Defense of charge: Assault of a family member, impeding breath
Result: No Billed
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 had been drinking throughout the day and got into an argument. Unfortunately, the argument got out of hand, and things got physical. Later the next day, the complainant went to the hospital for her injuries, and the police were contacted. It is typical for police to be contacted when a complainant arrives at a hospital with injuries from an alleged assault.
Police showed up at my client’s house and arrested him. While he was being arrested by the police, he contacted me on my cell phone. He was able to bond out of jail. With assault family member cases, judges will put a protective order in place as a bond condition. In this case, my client was not allowed to return to his home and was forced to find another place to live.
I was able to go to his house and take photographs of the scene. Photographs showed the opposite of the charge – it showed the complainant was the aggressor and threw my client into a wall. My client was merely protecting himself when he put his hands on his wife. I documented the evidence with pictures and videos. I met with the prosecutor several times to give her our side of the story and even provided her with an affidavit of non-prosecution. An affidavit of non-prosecution can be helpful in these types of cases. An affidavit of non-prosecution is prepared by the complainant and basically states that they do not want to pursue charges and will not help in the prosecution. My client was eager to testify at the grand jury even though it was not needed. With my client by my side, we were given the good news that the case was No Billed.