Impeding Breathing or Circulation Domestic Violence

The police are often pushing to turn a domestic violence case into an assault by choking (strangulation). So, a case that would normally be a Class A Misdemeanor turns into a Third Degree Felony assault charge. If you are charged with assault by impeding breathing then we usually start by meeting with the “victim” in the case. We need to do this, so we can get a new statement that clears up the confusion caused by police pressure at the time of the initial call. Once we get this straightened out, we can develop the rest of our strategy for getting your assault charge dropped.

Texas assault family violence charges have serious consequences, especially if they are felony assault charges. The most common way an assault case is elevated to a felony assault family violence charge is by the government alleging choking or impeding breathing. If you're researching to find the best criminal defense attorney for your case the profile and reviews of James Luster.

Meet James Luster for help with your assault charge...

To defend assault by choking cases, domestic violence lawyers must have a firm understanding of the law, trial strategy, and the local practices.

What is on this page:

Tarrant County Local Practices
Understanding Felony Assault
Texas Penal Code for Choking
Probation for Felony Assault
Evidence in Impeding Breathing/Circulation
Dropping Domestic Violence Charges
Job of your Criminal Defense Attorney
Emergency Protective Orders
Possible Outcomes in Choking Cases
Non-Criminal Consequences
Glossary of Terms and Abbreviations
Impeding Breathing Legislative Policy

Tarrant County Choking Cases

Local Practices

Tarrant County has very strict policies with regard to domestic violence cases, especially felony assault family violence charges. Recently (2016), the elected Criminal District Attorney in Tarrant County, Sharen Wilson, requested that the county commissioners provided special funding for a new “Intimate Partner Unit” to prosecute assault family violence.

In Tarrant County, you may see the abbreviation "asslt fv imped" or "assault fam/house mem impede breath/circulat" used on court notices or bond paperwork. In other counties, the word “occlusion” is used as the label for these charges. That has not become the common practice in this area.

Bonding out of Tarrant County Jail on Impeding Breathing Charges

As with any criminal case, you can bond out of jail for an assault by choking/suffocation. Sometimes the bond can be set extremely high. This is something a criminal defense attorney can help with. Your lawyer can file a motion to reduce the amount of bond and to change any bond conditions imposed. If your financial resources are limited, getting your bond reduced may be the best way to be able to afford to retain a lawyer and bond out of jail. Unfortunately, too often people do not look ahead in these domestic violence cases, and they immediately spend all of their money posting a high bond. Then these people must get a less experienced attorney or a court appointed attorney assigned to their case. If you are trying to bond someone out of Tarrant County Jail for assault impeding breathing, your first step is to find a good criminal defense lawyer. That lawyer can help you get through the bond process without wasting money.

Specialized Courts and Prosecutors

Tarrant County has specialized domestic violence courts, and the District Attorney’s Office has a specialized intimate partner unit of prosecutors. For misdemeanors, there are two county courts that hear family violence cases: County Criminal Court 5 (CCC5); and County Criminal Court 1 (CCC1). For felony assault domestic violence cases (like impeding breath cases), any of the district courts may have the case. The DA (Sharen Wilson) obtained special funding from the Tarrant County Commissioner’s Court for a special unit of prosecutors to focus only on “Intimate Partner” assault cases. This means those prosecutors become very experienced and skilled in these specific cases. You need to search for the defense lawyer with comparable experience.

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Felony Assault Family Violence – Choking

Is choking someone a felony?

Under Texas assault law, if a person assaults someone that is a family member, dating partner, or a household member the assault charge is a Third Degree Felony if the person accused of assault is said to have intentionally, knowingly, or recklessly impeded the normal breathing or circulation of the blood by applying pressure to a person's throat or neck or by blocking the person's nose or mouth. If the person accused has a prior conviction or probation for domestic violence, then the new Impeding Breathing case can be enhanced to a Second Degree Felony.

Allegation in these assault cases may include putting someone in a “headlock,” putting hands around someone’s throat, putting a bag over someone’s head, and a variety of other ways to choke or suffocate. Many times a “choking” accusation arises in self-defense situations. This happens when someone is being attacked and the person being attacked uses an arm or hands to push the attacker away. [Read More – Manner and Means]

Sometimes these cases are difficult to defend because they are “he said, she said” cases, so you’re left with trying to prove you DIDN’T do it. However, in other cases there may be photos or video of marks on a person’s neck.

