Wilson brandished a rifle at a couple of tailgaters outside a stadium. Like Pennsylvania, Aggravated Assault is a felony charge in Texas, which subjects a person to a possible state prison sentence.

Alfonso Gambone
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A Philadelphia criminal defense attorney representing accused persons throughout Pennsylvania and New Jersey.

Yesterday, Dallas Cowboy linebacker Damien Wilson was arrested on two charges of Aggravated Assault with a Deadly Weapon outside of Toyota Stadium in Frisco, TX. Allegedly Wilson brandished a rifle at a couple in the parking lot outside of the stadium following an argument with a group of tailgaters. Like Pennsylvania, Aggravated Assault is a felony charge in Texas, which subjects a convicted individual to a possible state prison sentence. While these are the sentencing guidelines, Mr. Wilson’s lack of criminal history will likely provide him with a number of pre-trial and post-trial options, even if he is convicted. Obviously, Mr. Wilson is presumed innocent and the state will have to prove these charges beyond a reasonable doubt if it wants to convict him of them.

In Texas, like Pennsylvania, the fact that a weapon is involved in an assault does not necessarily make it an Aggravated Assault. In Pennsylvania, a person commits a Simple Assault if he negligently causes bodily injury to another with a deadly weapon and only commits an Aggravated Assault if he attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon. The determining factor in Pennsylvania and in Texas is whether the means in which the weapon was used or the manner in which it was displayed somehow facilitated the commission of an assault. A deadly weapon is not just a gun or firearm but anything which can cause death or serious bodily injury.

Bodily injury in Pennsylvania and Texas is not just confined to visible injury, like a cut or a bruise, but includes any sign or occurrence of physical pain. Serious bodily injury is that injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of any bodily member or organ. Keep in mind that the prosecution in Pennsylvania and Texas doesn’t have to prove a serious bodily injury if a deadly weapon is involved but only establish some type of injury or an attempt to cause an injury to prove its case beyond a reasonable doubt. Again, the focus is on the manner in which the weapon was used, not just the weapon itself.

In the case of Damien Wilson, news reports have indicated that he “brandished the weapon”, but the witness’s testimony will be critical to establish the manner with which it was actually done. A criminal court won’t consider how it was reported in the news in its determination.

Much like in Texas, there is no mandatory minimum punishment for Aggravated Assault with a Deadly Weapon but obviously the sentencing consequences are much more severe. A person convicted of such a crime will become a convicted felon and this presents more obstacles to someone even after serving a sentence.

At this point, Wilson has been charged, and even if the alleged victim wanted to “drop the charges”, only the prosecutor in Texas, like Pennsylvania, has the power to do it. Prosecutors however will usually consider the alleged victims wishes when making a plea bargain offer. Assault charges in Texas can range from a Class C misdemeanor to a first degree felony, similar to Pennsylvania where the charge can range from a misdemeanor of the third degree to a felony of the first degree. A Simple Assault charge for a first time offender in Pennsylvania, much like Texas, would likely give the person the option of some type of pre-trial diversion program like ARD or AMP, which would make them eligible for an expungement.

This could be a likely result for this case, especially if the victim is agreeable to the disposition following some negotiation with the prosecutor’s office. For more information on the charge of Aggravated Assault, I encourage you to read my book, Commonwealth Vs. You, as well as my second book, What Everyone Should Know About Drugs, Guns, and Defense Lawyers in Pennsylvania.

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