What Is Brent Facing

[Hostile]

Board certified criminal lawyer in the State of Texas since 1995. I worked in a mid sized county for the district attorney's office for over 20 years and more than half of that time as its chief felony prosecutor. Have been a criminal defense lawyer for over 5 years. I have handled many of these cases thru the years.

Let's start with the basics. Many of you have got a lot of things right but I have some other info for you and some insight on how the whole process works. Yes this is a second degree felony, 2 to 20 years in the pen and up to a $10000.00 fine but restitution can also be awarded to the victim's family whether he gets pen time or probation. These are limited to out of pocket expenses.

He can get either pen time or probation (if he has never before been convicted of a felony). This is where it gets deep. My former boss, tried one of these cases and added a deadly weapon allegation to the indictment. A deadly weapon finding (Art. 42.12(3)(g)) says that a person that uses a deadly weapon during the commission of the offense gets a deadly weapon finding. A deadly weapon is anything that in its manner is used that could cause death or serious bodily injury. The highest court in Texas upheld this finding. What this means is a judge is prohibited from giving probation in a plea bargain case with such a finding. It also means that the defendant would have to serve at least half of any sentence in prison without any good time. Without such a finding a judge could give probation and even if he got pen time parole is based on quarter time less good time. There is no deferred adjudication in Texas (what Michael Irvin got) for any type of intoxication driving offense. However even if there was a deadly weapon alleged and found, a jury can still give a defendant probation as long as they don't give him more than 10 years.

In Texs the defendant has the option of whether a judge or jury determines his punishment. We are only one of about 10 states that do this. And yes the prior dwi does make a difference to either a judge or jury in what they do with the case. However it will only be up to either of them if the defendant goes to trial. If a defendant pleads guilty according to a plea bargain then the judge can either accept the deal or refuse it. If he refuses it, then the defendant gets to withdraw his plea and start over.

In most cases what the victim's family wishes to do is pretty much determinative. Look at this way, if you were the prosecutor do you want to go to jury trial and get a guilty verdict and have the victim's family get up and ask for probation, obviously not. A plea bargain for probation usually has the victim's family come testify that they are in favor of the the deal to give every one "cover".

It's my guess the deal will be for 10 years probation with the mandatory minimum of 120 days jail as a condition of probation (day for day) and a $10,000.00 fine with restitution. I'm sure there will be some alcohol treatment in there too. Anyway for whatever that's worth.

Great post. Pretty much in line with what all of the other lawyers are suggesting, and encompasses criteria each may be looking at.

Thank you.

 

[Idgit]

This is a great thread, by the way. A lot of smart posters here, obviously with relevant experience.

Thanks, everybody, for all the good stuff.

 

[peplaw06]

Yes, but he never questioned your credentials, and if he did I would defend you.

I'm not questioning his credentials. I don't know them, how could I question them?

Board certified criminal lawyer in the State of Texas since 1995. I worked in a mid sized county for the district attorney's office for over 20 years and more than half of that time as its chief felony prosecutor. Have been a criminal defense lawyer for over 5 years. I have handled many of these cases thru the years.

Let's start with the basics. Many of you have got a lot of things right but I have some other info for you and some insight on how the whole process works. Yes this is a second degree felony, 2 to 20 years in the pen and up to a $10000.00 fine but restitution can also be awarded to the victim's family whether he gets pen time or probation. These are limited to out of pocket expenses.

He can get either pen time or probation (if he has never before been convicted of a felony). This is where it gets deep. My former boss, tried one of these cases and added a deadly weapon allegation to the indictment. A deadly weapon finding (Art. 42.12(3)(g)) says that a person that uses a deadly weapon during the commission of the offense gets a deadly weapon finding. A deadly weapon is anything that in its manner is used that could cause death or serious bodily injury. The highest court in Texas upheld this finding. What this means is a judge is prohibited from giving probation in a plea bargain case with such a finding. It also means that the defendant would have to serve at least half of any sentence in prison without any good time. Without such a finding a judge could give probation and even if he got pen time parole is based on quarter time less good time. There is no deferred adjudication in Texas (what Michael Irvin got) for any type of intoxication driving offense. However even if there was a deadly weapon alleged and found, a jury can still give a defendant probation as long as they don't give him more than 10 years.

In Texs the defendant has the option of whether a judge or jury determines his punishment. We are only one of about 10 states that do this. And yes the prior dwi does make a difference to either a judge or jury in what they do with the case. However it will only be up to either of them if the defendant goes to trial. If a defendant pleads guilty according to a plea bargain then the judge can either accept the deal or refuse it. If he refuses it, then the defendant gets to withdraw his plea and start over.

