Q: Is ASLT FM/HM IMP BREATH/CIR charged as aggravated and/or 3G if you have a prior felony record in Texas?
Boyfriend will be accepting a plea of 4 years in TDC to ASLT FM/ IMP BREATH and unlawful restraint. Want to know if his charge will be categorized as 3G and/or aggravated. He does have a prior felony record in the state of Massachusetts. First assault charge though. It appears aggravated or non aggravated will be the determining factor in the earliest date of parole eligibility. If non-aggravated he would have to serve a minimum of one quarter of his sentence. If aggravated he would have to serve 2 years or half the sentence, which ever is greater. In this case 2 years. Would this charge be bumped up to aggravated? There was no weapon involved. Just a swollen lip and cut on face in photos.
A: The only way to know with any certainty is to consult the defendant's attorney. This offense is usually a third-degree felony but can be raised to a second-degree based on the defendant's criminal history. Aggravated assault is normally a second degree but can be raised to a first based on the circumstances. When the F3 assault is raised to an F2 it does NOT automatically become Aggravated Assault. They are separate offenses with separate elements that must be proved to win a conviction. That said, it is 100% possible that a single incident could be charged as both Agg Assault and FV Strangulation Assault as separate counts in the same indictment by charging that the hands were used as a deadly weapon.
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