Assault by Impeding Breath Sufficiency | Scholler v. State (2026)

Scholler v. State, 09-24-00392-CR, August 19, 2026.

On appeal from 221st District Court, Montgomery County, Texas

Synopsis

The Beaumont Court of Appeals held the evidence was legally sufficient to support a conviction for assault of a dating partner by impeding breath where the complainant testified the defendant squeezed her throat, covered her mouth, and made breathing difficult, and that account was corroborated by neck marks, petechiae, pain with swallowing, and officer observations consistent with strangulation. Under the Jackson v. Virginia standard, the jury was entitled to credit the complainant’s testimony over the defendant’s denial and draw reasonable inferences from the physical evidence.

Relevance to Family Law

For Texas family law litigators, Scholler matters because strangulation evidence often migrates quickly from the criminal docket into SAPCRs, protective-order proceedings, divorce fault allegations, supervised possession disputes, and exclusive-use battles. The opinion reinforces a practical point family lawyers already know but sometimes under-develop in the record: testimony that breathing was made difficult—without proof of complete airway closure, loss of consciousness, or perfect police work—can be enough when paired with even modest corroborating physical signs. In custody and protective-order litigation, that framework strengthens arguments that a court may find family violence based on a complainant’s account supported by photographs, officer observations, and symptom testimony, even when the accused simply denies the event and attacks the investigation as incomplete.

Case Summary

Fact Summary

The complainant, identified by pseudonym as Rebecca, testified that she and Scholler were in a dating relationship that had become increasingly controlling and accusatory. On the day in question, Scholler accused her of cheating while they were in his truck, threatened her, struck her, pursued her after she fled, and threw her into a ditch. According to Rebecca, once on top of her, Scholler put one hand on her neck and the other on her mouth, squeezed her throat, and told her to breathe through her nose. She testified that she had difficulty breathing and believed she might not survive the encounter.

The State did not rely on testimony alone. Deputy Adam Smith observed bruising and marks on Rebecca’s arm, finger marks on the neck, redness and possible petechiae in her eyes, and symptoms including neck tenderness and pain and difficulty swallowing. He explained that those findings were consistent with strangulation. Rebecca also gave details for a strangulation supplement form, including that Scholler applied pressure to her throat for several minutes.

Deputy Lizbeth Rodriguez likewise encountered Rebecca in a distraught state. The broader assault narrative was also corroborated by physical evidence unrelated to the choking allegation, including a knife and hair in or near Scholler’s vehicle, consistent with Rebecca’s account that he cut her hair. Scholler denied ever placing his hands on Rebecca’s throat and suggested other explanations for some of her injuries.

Issues Decided

• Whether the evidence was legally sufficient to prove that Scholler impeded Rebecca’s normal breathing or circulation by applying pressure to her throat or neck or by blocking her nose or mouth under Texas Penal Code § 22.01.
• Whether the complainant’s testimony, together with photographs, observed injuries, petechiae, and swallowing pain, permitted a rational jury to find strangulation beyond a reasonable doubt despite the defendant’s denial and despite arguments that the police investigation was inadequate.
• The opinion also addressed Scholler’s complaints about limitations on cross-examination concerning the complainant’s probation and drug use, but the sufficiency issue is the primary point of significance for family-law practitioners.

Rules Applied

The court applied the standard legal-sufficiency framework:

• Under Jackson v. Virginia, the reviewing court asks whether any rational trier of fact could have found the essential elements beyond a reasonable doubt when viewing the evidence in the light most favorable to the verdict.
• Under Malik v. State, sufficiency is measured against a hypothetically correct jury charge.
• Under Metcalf v. State, the jury remains the exclusive judge of witness credibility and evidentiary weight.
• Under Hooper v. State, jurors may draw reasonable inferences from the evidence.
• Under Balderas v. State and Garcia v. State, courts consider the cumulative force of all incriminating circumstances, not each fact in isolation.