Assault family violence in Texas is very serious charges, especially if it is an accusation of choking. Regardless of the facts of a choking assault family violence case, you need a skilled and aggressive Fort Worth Criminal Defense Attorney to work on your case. We have extensive experience in defending these "Impeding Breathing" cases.

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Texas Penal Code Assault Family Violence – Choking

Texas Law on Impeding Breathing or Circulations

Is choking assault? Yes, these cases are criminalized under Texas Penal Code Section 22. If the alleged victim is a family member, then choking is a Third Degree Felony. If the alleged victim is not an intimate partner or family or household member, then the charge may only be a Class A Misdemeanor. Practically though, the charge is not going to be designated in your court or jail paperwork as “choking” if does not involve domestic violence.

The assault section of the Texas Penal Code can be a confusing, because it lays out the general way a person can commit an assault and then breaks down different ways an assault charge can be enhanced. “Enhancement” is a term often used to mean some added facts make a crime more serious.

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 (0 to 365 days jail) to a Third Degree Felony (2 to 10 years prison). To better understand the possible extent of your assault charge you need to speak with an experienced criminal defense attorney.

Texas Penalty for Impeding Breathing or Circulation

The penalty or punishment for assault charges is not found in the same section. The Texas Penal Code has a separate section that assigns the punishment to different levels of charges. The Texas Penal Code Section 12.34 contains the punishment range for a Third Degree Assault Family Violence charge. If a person is found guilty of a third-degree assault the law says the penalty is imprisonment in the Texas Department of Criminal Justice (TDCJ-ID) for a minimum of 2 years and up to 10 years. Additionally, a person found guilty of a third degree domestic violence charge may be assessed a fine of up to $10,000.

Aside from the accusations in the current case, a person’s criminal history can make the penalty much more serious. Repeat and habitual offender enhancements in Texas Penal Code Section 12.42 apply. Prior convictions can cause the possible penalty increase to include life in prison.

If a person has a prior conviction for assault family violence (misdemeanor or felony), then a new case of Assault FV by Impeding Breathing is going to be charged as Second Degree Felony. This has a penalty range from 2 year to 20 years in prison and up to a $10,000 fine.

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Probation for Assault by Choking Cases

Can you get probation for an impeding breathing case?

Aside from the possibly jail or prison time for assault cases, someone may be eligible for probation (community supervision). These probation eligibility laws are contained in the Texas Code of Criminal Procedure Article 42.12. There are two kinds of probation, what we call “straight probation” and what we call “deferred adjudication probation.” The first, Straight Probation, means a person is: (1) found guilty; (2) assessed a prison/jail sentence; and (3) the sentence is suspended and the person is not imprisoned, but allowed to serve the sentence on probation. Deferred Adjudication cannot be given for a domestic violence case (including choking cases).

The possibly penalties are complex. You need to consult an assault family violence defense attorney to understand the full range of punishment in Texas domestic violence charges and your case.

Conditions of Probation

Texas law requires and allows some special conditions or rules for probation in family violence cases. For instance, the court may require as a condition of probation that the person on probation (probationer) not directly communicate with the victim of the offense or go near a residence, school, or other location, as specifically described in the copy of terms and conditions, frequented by the victim. This “no contact” rule of probation could be absolutely no contact or allow for supervised contact or access. Even if you have a family law court order, the rules of probation control for up to 90 days.

The court can also require a probationer to attend a battering intervention and prevention program. These programs are available throughout Tarrant County, but in areas where the program is not available the court can require a probation to attend counseling sessions for the elimination of violent behavior with a licensed counselor, social worker, or other professional who has completed family violence intervention training that the community justice assistance division of the Texas Department of Criminal Justice has approved. If the court does order battering intervention or counseling, then the probationer must attend counseling or a program not later than the 60th day after the date the court grants community supervision (probation).

The probationer is responsible for paying “all the reasonable costs of the counseling sessions or attendance in the program” if the court determines the probationer is able to pay.If someone cannot pay, then the court makes the counseling sessions or enrollment in the program available without cost to the probationer. The court can also order the probation to pay for counseling of a victim, for up to 1 year.

These are just a few of the terms and conditions for assault by impeding breathing probation. There are a lot of other rules and requirements. If you are considering accepting probation, then you need to take the time to visit with your criminal defense attorney about what you can expect. If your lawyer has a lot of experience in domestic violence cases, then the lawyer should be able to give you details and point you to resources to learn more.

