Where does assault or battery come in?

[Scott in Houston]

In the code, it defines the ability to use deadly force for "(A)  to protect the actor against the other's use or attempted use of unlawful deadly force; or
(B)  to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery."

No where does it address assault or battery. In particular I'm surprised about battery. Can anyone elaborate on how Texas views it? If I'm getting pummeled by a 6'6" 300 pound man who is unarmed, am I justified?

I've always assumed yes, but when re-reading the code, I noticed the lack of both of these terms.

[Sangiovese]

Assault isn't mentioned, because it may not be enough to justify deadly force.

TPC 22.01. ASSAULT. (a) A person commits an offense 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 person's 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 or provocative.

There is a whole lot that someone can do that qualifies as "assault" that doesn't justify deadly force. I'm guessing that's why they didn't include it.


Your 6'6" 300 pound example is definitely using unlawful force against you. Is it deadly force? That would be a jury question. Deadly force is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury."

I have my own opinions, but they are just opinions so I'll leave them out of it for now. For some expert commentary on the subject, Massad Ayoob discusses the topic in some detail in his judicious use of deadly force training. I believe that you can find the lecture on youtube, and I know you can buy the DVD.

[gigag04]

Battery is non-existent in the Texas Penal Code - it falls under the banner of civil law torts

[Scott in Houston]

Battery is non-existent in the Texas Penal Code - it falls under the banner of civil law torts

Thanks... I was just about to come post something about that. I couldn't find it anywhere.
That explains why assault is left out because it's so broad. I suppose in the type of hypothetical I listed above, one would make the case for 'fear for their life'.

[Kythas]

Battery is non-existent in the Texas Penal Code - it falls under the banner of civil law torts

I was wondering about that, too. Thanks.

[Keith B]

To follow up, Battery is offensive or unwanted contact. It could be no more than an unwelcome pat on the back or suggestive touching of an individual. In states where the crime of Battery exists, they usually define Assault as an intent to physically harm the person, hence the two different laws. Many states just use assault and have different degrees or levels of it, instead of having a law on Battery. By the way, there is either Battery or Assault, not both, as you used to hear on television a lot.

[Scott in Houston]

To follow up, Battery is offensive or unwanted contact. It could be no more than an unwelcome pat on the back or suggestive touching of an individual. In states where the crime of Battery exists, they usually define Assault as an intent to physically harm the person, hence the two different laws. Many states just use assault and have different degrees or levels of it, instead of having a law on Battery. By the way, there is either Battery or Assault, not both, as you used to hear on television a lot.

Gotcha... Thanks for the information. I was not familiar with what assault or battery was I guess. I need to brush up and watch more "Law & Order". :)

[ffemt300]

Good stuff. Very informative. I was also wondering why I never hear the term "battery" much anymore and never in Texas. now I know.

[Keith B]

I need to make a correction. I went back and looked at the laws from my old state (Missouri) where they actually have the charge of battery on the books for this offense only. Here are the legal definitions; I had it backward. The definitions are pretty clear:

Abuse--Adults and Children--Shelters and Protective Orders
Section 455.010

455.010. As used in this chapter, unless the context clearly indicates otherwise, the following terms shall mean:

(1) "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter, except abuse shall not include abuse inflicted on a child by accidental means by an adult household member or discipline of a child, including spanking, in a reasonable manner:

(a) "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;

(b) "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;

(c) "Coercion", compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage;

(d) "Harassment", engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult or child to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner or child. Such conduct might include, but is not limited to:

This is a statute that is still on the books in the case of abuse (more a domestic crime). The other statutes have been revised to just use assault and the elevated degrees like Texas has it.

[ClarkLZeuss]

If I'm getting pummeled by a 6'6" 300 pound man who is unarmed, am I justified?

Your 6'6" 300 pound example is definitely using unlawful force against you. Is it deadly force? That would be a jury question. Deadly force is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury."

And what the jury will look at is whether or not you were reasonably in fear of your life before you pulled the trigger. Of course, if he tries to rob you, well then that gives you some more leeway.
IANAL.

[sjfcontrol]

I need to make a correction. I went back and looked at the laws from my old state (Missouri) where they actually have the charge of battery on the books for this offense only. Here are the legal definitions; I had it backward. The definitions are pretty clear:

Abuse--Adults and Children--Shelters and Protective Orders
Section 455.010

455.010. As used in this chapter, unless the context clearly indicates otherwise, the following terms shall mean:

(1) "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter, except abuse shall not include abuse inflicted on a child by accidental means by an adult household member or discipline of a child, including spanking, in a reasonable manner:

(a) "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;

(b) "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;

(c) "Coercion", compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage;

(d) "Harassment", engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult or child to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner or child. Such conduct might include, but is not limited to:

This is a statute that is still on the books in the case of abuse (more a domestic crime). The other statutes have been revised to just use assault and the elevated degrees like Texas has it.

