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Ely
Ely, Counselor at Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Questions about Texas legal procedure in a fictional criminal

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Questions about Texas legal procedure in a fictional criminal case. This is for a novel. Takes place about 1990, in the county seat of a mostly rural and small-town east- central- Texas county. A man, very drunk, is shooting up tombstones at the cemetery at night, on what happens to be Confederate Memorial Day (April 26), though he doesn’t know it.

The shooting attracts two out- of- uniform sheriff’s deputies who have been honoring the day with other members of an organization and think at a distance that the gunshots are firecrackers being set off at a Confederate Monument in the cemetery by others of their group. The two realize on the drive over that they are hearing gunshots but still believe the shooter(s) to be member(s) of their group. Deputy A, however, who has his pistol in his truck, takes it with him when he gets out, and, as the two men make their way across the in-town cemetery, Deputy A fires a shot into the ground to warn shooter(s) that they are being approached. It’s dark, with possibly dim ambient light from streetlights.

When the two deputies get close enough to see and be seen, the very drunk shooter turns and—as he will later say and the angle of his fire will support—accidentally shoots Deputy A, breaking his leg. Deputy A manages not to bleed to death, while Deputy B is unwisely tackling the drunken shooter. Deputy A to hospital, shooter to jail, Deputy B the only witness.

Cut to the case. Prosecutor, responsive to sheriff’s department’s inclination to protect their guys, will charge shooter with aggravated assault of a law officer, but to prove that, prosecution will have to prove that shooter knew the two men were law officers, right? Shooter was slightly acquainted with the two men, but defense will argue darkness and drunkenness, which they will have blood- test evidence of, since family member of shooter—lawyer in civil practice—has the wit to order it that night.

Shooter, who has suffered an alcoholic blackout but, when cued, recovers some memory, will maintain he did not intend to shoot a man and had no knowledge that the two men were law officers. He will maintain he didn’t hear the warning shot or mistook it for echo. Situation is complicated by the fact that shooter and Deputy A have expressed dislike for each other in public; there are several witnesses to that, some of whom, being friends of the deputies, may exaggerate.

Defense will petition immediately to depose Deputy A while still in the hospital—on grounds that his appearance in court can’t be guaranteed—and, surprisingly, the petition will be granted. Defense will do this because he is afraid the deputies will collude to say they did identify themselves as they approached the shooter. Deputy A will admit that he did not. He and Deputy B might change their story later.

Questions. (1) When will Prosecution see the deposition? (2) What will Prosecution—under pressure from the sheriff’s department-- do if the case begins to look weak that shooter knew the two men were law officers? (3) If Prosecution reduces the charges to aggravated assault, which would seem to be a virtually automatic conviction, when will they do it? (4) Could they go to trial on the original charge and reduce it during the trial? (I’m assuming sheriff’s department will oppose a plea bargain and want a jury trial.Is this wrong?) Obviously, I don’t know how reducing the charges works. (4) What happens if Prosecution does not reduce the charges to aggravated assault and the jury believes the Defense that shooter did not recognize the two men as law officers?

(5) For purposes of the novel, shooter needs to serve some serious prison time whatever happens—I hope at least 15 years. Does that sound right under the circumstances described by your replies 1-4?
Submitted: 10 months ago.
Category: Legal
Expert:  Ely replied 10 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I love these kinds of questions.

(1) When will Prosecution see the deposition?

A special reporter called a 'court reporter' A court reporter is generally a third-party who proceeds to record the deposition using special equipment.

Once a deposition is done, a special reporter then takes the notes and transforms them into a good, line by line depo record. Either party can order a copy for a reasonable fee. The depo can take about 3-7 days to be cleaned up and ready to be sent out. So assuming the court reporter is rushed, say 10 days before the prosecutor gets to see a copy once his office orders a copy.

(2) What will Prosecution—under pressure from the sheriff’s department-- do if the case begins to look weak that shooter knew the two men were law officers?

The prosecutor (called an Assistant District Attorney, or ADA or DA for short), is then likely to offer the Defense Attorney a deal - a conviction for a lesser offense in exchange for going to trial on the charges now before the Court against the Defendant.

(3) If Prosecution reduces the charges to aggravated assault, which would seem to be a virtually automatic conviction, when will they do it?

They can do so at any time. Generally, once someone is charged, they have resetting court dates. Around 3-4 every 2 weeks to a month is standard in Texas. At these court settings, the ADA and the Defense Attorney negotiate. If nothing is settled, the Court is reset... after 3-4 of these settings, the Court will want either an agreed settlement or for the Defense to go to trial.

Normally, the Defense Attorney and the ADA communicate only at the settings if it is a big county, and if it is a small county, it is not unusual to communicate outside of the Court as well. Any agreement would be entered into generally AT ONE OF THESE SETTINGS.

However, the Defense can always elect to go to trial, and then if the offer is still on the table, take it at ANY TIME before the Jury comes back.

(4) Could they go to trial on the original charge and reduce it during the trial?

Yes, and this actually happens.

(I’m assuming sheriff’s department will oppose a plea bargain and want a jury trial.Is this wrong?)

This depends on the case. Whoever feels that they may be losing may offer the other a deal. The other party may or may not take it. Some ADAs refuse to take a deal once trial is under way because they reason that spending so much time and man-hours prepping for trial should not go to waste.

But in the end, they can enter into an agreement at any time before the Jury comes back.

(4) What happens if Prosecution does not reduce the charges to aggravated assault and the jury believes the Defense that shooter did not recognize the two men as law officers?

If this is the case, the Jury may come back finding the Defendant not guilty. If the ADA did not have any lesser charges tagged on to the indictment, then the Defendant goes free.

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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87082
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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