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Review of Probable cause affidavit, no probable cause found Arrest, Search, Seizure, Warrant

Discussion in 'Criminal Procedure, Criminal Court' started by 2009RTR, Jan 30, 2015.

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  1. 2009RTR

    2009RTR Law Topic Starter New Member

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    Was accused of assault by an acquaintance. They filed a complaint with local PD and it was not acted upon. They then filed complaint with county sherrif who 8 weeks later referred to county DA's office. DA's office 9 weeks later accepted the referral and filed assault w/bodily injury & family violence class A misdemeanor charges. According to the case file a week later the clerk requested probable cause affidavit and next entry is: Probable cause affidavit is reviewed. No probable cause is found.

    What does this mean as far as charges? Court is saying the case is still pending....

    The complaintant is not a spouse, roommate, family member, boyfriend/girlfriend or anyone I have slept with/lived with. I have never asked them out, spent 1 dime on them, or anything like that.. a relative who is a LEO thinks the Asst DA was trying to throw around his weight and overcharge. Since the judge rejceted the PC affidavit, he will probably amend the charge to drop the domestic violence? Is that possible?
     
  2. mightymoose

    mightymoose Moderator

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    If the court found no probable cause to support the charges then you should expect amended charges or dismissed charges.
     
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  3. 2009RTR

    2009RTR Law Topic Starter New Member

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    My relative who is a LEO feels amended charges will drop the family violence and possibly the BI leaving it a class C misdemeanor. I understand the class C misdemeanor is equivalent to a ticket and leads to a fine at worse.

    What would be the typical sentence on a class A misdemeanor with BI? No prior record/charges, not even a parking ticket....

    According to attorney I consulted, Class A misdemeanor with BI is guaranteed jail time. Claims only difference between the regular class A and class A enhanced with Family violence as initially charged is permanent loss of 2nd ammendment rights and good luck ever renting an apartment/getting a job.... Is that right????
     
  4. 2009RTR

    2009RTR Law Topic Starter New Member

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    Anyone with a thought on this matter?
     
  5. army judge

    army judge Super Moderator

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    If convicted, probation, community service (40 hours or so), court costs, fees, fine,; maybe deferred adjudication.

    Be smart, request a jury trial, if they continue to chase you.
    That could mean your acquittal.
    Don't take plea, if you believe you're not guilty.
     
  6. 2009RTR

    2009RTR Law Topic Starter New Member

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    Thanks Army Judge! I'm hoping it is dropped since judge ruled no probable cause existed to issue the warrant!

    If this is dropped can I go after the accuser civily? They have made my life hell. We work together and they have told co-workers, and filed an HR complaint which was investigated and rejected weeks before filing the criminal complaint. IMO they want me out of the way b/c as the company grows, I am a threat regarding promotions as my sales numbers exceed theirs.
     
  7. 2009RTR

    2009RTR Law Topic Starter New Member

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    Army judge,

    I found out this week the accuser in her complaint said I exposed myself to her and grabbed her hand. A friend who is an attorney looked at the PC affidavit and said it was declined b/c complaint doesn't meet definition of fam violence. Friend feels 1 of 3 outcomes: 1. DA drops, 2. DA RE-files as simple assault class c misdemeanor or 3. DA Re-files as indecent exposure, class B misdemeanor.

    Thoughts?
     
  8. army judge

    army judge Super Moderator

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    It all depends on your prior record.
    If you've been a good guy, no problems with the law, you might get a pass.
    If you get charged with the latest revelation, it could be devastating. WHY? It might be charged as a sexual offense, and if it has any tones of sexual related activity (such as exposing genitalia) you don't want that on your record, because they'll make you register and live as a sexual offender.

    So, stay off their radar, and behave yourself, leave that complainant alone, and wait.
    You might just get lucky, if its too hard to mess with your case.
     
  9. 2009RTR

    2009RTR Law Topic Starter New Member

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    I looked at the case online today and a new entry is notice to appear 3/26. No entry regarding new probable cause affidavit, new charges etc????? Checked with court, no warrant out..... What is going on? ATY friend out of state says his best guess they refiled a class C or ticket. Therefore, no warrant. Thoughts????
     
  10. army judge

    army judge Super Moderator

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    My guess is the matter has been reset for 26 March. If so, you should be noticed, if you haven't been already.

    Interesting, if you want (and its public record anyway), post the court information, case number, court website and I'll take a look.
    I also have a couple other places I can look and I'll see if I can make heads or tails of what I see.
     
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  11. 2009RTR

    2009RTR Law Topic Starter New Member

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    Army,

    I will get you the info. One last Q, if you don't mind.... When all this started, I lawyered up. She felt charged would be serious felony VS misdemeanor and convinced me to pay large sum thinking I was about to go to jail for long time. (Good friend who is attorney in TX but, not in this area said "your're being taken." ) When PD charged as misdemeanor, rate stayed the same... Ok, I figure we agreed to fee structure before we knew charge. Red flag went up when after paying large sum to retain, I heard nothing for 9 weeks so I checked my name on County website and found charge pending. I notified her.... 2 weeks later when no PC found after probable cause affidavit filed again, I found out when I called court.

    Now, she is saying "I'm thinking PC affidavit are used for arrest warrants and the DA decides whether to bring charges. Therefore, judge said no PC to issue warrant but the DA feels she has a case therefore, clerk has to set for initial hearing and that is what they did today. " Should I run and find new counsel who knows how process works? Seems I get letters daily from attorney's. Other thing that scares me is when searching court records appears she's only tried 1 case in the county the past 10'years. Tries lots in surrounding counties but typically 'high profile'. Am I better with a true trial lawyer who actually practices in front of said court?
     
  12. army judge

    army judge Super Moderator

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    In what county is this taking place, 2009?

