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I need help with a couple of criminal questions. Its

I need help with...

I need help with a couple of criminal questions

Lawyer's Assistant: Have any charges been filed? If so, when is the next court date?

Its actually for my brother n law hes currently incarcerated in the tdcj and is trying to appeal and hes representing himself

Lawyer's Assistant: In what state did this occur?

Tx

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Its a aggravated assault with a deadly weapon

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Answered in 3 minutes by:
3/14/2018
Legal Eagle
Legal Eagle, Lawyer
Category: Legal
Satisfied Customers: 10,341
Experience: Licensed to practice before state and federal court
Verified

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today.

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only. What specific questions did you have? I have an idea about your situation, but I don’t want to make any assumptions.

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Customer reply replied 1 month ago
Im trying to help my brother who is incarcerated in the TDCJ with his appeal. Our questions is, If an indictment tracking penal code 12:35 (c)(1) fails to allege during the commision of the offense is the indictment void?

Great, thank you! The system may automatically ask you for a phone call; however, it’s not required that you take it. Bear with me a moment while I review…

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Customer reply replied 1 month ago
Ok thank you.

oK,so if I can clarify, you said that the indictment didn't allege that he had a deadly weapon, is that correct? And you're wondering if that is the case will it void the indictment?

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Customer reply replied 1 month ago
It was a motor vehicle. He was backing up when the cops were pulling up on him.
Customer reply replied 1 month ago
He never touched the cop.
Customer reply replied 1 month ago
that’s all correct

I see what you mean. So, the answer to your question is that if they do not allege that he had a deadly weapon, then he needs to fight the indictment with a grand jury packet.

An indictment is based on evidence that is presented by the DA, the DA gets to chose what is presented and you have no right to be present. So, the only option you have is to ask for a Grand Jury Packet.

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If that is not possible, then his best bet is to try to argue that a vehicle is not a deadly weapon and that the indictment doesn't properly allege that he used it as a deadly weapon. Plus, if the facts show he didn't hit the cop and if the cop suffered no injuries and if there are no other witnesses to corroborate this, then this element cannot be met.

What other questions did you have for me today that I can help you out with:-)?

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Customer reply replied 1 month ago
Ok one more question. Does the court have jurisdiction over the subject matter?

Yes, so long as it is a criminal court that received the indictment. Subject matter jurisdiction applies when the subject matter in the case (e.g. theft, fraud, etc.) is within the scope of what a court can hear. For example, a criminal court cannot hear family cases and a family court cannot hear criminal cases. If the subject matter is criminal, only the criminal courts have jurisdiction.

How else can I help you today?

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Customer reply replied 1 month ago
That’s all for now but Thank you so much.

The pleasure is all mine! Unless you have additional questions, there’s just a few other things I’d like you to know before we wrap up this conversation:

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Legal Eagle
Legal Eagle, Lawyer
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Experience: Licensed to practice before state and federal court
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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