The substantive statute was Texas Penal Code § 22.01, including the provisions criminalizing assault of a family member or dating partner by impeding normal breathing or circulation through pressure to the throat or neck or blocking the nose or mouth. The court also relied on Marshall v. State for the proposition that a victim’s testimony alone may be sufficient in a strangulation case and that the State need not prove the complainant lost consciousness or was rendered completely unable to breathe.

Application

The court’s application was straightforward and instructive. It treated the strangulation allegation as a classic sufficiency question in which the jury heard two competing versions: Rebecca’s account that Scholler squeezed her throat and covered her mouth, making it difficult to breathe, and Scholler’s categorical denial. Rather than revisiting credibility, the appellate court deferred to the jury’s prerogative to believe Rebecca.

What made the State’s case stronger—and what will matter in family-law proceedings built on similar facts—was the way the testimony was corroborated. Rebecca did not merely say he touched her neck. She described difficulty breathing. Deputy Smith then supplied observations that fit the medical and forensic profile of strangulation: finger marks to the neck, redness, possible petechiae, tenderness, and pain with swallowing. Those observations allowed the jury to move from accusation to inference. The appellate court treated that combination as more than sufficient to show impeded breathing, even though Rebecca acknowledged she could still breathe to some extent and even though law enforcement did not produce the sort of idealized, exhaustive investigation defendants often argue was necessary.

The opinion also signals that defendants do not gain traction on sufficiency simply by reframing the issue as a quality-of-investigation complaint. The question on appeal was not whether police could have done more, but whether the evidence admitted at trial, taken cumulatively and in the light most favorable to the verdict, allowed a rational jury to convict. On that record, the answer was yes.

Holding

On the legal-sufficiency issue, the court held the evidence was sufficient to support Scholler’s conviction for assault of a family member by impeding breath. Rebecca’s testimony that Scholler squeezed her neck, covered her mouth, and caused difficulty breathing, combined with physical signs observed by law enforcement—including neck marks, petechiae, and pain with swallowing—was enough for a rational jury to find the statutory elements beyond a reasonable doubt.

The court also reaffirmed that complete inability to breathe is not required. Evidence that breathing was made difficult, together with corroborating symptoms and injuries consistent with strangulation, satisfies the statute when the jury credits that testimony.

Finally, the court rejected the notion that Scholler’s denial or asserted shortcomings in the police investigation rendered the verdict irrational. Under settled sufficiency review, credibility belonged to the jury, and the cumulative force of the State’s evidence supported affirmance.

Practical Application

For family lawyers, Scholler is less about criminal doctrine in the abstract and more about record architecture. In protective-order hearings, temporary-orders hearings, final trials in divorce, and SAPCR modification proceedings, allegations of strangulation frequently appear in compressed evidentiary settings. This case provides a useful appellate theme: impeded breathing may be proven through the complainant’s narrative plus corroborative physical manifestations, without any requirement of unconsciousness, total airway obstruction, or pristine law-enforcement documentation.

In custody litigation, that matters because strangulation evidence can influence family-violence findings under Chapter 153, possession restrictions, supervised access, exchange protocols, injunctions, and best-interest analysis. A litigant opposing unsupervised possession should be prepared to prove not only the assault itself, but the symptoms that make strangulation especially probative of danger: neck pain, difficulty swallowing, petechiae, voice changes, breathing difficulty, panic, and contemporaneous fear. Conversely, counsel defending against such allegations should understand that a simple denial, standing alone, is unlikely to overcome a coherent account supported by photographs and symptom testimony.

In divorce litigation, Scholler also has implications for fault grounds, disproportionality arguments, exclusive use of the residence, firearm restrictions through protective orders, and emergency relief. If the underlying assault has generated criminal records, body-camera footage, medical records, or strangulation screening forms, family-law counsel should move early to secure and authenticate those materials rather than waiting for criminal disposition.

