There are many similarities between battery and assault.  They are both considered criminal under the Texas Penal Code and are among those causes of action known as “international torts.”  However, there is a significant distinction.  Whereas battery results in actual injury or offense to a victim, assault refers to the apprehension of such injury or offense felt by a victim.

             To obtain monetary relief in a civil court, a victim of assault must be able to prove that (1) the defendant acted  (2) intentionally (3) to create a “reasonable apprehension” in the victim (4) of immediate harmful or offensive contact. The courts will not protect an individual from exaggerated fears; therefore, to know if the apprehension is reasonable, it must be judged by the standard of whether a “reasonable person of ordinary sensibilities” would have felt apprehension.  It is significant that the defendant has the apparent ability to bring about harm, regardless of whether he or she could actually do so.  For instance, if John points a realistic looking prop gun at Tom, but Tom cannot and does not know that the gun is fake, then Tom’s apprehension of immediate harm is reasonable.

            The requirement of immediacy is also important.  It cannot be considered an assault if the threat is to do something in the future or from such a distance that harm is unlikely. In addition, words alone are not enough, notwithstanding how intimidating they might be.  However, a verbal threat combined with an overt act (such as holding a baseball bat or clenching of a fist) may be sufficient.

            As with many intentional torts, a victim is not required to prove actual monetary damages to prevail.  However, the amount is usually nominal unless the victim can demonstrate that the defendant acted maliciously.  If successful in proving malice, a victim may recover significant punitive damages.

            If you have been the victim of an assault, victim services are available through the district attorney’s office to assist you. Should you decide to additionally pursue civil sanctions, consult with an attorney of your choice.