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Decoding Aggravating Circumstances in Criminal Law

Ben Michael

In criminal law, the presence of certain circumstances or “aggravating elements” can increase a defendant’s level of culpability. As a result, aggravating factors (or circumstances) often lead to elevated charges for the person accused and—if the charges result in a conviction—harsher penalties as well.

In this article, we’ll cover the types of aggravating circumstances that can elevate charges in Texas, as well as their significance in criminal cases. We’ll also answer some of the most frequently asked questions about aggravating circumstances in criminal law.

Aggravating Circumstances Explained

During a trial, prosecutors may present evidence of aggravating factors that demonstrate the severity or heinousness of a criminal act. When proven beyond a reasonable doubt, the judge can take these factors into account to help them determine a punishment that matches the gravity of the offense committed.

Conversely, just as the prosecution has the chance to present aggravating factors during a trial, the defense may also present evidence of mitigating factors—elements that may reduce a defendant’s level of culpability—to gain a more lenient sentence from the judge. 

Types of Aggravating Circumstances

Criminal charges in Texas can be enhanced due to several aggravating factors, ranging from the victim’s vulnerability and the impact of the crime on the victim to the defendant’s prior criminal record, which might demonstrate habitual offending. The different categories of aggravating circumstances include: 

Prior Criminal Record

As mentioned previously, prior convictions can aggravate charges. This is especially the case when there’s a pattern of repeat offending, demonstrating that the defendant has committed the same offense two or more times in the past. Texas operates a strict three-strike law for most types of offenses, with convicted individuals receiving significantly enhanced penalties for the third and consequent convictions.

For example, the charges for DWI in Texas increase in severity with each subsequent offense:

  • First DWI (with no other aggravating factors) is categorized as a Class B misdemeanor. Penalties include a fine of up to $2,000 and up to 180 days in jail.
  • A second DWI is categorized as a Class A misdemeanor. Penalties include a fine of up to $4,000 and up to 1 year in jail.
  • If you already have two prior DWIs on your record, a third DWI arrest will result in aggravated charges categorized as a third-degree felony. A third-degree felony is punishable by 2–10 years in prison and a fine of up to $10,000.   

For certain offenses in Texas, convicted individuals may be sentenced to life in prison with just one prior conviction. This level of punishment is reserved for the most serious types of crimes, including:

  • Sexual assault
  • Aggravated sexual assault
  • Indecency with a child
  • Aggravated kidnapping

The severity of the offense

Charges can be aggravated when an offense involves cruelty, brutality, or violence or where the victim suffers serious bodily harm. The level of damage the victim (or victims) suffer due to the offense can result in enhanced sentences.

A vulnerable victim

Offenses committed against particularly vulnerable victims are met with harsher penalties. Vulnerable victims include children or minors, elderly individuals, or those with disabilities. Committing a crime in the presence of a child can also be an aggravating factor. As can the abuse of a position of power, authority, or trust to commit a crime.

Use of weapon

Using or brandishing a deadly weapon during the commission of a crime can significantly increase the severity of a crime. Deadly weapons include:

  • Firearms, “or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious injury…”
  • Axes or shanks
  • Baseball bats
  • Any other item used with the intention to cause death or serious bodily injury


Premeditation is the act of planning or thinking about an offense before committing it. It involves deliberate decision-making. Offenses that are planned and carried out with premeditation demonstrate a higher degree of intent. Premeditation can be considered an aggravating factor, resulting in enhanced sentencing.


Defendants can face different levels of culpability depending on their degree of participation in a crime. For example, those who play a significant role in planning or committing a crime, or assume a position of leadership in the commission of organised crime, can face aggravated charges.


Some motives, including the commission of a crime for financial or material gain or hatred or prejudice towards a person because of their race or beliefs, can be viewed as aggravating circumstances.

The presence of aggravating factors paints the defendant in a more negative light, thereby increasing both the severity of the alleged crime and the defendant’s level of guilt. This, consequently, can impact sentencing outcomes.

Aggravating factors often result in longer prison sentences, more significant fines, and harsher penalties. Furthermore, the presence of aggravating factors can impact plea bargains, as prosecutors may be less willing to offer deals if there is evidence that the defendant may present a higher degree of danger to society.

Role of Aggravating Factors in Different Offenses

Aggravating factors can vary widely depending on the type of offense in question. For example, white-collar crimes are generally non-violent in nature—but some aggravating factors can still lead to harsher penalties for these crimes. For example, someone accused of embezzlement (considered theft under the Texas Penal Code) or insider trading may not have caused physical harm or used a weapon, but the charges against them could be aggravated if their victim incurred significant financial losses, if they have prior convictions on their record, or if they abused a position of authority in the commission of the offense.