Keith, I don't see the highlighted lines as the opposite of what you said earlier. I wouldn't think that a suggestive touch, or an unwanted pat on the back would meet either of those definitions.
Assault deals with creating fear of physical harm in a person, Battery involves actually causing harm. A suggestive touch or a pat on the back (or just generally being creepy) does neither.
What am I missing?

[Keith B]

I need to make a correction. I went back and looked at the laws from my old state (Missouri) where they actually have the charge of battery on the books for this offense only. Here are the legal definitions; I had it backward. The definitions are pretty clear:

Abuse--Adults and Children--Shelters and Protective Orders
Section 455.010

455.010. As used in this chapter, unless the context clearly indicates otherwise, the following terms shall mean:

(1) "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter, except abuse shall not include abuse inflicted on a child by accidental means by an adult household member or discipline of a child, including spanking, in a reasonable manner:

(a) "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;

(b) "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;

(c) "Coercion", compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage;

(d) "Harassment", engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult or child to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner or child. Such conduct might include, but is not limited to:

This is a statute that is still on the books in the case of abuse (more a domestic crime). The other statutes have been revised to just use assault and the elevated degrees like Texas has it.

Keith, I don't see the highlighted lines as the opposite of what you said earlier. I wouldn't think that a suggestive touch, or an unwanted pat on the back would meet either of those definitions.
Assault deals with creating fear of physical harm in a person, Battery involves actually causing harm. A suggestive touch or a pat on the back (or just generally being creepy) does neither.
What am I missing?

I guess you're right. Had it in my head for some reason I was backward. Been one of those weeks LOL. Anyway, I think that is why many states moved away from having both on the books and made assault.

[Kythas]

I need to make a correction. I went back and looked at the laws from my old state (Missouri) where they actually have the charge of battery on the books for this offense only. Here are the legal definitions; I had it backward. The definitions are pretty clear:

Abuse--Adults and Children--Shelters and Protective Orders
Section 455.010

455.010. As used in this chapter, unless the context clearly indicates otherwise, the following terms shall mean:

(1) "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter, except abuse shall not include abuse inflicted on a child by accidental means by an adult household member or discipline of a child, including spanking, in a reasonable manner:

(a) "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;

(b) "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;

(c) "Coercion", compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage;

(d) "Harassment", engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult or child to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner or child. Such conduct might include, but is not limited to:

This is a statute that is still on the books in the case of abuse (more a domestic crime). The other statutes have been revised to just use assault and the elevated degrees like Texas has it.

This is pretty much what it was in Louisiana when I was a sheriff's deputy.

Battery was committing physical harm upon the body of another person or administering poison to another person. This was explained to us in the academy as any offensive, unwanted touching.
Assault was the attempt to commit battery or the placing of another person in fear or apprehension of having battery committed upon them.

Any weapon used in the commission of either of the above was an aggravating circumstance and elevated to aggravated battery or aggravated assault.

[Jaguar]

(a) "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;

(b) "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;

This is pretty much what it was in Louisiana when I was a sheriff's deputy.

Battery was committing physical harm upon the body of another person or administering poison to another person. This was explained to us in the academy as any offensive, unwanted touching.
Assault was the attempt to commit battery or the placing of another person in fear or apprehension of having battery committed upon them.

Any weapon used in the commission of either of the above was an aggravating circumstance and elevated to aggravated battery or aggravated assault.

So to nitpick, battery occurs when someone taps you on the arm to get your attention, since it is unwanted, and you feel it is offensive, yet it was not "purposely or knowingly causing physical harm"?

Seems like a stretch of the definition to me.

[Sangiovese]

(a) "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;

(b) "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;

This is pretty much what it was in Louisiana when I was a sheriff's deputy.

Battery was committing physical harm upon the body of another person or administering poison to another person. This was explained to us in the academy as any offensive, unwanted touching.
Assault was the attempt to commit battery or the placing of another person in fear or apprehension of having battery committed upon them.

Any weapon used in the commission of either of the above was an aggravating circumstance and elevated to aggravated battery or aggravated assault.

So to nitpick, battery occurs when someone taps you on the arm to get your attention, since it is unwanted, and you feel it is offensive, yet it was not "purposely or knowingly causing physical harm"?

Seems like a stretch of the definition to me.

It's not as open ended as it sounds. The "offensive" requirement is subject to a reasonable person test (would a reasonable person of ordinary sensibilities find the contact offensive). Some places also include a contact that a reasonable person wouldn't find offensive, but the particular victim does, but only if the offender knew that the victim would find it offensive (Uncle Bob is deathly afraid of feathers. I know this. I tickle him with a feather because I know he will freak out.)

It's essentially the same thing that we have in the Texas assault statute.
A person commits an offense if the person... (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 or provocative.