Revocation of Assault Family Violence Probation

The first step to avoiding a probation revocation for your assault family violence – impeding breath or blood case is understanding the terms and conditions of your probation. Next in importance is being honest with yourself about your ability to comply with probation conditions. If you have been drinking or smoking marijuana every day for the last five years, then it is not likely you will be able to simply quite cold-turkey just because you are now on probation. Regardless of how well prepared you are for probation (community supervision), you may still find yourself facing a motion to revoke. If you think there is a possibility your probation officer may ask the prosecutor to file a revocation petition, then you need to contact a criminal defense attorney, immediately.

Often, if your lawyer gets involved before a warrant is issued, the problems with you probation can be smoothed out. Probation for Assault by Impeding Breathing (Strangulation or Suffocation) is in lieu of a prison sentence. So, if you allow problems with probation to get out hand, you are risking very serious consequences.

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Evidence in Domestic Violence - Choking Cases

Manner and Means for Assault Family Violence - Impeding Breathing

What does impeding breathing mean? Strangulation or choking cases can be charged in various ways including ligature, manual, and hanging. The use of an object such as a piece of rope, belt, clothing, cord, or other device wrapped around the neck is considered ligature strangulation. When a person is accused of using hands or arms for choking, or placing a foot or other body part onto the another person’s neck or throat, this is called manual strangulation. The rarer form of assault family violence accusation is hanging which is suspension by a cord wrapped around the neck. Aside from strangulation or choking, an impeding breathing charge may be filed for a suffocation accusation which involves covering the mouth and/or nose and can be done with hands or with an object such as a plastic bag or pillow.

Ligature Choking - Possibly Aggravated Assault Charge

Is choking someone Aggravated Assault? If the assault by strangulation or impeding breathing is by a ligature, then the State may allege a "deadly weapon." Alleging an assault with a deadly weapon may change the charge to Aggravated Assault of a Family Member. The use of a deadly weapon makes an assault charge fall under what is commonly known as a "3g Offense." So, in addition to the penalty being increased to a First Degree Felony, a person cannot be given probation by a judge if the person is found guilty at trial. Eligibility for probation can be a complex area of criminal law. Like any question about the possible penalties, you need to speak with an expert in criminal law to discuss Texas law on domestic violence. You may see Aggravated Assault of a Family Member (domestic violence) abbreviated as "agg aslt dv-impede breathing" in jail or court documents.

Physical Evidence

Unfortunately, a person that is looking for signs or symptoms of assault by choking can just “Google” the term and a list is easily found on a variety of advocacy groups’ websites. Sadly, in some instances the allegations of abuse are manufactured by the complaining witness (“victim”). Often, the “signs of abuse” may be present when the “victim” became violent and the person accused actually was defending himself or herself (self-defense). A person willing to make these serious false allegations has a wealth of resources for making a convincing complaint when talking to police or social workers.

Police and domestic abuse advocates are looking for “signs of abuse,” including:

• Red Spots on the face and/or neck due to blood vessels that may have burst. These may appear as small red spots and in photos often acne confused for these spots. These spots are called petechiae;
• Bloody-red eyeball(s) caused by capillary rupture in the white portion of the eyes;
• Abrasions under the chin;
• Reported rope or cord burns;
• Reported neck swelling or stiffness;
• Apparent raspy voice or panting;
• Seem to have difficulty speaking;
• Reporting a sore throat or trouble swallowing;
• Involuntary defecation or urination;
• Describing numbness of extremities;
• Complaints of headaches; or
• Complaints of dizziness.

False Accusation of Strangulation or Suffocation

As stated above, the cases are often “he said, she said.” Many people accused want to know if the “victim” lies will the “victim” be prosecuted for perjury or false statements to police officer. As a general rule, no. Of course, as with any general rule, there are exceptions. But first, you might wonder why a person is not prosecuted for making false impeding breathing accusations.

There are a lot of reasons prosecutors don’t want to file charges against “victims” even if the person admits to lying. One, the case may be difficult to prove. If you think about the defense of the lying victim, you will soon see realize what most “victims” would say when facing criminal charges for lying, “I only said I lied because I was afraid.” There are variations on this defense, including, “I needed him home because he take care of us,” or “It did happen, but I love him and I didn’t want him to go to jail.”

