Domestic Violence/Family Violence

Posted on Dec 28, 2022 by Todd Ver Weire


Texas does not use the terms “Domestic Violence” or “Domestic Assault” in the Penal Code, or in the Code of Criminal Procedure.  Rather, Texas relies upon its normal definitions of assault, and then adds the language “Family Violence” if there are some additional factors, such as a present or past dating relationship, marital relationship, or blood relation.  

Recent headlines brought to the forefront the crime – Assault Impeding Breath or Circulation – Family Violence.  Folks involved with the criminal justice system oft times refer to this crime as Assault Strangulation – Family Violence.  is committed when an individual intentionally or recklessly impairs the normal breathing or circulation of the blood of another person by applying pressure to the person’s throat or neck or by blocking their nose or mouth.

 Assault Strangulation – Family Violence is defined as:

  • intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood 
  • of another person 
  • by applying pressure to the person’s throat or neck or 
  • by blocking the person’s nose or mouth. 
  • this offense can also be committed if a person threatens to impale, burn, or suffocate another person.

The Family Violence finding comes if you are, or were, in a dating or marital relationship, are related by blood, or share the house/apartment with the other individual.  The Family Violence finding is important because it carries with it certain impacts beyond the punishment of prison or a fine – namely the loss of your ability to own a firearm of any type, ever again, along with impacting your ability to rent an apartment, or possibly receive treatment at various residential health care facilities. 

Texas classifies Assault Strangulation – Family Violence as a Third Degree Felony.  This means that it is punishable by between two to ten years in prison, a fine not to exceed $10,000, or a combination of the two.  However, if the victim is a child, it becomes a Second Degree Felony, and the potential prison time doubles to between two and twenty years in prison.  With that said, and depending upon a lot of factors, not the least of which is how severe the actual strangulation was, and whether or not you have a criminal history, you could get the sentence probated – meaning you are on probation for anywhere from two to ten years, and if you violate the terms of probation, you could go to prison for the two to ten, or two to twenty years, without any credit for the time you were on probation.  

Additionally, Court can, and oft times do, place additional requirements upon someone convicted of Assault Strangulation – Family Violence.  These additional requirements can include:

  • Attending Anger Management Classes
  • Attending a Battering Interventional and Prevention Program (longer and more intense than simple anger management)
  • Have Visitation with Children modified to day visits, or only a few hours for the visit and it is supervised
  • Be preventing from going within 200 yards, or more, of the other person’s home, or work
  • Being Subject to a Protective order, for anywhere from 30 days to your entire life.

If a person is convicted of assault strangulation, they can face significant penalties. If the offense is charged as a misdemeanor, the person can be sentenced to up to one year in jail and a fine of up to $4,000. If the offense is charged as a felony, the person can be sentenced to a prison term of two to ten years and a fine of up to $10,000.

In addition to these penalties, a person convicted of assault strangulation may also be required to attend counseling or anger management classes, and may be subject to a protective order that prohibits them from having any contact with the victim.

The other thing to keep in mind is that a number of jurisdictions in Texas take a very dim view of this type of crime, and will prosecute even if the “strangulation” lasted only a second or two.  Simply impeding someone’s breath or blood circulation, even if you were merely reckless, could result in you facing a felony.  Police, and domestic violence counselors, are trained to ask, could you breath, did it hurt, were you frightened, all for the purpose of trying to convict you of a felony.

I cannot count the number of times that a client has said, well the victim does not want to press charges, and the victim has in fact signed an Affidavit of Non-Prosecution.  Unfortunately, once the State begins the process of prosecuting you for this felony, the victim’s wishes to not prosecute does NOT result in the case being dismissed.  While such a sentiment will help when trying to figure out what punishment may be, it does not mean that the State will drop the charge. 

As you can see, the potential downside of being charged with this type of crime is significant.  As such, it is important that you talk with an experienced attorney as soon as possible.  The police are not your friends, and will try to get you to admit that yes, you did cover their mouth, squeeze their neck, cover their nose, or some other act that restricts one’s breathing or blood circulation, for the sole purpose of arresting you right then.