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aggravated assault with deadly weapon, only evidence is witness statement


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#1 Kratzk16

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Posted 19 February 2013 - 03:41 PM

my husband,myself and a friend of ours were out at a bar one evening while my husband and friend were outside having a smoke our friend got in an altercation with an acquaintance of ours he punched him and kicked him in the face,supposidly breaking his jaw.there were no witness it was only the 3 of them outside,no cameras, we quickly left our friend excitedly told the story bragging over and over of the evenings events,to us,friends,and on facebook. almost a year later my husband and our friend were charged with aggravated assault with a deadly weapon and it was enhanced.The victim had told police that my husband and our friend had both taken part in beating him up using brass knuckles.The victim is also currently in federal prison,my husband was 2 weeks away from discharing off parole and our friend has a lengthy background as well i am the only one with a creditable testimony to give. Is it possible that my husband can be found guilty for this just by the victim accusing and the fact that my husband has a criminal history?And how can they still be charging him with aggravated assault when there was no weapon found ( because there was none used)? Our lawyer has not given us a copy of our discovery even after numerous requests and we are already starting trial next month.He hasnt given much input and has not visited my husband to discuss the case once in the year hes been in jail for it,the only time they"ve spoken is when he sees him in court is this normal?

#2 LegalwriterOne

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Posted 19 February 2013 - 05:32 PM

First, it's not "our" lawyer, it's your husband's lawyer--you aren't the client. Second, without knowing what state, no one can really tell you anything.

#3 pg1067

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Posted 19 February 2013 - 06:48 PM

The victim is also currently in federal prison,my husband was 2 weeks away from discharing off parole and our friend has a lengthy background as well i am the only one with a creditable testimony to give.


First of all, just because the victim, your friend, and your husband are all criminals does not mean they cannot be credible witnesses. When one criminal (the alleged victim) testifies against another criminal (your husband), their criminal histories tend to wash (although it obviously depends on what their respective criminal histories show). Second, you're not necessarily credible just because you don't have a criminal record. In fact, a jury could decide you are not credible because of your obvious bias. Third, your post suggests that you did not witness what happened. If that's correct, there is nothing relevant about which you could testify unless some of the friend's "bragging" is admissible pursuant to some exception to the rule against hearsay evidence.


Is it possible that my husband can be found guilty for this just by the victim accusing and the fact that my husband has a criminal history?


Your husband's criminal history is not likely admissible. However, it is a common jury instruction that the testimony of a single witness, if believed by the jury, can be sufficient to convict.


And how can they still be charging him with aggravated assault when there was no weapon found ( because there was none used)?


This question doesn't make sense as phrased (how the prosecutor charges someone is by filing a complaint or seeking an indictment, and that doesn't vary based on the relevant facts and allegations). If your intent was to ask why the prosecutor is charging him, that's a question that obviously can be answered only by the prosecutor.


Our lawyer has not given us a copy of our discovery even after numerous requests and we are already starting trial next month.


The lawyer is your husband's lawyer only, not yours. And he may be legally precluded from giving your husband copies of discovery responses (particularly if your husband is in jail pending trial).


He hasnt given much input and has not visited my husband to discuss the case once in the year hes been in jail for it,the only time they"ve spoken is when he sees him in court is this normal?


Yes, it's normal. A defense lawyer's job is not to "visit" the client unless there's some reason relating to the case to do so. Assuming the lawyer has your husband's story and any other relevant information, it is unlikely that there is any reason for a visit.

#4 Kratzk16

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Posted 19 February 2013 - 07:21 PM

I have power of attorney and am handling the communication between my husband and Our lawyer which is in Texas. I have requested the discovery numerous times on my husbands behalf and he has agreed to send it and never follows through....The reason I say they are not creditable and that I am is because those were the exact words that came out of the lawyers mouth. He pretty much said our defense when we go to trial is relying on my testimony and he is going to put my husband on the stand as well. So according to the law my husband can be sentenced 15 years because this guy chose to lie and make false statements to police? How do we go about proving his innocence besides us saying our side of the story at trial? Also I asked the lawyer about when the victim was injured and went to the hospital wouldn't they be able to tell that he wasn't hit by brass knuckles couldn't a medical expert testify that information in court? He kinda blew off my question and said he was the professional and it was his choice on how he defended the case when it comes to trial. He is correct and I was merely suggesting a thought but he just seems very neglectful and unprepared for our up-coming trial date at my last meeting with him he was suming up some facts about the case and had them wrong and did not even know the co-defendants name. My husband is worried that he could possibly be going away for 15+ years for something he didn't do because his lawyer wasn't doing what he was expected to, to the fullest.

