Assault By Impeding Breath or Circulation


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, dating partners, spouses, people you live with, and someone you are dating or have dated.

Here is the definition of family member from Chapter 71 of the the Texas Family Code:

"Family" includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.  

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. When police conduct an investigation after being called to the scene, most agencies are trained to ask the victim "did you feel pain?" during the course of the investigation. If the person says yes, then generally this is enough for there to be an arrest and subsequent prosecution. 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. Did the person cause bodily injury? Causing bodily injury to another person can happen a number of ways. A person can obviously cause bodily injury by striking, grabbing, pulling, pinching, or many other ways. Causing means the injury is a direct result of the person's conduct. Sometimes other factors can intervene and actually cause the conduct. Many times these cases arise very quickly and then events have to be reconstructed later. When I meet with potential assault clients, I ask very detailed questions to paint a detailed picture of the event. This is to determine what exactly caused the injury, and who was at fault. Often, both parties are at fault and causation is not as clear cut as police and prosecutors want it to be and present it to be. This is especially true between family members. Disagreements that become assaults between family members can be very emotionally charged and involve physical contact by both parties.                  

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. If there is an allegation that a person used his or her hands to touch the neck of another person, there is a good chance that the charge will be more serious than simple assault and the person will end up defending a felony instead of a misdemeanor. As outlined below, all that it takes is pressure applied to the neck or throat. I have seen and defended many of these cases and it does not take much. Many of the cases I have worked on there are no markings or bruises or abrasions. In these cases there may be only the statements of the victim, and possibly the defendant, that inform what exactly happened. Sometimes these cases have to be pieced together out of uncertainties. When there are incomplete facts, and an incomplete picture of events, these are opportunities for skillful and powerful litigating.      

Here is the textual language 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 more harsh and more severe. Anytime prison is a possible consequence, the course of events carry more significant weight and impact. Impeding breath or circulation 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.        

Getting 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. Beyond a reasonable doubt is a very important concept for the jury to understand. It is an ambiguous phrase with no definition in Texas. During jury selection and throughout the trial, it is the defense attorneys job to instill in the jury how important this concept is and how high the standard is. The prosecution will try to lower the standard, while the defense will try to raise it. The reality is that beyond a reasonable doubt is the highest standard of proof in all legal proceedings in the United States.

The truth about defending these cases is that the evidence is in large part subjective. What happened is often a matter of what someone says happened. If the evidence in an assault case is a person's statements, that is subjective. 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 makes stuff up. These can be devastating for people who get charged for crimes they did not commit. Somebody can get a former dating partner in the very hot water of having to defend a criminal accusation by simply telling police it happens.

This is not to say that there are not valid claims because of course there are. This is not to say that domestic violence is not a problem in the United States because of course it is. 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

As discussed above, 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, cuts, swelling, 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 choke or strangle a person or put pressure on their neck such as a bra or another article of clothing. If there are photographs or video footage of the investigation, this can be objective evidence in any assault case. Many police agencies now have their officers wearing body cameras and can capture investigative footage when the event is fresh. This can be valuable for the prosecution, especially if the video or photographs can show injuries. If the defendant makes statements or admission to police, these can hurt the defense's case. It is important in an assault case, as in any criminal case, not to make statements or admissions to police without first consulting a lawyer. It is almost never in the interest of a defendant to do so, and only hurts the case.    

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. Defending a felony is not something to be taken lightly. This is a felony charge and that obviously has serious consequences for your life and your livelihood. A conviction for impeding breath or circulation can impact your future. It can prevent you from getting jobs. Employers often run background checks on prospective employees. If you have been convicted of an assault charge, the conviction will show up. If you have been arrested and have avoided conviction, you need to figure out how to get the charge off of your record. A conviction can also limit where you can live. Landlords often run background checks on prospective tenants. 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.


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