A Choking Allegation Can Complicate Family Violence Cases

By | September 4, 2014

family violence defense in Texas

It’s a question anyone who’s ever been arrested and charged with a crime has asked a lawyer: “What happens if I’m convicted?”

In a case involving family violence, the answer is, “It depends.”

Under Texas law, prosecutors can charge an act of assault against a family member as a felony, which is a more serious crime, or a misdemeanor, depending on the facts and circumstances unique to each individual case.

What Was Used During the Assault?

One factor to consider is whether the assault involved a weapon, such as a gun, baseball bat, or knife. The use of a deadly weapon would result in a felony charge and would be punished more severely than the use of bare hands. Police and prosecutors will typically consider an attack against a relative or intimate partner without using a deadly weapon a misdemeanor, unless serious bodily injury results.

When an allegation of family or dating violence involves choking, however, it is viewed differently than other types of assault that don’t involve weapons. With choking, the penalty if convicted will likely be stiffer than a case that involved punching, slapping, or kicking.

The reason courts take particular notice when a choking allegation is raised has to do with the fact that choking is far more likely to cause death than simply punching or slapping someone.

Choking Can Quickly Lead to Death

According to the Texas Council on Family Violence, strangulation is one of the top five risk factors for family violence homicides. The Texas Council on Family Violence says that a victim of family violence who has been strangled is nine times more likely to be killed than a victim who has suffered abuse by other means.

In 2009, state lawmakers amended the Texas penal code to make family violence involving choking a third-degree felony punishable by two to 10 years in prison for a first offense. In addition, a repeat offender can be found guilty of a second-degree felony, which is punishable by two to 20 years in prison. Both charges also carry a potential fine of up to $10,000.

What Exactly is Choking?

Specifically, the law defines choking as “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.”

By comparison, if prosecutors were to treat an assault against a family member as a misdemeanor, the maximum penalty would involve a jail sentence of no more than one year and a fine of no more than $4,000, or both.

A survey by the Institute on Domestic Violence and Sexual Assault at The University of Texas found 36 percent of all Texans consider domestic violence “a very serious problem” in the state, and nearly 51 percent of women said the state wasn’t doing enough to provide victims with the help they need. This obviously can affect the preconceived notions of members of a jury panel.

This is all the more reason to protect your rights by consulting an experienced criminal defense attorney, should you ever find yourself facing a charge involving family violence. For a better understanding of Texas criminal law as it relates to domestic violence, contact the William B. Mange Law Office today.


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