Agg. Assault w/Deadly Weapon - Advice please...

[Motoguy_61]

What is the name of your state (only U.S. law)? Dallas, TX

Okay, it is a long story...On Dec. 7th 2010 I was at home alone working on my toilet, i was in my garage looking for a pipe wrench, got it, walked back inside towards the bathroom and noticed on my security monitor 2 vehicles parked on either side of my truck (front and back, closed in) in front of my house. Having had my truck broken into and things stolen 2 weeks prior I thought it was being broken into again...being that I was only in shorts and no shirt I went outside about two feet and whistled and said "hey", there were 2 men outside my truck by the driver door and one guy in the driver seat. One man said "hey, someone's here" and they all looked over at me. So I then figured they were trying to steal it for sure. I threw on some pants and a shirt and grabbed a replica desert eagle .50 pistol (not a real gun) and went outside, the guy who was in the truck was walking up to my door and I ordered him to stop as I held the gun down by my side. He said he's here to repo the truck. After going back and forth a few times about how I didnt beileve he was really a repo guy I told him to stay there and Im going to go call the police. However I did not have my phone at the time so I wasn't sure what to do next. As I was going back inside I herd one of the men on the phone with the police which made me believe they were really there to repo the truck and there must be a mistake. So I went in and tossed the gun and went back out and showed them I didn't have the gun and told them it wasn't real and I asked if I can pay any past due balance or call the dealer to sort it out...well they said no so I asked if I could get my stuff and they agreed. They asked for the key but my wife had it. So Im in the driver seat gathering my stuff and due to the fact that I have 2 kids and travel alot there was lots of things to gather, in addition to the fact that I had a severly broken wrist I thought it would be better to unload everything in my garage in the back. (came across a spare key while getting my stuff together) So I said "im going to unload it around back" and at that point they had moved the car that was in front of the truck. So I started the truck put it in gear and started to...all the sudden the repo guy came running by (he was near the right rear when I started the truck) and as I was starting to move he had gotten in front of the truck and then some how ended up tripping, holding the grill guard and getting ran over by the rear wheel in the blink of an eye, leaving scrapes on his hip, side, and left leg. I stopped, got out and was confronted by one of the other men, he said dont move. I responded "I'm going to check on him. you should do the same." he told me if he had his gun he'd shoot me... so I ignored him and ran back to the guy who had gotten hurt. He said stay away and I did and I said okay, lets make sure your leg isn't broken and you dont bleed out. He refused so we waited for the police and medics. He refused the medics attention. Police took photos. Let me go on the spot cause they couldn't determine if it was a criminal act or an accident. So now Im being charged, its a 2nd degree felony. I have a clean background and stay out of trouble.

I have an attorney who Im not very happy with since he hasnt said much of anything about the outcome of this...

My questions are: What do you think the outcome will be? Probation? Charge reduction? Dissmissed? Jail time? How long? I know it carries up to 20 years in TX.

And please point out any solid points that will help in my defense.

I dont know how to prove my intentions, they all said he was in front of the truck and then I start it and deliberately ran him over....YIKES...NO!!! But how can I prove otherwise. Its 3 against one since I have no witness who saw otherwise. I truely had no intention to harm anyone. I just thought it would be better to throw it all in the garage. Now it looks like I was trying to take off with the truck. As I said before I do have a lawyer, but seeking another since its not working out with my current one.


Thanks for taking the time to read this, I know its long. Please only answer if you can give real advice and input.

 

[HuAi]

Here are the relevant statutes of the Texas Penal Code:

§ 22.01. Assault

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

§ 22.02. Aggravated Assault

(a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:

(1) causes serious bodily injury to another, including the person's spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

Prosecution would probably argue that you recklessly caused a bodily injury to another under § 22.01(a)(1) and then escalate it to aggravated assault under § 22.02(a)(2) since you were using a vehicle which would qualify as a deadly weapon.

To prove that you were reckless, the prosecution would have to show beyond a reasonable doubt that you consciously disregarded a substantial risk that your actions would lead to the result that occured.

Basically they'll have to focus on what happened here:

I started the truck put it in gear and started to...all the sudden the repo guy came running by (he was near the right rear when I started the truck) and as I was starting to move he had gotten in front of the truck and then some how ended up tripping, holding the grill guard and getting ran over by the rear wheel in the blink of an eye, leaving scrapes on his hip, side, and left leg.

It seems to me that you coming out with the Replica desert eagle may also land you into trouble under § 22.01(a)(2) - although you'd have to research the case law regarding not actually pointing the gun.

 

[Motoguy_61]

Very helpful, Im printing that out. Do you have any clues as to what the pros might seek as far as sentencing if I am found guilty?

 

[HuAi]

You can see the full text of texas penal code here:

Texas Constitution and Statutes - Home

Anyway according to 22.02 (b) it's second degree felony unless some other aggravating situations apply (dealing with assaulting family, public servants, witnesses or gang activity)

Punishment:

§ 12.33. SECOND DEGREE FELONY PUNISHMENT.

(a) An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.