Domestic Violence Charges – Blog 6: Impeding Breath or Circulation (Choking)

December 17, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

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.

Blind Lumpers

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.


Assault and Family Violence Punishment Levels in Texas

November 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Assault is a result-based charge meaning the severity of the charge is normally commensurate with the degree of the alleged injury.  Assault can range from offensive contact to murder.

The way to think of a result-based charge is the action can be the same but the result is different.  For instance, if I punch another person and they are injured – then it would normally be a class a misdemeanor.  Were I to throw the same punch and hit the same person and they actually died because of the punch – I might be liable for murder.  Same action on my part – far different prosecution.

I’m not discussing affirmative findings of family violence which can also be attached to these types of charges in domestic assault cases.  Those can materially alter and affect the case.  You can read about affirmative findings of family violence here.

Chapter 22 of the Texas Penal Code controls assault related offenses while Chapter 19 controls murder and homicide.  Murder and homicide are obviously more complex so I’ll discuss that in another article.

Offensive or Provocative Contact

  • Class C misdemeanor
    • Punishment is up to $500 fine only;
    • Prosecuted either in municipal court or the Justice of the Peace.

Assault Causing Bodily Injury

  • Class A misdemeanor
    • “Bodily injury” means physical pain, illness, or any impairment of physical condition – Texas Penal Code 1.07(8);
    • Punishment is up to 1 year of jail and up to $4,000 fine;
    • Prosecuted in a county court at law;
    • A judge or jury can give probation.

Enhanced Family Violence

  • 3rd Degree Felony
    • Occurs when a domestic assault is alleged with a prior affirmative finding of family violence;
    • Punishment level is between 2 and 10 years TDC and fine not to exceed $10,000;
    • Prosecuted in a District Court;
    • A judge or jury can give probation depending on defendant’s criminal history.

Assault by Impeding the Airway or Choking

  • 3rd Degree Felony
    • “Impeding” is 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;
    • Between 2 and 10 years TDC and fine not to exceed $10,000;
    • Prosecuted by district court;
    • A judge or jury can give probation depending on defendant’s criminal history.

Aggravated Assault

  • 2nd Degree Felony
    • Committed with either “serious bodily injury” or with the “use or exhibit” of a deadly weapon;
    • “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ – Texas Penal Code 1.07(46);
    • Punishment is between 2 and 20 years TDC with fine not to exceed $10,000;
    • Discuss probation eligibility with your lawyer.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by the Texas Board of Legal Specialization.

 


Do I Need a Lawyer for Domestic Assault?

November 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Absolutely.

Politicians in Austin frequently try to impress their constituents by getting tougher, and tougher, and tougher with these cases.  The result are laws which seem to get worse and worse and are filled with trap doors designed to punish people forever.

Machine-Type Prosecution

Prosecution in these types of cases tends to be delegated to a specific division of most larger DA’s offices. Their approach is often a one-size-fits-all and is dictated by policy and their theories about domestic violence rather than the facts of any specific case.  Some prosecutors will hear your side of the story out — and many others will pretend to hear you out.  What the prosecutor really needs to do is fear they will lose if you took the case to trial.  A person without a lawyer is definitely at a disadvantage.

The Law is Complex

Though the politicians in Austin and the prosecutors might feel as though everyone accused is guilty — the good news is the framers of the U.S. Constitution didn’t.  There are strong constitutional protections in Assault/ Family Violence “AFV” cases from your right to confront witnesses under the 6th Amendment.

Also, there are several common defense which often apply in the form of self-defense or consent.  Knowing how these defenses apply and work in a courtroom is not simple either.

Beware of Long-Term Trap Doors

AFV cases are laden with traps designed to ensnare those accused into pleading guilty.  The state normally tries to levy an “affirmative finding of family violence” even when someone gets the case reduced or takes deferred adjudication.  This finding can enhance future allegations to felonies, can prevent firearm ownership, and can even prevent future adoption… but not much of this is advertised on the front end.

Also – there are restrictions on hiding these cases from the public even where you’ve successfully completed a deferred adjudication which, again, can be very legally complex.

You Need A Lawyer

If you read the rest of my blog posts then you can see I’m not big on scare tactics.  There are probably cases here and there where you might not need a lawyer.  This isn’t one of them.  Domestic assault is one of several legislative flash-points in Austin.  Don’t do this alone!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Licensed Attorney in the State of Texas.