Perhaps the most compelling reason “victims” are not prosecuted is, the government does not want to discourage other victims from coming forward. We call this a “chilling” effect. If legitimate victims see other people getting sent to jail for reporting assault, then it may cause those legitimate victims to decide not to come forward.

So, even though prosecution for false impeding breathing accusations is possible, it is not likely. If you are a person concerned about recanting or changing your story, then you need to consider speaking with a criminal defense attorney (other than the one defending your loved one). If you are a person fighting false accusations, then you need to speak with a domestic violence attorney to start putting your defense together.

Can someone be prosecuted without physical evidence?

Listed above is some of the physical evidence you might expect in an assault family violence – impeding breathing case. Many cases have no physical evidence. The prosecution can rely on statements made by one person, with nothing to corroborate those statements. Notice the use of the word “statements” and not testimony.

Under some circumstances, a complaining witness (“victim”) may not actually appear at trial. The prosecution may still be able to get the victim’s statements into evidence for the jury to consider. This is a complex area of law that revolves around the rules of evidence (Hearsay) and our right to confront and cross-examine our accusers (U.S. Constitution 6th Amendment). This is an extremely complex area of law, and you should consult a criminal defense attorney familiar with these issues; however, below is a classic example of a person’s statements being used without the person actually testifying.

911 Calls: The government may have a recording of a 911 call. The caller may say on the phone, “My husband is banging on the door. He was just choking me. I blacked out. When I came to I ran away and locked myself in the bathroom.” Using the 911 call as evidence would not violate rules against hearsay, because: (1) the statements are made while the declarant (person talking) is under the stress of a dangerous situation (Excited Utterance); and (2) the 911 call is kept in the normal course of business of the police agency and the recording was accurately made (Business Records Exception). If the jury believes the statements made on the 911 call a person could be found guilty based on little else.

Your reaction may be, “That’s unfair.” You may be right, but that is the law. This is one reason having a good criminal defense attorney is so important for you defense. There may be ways to attack the admissibility statements like these, but if your lawyer lacks experience or does not devote the required time to you case, you may miss opportunities to beat your charges.

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Dropping Charges for Impeding Breathing/Circulation Cases

How to drop assault charges? “Dropping charges” does not happen effectively in domestic violence cases. If you’re the alleged victim, your best chance of getting the charges against your loved one dropped is communicating and cooperating with the lawyer defending your loved one’s case. Police and prosecutors are not eager to listen to victims “recant.” This makes sense, if you think about it from their prospective.

From a practical view, police and prosecution do not have much to gain by dropping or dismissing charges. Above, we described a scenario where a case can go forward with no physical evidence and an absent “victim.” The prosecution knows they can probably make the case, even if you do not want to cooperate. Also, if a prosecutor loses a case at trial, the prosecutor goes home that night and moves on the to the next case the next day. The accused is not so lucky. On the other hand, if a prosecutor does drop or dismiss a case, and something terrible happens (the victim is later hospitalized or killed), then the prosecutor can suffer great consequences: bad review at work; media running a bad story; or personally feeling extreme guilt.

Most prosecutors want to do the right thing, and most prosecutors do not want to lose a case at trial. This motivation is something the skilled defense lawyer taps into. Among other strategies, the lawyer needs to make it very difficult for the prosecutor to win the case, and the lawyer needs to make the prosecutor feel good about dismissing the case. The tactics to achieve this may vary, but usually it includes the use of an affidavit of non-prosecution and counseling. Find a criminal defense lawyer you trust and follow their advice.

More information on Dropping or Dismissed Charges...

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What can an attorney do?

Not all attorneys are created as equals. The first thing you need to understand is that criminal defense lawyers practice in the same court and against the same prosecutors over and over again. This is even more the case with domestic violence cases. Attorneys develop reputations, good and bad. You want an attorney with a reputation of being honest with the prosecutor and dangerous in trial.

Grand Jury Representation

For impeding breathing cases, your lawyer needs to jump on the case quickly. These are Third Degree Felony Assault charges, so the case must be presented to the Grand Jury. Your lawyer may be able to get the Grand Jury to “No Bill” the case or indict the case as a misdemeanor. If an impeding breathing case is “No Billed” then the case is over. If it is indicted as a misdemeanor, then you are no longer looking at prison time or 10-years of probation. Your lawyer creates the best chance of a “No Bill” by investigating the case early and preparing a persuasive presentation (usually a packet with a letter) for the Grand Jury. Winning at this stage is your first and best chance of beating the assault family violence – impeding breathing case.

