Assault – Family Violence is probably the most serious misdemeanor offense in Texas. As we discussed last time when we reviewed TPC 22.01 a normal Assault is a Class A Misdemeanor, and adding a family violence allegation doesn’t change that. Family Violence Assaults are still Class A Misdemeanor, the problem is that a plea of guilty, even without a conviction carries serious consequences beyond just being on probation (employment, immigration, child custody, inter alia).
A few years ago the legislature added another enhancement to Family Violence Assault which makes the offense a 3rd degree felony (2-10 years in prison, up to $10k fine). Lawyers usually call this enhancement “choking”, but the actual language of 22.01(a)(1)(b)(2) doesn’t include the work choke anywhere.
Here is what it says-
Texas Penal Code 22.01 Assault
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:
(B) 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;
It doesn’t really require a “choke” in that your place your hands around someone’s neck and squeeze. I’ve seen choking cases filed where someone was sat on, or put in a headlock, or simply hugged really tight during an altercation. The language is really broad and allows for any conduct that puts pressure on a throat or neck to count.
This enhancement is powerful leverage for a prosecutor in plea bargaining the case. Being convicted of family violence is bad enough, but the possibility of being a felon is probably worse. We see a lot of these cases where the State will offer a misdemeanor family violence probation and that can be a tough offer to turn down if you are looking at 2-10 in prison.