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Intentionally, knowingly, or recklessly causing bodily injury to another constitutes the offense of assault, and is ordinarily charged as a Class A misdemeanor. TEX. PENAL CODE § 22.01(a) & (b). But that conduct is elevated to a third-degree felony, including when it is committed against a family member “by intentionally, knowingly, or recklessly impeding the normal breathing … of the [victim] … by blocking the [victims] nose or mouth[.]” TEX. PENAL CODE § 22.01(b)(2)(B).
In many of these cases, there is nothing to suggest that an assault occurred other than the story told by the alleged victim. For this reason, false allegations for these types of charges are common. False allegations can occur for a variety of reason, especially between lovers who are ending an intimate relationship. In many of these cases, one side will falsely accuse the other to gain an advantage in divorce or child custody matter.
If you were charged with a third-degree felony for committing an assault causing bodily injury by strangulation or smothering a family member under Texas Penal Code CODE § 22.01(b)(2)(B), then contact an experienced criminal defense attorney in San Antonio, TX, at Flanary Law Firm, PLLC. Don Flanary represents clients charged with domestic violence throughout Bexar County and the surrounding areas.
If you are accused of causing bodily injury by impeding the normal breathing of a family member, by blocking that family members nose and/or mouth, then you can be charged with the more serious offense of third-degree felony family assault.
Call (210) 738-8383 today to discuss your case during a free and confidential consultation.
Either strangulation or smothering may cause injury or death by asphyxiation. As explained by the court in Sanchez v. State, 376 S.W.3d 767, 774 (Tex.Crim.App.2012), smothering typically causes asphyxia by preventing oxygen from getting into the lungs for distribution to other organs, by, for example, covering the victims mouth and nose. On the other hand, strangulation typically entails pressure to the neck or throat area and causes asphyxia by preventing oxygen from getting to the lungs and/or preventing oxygenated blood from circulating from the lungs to the brain.
In many of these cases, the prosecution will argue that the defendant impeded the victims breathing by hindering or obstructing it, however momentarily, so that his victim cannot take air through her trachea into her lungs. Of course, if the strangulation or smothering continues unabated for a prolonged period of time, or if it is applied with sufficient force, the victim could well suffer a diminution of function in any number of organs, a loss of consciousness, or even brain damage. The courts have considered with the fleeting obstruction of the nose and mouth so that normal breathing is only momentarily impeded should be sufficient to impose the felony penalties.
The courts have considered whether impeding the normal breathing of a person will not invariably cause that person bodily injury. Section 1.07(a)(8) defines “bodily injury” to mean “physical pain, illness, or any impairment of physical condition.” TEX. PENAL CODE § 1.07(a)(8). A definition of “impairment” does not appear in Section 1.07, but Blacks Law Dictionary defines it to be “a condition in which part of a persons … body is damaged or does not work well[.]” BLACKS LAW DICTIONARY 869 (10th ed.2014).
The courts have defined “impairment” to include “the diminished function of a bodily organ.” Majority Opinion at 844 (citing Garcia v. State, 367 S.W.3d 683, 688 (Tex.Crim.App.2012)). By contrast, Blacks defines an “impediment” as a “hindrance or obstruction.” BLACKS LAW DICTIONARY 870 (10th ed.2014). From these definitions, the courts in Texas have concluded that “obstructing or impeding a persons ability to breath impairs a persons physical condition—a form of bodily injury.” Id.
