Aggravating and Mitigating Factors in Texas Criminal Cases

A judge considering aggravating and mitigating factors in a Texas criminal case

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If you are facing a criminal charge in the State of Texas, there are sentencing requirements in place that often include maximum and minimum sentences for a conviction. The truth is, however, that the court has considerable discretion when it comes to both filing charges and sentencing.

In addition, both aggravating and mitigating factors can play a significant role in the outcome of your unique case. Aggravating factors are those that increase the severity of the crime charged, and mitigating factors are those that may reduce one’s culpability in the alleged crime.

If you or someone close to you is facing a criminal charge of any magnitude in Texas, it is a serious matter, and you are well advised to reach out to an experienced Killeen criminal defense attorney for the skilled legal guidance you are looking for.

Charges that Include Aggravating Factors

If the charge you face is aggravated, it means that the crime’s degree of seriousness is elevated considerably. For example, the charge of aggravated assault involves the intentional commission of an assault that either causes someone else to suffer serious bodily injury or includes the use or exhibition of a deadly weapon during the commission of the crime.


For a charge to reach the level of aggravated assault, the accused must have acted intentionally, knowingly, or recklessly, which means with purpose. If you are charged with such a crime, the prosecution must prove that you either knew or were reasonably certain that your actions would lead to their ultimate results for the element of intentionality to be met.

Recklessness, on the other hand, refers to proceeding with a conscious disregard for the results of one’s actions, which may not mean intentionally causing harm but does mean lacking the concern necessary to prevent the resulting harm.

Serious Bodily Injury

In order to qualify as serious bodily injury, one of the following situations must have occurred:

  • The act posed a substantial risk of causing permanent disfigurement.

  • The act posed a substantial risk of causing the impaired function of or the functional loss of an organ or body part.

  • The act posed a substantial risk of causing death.

  • The act led to the victim’s death.

The prosecution must prove that the act in question caused the victim to sustain an injury that is serious enough to permanently alter his or her life – such as leaving him or her unable to engage in specific tasks or activities or to function in a way that he or she could prior to the alleged assault.

Contact a criminal defense attorney right away if serious bodily injury plays a case in your criminal case.

Deadly Weapon

The matter of the deadly weapon element in an aggravated assault charge can become exceptionally complicated exceptionally quickly. Some items, such as the following, are obviously weapons that can be deadly:

  • Firearms

  • Knives, axes, and shanks

  • Brass knuckles

  • Bats and other heavy objects

However, nearly anything can be classified as a deadly weapon if wielded forcefully and dangerously enough. Examples that you may not have considered include the following items:

It is in the manner of their use that items such as the above are classified as deadly weapons.

The Role of Aggravating Factors in Sentencing

Aggravating factors refer to elements of the crime that may increase the resulting fines and penalties faced by the accused. Aggravating factors come in many variations.

Repeat Offenses

If you are convicted of certain offenses more than once, it can dramatically increase the fines and penalties you face.

Texas has a harsh three-strikes law. Those with two prior convictions can face the harshest penalty available upon the third offense. For an offense to count as a third strike, it cannot occur during the sentencing phases for previous crimes. Any overlapping offense is not considered prior. This three-strike aggravating factor makes even relatively minor charges far more serious.

There are also certain offenses that can lead to very long or even life sentences with only one prior conviction, including the following crimes:

Those considered habitual offenders in Texas face harsher sentencing. Consider the following scenarios:

  • If you have a third-degree felony conviction or higher and are facing another third-degree felony charge, you can be sentenced for a second-degree felony.

  • If you have a third-degree felony conviction or higher and are facing a second-degree felony charge, you can be sentenced for a first-degree felony.

  • If you have a third-degree felony conviction or higher and are facing a first-degree felony charge, you can be sentenced for a capital felony with a minimum of 15 years behind bars.

  • If you have two prior state jail felony convictions and are facing another, you can be sentenced for a third-degree felony.

  • If you have two prior third-degree felony convictions or higher convictions that were committed in a series and you are facing a state jail felony charge, you can be sentenced for a second-degree felony.

If you have a prior conviction of any kind on your record and are facing a criminal charge, do not wait to consult with a dedicated criminal defense attorney.

Leadership Role in the Crime

If the court believes that you played a prominent role in carrying out the crime in question, the court can deem that leadership role an aggravating factor, and the attendant sentence can be enhanced. This is especially relevant when the accused is determined to have influenced or somehow controlled anyone else involved in the offense in question.

