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Michelle
Michelle, Elected/Appointed Official
Category: Criminal Law
Satisfied Customers: 4136
Experience:  30 + yrs in the legal profession incl. criminal, family, politics, legislator judiciary 6 yrs
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My 24 yr. old son has just completed a sentence from a ...

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My 24 yr. old son has just completed a sentence from a Texas judge, Cynthia Kent, in which he served 150 state days in a county jail and a 5 yr. probation. When convicted, he was serving a deferred adj. sentence from Judge Kent when a vial of cocaine "dust" was found in his car by a security guard. She changed the deferred sentence to a felony sentence because of the violation of probation. During his probation, he was charged falsely by his ex-girlfriend, who was forced to testify by her drug dealer against Eric for assault, which was not proven, but the judge believed. Anyway, Eric was just released from a 150 day sentence in a county jail doing state time plus a 5 year probation. If his ex-girlfriend will sign a document saying she would drop the assault charge,could this first time felony charge be changed to a misdeanor? He is a massage therapist in Austin and wants to go on with his life. I have heard this can be done without a lawyer. Is there any truth to this? Please advise.
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Michelle replied 6 years ago.

Dear Customer

Are you saying that the probation was violated because he was convicted of the assault as charged by the ex-GF OR is that matter still pending? If he was doing the 150 days due to a new conviction, it would be nearly impossible for the ex-GF to recant without herself facing possible false report and/or perjury charges. However, if the ex-GF feels that she wants to come clean and recant her allegations then, of course, your sons conviction would be vacated -

If this matter is still pending, it will be up to the prosecutor to decide whether or not they want to allow the charge to be dismissed. The ex-GF can say she does not want to move forward but it is not up to her. It will be up to the prosecutor to make that determination which will be based on the facts and seriousness of the assault. If the prosecutor decides they want to move forward they can deem the ex-GF to be a "hostile" witness, if need be, to get her testimony in a trial.

You son's drug charge was a felony and would only have been a misdemeanor if he would have successfully complete his probation. Keep in mind, that even if the prosecutor decides to drop the assault, it does not mean that the original charge would be reduced to a misdemeanor because an adjudication on a violation of probation or parole is not the same as a criminal charge where there needs to be proof "beyond a reasonable doubt" - with a violation hearing there is a lower standard of proof - and just the fact that he was charged and arrested is enough to violated.

Unfortunately, the bottomline is I don't see how the felony would be reduced to the misdemeanor if the judge based the finding on a violation at the preponderance of the evidence level.

 

Best of success to you,

 

 

Customer: replied 6 years ago.
Reply to Michelle's Post: I am going to ultimately accept your answer in the end, but if it helps any at all, the assault charge was tried in Austin, Tx where the assault "supposedly" took place and was reduced from a felony to a misdomeanor charge. The Smith Co. Judge, Judge Kent, however, where the violation of probation was taken off deferred, was tried and Eric was convicted and served his sentence of the 150 days in jail. He still has the 5 yr. probation to contend with. If Eric has already been convicted and served his sentence, is there any way the 5 yr. probation can be reduced, say after 1 year, if he does all that is asked, pays his fine, etc.? Judge Kent, the judge that changed his deferred adj. to a felony charge, is going to retire in Dec. 2008, so we were hoping that maybe after serving 1 yr of his 5 yr probation, he could go back to the new judge with clean weekly drug reports, fines paid, and all the other "stuff" that is asked to be done during the 5 yr probation and ask that the probation be dropped after 1 yr. on "good behavior." Any chance this could happen or are we just spinning our wheels on unreal expectations?
Expert:  Michelle replied 6 years ago.

Dear Customer

Thank you for the clarification.

There have been times when someone can ask that their probation be vacated - or at the very least become "unsupervised" Of course, as you stated, this would mean that there would need to be proof of good behavior while on probation. This is a request that should be support by his supervising probation agent - so the key would be to make sure that everything is good - no dirty urines, fines paid, steady employment and that he does not have any new convictions or EVEN any type of allegation that has resulted in a NEW CHARGE.

I hope this helps and best of success to your son in this matter,

Michelle, Elected/Appointed Official
Category: Criminal Law
Satisfied Customers: 4136
Experience: 30 + yrs in the legal profession incl. criminal, family, politics, legislator judiciary 6 yrs
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