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Texas (2009/2018)


Young v. State, 2019 WL 1647679, Unpublished 

The defendant was sentenced to 60 years for strangulation as a habitual offender. The officer had reason to believe that the defendant had called the domestic violence victim before and after the assault and that there were text messages of a crime. The officer impounded the phone at the time of booking and got a warrant the next day.

The defendant did call the victim. He apologized, and the victim forgave him and recanted.

An expert was permitted to explain why victims recant. The victim admitted making three prior inconsistent statements.

Marshall v. State, 479 S.W.3d 840 (2016)

The defendant convicted felony assault against a family member and appealed on sufficiency. A jury instruction omitted the words “bodily injury.” The court held that the evidence was sufficient. The court should’ve included the words, but they found there was no harm.

The defendant and the vampire argued. The defendant pushed the victim onto the bed, straddled the victim, and put a pillow over her face while holding down the pillow down on each side. The victim testified that his body weight pinned her to the bed and that the pillow affected her breathing. The officer asked the victim if she lost consciousness. The victim never passed out and never lost the complete ability to breathe. She testified that she could not take deep breaths. The court held that an impediment to normal breathing does not necessarily prevent breathing altogether because an impediment is merely a hindrance or obstruction.

When the jury found that the defendant impeded her normal breathing, it necessarily found that he caused a bodily injury.

Hopper v. State (Fort Worth), 2016 WL 299766, Unpublished

The defendant choked the victim with his hands and was squeezing her neck. The victim’s arms went numb, her peripheral vision failed, and she began to black out. The victim thought she was going to die. His face looked wild, mad. He scared me. He was calling me names. The victim pressed her thumb into the defendant’s eye until he released her.

He let go after a couple of seconds. They both cried, and he apologized. The victim had nausea, vomiting, shortness of breath, bruising on her neck, and hemorrhages in her eyes.

The Forensic Nurse, Tiffanie Dusang, testified as an expert on strangulation. She reviewed medical records and testified that the signs and symptoms were consistent with strangulation.

The victim’s estimate of how long such an episode occurred would not be reliable because it would be a traumatic situation. A person could use his hands in a manner that is capable of causing death or substantial bodily injury.

Based on the testimony which she heard, she concluded that the defendant used his hands as a deadly weapon. So did the jury.

Vise v. State,  No. 04-14-00077-CR, 2015 WL 575160 , Unpublished

The defendant was sentenced to 3 years, but he received community supervision. The issues on appeal were insufficiency, jury instruction on provocation and entitled to new trial because portions of the reporter’s record was missing.

Someone made a 911 call. The defendant and the victim were in front yard. The victim had some red marks on her neck.

The victim said the defendant was moody all day. He snapped over spilled milk at dinner. There was tension. The victim and her son went to spare room to watch television. The victim went outside to check on the defendant.

They ended up in a heated argument. The victim was fearful. The defendant was threatening her, and she “popped” a glass of bottle at him.

The defendant then lifted her off the ground, threw her on the ground, straddled her, and put his hands around her throat.

She felt pressure, making it harder to breathe. She was unable to move, unable to scream, and unable to fully breathe. The let go only when a neighbor’s light came on. The defendant fled and she called a friend and 911.

The paramedics called and saw red marks on her neck and advised the victim to seek medical attention if she continued to have breathing problems.

The court relied on Webster’s Dictionary definitions of impede. The defendant claimed that if she could breathe and scream, she was fine, but the court disagreed because there was some interference. An EMT and a police sergeant testified that they saw redness on her throat.

The defendant also claimed the jury should not have received the jury instruction on provocation.

The court said the instruction is required in certain situations. Here, the court found that the defendant said something to provoke her to him him so he could assault her, one of the reasons that the instruction is required. The defendant acted moody and irritable all day and was upset over spilled milk. The victim kept trying to figure out what was wrong, and tension kept building all day. The defendant went outside. The victim told her son to stay inside. The victim went out to find out what was wrong. There was an argument, and the defendant said something about her and/or her son. She felt threatened. The defendant said if she hit him like a man, then he would hit her back like one. That’s when she popped him with a bottle. All elements were met.

Halton v. Texas (Dallas), 2015 WL 3991827 Unpublished.

The defendant was charged with 22.01(a) and (b-1). He was sentenced to 25 years. There were six issues on appeal, but the most relevant were insufficiency of evidence & jury instruction on what a dating relationship is.

The victim was walking home to apartment complex. She saw the defendant, who also lived in the same complex as her. He was with another woman who was crying and upset. She asked to use her phone. The victim was afraid of the defendant. Prior incident of domestic violence and fearful of retribution for a case pending against him. The victim tried to ignore the situation, but the defendant recognized her.

The victim went to another apartment. She was afraid to go to her apt, but the defendant was already following her. As the victim left her neighbor’s apartment, the defendant started to harass her, and the neighbor intervened. He put the victim in a chokehold, and she went to the ground. She couldn’t breathe; it was very painful, and she urinated. Security arrived. They saw the defendant straddling and strangling the victim. The defendant as maced in order to get him off the victim. They pulled him off of her.

The defendant ran to his residence and locked his door. The paramedics provided an ice pack to reduce swelling. The victim refused to go to the hospital. Officers took photos at the scene. She had scratch marks on her leg as well as bruises and purple marks on her neck. The marks on her neck didn’t show in photos because of her dark complexion.

The victim testified that she remained sore for two weeks. She had a previous dating relationship, but there was no sex. The defendant also pled guilty to a prior assault on the victim and admitted to the dating relationship. The defendant claimed he was just hugging the victim.

Security guards testified that the victim as terrified, wheezing, and having difficulty breathing. She was gasping for air. They believed that she would’ve died if they didn’t pull him off. They called 911.

When the police arrived, the victim was upset. She said she was choked and was in a great deal of pain. She filled out a family violence packet.

Detective Sheila Greene of Dallas PD testified as an expert. She trained officers. She told the jury how 60% of victims don’t have visible injuries; she explained  why you see injuries and why you don’t; she described how  pressure cutting off airway and blood flow marks are difficult to detect on a darker complexion and how visible injuries may happen later. She described how soreness follows nonfatal strangulation and how victims can be disoriented and urinate from nonfatal strangulation.

 

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