#5 Kratzk16

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Posted 19 February 2013 - 07:29 PM

And the statement about his lawyer visiting him, he is my husbands lawyer now if my husband request to speak with him about the case or anything at that matter isn't the lawyer required to respect his clients requests? I mean my husband has a right to talk to his lawyer and if his lawyer wouldn't come and see or respond to the numerous numerous letters he sent that just seems neglectful. My husband is clueless as to what is going to happen at trial or what has been done to prepare for trial all we know is everything my husband has requested him to do has been ignored.

#6 pg1067

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Posted 19 February 2013 - 07:30 PM

So according to the law my husband can be sentenced 15 years because this guy chose to lie and make false statements to police?


If the victim's testimony is believed and proves every element of the crime charged, your husband could be convicted.


Also I asked the lawyer about when the victim was injured and went to the hospital wouldn't they be able to tell that he wasn't hit by brass knuckles couldn't a medical expert testify that information in court?


It's possible that an expert witness could review the medical evidence and opine whether brass knuckles were or were not used. Of course, that depends on what sort of medical evidence exists. Can you and your husband afford several thousand dollars for this?


My husband is worried that he could possibly be going away for 15+ years for something he didn't do because his lawyer wasn't doing what he was expected to, to the fullest.


Your husband is free to fire his lawyer and hire a new lawyer. Of course, that may prejudice his case, and the new lawyer might not be able to get a trial continuance.

#7 Kratzk16

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Posted 19 February 2013 - 07:34 PM

Also my question about how the prosecutor is charging him with aggravated assault with a deadly weapon, was how can they make it aggravated or say deadly weapon when there was no weapon? The victims injuries should have been proof enough that brass knuckles were not used.

#8 Kratzk16

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Posted 19 February 2013 - 07:40 PM

The victim went to the hospital for his injuries shouldn't there be some trace of evidence from there that could be used? And no we cannot afford that I am not aware of how exactly those things work it would be nice if when I questioned the lawyer about it he gave an informative answer as you did.

#9 pg1067

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Posted 20 February 2013 - 09:33 PM

And the statement about his lawyer visiting him, he is my husbands lawyer now if my husband request to speak with him about the case or anything at that matter isn't the lawyer required to respect his clients requests?


No. The lawyer is not required to visit the client every time the client requests it.


Also my question about how the prosecutor is charging him with aggravated assault with a deadly weapon, was how can they make it aggravated or say deadly weapon when there was no weapon? The victims injuries should have been proof enough that brass knuckles were not used.


I'll take your word for it as to what the victim's injuries show, but it seems at least a little obvious that he prosecutor disagrees with your opinion. Again, phrasing this as a "how" question doesn't make any sense. I suspect that your intent is to ask whether "aggravated assault with a deadly weapon" can be proven without putting the weapon into evidence.

In that regard, assaultive offenses are codified in Chapter 22 of Title 5 of the Texas Penal Code (http://www.statutes....E/htm/PE.22.htm), and I assume your husband was charged with violating Section 22.02(a)(2) ("A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person . . . uses or exhibits a deadly weapon during the commission of the assault."). Certainly, nothing in the language of the statute requires that the prosecution put the weapon into evidence, and I doubt such a requirement exists.

Consider the following hypothetical: John and Bob are co-workers at an iron smelting plant. Using a handgun, John intentionally threatens Bob with imminent bodily injury (i.e., commits assault as defined in Section 22.01(a)(2)). Following the commission of such act, John tosses the gun into a vat of molten metal, thereby destroying the gun. The gun obviously cannot be put into evidence, but there's no way that John is going to escape prosecution under Section 22.02(a)(2). Whether, in fact, a deadly weapon was used will be decided by the jury based on whatever evidence is presented. If the jury decides not to believe a deadly weapon was used because it is not put into evidence, it can do so.

#10 LegalwriterOne

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Posted 20 February 2013 - 10:00 PM

First, the TX aggravated assault statute has two ways it can be committed. One is with a deadly weapon. The other is by causing serious bodily injury. Breaking a guy's jaw by kicking him would definitely suffice. Second, as to your husband's culpability--he was there. Did he try to stop it or did he stand by and act as a look out? You admitted you and your husband helped the friend leave fully knowing what he did...Lastly, a power of attorney gives you the authority to hire oounsel but it does NOT make you a party to the case. You are still not the client and the attorney owes you nothing.

#11 Guest_FindLaw_Amir_*

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Posted 21 February 2013 - 10:44 AM

If you feel your husband's attorney is not addressing his legal matter, then you may wish to consult with a different local Texas Criminal Defense Lawyer to advise your husband of his rights.




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