In Texas, Assault on a Family Member is typically a Class A Misdemeanor. If the victim alleges that he or she was choked, however, the case can be filed as Assault on a Family Member by Impeding Breath, which is a 3rd degree felony. As soon as a police officer hears any mention that the victim was choked or that hands were placed on or around the neck, they immediately start investigating an Assault by Choking case. All it takes is the slightest mention that a victim's breath was impeded and what would be a misdemeanor assault becomes a 3rd degree felony Assault by Impeding Breath.
To defend Assault by Impeding Breath charges in Texas, you need an experienced assault attorney to make sure the state has the evidence they need to prove their case beyond a reasonable doubt.
What Does Impeding Breath Mean?
Texas Penal Code Section 22.01(b)(2)(B) gives us the legal definition of "impeding breath":
"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."
Based on this legal definition, the victim doesn't have to be fully choked for the state to prove an assault by impeding breath case. Merely blocking the person's airway can result in a felony assault case. Here are some examples of what could be considered "impeding breath" in Texas:
putting someone in a headlock
blocking someone's mouth or nose with your hand
putting a pillow over someone's face
actually choking someone
using your hand or elbow to push down on someone's throat or neck
It doesn't take much for a misdemeanor assault on a family member to become a felony assault by choking. The state will often prosecute an assault-impeding breath case even without any evidence of injuries. An experienced assault attorney knows that these cases can be hard for the state to prove and will use the lack of injuries to show that no choking or strangulation actually occurred.
What is the Punishment for Assault on a Family Member by Impeding Breath?
In Texas, Assault on a Family Member by Impeding Breath is a 3rd degree felony, with a punishment range of between 2 to 10 years in prison and/or a fine not to exceed $10,000. If you have previously plead guilty to an assault-family member case, the charge can be enhanced to a 2nd degree felony, with a punishment range of between 2 to 20 years in prison. This is a big jump from the punishment range for a misdemeanor assault-family member charge. All it takes to go from a misdemeanor assault to a felony assault is the mere mention that someone's breath was impeded, even for the slightest amount of time.
Probation for Assault-Family Member by Choking Cases
As an alternative to a prison sentence, it is possible to get probation for an Assault on a Family Member by Choking case. Texas Code of Criminal Procedure Article 42.12 dictates who is eligible for probation and differentiates between a "straight" probation and a deferred adjudication probation. A straight probation means a person is found guilty and results in a criminal conviction. Successful completion of a deferred adjudication does NOT result in a conviction and the person is not found guilty.
Typically, after successful completion of a deferred adjudication, you are entitled to have a criminal charge sealed from your background with a petition for non-disclosure. This is not the case for Assault on a Family Member charges. Any plea of guilty to an assault-family member case will remain on your criminal record and you are not eligible to have that case sealed, even upon successful completion of a deferred adjudication. For this reason, there is little to no benefit of completing a deferred adjudication for a family violence case.
How to Drop an Assault by Choking Case Against a Family Member
It is extremely common for the alleged victim in an Assault-Family Member case to inquire about how to drop an assault by choking case against a family member. When police are called to the scene, tension and emotions are high. Sometimes things are said that may be exaggerations of the truth or just outright lies, told in the heat of the moment after an argument with a loved one. After things settle down, everyone just wants everything to get back to normal. Unfortunately, Assault-Family Member cases are prosecuted very aggressively in Texas, even if the complaining witness is requesting to drop the case.
Merely asking the prosecutor to drop the case will have little to no effect on their decision to dismiss an Assault by Impeding Breath case. The same goes for affidavits of non-prosecution in assault by choking cases. An experienced assault family member lawyer knows that in order to persuade the state to drop charges, you need to focus on the evidence and their ability to prove the case. Is there evidence of injuries? Photos? Are there any other witnesses besides the alleged victim? Is there a history of violence in the home? These are some of the questions your assault defense attorney should be asking when trying to get your assault case dismissed.
Resources for Victims of Domestic Violence
If you are the victim of domestic violence and are in need of help, please contact the National Domestic Violence hotline at 1-800-799-SAFE to assist you with getting out of a dangerous situation. Here is a list of some helpful resources for anyone suffering from domestic violence:
What is ASLT FAM/HOUSE MEM IMPED BRTH/CIRCU?
In Harris County, the formal charge listed on your court and bond paperwork may say "ASLT FAM/HOUSE MEM IMPED BRTH/CIRCU". This is the abbreviated name for an Assault on a Family Member by Impeding Breath charge. The way the court abbreviates the charge in the court paperwork can be confusing to someone who isn't familiar with the lingo of the Harris County District Clerk. Just know that when you see ASLT FAM/HOUSE MEM IMPED BRTH/CIRCU, this is just another name for an Assault by Choking charge.
Defenses to Assault by Impeding Breath Cases
Police officers are trained to look for signs of strangulation before filing Assault by Impeding Breath charges. This is to safeguard against false accusations of choking. Typically the state will need more than just the mere statement that someone was choked or strangled. In Harris County, it is common for officers to fill out a strangulation supplement to the police report, which contains information about the manner of the strangulation and any signs of strangulation observed by the officer. An experienced assault defense attorney will look for defenses to Assault by Impeding Breath Cases by combing through the strangulation supplement to look for specific signs of strangulation or the lack thereof.
See below for an example of a strangulation supplement filled out by a Harris County Sheriff's officer in an Assault by Impeding Breath case.
Make sure your assault defense attorney obtains a copy of the strangulation supplement in your case. Ask your defense attorney to look over it with you so you can go over any potential defenses to your Assault by Impeding Breath case.
Work with an Experienced Houston Assault Attorney for your Assault-Family Member by Impeding Breath Case
It may be tempting to go with a free public defender instead of hiring your own lawyer to defend your assault by choking case. If you can afford it, however, it will be in your best interest to work with an experienced Houston criminal defense attorney to defend your case. You want to show the court that you are serious about fighting your case. You want to hire an attorney with a solid reputation for being a trial warrior and defending against false accusations. A large portion of the cases we defend at Mercer & Keirnan are Assault-Family Member cases. We have been helping individuals in Harris County defend against false accusations for over 40 years.
If you or a loved one is facing Assault on a Family Member by Impeding Breath charges in Harris County, call 713-236-9700 today for a free consultation with criminal defense attorneys Michael Mercer and Casey Keirnan.