In most cases what the victim's family wishes to do is pretty much determinative. Look at this way, if you were the prosecutor do you want to go to jury trial and get a guilty verdict and have the victim's family get up and ask for probation, obviously not. A plea bargain for probation usually has the victim's family come testify that they are in favor of the the deal to give every one "cover".

It's my guess the deal will be for 10 years probation with the mandatory minimum of 120 days jail as a condition of probation (day for day) and a $10,000.00 fine with restitution. I'm sure there will be some alcohol treatment in there too. Anyway for whatever that's worth.

This is a thorough and complete post. Good stuff.

 

[Hostile]

So lets say 1 year in jail --active for last half of 2013 ---he would signed activated and then suspended ? Still be 24 -25 yrs old?

He'd be 25.

 

[CowboyMcCoy]

That's completely false, but I'm not surprised. Go read the statute. It says a prior offense from another state can be used to enhance a DWI.

I wasn't aware they wrote a statute just for that reason. I do know in other types of cases you can't enhance a lot of time based off of another state's statute.

Yes, I've already said that. But the DA is rarely going to just go simply with what the victim's family wants. The DA will usually go over the options with the family, tell the family what the DA wants to offer, and see if the family is okay with it. The DA usually wants the family's approval, but you made it sound as though the family had control. Ultimately, they don't.

I never said they had control. In any case, they consider the family's positions more than not. What they do from there, having considered things, is up to them.

Completely wrong. At really every point. The SOL had nothing to do with Dez's charges, because they've already been filed. SOL is tolled. And charges weren't "dropped." He's under a pre-trial diversion type program where he does some probation and at the end, the charges are dismissed. But they don't drop charges until he completes the program/probation... because the SOL is tolled.


This is remedial criminal procedure. How do you not know this?

I thought the charges had been dropped already, so they could charge him later if he wasn't a good boy. Makes sense.

 

[justbob]

The statue on DUI was changed 15 yrs ago (app.) because of one case I can remember of a guy that was driving drunk had a wreck and killed some people. The driver had like 17 previous convictions for DUI in other states. And One in Texas. If they could have enhanced him with the other convictions, he would have been in prison for felony DUI/DWI. This was close to the time Mothers Against Drunk Driving started up.

 

[justbob]

Thanks for all the great posts in this thread. We have a lot of expertise within our members and it really showed.

 

[justbob]

And it no longer has anything to do with this thread. Take your arguments to the court room.. No more here

 

[Hostile]

I guess we will see. I have a feeling there is going to be a lot of amazed people.

 

[CowboyMcCoy]

The statue on DUI was changed 15 yrs ago (app.) because of one case I can remember of a guy that was driving drunk had a wreck and killed some people. The driver had like 17 previous convictions for DUI in other states. And One in Texas. If they could have enhanced him with the other convictions, he would have been in prison for felony DUI/DWI. This was close to the time Mothers Against Drunk Driving started up.

Makes sense. I haven't read much on dwi laws, but Texas love them some dwi cases.

 

[CowboyMcCoy]

Michael Vick spent over a year and a half in prison for running a dog-fighting ring. The conventional wisdom is that Josh Brent will serve a few months for negligently killing a human being. Insanity.

I think MADD puts enough pressure on the case to make it a little more than probation just like PETA did. The courts have political interests too. So, no one really knows. But there will be pressure to punish Brent with incarceration from various groups.

 

[CowboyMcCoy]

Even if it's his 2nd conviction, it's still a misdemeanor. His biggest worry is Intoxication Manslaughter. 2-20 years in prison.

 

[Roger78]

On a side note, when I was in DA's office, the Cowboys held their training camp here in the late 90's and early 2000's (actually about 4 blocks from my house) and I prayed every nite something wouldn't happen like this on my watch. The worst things I had to deal with was the famous "scissorgate" case with Michael Irvin and the case where Eric Williams beat up a stripper/hooker (aka exotic dancer)in the back of a limo. Fun times.

When the Cowboys came to their first training camp here, the front office invited all the heads of the various law enforcement agencies of the county to lunch. Bruce Mays (the Turk) led the meeting and explained all the meassures they had in place to deal with any problems. Their securtiy personnel also talked. I feel really sorry for whoever's desk this case fell on in the Dallas DAO. I enjoyed having the Cowboys in town but part of me was not that sad when they left.

I also got to go on a special tour of training camp which included going into the lockerroom and eating lunch with the players. I'll save that for another post.

