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.

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.