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Old 02-10-2009, 04:14 PM
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Question Violated his differed probation ~ Possible to get "agg'ed" dropped?

Okay, this is kindof complicated so I will explain to the best of my abilities....

My husband was originally charged (2004) with aggravated assault. He was persuaded by his Court Appointed "Attorney" to sign a plea bargain that would get him out on Differed Probation. Unfortunately, he violated and now we are waiting on his court date and have hired an attorney this time to represent him. He went to court last month and they offered him 3 years which he turned down. Since then, I have found and gotten in touch with the "victim" of the assault. He has told me that he never wanted Eli to be prosecuted and that he will do anything it takes to help him. He is going to fill out an affidavit and come to his next court date. Are there any chances that the prosecutor/judge will drop the "aggravated" or even drop the charge? I'm afraid that it is too late to even do that, because he already signed that plea bargain back in the orginal case in '04...

Any thoughts on this would be greatly appreciated!
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Old 02-10-2009, 04:17 PM
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I don't think they can overturn the original charge..he took a plea on it. But, you might look into a commutaion. I'm not totally positive, though, so, if I'm wrong, someone will be along soon to give you that info.

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Old 02-10-2009, 05:53 PM
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I'm with x4 on this one. I would think the better strategy would be to try and have his probation reinstated.
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Old 02-11-2009, 08:14 AM
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My initial thought was the same as Gina's but, on second thought, I wonder if, since it was deferred and there has been no finding of guilt, he may be able to withdraw and change his plea. Have you asked the defense attorney about it? Even if it is possible it may not be the thing to do. It really depends upon the circumstances of the case. What does the attorney say about the vitcim wanting to help? That kind of help could make a big difference if there is any possiblity of withdrawing a plea and proceeding to - or, as if to - trial. However, any defense attorney I have ever known would probably not like someone that is potentially a helpful witness - especially if it is the victim - to be handing over affidavits that put words on record that can be used against both the accused and the victim that thought they were helping. Although he can't make that appearance he will want that to be all under his control - and rightly so. What makes perfect sense to us normal people can turn out to be completely wrong in court and what the victim might say in an affidavit thinking it will help can easily turn out very harmful.
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Old 02-11-2009, 09:28 AM
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His new attorney would have to file a motion to withdraw his plea but it's not easy to do and you have to have valid reasons to do so. You'd have to show he didn't understand what he was pleading to etc. or any other reason. Most district court judges will deny the motions which leads to the appeal process and that can get quite expensive. I'd definitely let his attorney know about the victim but at this point, unless a Motion to Withdraw is filed, the judge is only going to be concerned about him violating his probation. I'd definitely talk to his attorney about it all and see what they say.
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Old 02-11-2009, 12:20 PM
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I wasn't allow to withdraw my plea on a deferred adjudication violation. I was stuck with the original charge.

Your best bet may be to work for a reduced sentence or some form of reinstatement. The judge in my case revoked the deferred adjudication and sentenced me to straight probation, so that is another possibility.

Remember, on deferred adjudication, the court can assess the full range of punishment for the offense in question. Not limited to the length of the probation, as it is with straight probation.
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Old 02-12-2009, 01:00 AM
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Thank you so much for all of your replies! They have been very helpful and given me alot to think about. His lawyer is aware and was pushing for me to get in touch with him.

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I wasn't allow to withdraw my plea on a deferred adjudication violation. I was stuck with the original charge.

Your best bet may be to work for a reduced sentence or some form of reinstatement. The judge in my case revoked the deferred adjudication and sentenced me to straight probation, so that is another possibility.

Remember, on deferred adjudication, the court can assess the full range of punishment for the offense in question. Not limited to the length of the probation, as it is with straight probation.
Mark, this is exactly what we have been fearing...that they can slap him with the maximum if they want (not likely, but still scary). Eli is definately kicking himself in the butt now for signing to that deferred adjudication. I think our best bet is to hope that with support from the victim, they will come down to the minimum (2 yrs)...he would have to serve half before becoming eligible for parole, but he's got several months of back time so all in all, it shouldn't be too bad. It's good to hear from somone who was in a similar situation.
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Old 02-12-2009, 06:29 AM
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Keep banging on them. Eventually, they get tired of dealing with you (like they did with me) and offer you the best possible deal just to get you to go away.

