By Criminal Defense Lawyer Jeremy Rosenthal
In 2008, the Texas Legislature amended the assault statute to add section 22.01(b)(2)(B) which makes it a 3rd degree felony when, “the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.” It essentially makes an assault where there is choking a felony instead of a misdemeanor.
A 3rd degree felony is punishable between 2 and 10 years in prison and/or a fine not to exceed $10,000. Not to be over-looked are family violence allegations which can be every-bit as serious as felonies in their own way.
Thought the statute may seem clear cut, there are all sorts of legal issues with these types of prosecutions. Keep in mind that newer statutes are the ones that tend to have unintended consequences or unforeseen loopholes.
The primary questions are whether defenses such as self-defense or consent apply to this type of an assault. Section 22.06 of the Penal Code allows for consent as a defense to assaultive conduct (in relevant part), where “the conduct did not threaten or inflict serious bodily injury…” or was a known risk of the victim’s occupation. So while a person cannot legally consent to an assault where they suffered serious bodily injury, it seems as though they may legally consent to an assault where there is a choking under 22.01(b)(2)(B). Self-defense under Texas Penal Code 9.31 is broader, but it’s application to the assault by choking is also unclear. Self-defense is justified, “…when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” Though every court may treat this differently, and eventually the appellate courts may tell us how they think this law should work — it looks like it is an issue a jury would likely have to consider. Did the alleged victim put themselves in a situation where they consented to being choked? Was the accused justified in defending themselves by choking the alleged victim? I’m sure there are countless scenarios where these could apply.
Other legal issues include whether the State can allege lesser-included offenses of misdemeanor assault in conjunction with the “choking” allegations. District Courts which handle felony’s don’t have jurisdiction to hear misdemeanor cases. This too is a question which may be subject of an appeal.
Finally there are the normal host of legal issues which surround an assault prosecution. Those include possible hearsay statements, the defendant’s right to face his accuser in court, and the alleged victim’s right to counsel in the event they could be liable for inconsistent statements under “false report to a police officer.”
These prosecutions and situations are extremely complex. An accused person should absolutely have an experienced lawyer that understands these intricacies of these newer types of prosecutions.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. He is designated as a Texas Super Lawyer by Thomson Reuters.