Assault by “Impeding the Normal Breathing or Circulation”

January 29, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

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 F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any specific legal question you should directly consult an attorney.

Jury Trials vs. Judge Trials

October 14, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

Here is the equation as to how any criminal trial in Texas works.  The proper law + the facts = the verdict.

Judges always determine the appropriate law to apply.  Then the facts are applied to the law to reach the verdict.  A jury determines the facts, but if both parties agree — then the judge can determine the facts instead.  The latter is a known as a “bench trial” or “trial by Court” which is commonly known as a “TBC” in the courthouse.

The U.S. Constitution guarantees a criminal defendant a right by jury trial.  Generally speaking its the defendant’s choice whether to choose a judge or a jury.  Texas prosecutors have recently asserted that the State of Texas also has a right to a jury trial as well… and therefore, they argue, that the only way the parties can have a TBC is by agreement.  Their assertion is largely unchallenged even though it’s legally unclear.  Practically speaking, then, both parties agree to waive a jury.

Here’s a practical example of how a jury trial works — in an assault case where the defendant claims self-defense, the Judge will conduct the trial, impanel the jury, and decides what evidence is legally admissible.  Once the evidence is concluded, the judge will decide (1) if the evidence legally sufficient to support a conviction; (2) if the defendant legally raised self-defense; and (3) what jury instructions to give so that the jury understands how to decide the facts.  The jury then deliberates and reaches their verdict based on the jury charge.

For a TBC, the Judge merely listens to all the evidence, rules on objections, and then renders a verdict — often without much deliberation.

There are tons of variables to consider if you’re presented with the option of waiving a jury and asking a judge to decide the case.  The Judge’s history and reputation and obviously the strength of the case must be considered and weighed against the local jury pool.

Judges prefer TBC’s because they’re far more efficient than jury trials.  They’re far quicker, generally less formal, and don’t involve having to manage a jury pool.  Just because judge prefer it, though, doesn’t make it the right choice.

After all, a criminal defense lawyer isn’t in the rights waiving business!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any case you should consult an attorney directly.


Can They Make Me Testify Against My Husband/ Wife?

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

In Texas the prosecution can and will force one spouse to testify against another — often against their will.  I am often asked in disbelief in assault cases “can they really do this?”  Unfortunately the answer is, “yes.”

Texas Rule of Evidence 504 governs the husband-wife privilege.  Generally speaking, any communication made to one’s spouse is privileged under that rule during and even after the marriage.  Either spouse may assert the privilege whether they are a party to a case or not.  Unfortunately, the husband-wife privilege is riddled with far more exceptions than other privileges (such as the attorney-client privilege).

Tex.R.Evid. 504(a)(4)(D) is just one of the specific exceptions to this rule of privilege.  That rule states a spouse can be compelled to testify against their other spouse if that spouse is considered the victim of the crime or if any other member of the household or any minor child.

Additionally, it is important to note that in some cases, the testimony attempted to be compelled out of the “victim” spouse is not regarding communication but regarding conduct.  Obviously the privilege in and of itself only applies to “communications” in the first place.  The privilege, therefore, cannot be used to prevent disclosure of facts surrounding an incident where family violence has been alleged.

The state in assault cases must still prove their case beyond all reasonable doubt.  Jurors are very sensitive to situations where it is clear one spouse does not want to testify against the other and don’t always appreciate the police and/or the state being overly-invasive of a family… so even where a spouse is compelled to testify against their will — the cases can and do frequently result in acquittals.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should always directly consult an attorney.