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How Domestic Violence Can Raise Misdemeanor Assault to a Felony

Domestic violence can elevate a misdemeanor charge into a felony offense. For example, under Section 22.01 of the Texas Penal Code, assault is normally prosecuted as a Class A misdemeanor. But if the assault is committed against a member of the defendant’s family and involves “intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of [the family member] by applying pressure to [their] throat or neck,” then it becomes a third-degree felony.

Appeals Court: Evidence Could Not Support Misdemeanor Assault, Only Felony Choking

In some cases, a court may allow a jury to find the defendant guilty of the lesser offense of misdemeanor assault instead of the felony charge described above. But this requires “some evidence from which a rational jury” could actually convict the person of the misdemeanor, but not the felony. A recent decision from the Texas 13th District Court of Appeals, Pelayo v. State, offers an example where the court did not allow the jury to make such a decision.

Prosecutors in Corpus Christi charged the defendant with assaulting his common-law spouse. At trial, the defendant, the spouse, the arresting officer, and one of the defendant’s neighbors testified. The neighbor told the jury the defendant had his “hands around” the spouse’s neck and “was choking her.” The neighbor said he and his stepson managed to “tackle” the defendant and keep him on the ground until the police arrived.

The officer who responded to the scene said the defendant and his neighbor were “aggressively fighting.” The officer said she did not observe “any visible signs of injury” around the spouse’s neck. The officer then reviewed a video taken by the neighbor’s stepson, which showed the defendant “grabbing [the spouse] by the hair, maintaining hold as he pulled her to the ground and jerked her back and forth.”

The spouse testified she began fighting with the defendant after a night of drinking. She said the defendant “had me pinned with my own arm and leg over my throat and he was putting pressure over my body … I couldn’t breathe.” For his part, the defendant testified his spouse was a “violent, unstable individual,” and that had acted in self-defense when she “tried to assault him with a stick.” He outright denied choking the spouse, however, although he admitted on cross-examination to pulling her hair.

The trial court declined the defendant’s request to instruct the jury on the lesser offense of misdemeanor assault. The jury proceeded to find the defendant guilty of third-degree felony “assault family violence, impeding breath or circulation.” But due to his prior criminal record, the defendant was actually sentenced for a second-degree felony, to a term of more than six years in prison.

On appeal, the 13th District said the trial court did not err in refusing to instruct the jury on the lesser offense. Given the spouse’s “unequivocal testimony” that the defendant had “choked” her, and more importantly given the defendant failed to produce any evidence that he “assaulted” his spouse in some other manner, there was no legal basis for a rational jury to convict the defendant of simple assault. In other words, all of the evidence presented pointed to the defendant choking a family member in such a manner as to “impede her breath or circulation,” which only falls within the definition of the felony offense.

Speak with a Houston Domestic Violence Defense Lawyer Today

Anytime a criminal charge involves a spouse or family member, you may find yourself in significantly more legal peril than you initially realize. An experienced Houston criminal defense attorney can provide you with advice and representation. Contact the Law Offices of Tad Nelson & Associates today if you need to speak with a lawyer right away. Call (281) 280-0100