Okay, it was a shotgun loaded with birdshot. My question is: Does the fact the victims are struck by pellets fired from the shotgun (one had numerous pellet wounds and needed surgery to remove some, the other victim only had one of two pellet wounds) rise to serious bodily injury (this was a drive by shooting).

If you're charging agg assault, wouldn't you be happier going under "deadly weapon,” TPC 22.02(a)(2) ?

The need for surgery is not going to be enough to establish SBI. Webb v. State, 801 S.W.2d 529, 533 (Tex. Crim. App. 1990) (the necessity for surgery, alone, is insufficient, by itself, to establish serious bodily injury). The question is the degree of risk of death that the injury caused, or the injury's disfiguring or impairing quality, as it was inflicted, not after the injury's effects had been ameliorated or exacerbated by other actions such as medical treatment. Stuhler v. State, 218 S.W.3d 706, 714 (Tex. Crim. App. 2007); Ramirez v. State, No. 13-05-785-CR, 2009 WL 1567340 (Tex.App. -- Corpus Christi January 22, 2009, pet. ref’d) (not designated for publication).

I assume your question is whether you can get a first degree under 22.02(b)(3). Given the nature of your injuries, I agree that you're going to be stuck with a 2nd Degree under 22.02(a)(2).

I was just looking for the best way to charge. This one is bumped up be street gang status.