Difference between choking and strangulation [PC 22.01]

What is the difference between choking and strangulation in Texas?

The Texas Penal Code Section 22.01 defines assault by choking as intentionally, knowingly, or recklessly impeding the normal breathing or circulation of blood of a person by applying pressure to a person’s throat or neck or by blocking the person’s nose or mouth. Choking allegations can range from manual strangulation (hands) to strangulation using an object, such as a rope or cord.

If someone is accused of impeding the breath or circulation of a family member or romantic partner, the case will be filed as an assault family violence – impeding breath charge. The Domestic Violence Unit generally handles these cases in Dallas.

Assault by Strangulation

Not so long ago, strangulation cases in Texas were often treated like a slap in the face.

Things have changed.

Since the law was changed in 2009, police officers and prosecutors have taken choking cases extremely seriously.

Family violence assault charges can be elevated by the allegation that it was strangulation, which means choking or “impeding breath or circulation,” according to the Texas Penal Code.

Allegations of choking, however, can be challenging to prove and defend against because these types of cases are often prosecuted in Texas, even when there are no visible injuries to the alleged victim.

Like most other Texas counties, Dallas County often prosecutes choking cases even when the alleged victim declines to press charges.

Are you facing Dallas assault by choking charges or assault–family violence charges? A conviction could bring severe penalties and a life-changing mark on your record. An experienced defense attorney should be a priority. Call Varghese Summersett today for a free consultation.

Impeding Breath, Choking and Strangulation added to Texas Penal Code

In 2001, Penal Code 22.01 was amended to add the offense of strangulation or impeding breath as the third degree felony we know today.

What’s the difference between choking and strangulation in Texas?

Choking refers to an internal blockage of the windpipe. Impeding breath includes strangulation and suffocation. Strangulation is the external blockage of another person’s breathing, and it also includes the external blockage of another person’s blood circulation. One type of strangulation is ligature strangulation, which means using a cord-like object, compared to manual strangulation, which means strangulation using a person’s hands. Blocking a person’s nose or mouth would be suffocation.

What’s the main challenge in strangulation cases in Texas?

The law does not require any visible injury. Prosecutors will commonly call their experts to say there are often no visible injuries in strangulation cases. Prosecutors are taught to call “an expert to explain the absence of visible injuries in a strangulation case makes the jury feel comfortable with convicting a defendant without much visible evidence.” So a person can be charged with this third degree felony with nothing more than an alleged victim’s uncorroborated claim.

Consent as a Defense for Strangulation

A consent defense could potentially be raised in specific cases. For example, if the choking occurred during a consensual BDSM relationship.

What if the alleged choking victim has no visible injuries?

Texas law does not require bruises, marks, burst capillaries in the eyes (petechiae), or any type of visible injury for the state to proceed with charges. Many victims of choking in Dallas family violence cases have no visible injuries.

What level of offense is choking, strangulation, or impeding breath?

An allegation that a person intentionally, knowingly, or recklessly impeded the breath or circulation of blood of a family member is a third-degree felony charge of assault by choking or impeding breath.

But if the alleged offender has a prior family violence conviction, the charge is enhanced to a second-degree felony.

What is the punishment for choking and strangulation in Dallas County?

A conviction for third-degree family violence assault brings between 2-10 years in prison and up to a $10,000 fine, according to Texas Penal Code Section 12.34. An offender’s criminal history can make the current penalty more severe. For example, if someone has been convicted of a misdemeanor or felony assault-family violence, a new offense could be charged as a second-degree felony, with a penalty range of two to 20 years in prison and a $10,000 fine. Repeat and habitual offenders can also expect increased penalties, potentially including life in prison.

Is choking, strangulation, or impeding breath a ‘3g’ offense?

No, assault by choking or impeding breath is not a 3g offense. Prosecutors, however, could allege that the tool used to choke – hands, rope, or some other object – was a deadly weapon. If found to be true in court, the deadly weapon section of the law makes it a 3g offense.

What does ‘3g’ offense in Texas mean?

The term 3g offense is shorthand among Texas legal professionals for criminal offenses subject to the harshest penalties on the books. These offenses include murder, aggravated kidnapping, human trafficking, sexual assault, and indecency with a child.

The term derives from a revised section of the Texas Code of Criminal Procedure, which laid out the criminal offenses subject to harsh penalty restrictions. The old code section was 42.12(3)(g), thus, the 3g shorthand. However, updates and changes to the code have moved these offenses to another section. But the shorthand remains.

Is probation possible in a Dallas assault by choking case?

Yes.  The Texas Code of Criminal Procedure article 42.12 includes probation eligibility laws and a choking case is not statutorily prohibited from probation eligibility. The state has two types of probation: “straight probation” and “deferred adjudication probation.”

Straight probation: A person is found guilty and assessed a jail sentence, but the jail time is suspended, and the person is allowed to serve the sentence on probation.

Deferred adjudication probation: A person enters a plea of guilty but a finding of guilty is deferred for a period time during which the defendant serves a probation term. If completed successfully, the case is dismissed, and the finding of guilt is never entered. In family violence cases, however, the assault remains on your record and could come into play with enhanced charges for any future family violence charges, per Texas Penal Code §22.01(f)(1). Texas law specifically states that deferred adjudication cases involving family violence cannot be expunged or sealed. The case, arrest, and all records will remain on your permanent record even though the case did not result in a formal conviction.  Similarly, they can be used to increase your punishment range should you be charged with a subsequent family violence offense.

What evidence is the police looking for in assault by choking and strangulation cases?

When investigating Dallas assault by choking cases, including family violence, police officers are looking for signs of abuse. Some of these potential signs include:

• Red spots on the face or neck due to blood vessels bursting. These may appear as small red spots known as petechiae. In images, these spots can often be confused with acne;
• Bloody-red eyeball(s) caused by a capillary rupture in the white portion of the eyes;
• Abrasions under the chin;
• Rope or cord burns;
• Neck swelling or stiffness;
• Raspy voice or panting;
• Difficulty speaking;
• Sore throat or trouble swallowing;
• Involuntary defecation or urination;
• Numbness of extremities;
• Complaints of headaches or dizziness.

What if I’ve been falsely accused of choking or strangulation in Dallas?

Often, these types of assault cases are “he said, she said,” which means the police on the scene have little or no physical evidence of an assault. Many times there is no evidence of choking. In other cases, the person accused was defending themselves after first being assaulted by the “victim.”

If the victim lies about the assault, it’s unlikely they’ll be prosecuted for perjury or false statements to police. That rarely happens, but there are exceptions.

Why are people seldom charged for lying about choking assault in Texas?

Even if the accusor admits to lying about an assault, prosecutors are unlikely to file charges for making a false police report. There are several reasons for this. For one, these cases are difficult to prove. Often, the lying “victim” will recant their lie and claim they lied to protect their safety. Other versions of this scenario include concerns from the victim about their spouse going to jail or needing the spouse’s economic support.

Another reason these cases are seldom prosecuted is that the state is hesitant to discourage victims from coming forward. Assault victims may hesitate to call the police if they’re concerned about being jailed after reporting an assault.

If your choking case involves a false police report, you will need an experienced criminal defense attorney who can work with the alleged victim and make sure the truth comes out.

Accused of assault by choking? Call us.

Are you facing allegations of assault by choking in Dallas? If so, you need strong legal representation now. Call the Varghese Summersett Dallas office for a free consultation. We’ll discuss your options, the penalties a conviction could bring, and potential defense strategies. Call us at 214-903-4000.