Defense of Charge: Assault Family Member – Impeding Breath
Case Result: Successfully argued and “No Billed” by the court
My client was charged with Assault Family Member – Impeding Breath.
Texas Penal Code Section 22.01(b)(2)(B) contains the enhancement for assault family violence by choking or impeding breathing. It increases the punishment of an assault family violence charge from a Class A Misdemeanor to a Third-Degree Felony.
Assault Family Member- Impeding Breath is considered a serious crime and is a Third-Degree Felony. If a person is found guilty of a Third-Degree Felony in Texas, the person can be sent to prison (Texas Department of Criminal Justice – Institutional Division) for 2 years to 10 years and can also be fined up to $10,000.
In this case, the complainant and the defendant were in an argument over whether she was cheating or not. My client kept asking to see her phone, and she would not let him. He eventually took her phone and threw it at her, according to the complainant. Things continued escalating. Here is a summary of the offense report-
“DEFENDANT THEN GRABBED HER BY HER THROAT WITH TWO HANDS AND BEGAN TO SQUEEZE HER NECK AND APPLY PRESSURE CHOKING HER. THE COMPLAINANT STATED THE DEFENDANT HELD PRESSURE ON HER THROAT TO THE POINT WHERE SHE COULD NOT BREATHE FOR APPROXIMATELY THREE TO FOUR SECONDS. THE COMPLAINANT STATED THAT SHE BELIEVED SHE WAS GOING TO DIE AND SHE ADVISED THE DEFENDANT KEPT ASKING HER WHY DON’T YOU LOVE ME WHILE SHE WAS GETTING CHOKED. THE COMPLAINANT ADVISED SHE BEGAN TO DEFEND HERSELF AND SCRATCHED HIS EAR. THE COMPLAINANT STATEDTHE DEFENDANT THEN PUNCHED HER IN FACE APPROXIMATELY FIVE TIMES CAUSING PAIN AND INJURY. THE COMPLAINANT ADVISED THE DEFENDANT ALSO PUNCHED HER IN THE BACK OF HER HEAD, CAUSING PAIN AND INJURY. THE COMPLAINANT ADVISED SHE HAD LUMPS ON THE BACK OF HER HEAD FROM BEING PUNCHED. WE OBSERVED THE COMPLAIANT TO HAVE MULTIPLE VISIBLE INJURIES, WHICH INCLUDED BRUISING TO HER LEFT EYEBROW AND SCRATCHES TO THE LEFT SIDE OF HER FACE. THE COMPLAINANT’S NECK WAS RED. THE COMPLAINANT STATED SHE DID FEEL PAIN IN RESULT OF BEING ASSAULTED AND CHOKED.”
After several 911 calls, police showed up to my client’s house and arrested him. We had a tough fight ahead of us to say the least.
Luckily, I was able to talk to the prosecutor and explain things were blown way out of proportion. I explained this was a verbal altercation over the phone and that the complainant did not want to proceed with the case. The prosecutor presented the case to the grand jury. Grand Juries decide whether a case should be indicted. They are the gatekeepers determining whether “probable cause” exists that a specific crime was committed. Probable cause is a higher standard than reasonable suspicion. It is defined as “where the facts and circumstances within your knowledge, and of which you have reasonably trustworthy information, are sufficient unto themselves to warrant a person of reasonable caution to believe that an offense has been committed.”
We won the fight and the case was No Billed. This was a huge victory, given the details of the complainant’s allegations and the 911 calls.
