The assault statue in Texas is complicated. There are many ways a person can commit an assault in Texas; and, likewise, there are a variety of different penalties. It can be found in Section 22.01 of the Texas Penal Code. At its most simple definition, assault essentially means causing bodily injury. Bodily injury means causing pain. However, there are different ways to commit assault. Basically, it comes down to how the alleged assault is committed, or how the arresting officers perceive the assault. It also depends to how the victim is related to you—is the victim a family member? Is it someone you’ve dated? Or is it someone you live with, like a roommate? This page examines some of the penalties or aspects of an allegation of choking. In the world of criminal defense, choking is called impeding breathing or circulation. If you are facing this charge, you may see it abbreviated as ASLT FM/HM IMP BREATH/CIR.
Family Members and Impeding Breathing or Circulation
Chapter 71 of the Texas Family Code broadly considers “family member” and “household member” to encompass your immediate family, people you live with, and someone you are dating or have dated. If the alleged victim in an assault case accuses you of putting your hands on their neck, you will be charged with a more serious penalty than regular assault. You will be charged with Assault Impeding Breathing or Circulation. That is a mouthful, but it basically comes down to choking someone. Impeding breath or circulation is a relatively new addition to the assault statute in the Texas Penal Code. If you are alleged to have impeded the breath or circulation of a person, you will be facing a felony criminal allegation.
What Do Assault and Bodily Injury Mean in Texas?
The basic assault statute in the Texas Penal Code involves the concept of bodily injury. Bodily injury simply means causing someone pain. It doesn’t matter what degree of pain is caused. Pain is a totally subjective concept, and it is up to the alleged victim in the assault case whether they experienced pain or they did not. Here is the formal definition of assault bodily injury:
Section 22.01. Assault.
(a) A person commits an offense if the person:
(1) Intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse
Although sometimes it is quite clear when an assault has been committed, sometimes figuring out what is and what is not an assault can be a complex undertaking. Bodily injury is a centrally important concept that gets to the heart of what assault actually means in Texas. And bodily injury simply means pain.
Impeding Breath or Circulation in Texas – Texas Penal Code 22.01(b)(2)(B)
Assault bodily injury as outlined above is a Class A misdemeanor. However, the Texas Legislature decided to increase the punishment to a felony when there is an allegation of choking or strangulation of a family member. Here is the text of the statute:
Section 22.01(b)(2)(B) Impeding Breath or Circulation
(B) 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
This section of the assault statute is the Texas Legislature response to criticism that the misdemeanor assault bodily injury wasn’t tough enough. Sometimes an allegation of choking would fall short of the serious bodily injury that is necessary to prove up an aggravated assault. So, impeding breathing or circulation became a third degree felony. A third degree felony is much harsher. It carries a possible range of punishment of between two and ten years in the Texas prison and up to a $10,000 fine. As you can readily see, an allegation impeding breathing or circulation is a serious charge that needs to be seriously dealt with. As the severity of the charge increases, the need for great criminal representation also increases.
Have you Been Arrested for Assault Impeding Breath of Circulation?
Domestic violence is a very serious issue, of course. However, everyone deserves a defense. That is why getting arrested for assault is only the beginning of the story, and not the end. As United States citizens, our guilt must be proven beyond a reasonable doubt. Defining bodily injury as pain creates a kind of subjectivity that is unavoidable. Defining bodily injury as pain also can sometimes foster the dangerous scenario in which people can cry wolf and get somebody in the very hot water of having to defend a criminal accusation. Many times the alleged victim can exaggerate, embellish, or make up a choking story entirely. Domestic violence and assault against a family member are taken very serious in Texas. They are taken so seriously in fact that the police will arrest and the Tarrant County District Attorney will pursue charges with scant evidence. This creates an environment where the victim can drive the criminal charges in certain cases.
Evidence in Assault by Impeding Breath or Circulation Cases
Sometimes the only evidence in an assault choking case is the statements from the alleged victim—the person who likely called the police in the first place. I have seen many cases that proceed on the statements of the alleged victim. This is especially true if the alleged victim wants the district attorney to prosecute, and is on board with testifying in court against you. Importantly, there can be other very important evidence as well, such as physical evidence of assault by impeding breath or circulation. How does the alleged victim’s throat appear? Police are looking for marks or bruises on the throat and neck. If police observe any markings, they will take photographs of the neck and throat area.
What police are looking for is fairly obvious: red marks, abrasions, rope burns, red or irritated skin, bruises. Police will be noticing Police are looking for evidence of how the choking may have occurred. Police are trained to look for and ask questions about choking with bare hands, or an object like an electrical cord, a rope, or a belt. There are many objects a person can utilize to impede the breath or strangle a person, such as a bra or another article of clothing.
The Need for Strong Criminal Defense Representation
If you or someone you care about is facing an allegation of impeding breathing or circulation, it is very important to consult with and hire strong criminal defense representation. This is a felony charge and that obviously has serious consequences. However, a conviction can have other consequences as well. If you are convicted for an assault charge, you will not be able to own a firearm or ammunition under Federal Law. Call me and we can discuss your options. I am happy to consult with you and discuss your case for free.