Assault by “Impeding the Normal Breathing or Circulation”

January 29, 2011

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

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.


Does The Alleged Victim in an Assault Case Need a Lawyer Too?

November 16, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

I get asked this question from time to time, so today I’ll try and answer it.

The short answer is maybe.  In virtually any assault case, the main evidence comes from the alleged victim who almost always gives a statement to police either at the scene of the arrest or at the police station.

Alleged victims are often later asked to give statement in subsequent proceedings whether it is in trial, statements to a prosecuting attorney, or by signing affidavits of non-prosecution requesting that charges be dropped.  Statements which are inconsistent with the original statement given to police can give rise to criminal liability to the victim.

Texas Penal Code 37.08 covers false reports to police officers and states in relevant part, “A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to… (1)  a peace officer conducting the investigation; or (2)  any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.”

In a nutshell, it is possible that where an alleged victim makes a statement to law enforcement down the road in a case which reveals that they weren’t being truthful at any point of the case when dealing with police or with prosecutors… then the alleged victim themselves can have criminal exposure.

False reports to police officers are class b misdemeanors and carry a punishment of up to 180 days jail and a $2,000 fine.

Also, the attorney representing the accused in an assault cannot also give legal advice to the alleged victim.  This is because there is a very clear conflict of interest for the attorney who represents the accused’s best interests — and has no ethical or legal obligation to protect the alleged victims interests as well.

If you’re the alleged victim in an assault case or domestic violence case in Texas, you may want to seek legal counsel if you have any questions about your rights and representation if so needed.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice about any particular case or situation you should directly consult an attorney.