What is a choking, strangulation, or smothering allegation in an assault case?
A physical fight that could have historically resulted in a misdemeanor assault case may now be filed as a third-degree felony if there is an accusation that the suspect choked, strangled, suffocated, or otherwise impaired the breathing or circulation of another person AND the alleged victim is a family member, roommate, or person with whom the suspect was romantically involved.
The maximum penalty for a third-degree felony is ten years in the state prison. The maximum penalty would be one year in county jail if the defendant and alleged victim had merely been friends. In other words, the potential penalty is much worse because domestic violence is involved.
A defendant who has previously been convicted of (or placed on deferred adjudication for) an assault involving Family Violence may be charged with a second-degree felony. The maximum penalty for a second-degree felony is twenty years in the state penitentiary.
What is the legal definition of choking or smothering?
The Texas Penal Code says an assault is subject to felony enhancement 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.
Why do the police add choking enhancements?
The Travis County District Attorney’s Office encourages local law enforcement agencies to seek evidence of choking in domestic assault cases. We have seen cases of officers leading or coaching alleged victims to make statements that justify a choking allegation. We have also seen accusations of suffocation that involve only incidental contact with the mouth or neck during a struggle. The number of choking assault cases in Austin has been growing steadily since this law was passed in 2009.
The Austin Police Department requires officers to complete a Strangulation Supplement form to avoid missing clues when they accuse a suspect of impeding the alleged victim’s breath or circulation. This is not necessarily bad news for the defendant. A clever criminal defense attorney may use that very form to highlight which clues of strangulation are absent. This is especially true in cases where officers coached the alleged victim to make statements to justify an arrest.
Aggravated Assault – Deadly Weapon and/or Serious Bodily Injury
When there is evidence of actual serious strangulation, law enforcement will often charge a defendant with aggravated assault and allege that the suspect used his hands as a deadly weapon. When this happens, the Travis County jail inmate list may show the offense description as ASSLT INT/RECK IMPED.
The prosecution may also file aggravated assault charges when the alleged victim suffers serious bodily injury. Depending on the circumstances, aggravated assault may be a first or second-degree felony.
Please see my Assault Family Violence FAQ page for more information.