For violent crimes such as assault or murder, aggravating factors include premeditation (which demonstrates a higher level of intent,) use of a weapon, cruelty, or brutality. Violent crimes committed against vulnerable victims or in the presence of children are typically met with harsher sentencing.

Examples of aggravated offenses include:

  • Second, third, or consequent DWI (Driving While Intoxicated)
  • Intoxication Assault or Manslaughter (DWI that results in serious bodily injury or death)
  • Aggravated assault (causing serious bodily injury or using a weapon)
  • Aggravated sexual assault (rape)
  • Aggravated robbery (causing serious bodily injury or using or threatening to use a weapon during a robbery)
  • Capital Murder (murdering multiple people, killing a peace officer or emergency worker, or murdering someone during the commission of another felony)

Judicial Discretion and the Balance of Factors

While aggravating circumstances increase the severity of a crime, mitigating factors decrease the defendant’s level of culpability. Judges must exercise discretion when weighing the impact and relevancy of each factor and how it should influence sentencing—if it should influence sentencing at all.

For example, while criminal history would suggest that harsher sentencing may be warranted, mitigating factors, including evidence of mental illness and remorse, may indicate that a more lenient sentence, and perhaps medical support and intervention, would be more appropriate.

This delicate balancing of factors allows the judge to tailor sentences to fit each unique case.

Even after sentencing, various legal avenues exist for appeals to challenge sentencing decisions based on aggravating factors.

  • Aside from prior criminal convictions, other aggravating factors must be proven beyond a reasonable doubt. In cases where the aggravating factors presented by the prosecution were not proven beyond a reasonable doubt or were improperly considered, the defendant can directly appeal the decision based on errors made during the sentencing process.
  • If new evidence is discovered post-sentencing, defendants may be able to file a motion for a new trial. The newly discovered evidence can then be used to challenge the sentencing, the validity or relevancy of the aggravating factors, or the conviction altogether.

Facing a criminal court case with aggravating factors often seems like a dire situation, and, in most cases, the implications of a conviction with aggravating factors can be devastating. This is precisely why seeking legal representation from an experienced criminal defense attorney is essential.

A skilled criminal defense lawyer can investigate all aspects of a case and prepare robust strategies to challenge the validity or relevancy of the aggravating factors presented during a trial. Furthermore, they can gather evidence of mitigating factors to help the defendant gain a more lenient sentence.

In cases where a conviction is likely, but the defendant has an otherwise clean record, a defense lawyer may be able to petition for deferred adjudication—a type of probation that, upon successful completion, would mean the defendant can avoid a conviction.

If you or someone you care about are facing criminal charges with aggravated circumstances, contact Michael & Associates today for a case review. Every case is different, so getting tailored advice based on your unique situation is important. An initial case review with Michael & Associates won’t cost you anything, but time is of the essence in criminal proceedings. Book your free case review with Michael & Associates online today. 

FAQs About Aggravating Circumstances

How Do Aggravating Factors Affect Sentencing?

Aggravating factors can result in enhanced sentencing. For example, DWI charges in Texas usually result in a Class B misdemeanor. However, if the driver registered a BAC of 0.15 or higher at the time of their arrest, this would qualify as an aggravating factor, elevating the offense to a Class A misdemeanor. 

Can Aggravating Circumstances Lead to Harsher Penalties?

Aggravating factors elevate the severity of an offense, leading to harsher penalties, including longer jail sentences and more significant fines.

Are Aggravating Factors Considered in All Criminal Cases?

Not all criminal cases involve aggravating circumstances. If aggravating factors are presented during a trial, the judge may consider them during sentencing to determine an appropriate punishment. 

Can Legal Counsel Challenge the Presence of Aggravating Circumstances in Court?

A skilled criminal defense lawyer can challenge aggravating circumstances in court in several ways. They can argue that there is insufficient evidence to prove the existence of the aggravating circumstances. In other cases, the lawyer may be able to question the relevancy of the “aggravating factors” to the alleged offense altogether.

Sometimes, a defense lawyer may present factors that could mitigate the defendant’s culpability. The presence of these “mitigating factors” could counter the aggravating circumstances. For example, the following circumstances may result in more lenient sentencing:

  • It can be demonstrated that the defendant did not intend to commit an offense (lack of intent)
  • The defendant was “adequately provoked”
  • The defendant has a clean record, and it can be demonstrated that they are widely recognized as an otherwise upstanding citizen

What Are Aggravating Moral Circumstances?

The term refers to circumstances that increase the severity of a person’s moral culpability or guilt in a particular offense. For example, a criminal act committed against a child, elderly, or disabled person is likely to be met with harsher punishment because taking advantage of an individual’s vulnerability increases moral guilt.

Ben Michael

Ben has vast experience in defending criminal cases ranging from DWIs to assault, drug possession, and many more. He has countless criminal charges dismissed and pled down. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.

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