Pretrial Persuasion

If you case is not “No Billed” by the Grand Jury, then your lawyer needs to get to work on convincing the prosecutor the case is a bad case for trial. This may be accomplished by presenting the prosecutor with information obtained during your criminal defense lawyer’s investigation and through pretrial litigation. Impeding Breathing Cases, like any criminal case, may have issues leading the exclusion of evidence through motions to suppress or other pretrial pleadings (papers filed with the court). Spotting these important issues pretrial may convince the prosecutor to dismiss or reduce the charges.

Aside from what you lawyer can do directly, your attorney should give you advice about how you can help yourself. Specifically, your lawyer should instruct you to engage in counseling related to domestic violence and anger control. Some people feel like this looks like an admission of guilt. It does not, but it does show the prosecutor you are serious about the charges. So, listen to you lawyer if he tells you to engage in counseling. This advice may include:

• Batterers Intervention
• Anger Control/Management Classes
• Substance Abuse Treatment
• Marriage Counseling
• Parenting Classes or Workshops

Trial Advocacy

Everyone has watched TV shows about lawyers in the courtroom. Truly, the criminal defense attorney is the closes to a TV lawyer as it gets. The prosecutors on your case are in trial usually two or three times a month (15 to 30 times a year). Defense lawyers are not in trial that much. The exception is someone that does exclusively DWI cases, but that is not the kind of lawyer you need on a family violence impeding breathing case. You do need to find a lawyer that goes to trial a lot. This may mean five to 15 times a year. It is probably also helpful if you defense lawyer was once a prosecutor. Many lawyers advertise that they have always been a defense lawyer, and promote that as a virtue. Ideologically that may be great. Practically, a trial attorney cannot get much needed early experience if they are always a defense lawyer. So, find someone that got their early experience as a prosecutor.

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Emergency Protective Orders in these cases

Issuance of a Domestic Violence Protective Order

When someone is arrested for domestic violence, there are two situations in which a magistrate (judge) can issue an emergency protective order for the alleged victim and the alleged victim’s family or household members. In one situation the magistrate has the power to decide whether a protective order should be issued. In the other situation, the magistrate (judge) is required to issue the order for emergency protection-it is mandatory.

• Magistrate has Discretion: When someone is arrested for a crime involving family violence, sexual assault, aggravated sexual assault, or stalking, the magistrate may issue an emergency protective order while the accused is still in jail.
• Mandatory Orders: If someone is arrested for a crime involving family violence with serious bodily injury or involved display or use of a deadly weapon, then the magistrate is required to issue an order of emergency protection.

The emergency protective order is meant to keep the accused person from inflicting further harm on victims after the accused is released from jail. These protective orders are different than those that might be issued under the Texas Family Code Title 4. Unlike the Family Code protective orders, these protective orders issued upon arrest for domestic violence do not require a hearing, do not require the accused and the alleged victim to have a specific relationship (and can be issued to protect the victim from a stranger), and is issued before the accused is released from jail.

Issued without:

• A chance for the accused to be present at a hearing;
• Specific relationship between the accused and the complainant; and
• Do not require the cooperation of the alleged victim.

How long do these protective orders last?

You must read the order very closely to be sure you do not accidentally violate the terms. It is wise to provide a copy of your protective order to the criminal defense attorney defendning your family violence (impeding breathing/circulation) case.

The law allows Discretionary Orders or Mandatory Order for serious bodily injury to last:

• minimum length—31 days;
• maximum length—61 days.

For Mandatory Orders based on use or exhibition of a deadly weapon, the law says the orders last:

• minimum length—61 days;
• maximum length—91 days.

Lifting Emergency Protective Orders for Impeding Breathing Cases

First, if you want an order for emergency protection lifted, you should retain a criminal defense attorney with extensive experience in domestic violence cases. Like dropping family violence charges, your efforts (even with a cooperating victim) are not likely to succeed without an attorney. The procedures for requesting dismissal or modification of the protective order are complex and confusing. Even more frustrating, every city and county has its own unique policies and approaches to handling these orders.

Even though impeding breathing or circulation cases do not strictly fall under the “serious bodily injury” provisions, many courts are likely to be less flexible in these cases. Your lawyer should know whether the best strategy is the fight the emergency protective order in the municipal court or seek a transfer to the county/district court. Then your lawyer should file the appropriate pleading and speak with the prosecutor. Finding the correct prosecutor can even be a difficult task. You need a lawyer with specific experience in Tarrant County or whichever county your protective order was issued in.