Vulnerability of the Victim

If the charge in question involves a victim who is considered especially vulnerable, it can qualify as an aggravating factor. This vulnerability can be in accordance with objective standards set by state and federal law or in terms of the victim’s relationship to the accused. Common examples include vulnerability based on the following factors:

  • Vulnerability based on one’s age, such as crimes against children or fraudulent schemes perpetrated against the elderly

  • Vulnerability based on one’s physical or mental disability

  • Vulnerability based on one’s illness or injury

  • Vulnerability based on one’s incapacitation

  • Vulnerability based on one’s close relationship to the accused

The Charge of a Hate Crime

If the crime in question is deemed a hate crime, it can also lead to sentencing enhancements. If the crime is determined to have been motivated by the accused’s bias against or hostility toward the victim’s race, religion, national origin, sexual orientation, or any other protected class, it may raise the charge to the level of a hate crime.

The designation of hate crime is reserved for crimes that can be directly related to hatred, prejudice, or advocacy of violence, which tends to be a difficult bar to clear.

The Role of Mitigating Factors in Sentencing

While aggravating factors can lead to harsher sentencing, mitigating factors can support more lenient sentencing. Contact a criminal defense attorney to see if mitigating factors will play a role in your case.

The Minor Role Played

Just as having a leadership role in a crime can lead to enhanced sentencing, playing a minor role in a crime can lead to lighter sentencing. An example is someone who is paid to transport someone else to the location of a drug deal. If convicted, the person doing the driving will generally receive lighter sentencing for the relatively minor role he or she played in the crime.

The Victim’s Culpability

While victim blaming is obviously frowned upon by society at large – and by the law – there are instances when the victim in a case either initiated or willingly participated in the events that led to the crime in question. Responding to a minor physical altercation with immense force is a prime example.

In cases where the victim initiated or provoked the criminal act, the situation may allow for a mitigating factor during sentencing.

The Unusual Circumstances Involved

Sometimes, a crime is the direct result of the accused’s temporary emotional state or is the result of serious provocation. A wide range of examples demonstrates unusual circumstances that may mitigate sentencing, including someone who lashes out physically under extreme emotional distress.

The Lack of a Criminal Record

If you have no prior charges or convictions on your criminal record, the judge is very likely to consider this carefully during your sentencing.

The Lack of Harm

If the charge in question ultimately did not cause anyone else to be harmed and was unlikely to cause harm, it can serve as a mitigating circumstance during sentencing. A prime example of victimless crime is possession of a small amount of an illegal drug, such as marijuana, that was intended for personal use.

In cases such as these, your knowledgeable criminal defense attorney will skillfully argue for a lighter sentence.

The Relative Necessity

If the charge in question is based on an attempt to provide the necessities of life, such as to feed one’s starving children, the sentence is likely to be less harsh than it would be if the motivation were one’s own personal gain. For more information, read this article about the defense of necessity.


When defendants accept responsibility for their actions and demonstrate authentic remorse to the court and to anyone who was harmed by their actions, it can count in the defendants’ favor. However, it is not advised to accept responsibility and express remorse before consulting with a seasoned criminal defense attorney.

Difficult Personal Histories

While one’s addiction issues or difficult upbringing is never an excuse for committing a crime, they can play a mitigating role in sentencing if you are convicted.

Sentencing in Texas

Even if you believe that a conviction is imminent or you do not think you have much of a defense, it is important to understand that judges in Texas are not strictly bound by sentencing requirements.

The circumstances of the crime in question, any aggravating or mitigating factors that apply, and your own personal history can all play a role in your sentence, and having a trusted criminal defense attorney on your side can make a considerable difference in your case’s final outcome – even if you are convicted of a crime.

Deferred Adjudication

If you have never been in trouble with the law before and the charge you face is your first, the court may turn to deferred adjudication, which is a unique form of probation that would allow you to keep the conviction in question off your record.

Deferred adjudication follows the entry of either a guilty or no-contest plea, which makes it a good option in those situations in which being found not guilty is highly unlikely or in which obtaining a more beneficial plea deal is not an option.

Upon the successful completion of the terms laid out in your probation deal, your case will be dismissed, and your record will remain clean. If you fail to complete the required terms, however, your probation can be revoked, and you can be sentenced in accordance with the parameters of the original charge.

Turn to an Experienced Killeen Criminal Defense Attorney Today

If you or someone you love is facing a criminal charge, your rights and even your freedom could be on the line. Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a formidable criminal defense attorney who recognizes the gravity of your situation and is well prepared to fight for your case’s best possible resolution.

Our legal team is standing by to help, so please do not wait to contact us online or call us at (254) 781-4222 for more information about what we can do for you today.