Menace Versus Injury Assaults

Menace Versus Injury Assaults

With the working parts of the menace clause in hand, it helps to read paragraph (c) beside the other ways of committing assault, because many assault problems are decided by choosing which paragraph fits the facts. Section 211.1(1) defines simple assault through three alternatives joined by the word or. Paragraph (a) reaches a person who attempts to cause bodily injury or who purposely, knowingly, or recklessly causes it. Paragraph (b) reaches a person who negligently causes bodily injury with a deadly weapon, and paragraph (c) is the menace clause.¹ Aggravated assault in § 211.1(2) sits above all three. The comparison below takes the injury paragraphs first and then aggravated assault, since the actor's aim is the variable that sorts them.

Menace Versus Injury Paragraphs

Paragraphs (a) and (b) protect the body. Paragraph (a) punishes an actor who tries to injure another, whether or not the attempt succeeds, and an actor who actually injures another with purpose, knowledge, or recklessness. Paragraph (b) accepts mere negligence as the mental state and balances that low threshold by requiring that bodily injury actually result and that a deadly weapon cause it.² Paragraph (c) asks for neither injury nor an attempt to injure. The harm it measures is the victim's fear, which the actor tries to produce by physical menace.³

The two groups exist side by side because they guard different interests. The injury paragraphs guard the body against harm, attempted harm, and dangerously careless handling of weapons. The menace clause guards a person's security against deliberate terrorizing, a wrong that does not depend on a blow ever being struck. A Code that required injury or an attempt at injury for every assault would let an actor who aims a weapon at a victim solely to terrify go unpunished under this section, because that actor's purpose is to frighten and the weapon is never used.

Civil law draws a comparable line between wrongs of contact and wrongs of fear. In Fisher v. Carrousel Motor Hotel, Inc., a hotel club manager snatched a plate from the plaintiff's hand, and the Supreme Court of Texas held that the snatching was a battery, because the wrong lies in the offensive invasion of the person and not in physical harm to the body.⁴ That is a tort ruling about offensive contact, and paragraphs (a) and (b) of the Code ask for bodily injury, which is narrower, so the case does not construe them. Its use here is the category it illustrates: a wrong built on contact with the person is a different thing from a wrong built on fear, and the menace clause belongs with the second.

The actor's purpose is the single variable that sorts these paragraphs in practice. A prosecutor whose evidence shows that the actor was trying to hit the victim and missed relies on paragraph (a), because an attempt to cause bodily injury is all that paragraph asks. A prosecutor whose evidence shows only that the actor meant to scare relies on paragraph (c), because paragraph (a) fails for want of a purpose to injure.⁵

The paragraphs are alternatives, so a single episode can fit more than one of them when the evidence supports more than one aim, and the choice among them follows what the evidence shows.⁶ Students lose this issue when they let the victim's fear pick the paragraph: a victim who ducks a crowbar was surely afraid, yet the actor's aim is what separates paragraph (a) from paragraph (c).

Paragraph (b) contrasts with menace along a different line, because it turns on a result and not on an aim. The offense is complete only when bodily injury follows from negligent use of a deadly weapon, and no purpose to frighten or to harm is needed.⁷

The two scenes differ in one fact, whether injury resulted. Paragraph (b) is therefore a result-based offense with a low mental state, paragraph (c) is an aim-based offense with no required result, and the careless discharge that injures no one fits neither.

Menace Versus Aggravated Assault

Aggravated assault in § 211.1(2) rests on injury in the same way that paragraphs (a) and (b) do, with higher stakes. Paragraph (2)(a) reaches an actor who attempts to cause serious bodily injury, or who causes it purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. Paragraph (2)(b) reaches an actor who attempts to cause bodily injury with a deadly weapon, or who purposely or knowingly causes it.⁹ Neither paragraph mentions fear. Menace by itself, an attempt only to frighten, therefore does not reach aggravated assault, and the actor who merely menaces answers for simple assault, a misdemeanor, while the aggravated paragraphs carry felony grades that the grading section below develops.¹⁰

The reason lies in what the felony grades are for. They are reserved for conduct that is most dangerous to the body, which is why each aggravated paragraph requires an attempt to inflict serious injury, an actual serious injury, or an injury aim carried out with a deadly weapon. A grade keyed to fear would depend on the victim's reaction, and a victim's alarm can be intense even when the actor never tried to hurt anyone. Tying the felony to the actor's aim to injure keeps the grade tied to the danger the actor actually created.

A weapon does not by itself turn menace into an aggravated offense. Paragraph (2)(b) requires an attempt to cause bodily injury, or the purposeful or knowing causing of it, with a deadly weapon, so the weapon aggravates an injury aim and leaves a frightening aim where it was.¹¹ Some jurisdictions define assault with a deadly weapon more broadly, as an aggravated assault in which the defendant uses a deadly weapon to threaten the victim with death or serious bodily injury.¹² Students lose this issue when they carry that formulation into a Code problem and treat a weapon alone as aggravation. The crowbar pair above shows the Code's line: the version in which D swings at V's head intending to hit V may support paragraph (2)(b) if the crowbar is a deadly weapon, while the version in which D stops an inch from V's face intending only to scare V stays at paragraph (c). Deadly weapon appears in paragraph (b) and in paragraph (2)(b), and one common definition is a weapon likely to cause death or serious bodily injury, though a statute's own definition controls where it supplies one.¹³