By Texas Criminal Defense Lawyer Jeremy Rosenthal
In 2009 the Texas Legislature carved out the specific new criminal offense of choking and made it a 3rd degree felony. Texas Penal Code 22.01(b)(2)(B) is today’s topic in my continuing series on defending domestic violence charges.
The prohibition against impeding breath or circulation of the airway is legally unique insofar as it is a departure from the charge from being result-oriented and makes it conduct oriented.
Tex.Pen.C. 22.01(b)(2)(B) reads accordingly:
…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.
Choking is Hard to Prove
A challenge prosecutors and police have is choking is a hard offense to prove medically or physically. Only 16% of cases present with major significant medical injury according to one study. 62% of cases present with no visible injury at all and 22% of cases had only minor injuries such as red marks or scratching. The experts I’ve heard testify in the field claim it’s due to the soft tissue and muscle in the neck.
Things I See In Choking Cases
When police go to the scene of a domestic situation – they know the law and they know what evidence they need to make an arrest. They fish for magic words they need to make an arrest…
“Did it cause pain…?”
“Did the contact offend you…?”
“Did it impede your airway…?”
Police know choking is a higher charge and they’re specifically looking for this. It’s not uncommon, then, for us to see pictures of complaining witness’ necks with little or no evidence of trauma.
Another trend I’ve noticed in DV cases are what I call “blind lumpers.” I’ve even written an article on it published in Texas Criminal Defense Lawyer’s Voice for the Defense Magazine.
A blind lumper is an expert witness who doesn’t know any specifics of the case (blind), and they lump all person’s charged with domestic violence into one neat and convenient pile (lumpers).
Translation: a medical professional takes the witness stand and says “I don’t know anything about this case… but just because there’s no evidence of choking doesn’t make him innocent.”
This type of testimony — while true — is mainly calculated to take evidence of innocence (no marks on a neck) and turn it into a tie. Do you know what the neck of someone who didn’t get choked would look like? It wouldn’t show any marks either.
Impeding the Airway is a Legally Quirky Charge
A final note about choking cases is this – because it’s not result oriented, courts find it difficult to square it with other assault oriented offenses.
Here’s what I mean – because assault charges are typically result based, if the prosecution can’t prove the higher level assault they can often still prove a lesser one. For example if the prosecution alleges aggravated assault because of serious bodily injury – but at trial the jury only believes there was bodily injury then the jury could still convict defendant if given the option for what is known as a lesser-included offense.
Because choking is focused on manner in which the assault occurred – the prosecution risks an all-or-nothing allegation at trial.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Texas Super Lawyer by Thomson Reuters.