    You've assessed the situation accurately, based on what is known to you, plus what you've discovered.
    Most Texas counties are reluctant (and avoid) to charge felonies on arrest & complaint.
    Those prosecutors tend to investigate the case a tad, then take it to the grand jury seeking an indictment.
    Procedurally, if what you've described has occurred is sloppy and can get the case kicked.

    If I were in your position, I'd find an attorney in your county.
    Your current attorney is probably competent, but too durn busy caring for high class, society clients.
    Trust me, there's lots of money to be made, but too many snotty noses to wipe, silver spined backs to pat, and huge egos to stroke.
    Frankly, I've always preferred representing just good ole country folks, cowboys, and working stiffs.

    Based on what you've described, any good ole boy or gal lawyer could have had this case dismissed or tried already.

    As far as what's been done to you, I'll give you three to one the prosecutor and the alleged victim are connected. If not, there's a connection they share. Hang in there, get a new lawyer, prepare for the impending strike of crooked lady justice, naked, loaded shotgun in one hand, hatchet in the other, readying to strike you down, and without her blindfold.

    You can avoid it, so focus on resolving this case in your favor, and then trying to get some of your retainer fee back after this is over. Plus, you can also exact your revenge against the liar who seems to have created the lies against you causing this malicious prosecution.
     
  13. 2009RTR

    2009RTR Law Topic Starter New Member

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    Army,

    Collin.... Any idea on how to find (screen) a new one?
     
  14. army judge

    army judge Super Moderator

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    Ask friends, coworkers, relatives what they know about good criminal Asher's in Collin County.
    Search the Internet, criminal Asher's Collin county, TX.
    Then do your due diligence. It's like choosing a dentist, a physician, a car dealer, or a restaurant - beat the bushes my friend. Then meet with your candidates and see if their personality is compatible with yours. That's extremely important in my view. If you're all business, you might not mesh well with a jokester, and vice versa.
     
  15. 2009RTR

    2009RTR Law Topic Starter New Member

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    Thanks Army Judge!

    I did get maybe some 'good' news today. Was told by clerk the court in Q always schedules initial apearance even if PC declined to keep things moving in case DA resubmits PC docs. Said nothing done yet!

    I did call 2 so far. 1 said wait and see if they do. Hope DA doesn't and most likely it will be dismissed seeing judge already ruled no PC. Said no need to pay $$ for that...current gal can handle it.

    Other asked for almost 5 figures, If it goes beyond initial appearance more $$.
     
  16. army judge

    army judge Super Moderator

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    At this point, you can't do much more than you have done.
    As they say, let sleeping dogs lie.
     
  17. 2009RTR

    2009RTR Law Topic Starter New Member

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    Army,

    Hope you don't mind an update.... So, we went to initial and the prosecutor had no clue judge had ruled no probable cause when charges filed 6 weeks prior. Had no clue what they were going to do.... Couldn't get their supervisor on the phone. My attorney talked to court clerk and was told all they could do is 'pass' on initial, set for plea date and by then DA have to figure it out....

    I asked my atty why didn't he file motion to dismiss on the spot and was told that's not how it works. His thought is if State had no clue no probable cause was found, chances are accuser isn't yelling or pushing issue so, let's wait b/c most likely state will drop at or before plea..... Thoughts?
     
  18. army judge

    army judge Super Moderator

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    Remember, I once told you to let sleeping dogs lie? We;;, that's your attorney's approach apparently.
    Would I have done that? Can't say, but he or she does know the county, your prosecutors, and the judges.
    So, when in Rome, do as the Romans.
    Now, over here in Coryell, Bell, Williamson (The Hill Country), I'd have attempted to argue speedy trial. But, that can sometimes get wake the dog and cause lots of barking and yapping.
    I think the approach used can yield the results you want, a dismissal or a nolle prossequi.
    Hang on, it looks more promising the longer it goes, especially if you catch the DA sleeping.
     
  19. 2009RTR

    2009RTR Law Topic Starter New Member

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    Army,

    A quick updated. Spoke with my attorney last week and the asst DA still has not submitted ammended charges or an ammended probable cause afidavit, 12 weeks after the judge ruled no probable cause was found and 4 weeks after the initial hearing. My attorney said he will appear at the plea hearing in 7 weeks to see what the State plans to do... (said he may file a motion to dismiss at that point (assuming the State still has done nothing before then.)

    Here is my question, my dad thinks I need a new attorney we know who thinks we should get aggressive and file a motion to dismiss ASAP. This attorney is a family friend and feels if the State planned on ammending or submitting 'new' evidence they would've done it within 12 weeks! Also, he feels the accuser is not pressing the issue since nothing has been done and at the initial, the assistant DA's had no clue no probable had been found.

    Both attorney's practice in North Texas. My attorney typically handles felony murder and felony sex assaults where as the other attorney handles mostly misdemeanors, (drugs/DWI/assaults). Our family friend has more experience with the judge in question, said he is known as the most "fair/objective" towards defense attorney's and the best judge to get in the county.

    My thought is to wait and see what happens at the plea hearing... I'd think we'd have to have an actual charge to which the judge finds probable cause in order to enter a plea... Am I missing something?
     
  20. army judge

    army judge Super Moderator

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    It's always a toss up in situations such as yours, RTR.
    I suggest, all else being equal and you trust both attorneys, waiting it out.
    So far, you've not been charged.
    I suggest you continue to avoid the ALLEGED victim, stay off their radar, and wait (as suggested by your current attorney).
    It might see to your dad that doing something is preferable over doing nothing.
    Most things other than than the criminal justice system that philosophy is useful.
    In criminal matters, do as little as you can until your hand is forced.
    As I see things, so far, so good, 1/4 speed ahead; steady as she goes!!!
     

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