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Affirmative Finding in an agg. assault case Login/Join 
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Does anyone know of any caselaw in support of the proposition that a judge can put a defendant on probation in an agg. assault (threat with a deadly weapon) case as long as there is no affirmative finding. The trial court believes he has to make an affirmative finding in such a case. Our argument is that agg. assault is just a 3(g) case only if an affirmative finding is made and the court does not need to make such a finding.
 
Posts: 55 | Location: College Station, TX, USA | Registered: January 24, 2002Reply With QuoteReport This Post
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A judge is not required to make an affirmative finding of a deadly weapon for an aggravated assault. The finding is discretionary. See Hooks v. State, 860 SW2d 110. Indeed, if the punishment is deferred adjudication, the decision as to a deadly weapon finding can be delayed until adjudication, if any. See Sampson v. State, 983 SW2d 842.

This issue is discussed in TDCAA's book Pleas, Probation & Punishment on page 34.

 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Affirmative Finding in an agg. assault case

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