Strategically, the opinion underscores several themes for trial presentation:

• Build the sensory record, not just the conclusion. “He choked me” is less effective than testimony describing hand placement, pressure, duration, inability or difficulty breathing, swallowing pain, vision changes, and fear of death.
• Corroboration can be modest but powerful. Photos of neck marks, officer observations, and symptom descriptions may materially strengthen credibility.
• Do not overstate the burden. You do not need to prove complete cessation of breathing.
• Attack or defend the cumulative picture. Trial courts and juries evaluate the totality, and appellate courts do the same on sufficiency review.

Checklists

Building a Strangulation Record in a Family Case

• Elicit precise testimony about where the hands were placed: throat, neck, mouth, or nose.
• Develop whether breathing became difficult, even if not impossible.
• Ask about swallowing pain, neck tenderness, hoarseness, coughing, dizziness, tunnel vision, vomiting, or loss of bladder control.
• Establish duration as specifically as possible, even if estimated.
• Introduce photographs of neck marks, facial redness, or eye findings.
• Obtain officer narratives, family-violence supplements, and strangulation screening forms.
• Secure medical records, urgent-care records, EMS records, or forensic nursing documentation if available.
• Tie the assault to the family-law issues at hand: danger to the child, coercive control, need for supervised possession, or exclusive-use relief.

Prosecuting or Presenting the Case in Protective-Order and SAPCR Litigation

• Frame the event as family violence plus future risk, not as an isolated assault divorced from parenting concerns.
• Show corroboration through contemporaneous disclosures to relatives, friends, police, or medical providers.
• Connect strangulation evidence to coercive-control patterns, threats, stalking, or access interference.
• Request targeted relief: supervised visitation, neutral exchanges, no-contact provisions, firearm restrictions where authorized, and counseling provisions where appropriate.
• Use the criminal record, if any, to anchor authenticity and chronology.
• Prepare the witness for credibility attacks based on delay in reporting, relationship reconciliation, drug use allegations, or inconsistent peripheral details.

Defending Against a Strangulation Allegation

• Obtain every photograph, dispatch note, body-cam recording, supplement, and prior statement early.
• Test whether the witness can consistently describe the mechanics of the alleged choking event.
• Examine alternative causes for specific injuries, but avoid relying on bare denial alone.
• Analyze whether corroborating symptoms were documented contemporaneously or appeared only later.
• Consider whether texts, calls, GPS, third-party witnesses, or surveillance undermine the timing or occurrence of the event.
• Be realistic about sufficiency: the absence of unconsciousness or total inability to breathe is not a winning legal argument by itself.
• If cross-examination touches bias, motive, probationary status, or impairment, preserve error carefully and make an offer of proof.

Preserving the Appellate Record

• Make clear objections to evidentiary exclusions and state the theory of admissibility.
• If cross-examination is limited, make a detailed bill of exception or offer of proof.
• Ensure all photographs and demonstratives are marked, offered, and ruled on.
• Request findings or clarifications where useful in protective-order proceedings.
• Preserve legal- and factual-theory arguments in a way that aligns with the applicable review standard.
• On appeal, frame sufficiency arguments against the hypothetically correct charge and the cumulative-force standard.

Avoiding the Non-Prevailing Party’s Mistakes

• Do not assume that “she could still breathe” defeats a strangulation claim.
• Do not frame the appellate issue as merely a complaint that law enforcement should have done more.
• Do not ignore corroborative signs such as petechiae, finger marks, or swallowing pain.
• Do not underestimate the jury’s authority to credit the complainant over the accused.
• Do not leave impeachment theories undeveloped or unpreserved if trial courts restrict cross-examination.
• Do not treat related assaultive conduct as irrelevant; surrounding violence often strengthens the credibility of the choking allegation.

Citation

Scholler v. State, No. 09-24-00392-CR, ___ S.W.3d ___ (Tex. App.—Beaumont Aug. 19, 2026, no pet.).

Full Opinion

Read the full opinion here

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