Defense of Charge: Assault Family Member- Impeding Breath in Montgomery County, Texas.
Case Result: No Billed, Case Dismissed
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. This felony was in Montgomery County, a very conservative and tough county.
Assault Family Member- Impeding Breath is considered a serious crime and a Third-Degree Felony. Suppose a person is found guilty of a Third-Degree Felony in Texas. In that case, the person can be sent to prison (Texas Department of Criminal Justice – Institutional Division) for 2 to 10 years and fined up to $10,000.
In this case, the complainant and the defendant had been at a party earlier in the day when the defendant said something that offended the complainant (his wife). On their drive home, the complainant kept antagonizing and trying to provoke my client. When they arrived home, the complainant instigated a verbal argument. Unfortunately, the argument got out of hand, and things got physical. All my client wanted to do was leave the house and let things calm down. He was packing his bags and just about to leave when the complainant grabbed a knife, threatened my client, and even slashed his bags. Police were called by the complainant, who stated my client grabbed her by the throat and started choking her. She explained in detail that she couldn’t breathe and feared for her life.
Police arrived at my client’s house and conducted their investigation. Police interviewed my client and the complainant. After their investigation, police arrested my client for “Assult Family Member- Impeding Breath.” Fortunately, he was able to bond out of jail. With assault family member cases, judges will often 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 met with the prosecutor several times to give her our side of the story and even provided her with an affidavit of non-prosecution that the complainant provided. An affidavit of non-prosecution can be helpful in these types of cases. The complainant prepares an affidavit of non-prosecution and basically states that they do not want to pursue charges and will not help in the prosecution. I also drafted a grand jury packet to help the grand jury see our side of the story. I provided character letters proof of employment, and explained the law and right to self-defense. We explained that my client used reasonable force by restraining the complainant because she was exhibiting a deadly weapon, namely a knife.
This was an especially significant win because No Bills are infrequent in Montgomery County. Now that the case has been No Billed, my client wants to proceed with an expunction. An Expunction is a tool used to clear someone’s record.