Violation of Domestic Violence Protective Order

Do not disobey the protective order. It does not matter if the “victim” is inviting or giving you permission to violate the protective order. The “victim” does not have the power to give you permission to violate the order. Also, the “victim” will not get in trouble for violating the order, you will. First, under Texas Penal Code Section 25.07, it is a new crime to disobey a domestic violence order of protection. You can face a new charge and a year in jail. Also, it is going to make your lawyers job so much harder if you violate the order. Violations make it practically impossible to get the order lifted or modified before the expiration date, and prosecutors are much less likely to dismiss or recommend that the Grand Jury return a “No Bill” on the case. Save yourself and your attorney a lot of trouble, obey the protective order.

Information on Removing or Dropping Emergency Protective Order...

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Possible Outcome in these cases

No Billed by Grand Jury

Assault Family Violence by Impeding Breathing/Circulation (Choking) is a Third Degree Felony charge. This means, before the case is able to go to trial, the prosecutor must have a Grand Jury decide whether there is probable cause to go forward. If the Grand Jury decides there is probable cause, then the case is “Indicted.” The Indictment is the pleading (piece of paper) that is filed to formally charge someone with a felony. However, if the Grand Jury decides there is not probable cause to believe the crime occurred, then the Grand Jury “No Bills” the case. The case is over and the assault arrest can later be expunged. This is your first and best chance to have these charges dropped.

Dismissed by the Prosecutor

Before or after the assault case goes to the Grand Jury, the prosecutor can dismiss the charge. Usually, a prosecutor is not inclined to dismiss a charge before the Grand Jury decides on the case. This is because if it is a bad case for the prosecution, then the Grand Jury will most likely return a “No Bill” and the prosecutor is not responsible for the decision to dismiss. However, after a case is indicted, your lawyer probably has several months to convince the prosecutor to dismiss the charge before it goes to trial.

Not Guilty at Trial

The least common way to “beat” an assault family violence – impeding breathing case is to take it to trial and the jury returns a “Not Guilty” verdict. This is the least common, because only about two percent of cases actually go to trial before a jury. Even though this is the least common, a trial is the great motivator for both sides of a criminal cases. So, your criminal defense attorney should have a lot of trial experienced, specifically in the area of domestic violence cases.

Plea Agreement

Most assault by impeding breath or blood cases are resolved with a plea agreement. This means the prosecutor agrees to a certain punishment (jail, prison, or probation) in exchange for a person’s plea of “Guilty” to the charge (or lesser charge). Both sides of a criminal case should get something out of a plea bargain. Like mentioned before, you should find a lawyer with extensive trial experience (specific to family violence), so you have the best chance in plea negotiations. Think about it, if the prosecutor knows your lawyer does not have a lot of experience trying cases, then the prosecutor is much less worried about losing the case at trial. If the prosecutor does not respect your lawyer’s trial experience, you are less likely to get a favorable plea bargain.

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Non-Criminal Consequences of Family Violence Charges

Right to Possess a Firearm

If you are convicted, or received deferred adjudication, then you cannot legally own or possess a firearm. The federal and Texas laws are different, so you need to speak with your criminal defense lawyer to fully understand this consequence.

Under Texas Penal Code Section 46.04, if you have been convicted of an offense under Texas Penal Code Section 22.01 (Assault) punishable as a Class A misdemeanor and the assault involves a member of the person's family or household, then it is a crime in Texas to possesses a firearm (gun) before the fifth anniversary of the later of:

This provision relates to misdemeanor family violence charges. As stated above, Impeding Breathing or Circulation is a Third Degree Felony. So, if convicted or placed on deferred adjudication for ANY FELONY you cannot possess a gun, under a different provision of Texas law.

NOTICE: This is a note for the public and criminal lawyers doing research. The Texas law about possessing a gun says an assault “involving” family violence. This does not mean there is necessarily a family violence finding. So, when negotiating pleas for “lesser charges” be mindful, if the charge remains an assault but you merely get rid of the “Family Violence Finding” then you may still have a serious issue with possessing a gun. This is not a question you rely on the internet for. Talk to a lawyer.

