Assault and Battery: What is the Difference?

The Common Law History

The old distinction between battery and assault

Assault vs. Battery at Common Law – “Common Law” is the term used for laws derived from judicial precedent made in the court system rather than codified in a statute. Common law crimes originated in England and eventually found their way to the United States. When a decision was handed down in a case, the opinion had a binding effect on later decided cases, and the principle by which judges are bound to follow a rule of law created in a previous, similar case is known as stare decisis. Today, many crimes that originated in the common law are now enumerated in both state and federal statutes.

Traditionally, common law assault occurred when a person intentionally or knowingly placed another in reasonable apprehension of an imminent harmful or offensive contact, and the person had the present, apparent ability to cause the harmful or offensive contact. For example, if you threw a punch at someone and missed (and you were close enough to possibly hit them), then you would most likely be guilty of common law assault.

Common law battery, on the other hand, occurred when a person intentionally or knowingly caused harmful or offensive contact to another person or a logical extension of that person. For example, punching someone in the face would most definitely be a common law battery. The logical extension part of the law is interesting because you do not have to actually make contact with the person’s body. Intentionally knocking a book or umbrella out of someone’s hands could possible lead to a battery charge.

Remember: under the common law, the crucial difference is that no contact actually occurs during an assault, but contact does occur to the other person (or a logical extension of that person’s body) during a battery.

No Such Thing as Criminal Battery in Texas

Busted eye from assault

Most states have now added the crimes of assault and battery to their criminal codes. Some combine the two traditional crimes into one offense, and others leave assault and battery as separate, independent possible offenses. In Texas, assault and battery are found in § 22.01 of the Penal Code and are combined into a single offense called “Assault.” A person commits an assault if the person:

  1. intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
  2. intentionally or knowingly threatens another with imminent bodily injury, including the persons spouse; or
  3. intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive.

As you can see, aspects of both common law battery and common law assault are found in the Texas offense of assault. Although battery is not a separate offense in the Texas Penal Code, it is clearly included in the assault statute. An assault charge can range from a Class C misdemeanor all the way up to a 1st Degree Felony. Factors affecting the severity of punishment include (1) the victim’s relationship to the offender, (2) if the victim was a public servant, (3) previous convictions, and (4) if some type of strangulation occurred.

A person commits an aggravated assault under §22.02 of the Penal Code if they commit a regular assault and also cause serious bodily injury or use or exhibit a deadly weapon. Aggravated assault is usually a 2nd Degree felony. However, it is a 1st Degree Felony if:

  1. A deadly weapon is used and causes serious bodily injury against someone with a close relationship to the actor;
  2. The offense is committed by a public servant;
  3. The offense is committed against a public servant;
  4. The offense is against a witness or informant;
  5. The offense is against a security officer;
  6. The actor is in a motor vehicle and discharges a firearm at a house or building and causes serious bodily injury to any person.

Civil Law – Assault and Battery

Lawsuit for Money in Texas

Along with being a criminal charge, assault is also a civil harm that allows a person to recover damages in order to compensate them for injuries or expenses caused by an assault. In Texas, the elements of a civil assault claim are the same as those required for criminal assault. Thus, if you commit a criminal assault, the victim may also have a solid civil assault case against you for recovery. However, the victim must sustain some sort of injury, either physical, emotional, or mental, in order to recover damages.

Although battery is not a separate offense in Texas, it is very much alive within the assault and aggravated assault statutes. You need to be aware that you can be charged with assault without actually touching another person, and an assault charge can have both criminal and civil ramifications.