], firearm [or manifestly
designed,
made and adapted for the purpose of inflicting death and serious bodily
injury, or
that in the manner of its use and intended use was capable of causing death
and
serious bodily injury] and did then and there intentionally and knowingly
cause
bodily injury to C.D. by [specify the manner and means, such as: shooting
him with
the firearm] [or did then and there intentionally and knowingly threaten C.D.
with
imminent bodily injury by the use of said deadly weapon].

[Conclusion and Signature Form,

Ch. 1]

Notes

West's Key Number Digest

West's Key Number Digest, Assault and Battery 78

Legal Encyclopedias

C.J.S., Assault and Battery § 101

[FNa] Former Presiding Judge, Court of Criminal Appeals, Austin, Texas.

[FNb] Former District Attorney and Senior District Judge, Austin, Texas.

[FNc] Board Certified Criminal Law Specialist, Austin, Texas and Past
President of
the Texas Defense Lawyers Association.

--------------------------------------------------------------------------------

[FN1] V.T.C.A., Penal Code § 22.02(a)(2).

Where indictment alleges defendant “did cause bodily injury by striking
victim and
did then and there use a deadly weapon, a knife” the indictment tracks the
statute
and is sufficient even though it does not specifically allege the defendant
caused
the injury by using a deadly weapon. Johnson v. State, 91 S.W.3d 413
(Tex.App.—Waco
2002).
The acts of recklessness must be alleged.

Vernon's Ann.C.C.P. art. 21.15.

Information
alleging that defendant used pistol, a deadly weapon, to intentionally
threaten
imminent bodily injury sufficiently alleged aggravated assault with deadly
weapon.
Pacheco v. State, 529 S.W.2d 77 (Tex.Cr.App.1975).
Form approved. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975).
A knife is not a deadly weapon per se. Windham v. State, 530 S.W.2d 111
(Tex.Cr.App.1975).
Where unnecessary matter is descriptive of that which is legally essential to
charge
a crime, failure of proof as alleged constitutes a fatal variance, i.e.:
allegation
of “Ruger” pistol is not proved by “Luger” pistol. Weaver v. State, 551
S.W.2d 419
(Tex.Cr.App.1977).
Failure to name the person assaulted is error. Ex parte Lewis, 544 S.W.2d
430
(Tex.Cr.App.1976).
An air pistol is not a deadly weapon per se. Mosley v. State, 545 S.W.2d 144
(Tex.Cr.App.1976).
Indictment need not negative the antique or curio exception. Wright v. State,
582
S.W.2d 845 (Tex.Cr.App.1979).
From the manner of its use a knife may be a deadly weapon. Hawkins v.
State, 605
S.W.2d 586 (Tex.Cr.App.1980).
While indictments alleging a culpable mental element for either the
underlying
assault or the aggravating factor, it is better practice to allege a culpable
mental
state for each. Pass v. State, 634 S.W.2d 857 (Tex.App.1982 pet. ref'd). See
also
Lugo–Lugo v. State, 650 S.W.2d 72 (Tex.Cr.App.1983).