United States federal law (18 U.S.C. § 922) prohibits certain people from possessing firearms, ammunition, or explosives. On the list of people that cannot possess a gun or ammunition is anyone convicted of misdemeanor crime of domestic violence or a crime punishable by more than 1 year. This means, if your impeding breathing charge is reduced to a misdemeanor Assault Bodily Injury to a Family Member, then it is a federal crime to possess a gun. The penalty for violating this law is ten years imprisonment and/or a $250,000 fine.

It is also a crime to possess a gun if you are the subject of a domestic violence protective order. So, if you are arrested for assault by impeding breath or blood, then you need to give you guns to someone else to keep at their home. Do not retrieve your guns until your criminal defense attorney tells you it is ok for you to possess a gun.

Child Custody Battles

Texas law in the Family Code Section 153.004 makes it mandatory for a judge to consider domestic violence committed within 2 years of a the child custody suit being filed. As a practical matter, judges are going to hold family violence against someone, regardless of how long ago it occurs. So, when a child custody court is determining whether to appoint someone as a sole or joint managing conservator, the court must consider evidence of the intentional use of abusive physical force by a party directed against the party's spouse, a parent of the child, or any person younger than 18 years of age.

It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of physical abuse by that parent directed against the other parent, a spouse, or a child. This means, if you have a “history” of domestic violence (such as an arrest for impeding breathing), then the court starts be saying you are not fit to be the primary conservator of your child. You can overcome this presumption, but it is not easy.

Frankly, an arrest for domestic violence (choking or not) will be an issue in a child custody case. This is an area your criminal defense attorney can really help by doing a proper investigation and hopefully getting your case dropped.

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Terms and Abbreviations in Family Violence Choking Cases

Dating Relationship

A relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. When the police, prosecution, court, or jury are deciding whether a “dating relationship” exists the law says they must consider:

It is not considered dating if people are casual acquaintances or have ordinary friendly interactions in business or a social context. Texas Family Code Section 71.0021.

1. the length of the relationship;
2. the nature of the relationship; and
3. the how often people interact and the type of interaction between the people.

Family Member

You must look in several areas of Texas law to get the full definition of “Family Member” in the domestic violence context. The Texas Family Code says “family” are individuals that are related by consanguinity (blood) or affinity (marriage). Then you must go to the Texas Government Code to find out what “related by consanguinity or affinity” means.

Then the Family Code specifically lays out the people that are considered “family” that may not fit within the Government Code definition: Texas Family Code Section 71.003

• People are related by consanguinity if they are direct blood relatives or have a common ancestor. Adoption works the same as a “blood” relationship in this context.
• People are related by affinity if: those people are married to each other; one person’s spouse related by consanguinity (blood) to the other person. If the marriage that connects people by affinity ends (divorce or death) then the relationship by affinity ends unless a child of the marriage is still living.
• People who are former spouses of each other (you ex-spouse);
• People who are the parents of the same child (even if not ever married); and
• Foster child and foster parent (regardless of whether they live together).

Household Member

Member of a household is someone that currently or used to live in a household. A "Household" is a group of people living together in the same “dwelling.” It does not matter whether the people living together are related.

Tarrant County Abbreviations

ASSAULT BODILY INJURY-FM means Assault Causing Bodily Injury to a Family Member (Class A Misdemeanor). This is the abbreviation most commonly used on Tarrant County court dockets and bond paperwork.

The abbreviation for Assault of a Family Member/Household Member/Dating Partner by Impeding the Breathing or Circulation of Blood is abbreviated in several ways, included:

Rarely, but possibly, you may see this charge abbreviated as: ASSAULT CAUSES BODILY INJ FAMILY VIOLENCE ENH.

Other related abbreviations:

• ASSAULT INT/RECK BREATH/CIRC FAM MEM PREV CONV
• ASSAULT FAM/HOUSE MEM IMPEDE BREATH/CIRCULAT
• ASLT FM/HM IMP BREATH/CIR
• ASSAULT FAMILY VIOLENCE BY OCCLUSION
• AGG ASSAULT DEADLY WEAPON means Aggravated Assault with a Deadly Weapon.AGG ASLT-FAM MEM-W/WEAPON means Aggravated Assault of a Family Member with a Deadly Weapon.
• ASLT FAM/HOUSE MEM W/PREV means Assault Causing Bodily Injury of a Family Member after having a previous conviction for family violence.

Regardless of what your bond paperwork or even the court’s docket says, you need to talk with your criminal defense attorney and review the indictment (complaint or information) in your assault (impeding breathing) case to fully understand your assault charges. Subtle differences in the charge can have a huge effect on the possible consequences.