Given my experience, I would never encourage anyone to accept a deferred adjudication on anything more than a misdemeanor. In the vast majority of cases (there are always a few exceptions). Risks don't justify the rewards. First of all, the chances of successfully completing the probation part are slim to none and then you face the maximum penalty once you are revoked. Second, the only difference is the "carrot" that if you complete the probation (fat chance), the charge will be dismissed and not on your record. So what? I found that wouldn't have mattered much anyway.
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Old 02-12-2009, 06:30 AM
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LittleWing13,

one more thing. Whatever sentence he ultimately gets or plea bargains for, expect to do the whole thing of most of it. That was another one of my mistakes that i learned from. Don't expect them to go easy on you and release you after 50 percent. All the more reason to get the best deal you can, even it means waiting a while.
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Old 02-12-2009, 08:41 AM
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] Risks don't justify the rewards. First of all, the chances of successfully completing the probation part are slim to none and then you face the maximum penalty once you are revoked. Second, the only difference is the "carrot" that if you complete the probation (fat chance), the charge will be dismissed and not on your record. So what? I found that wouldn't have mattered much anyway.[/quote]

AMEN! They design it so that it is nearly impossible to successfully complete...I could start a whole thread just to go off on this.

Well, thank you so much for all the good info!!! It is pretty disheartening to hear that he most likely will have to serve all the time, but better to go in with you eyes open right? I might PM you with a couple questions specific to your case, if that's alright. You have been very helpful!
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Old 02-12-2009, 09:58 AM
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If it helps any, aggravated assault is not a 3g offense. His good time would count and he'd be eligible for parole like other non-aggravated offenses, when his flat and good time add up to one quarter of his sentence, and he'd be eligible for release to mandatory supervision when they add up to all of his sentence. Still, that does nothing to address how the parole board might look upon his offense but maybe the fact that the judge was willing to give him deferred adjudication will speak to them about the facts or severity of the case. It also seems to be somwhat of a toss-up which is better between a two or three year sentence. It seems to be hard to get in the time served that the parole board wants to see on a two year sentence before it will simply be easier for them to say screw it let him do it all. It might be tough to make first parole on a three year sentence because it still is simply not much time served by the time they must vote for it but timing is pretty good for release to mandatory supervision when he makes it to his PRD, which should be after about 15 months and before his second time up for parole. In either case his particular offense - 3g or not - can complicate his making parole or RMS but the difference between a two or three year sentence might not be worth holding out for if a plea is where he finds himself and a three might work out to be the better choice.
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Old 02-13-2009, 09:05 AM
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Quote:
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If it helps any, aggravated assault is not a 3g offense.
Wow, that would help alot! However, I was under the impression that it was indeed a 3G offense. What is the difference between "aggravated assault" and "assault with a deadly weapon"? Is there a difference?
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Old 02-14-2009, 04:54 PM
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Quote:
Originally Posted by LittleWing13 View Post
Wow, that would help alot! However, I was under the impression that it was indeed a 3G offense. What is the difference between "aggravated assault" and "assault with a deadly weapon"? Is there a difference?
"any offense with a deadly weopon"...that is the difference.
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Old 02-14-2009, 07:06 PM
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Exactly. Any offense - even DWI can have the vehicle found to be a deadly weapon - that includes a finding of the use of a deadly weapon qualifies the offense as 3g. It is common to call 3g offense "aggravated" but aggravated assault is not 3g unless the use of a deadly weapon is attached to it. There is actually no named offense called aggravated assault with a deadly weapon. It is aggravated assault with the finding of the use of a deadly weapon attached to it.

Although most people make parole at some point it is always possible that they will do all of their sentence. If that turns out to be the case then two years beats the hell out of three.
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Old 02-18-2009, 12:19 AM
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There is two ways to commit Aggravated assault in Texas. First if in the course of an assault, one inflicts serious bodily injury on the assaulted party, then you have committed one form of Agg Assault. Second, if in the course of committing an assault you display or use a deadly weapon then you are committing an aggravated assault. While the first form of Agg Assault is not a 3g, by its very nature the second form of Agg Assault should be 3g if done right since by definition you have to exhibit or display a deadly weapon.

On the motion to withdraw plea in a deferred, once already plead and on probation, there is technically no such animal in Texas Law. Some judges think you can do this, and will allow the motion to be filed and even rule on the motion, but if the State appealed the motion and ruling (which they would be ablt to do under their limited rights to appeal) the State would almost surely win and the Defendant would be back on deferred.
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Old 03-12-2009, 03:11 PM
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Well, I had a lapse of sanity for a moment...there was indeed a "deadly weapon" found.

I guess we'll be hoping that by the grace of God he makes his parole, but I feel we were blessed that he got 3 years...could've been 20!!!

Thank you all for your input...
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