By Denton County, Texas Criminal Defense Lawyer Tim Powers
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.
The punishment range for a 3rd degree felony in Texas is not less than
2 and not more than 10 years in prison and an optional 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 others 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
original jurisdiction to hear misdemeanor cases. This is also a potential
issue for 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.
if you are seeking aggressive criminal representation by an experienced
criminal defense attorney in Denton County, contact the offices of Tim
Powers today. there is no charge or obligation for the initial consultation.
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult