Assault Impeding Breath (Strangulation)
Brian Foley is a criminal defense attorney in Conroe, Texas representing people charged with Assault Family Member Impeding Breath or Strangulation in Houston, Conroe, the Woodlands, and the surrounding area. Brian attended an advanced trial advocacy school focused on the offense of Assault Family Member Strangulation and was a former member of the Domestic Violence Unit in Montgomery County, Texas.
Has there always been a strangulation offense in Texas?
For years in Texas there was no specific statute covering the strangulation or choking of an individual. Prosecutors would have to determine if they thought the evidence of strangulation was great enough that they could charge the accused person with second degree Aggravated Assault with a deadly weapon or if they would charge someone accused of strangulation with a Class A misdemeanor assault causing bodily injury.
Now prosecutors can charge a third degree felony offense as a middle ground for cases that are not severe but include an allegation that the accused citizen strangled a family or household member, or a person they were dating. If you strangle a person who is a stranger and you don’t do it to the point that the District Attorney can charge your hands as deadly weapons, then you would likely be charged with a Class A misdemeanor for causing bodily injury only. If you didn’t cause pain, then you wouldn’t even be charged with that. The case could be charged as offensive contact and would be punishable by a fine only as a Class C misdemeanor.
Who can be charged with Assault Family Member (Strangulation)?
Texas prosecutors routinely charge individuals who have impeded the normal breathing or blood flow of a family or household member or a person they were dating. The Penal code requires that a prosecutor prove the person accused of the crime intentionally, knowingly, or recklessly impeded the normal breathing or circulation of the blood of the complainant by applying pressure to the complainant’s throat or neck or by blocking the complainant’s nose or mouth. Here are some ways that I have seen this offense charged.
Grabbing the neck with hands
Using a string or rope (ligature) to restrict breath or blood flow to the head
Sleeper holds or holds where a single arm is used near the elbow to restrict air or blood
Pinning against a wall with forearm
What about self-defense?
If you have been charged with Assault Family Member Impeding Breath (Strangulation) in Conroe or Houston, you may have been acting in self defense. Self-defense is an affirmative defense under the Texas Penal code and evidence of self-defense must be raised during a trial for the jury to receive an instruction that you may be found not guilty based on the use of self-defense.
When someone is charged with Assault Family Member Impeding Breath and there is a self-defense claim, it may be because putting someone in a sleeper hold, or a choke hold was the most non-violent and effective means of subduing an angry or agitated aggressor. Texas does not require you to submit to being assaulted by someone else and you have the right to defend yourself when you reasonably believe that force is immediately necessary to protect yourself against someone else’s use or even attempted use of unlawful force. If you can’t avoid a fight, you don’t have to back away from it. You can defend yourself in Texas.
A criminal defense attorney should challenge all the evidence in your case including:
Photos and video evidence collected by police and others.
Evidence showing the use of Self Defense
Evidence showing the existence of a mistake or accident
Evidence showing a lack of intent