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Understand the Policy of the Law

Texas Legislative History of Impeding Breathing

The current form of the law was introduced in the Texas legislature in 2009. This was the 81st Legislative session. Bills to increase penalties for impeding breathing or strangulation in domestic violence cases were introduced in both house (House and Senate). Then Governor, Rick Perry, signed this bill into law in June 2009.

Supporters of the Law

Supporters said the more serious penalties for impeding breathing or circulation were necessary because cases of strangulation and suffocation in domestic violence situations were not taken seriously enough nor punished harshly enough. The goal was to clearly define the offense and make increased penalties available, giving prosecutors more tools to combat domestic violence and better protect victims and more appropriately punish offenders. Supports of the harsher law argued strangulation (domestic violence situations) is often a marker of serious, life-threatening violence that Texas should do all it can to stop and to punish. Strangulation has a higher fatality rate than any other form of assault, with domestic violence victims who have been strangled being nine times more likely to be killed than those who have not been strangled. Strangulation often is the result of escalating domestic violence and a sign of prolonged abuse.

Advocates for the new strangulation law complained that choking in domestic violence cases often is charged as a Class A misdemeanor form of assault, which does not require any minimum jail time. Under the pre-2009 law some cases were prosecuted and punished more harshly, but supporters of the law change said this was rarely done for several reasons:

• It could be difficult to prove serious bodily injury because strangulation may leave no marks and victims may appear to have no injuries;
• In some cases, obtaining the higher penalties could be done only if there was a previous offense.
• Prosecutors, judges, and juries underestimate the seriousness and potential lethality of the choking.
• Prosecutors are hesitant to jump from prosecuting simple assault, a misdemeanor, to aggravated assault, a more serious second-degree felony.
• Some prosecutors may be hesitant to try to prove that a defendant’s hands were used as a deadly weapon, and this may be difficult to prove.

This list of concerns is taken from the Bill Analysis for the legislation that was ultimately passed into law. It shows a lack of understanding of the Texas assault law and practical prosecuting realities.

The advocates hoped the new law would solve these problems by clearly stating that strangulation and suffocation in domestic violence situations constituted assault and applying appropriate penalties to the first and subsequent offenses. They further hoped, the new definitions would allow prosecutors, judges, and juries to identify the offense, and the increased penalties would reflect more accurately the physical harm that can be caused by strangulation. These advocates wanted to increase penalties to keep offenders incarcerated longer, giving victims more time to take steps to protect themselves.

The bill was allegedly designed to give prosecutors the discretion to try strangulation cases under the law that carries the most appropriate penalty. The drafters claimed it would do this by stating that if conduct constituting strangulation also constituted another offense, the defendant could be prosecuted under either or both laws. Anyone that has a working knowledge of Texas criminal law knows this is not a mechanism to allow prosecutorial discretion to benefit fairness or the accused. Instead, this allows the piling on or stacking of charges.

Ultimately, the advocates for the harsher impeding breathing laws got their way. The new law put Texas in line with 26 other states that carry a felony penalty for strangulation.

Opponents of the Change

Many people did not want the law to change. They argued the pre-2009 law allowed Texas to adequately prosecute and to punish cases of strangulation in domestic violence situations. Prosecutors, judges, and juries increasingly take domestic violence seriously and respond with appropriate charges and penalties.

Correctly the opponents of the law change explained, if strangulation in a domestic violence situation causes bodily injury or serious bodily injury, it can be punished seriously under the assault or aggravated assault statutes. Many strangulation and suffocation cases have been successfully tried as aggravated assault, which is a second-degree felony. Those committing bodily injury in a domestic violence situation who have previous convictions for other violent offenses already can be punished for a third-degree felony. If serious bodily injury is caused and a deadly weapon used, the offense can be a first-degree felony. Texas courts have recognized hands as a deadly weapon, including in strangulation cases.

Commentary

Legislators are not elected by being “soft on crime.” Domestic violence advocacy groups are active during legislative sessions and elections. So, even if proposed legislation is illogical or wasteful, the extreme emotions powering the “victim’s rights” groups often lead to new laws. Out legislature hardly ever takes a corrective step in criminal justice, because reducing penalties or eliminating crimes would be terrible for political campaigning. We are left with a myopic, zealous charge into harsher criminal laws.

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