 

[Hostile]

On a side note, when I was in DA's office, the Cowboys held their training camp here in the late 90's and early 2000's (actually about 4 blocks from my house) and I prayed every nite something wouldn't happen like this on my watch. The worst things I had to deal with was the famous "scissorgate" case with Michael Irvin and the case where Eric Williams beat up a stripper/hooker (aka exotic dancer)in the back of a limo. Fun times.

When the Cowboys came to their first training camp here, the front office invited all the heads of the various law enforcement agencies of the county to lunch. Bruce Mays (the Turk) led the meeting and explained all the meassures they had in place to deal with any problems. Their securtiy personnel also talked. I feel really sorry for whoever's desk this case fell on in the Dallas DAO. I enjoyed having the Cowboys in town but part of me was not that sad when they left.

I also got to go on a special tour of training camp which included going into the lockerroom and eating lunch with the players. I'll save that for another post.

My best friend from HS lives in Wichita Falls.

I for one would love to hear more stories, not just lunch if you have them.

 

[Roger78]

My best friend from HS lives in Wichita Falls.

I for one would love to hear more stories, not just lunch if you have them.

Happy to oblige, but got to go to court now.

 

[tupperware]

No, not insanity. Intent. Michael Vick intended to torture and kill those dogs, he is the epitome of evil.

Josh Brent intended to go home. It just didn't work out that way.

If you can't tell the difference between cruel, murderous, intentional behavior and an accident, I can't help you.

He intentionally drank those drinks. Every adult should be aware of the possible consequences of drinking and then driving. Besides, this was a human. I know dogs are cute and all and so many people have them but that should count for something regardless of intent.

 

[DeaconBlues]

Anyone thinking Brent isn't facing serious jail time is self delusional. You cannot KILL SOMEONE and not go behind bars... prior events can be used during sentencing, and his prior DUI isn't going to help him one bit.

You won't be seeing Josh Brent until 2016, minimum.

You're stating a personal opinion, not the law.

 

[Hostile]

Happy to oblige, but got to go to court now.

There is no hurry at all.

 

[jobberone]

Board certified criminal lawyer in the State of Texas since 1995. I worked in a mid sized county for the district attorney's office for over 20 years and more than half of that time as its chief felony prosecutor. Have been a criminal defense lawyer for over 5 years. I have handled many of these cases thru the years.

Let's start with the basics. Many of you have got a lot of things right but I have some other info for you and some insight on how the whole process works. Yes this is a second degree felony, 2 to 20 years in the pen and up to a $10000.00 fine but restitution can also be awarded to the victim's family whether he gets pen time or probation. These are limited to out of pocket expenses.

He can get either pen time or probation (if he has never before been convicted of a felony). This is where it gets deep. My former boss, tried one of these cases and added a deadly weapon allegation to the indictment. A deadly weapon finding (Art. 42.12(3)(g)) says that a person that uses a deadly weapon during the commission of the offense gets a deadly weapon finding. A deadly weapon is anything that in its manner is used that could cause death or serious bodily injury. The highest court in Texas upheld this finding. What this means is a judge is prohibited from giving probation in a plea bargain case with such a finding. It also means that the defendant would have to serve at least half of any sentence in prison without any good time. Without such a finding a judge could give probation and even if he got pen time parole is based on quarter time less good time. There is no deferred adjudication in Texas (what Michael Irvin got) for any type of intoxication driving offense. However even if there was a deadly weapon alleged and found, a jury can still give a defendant probation as long as they don't give him more than 10 years.

In Texs the defendant has the option of whether a judge or jury determines his punishment. We are only one of about 10 states that do this. And yes the prior dwi does make a difference to either a judge or jury in what they do with the case. However it will only be up to either of them if the defendant goes to trial. If a defendant pleads guilty according to a plea bargain then the judge can either accept the deal or refuse it. If he refuses it, then the defendant gets to withdraw his plea and start over.

In most cases what the victim's family wishes to do is pretty much determinative. Look at this way, if you were the prosecutor do you want to go to jury trial and get a guilty verdict and have the victim's family get up and ask for probation, obviously not. A plea bargain for probation usually has the victim's family come testify that they are in favor of the the deal to give every one "cover".

It's my guess the deal will be for 10 years probation with the mandatory minimum of 120 days jail as a condition of probation (day for day) and a $10,000.00 fine with restitution. I'm sure there will be some alcohol treatment in there too. Anyway for whatever that's worth.

Can he serve part of a county jail time in rehab? Is county jail considered hard time in Texas? Would he likely serve all his time in this case esp if county jail time?

 

[swj010]

The question on prison or probation will come down to if he is likely to continue the behavior and if he is still a risk. If found guilty then the first DWI can be introduced as an indicator of possible future behavior.

You are correct. Plus his biggest asset will be Jerry Brown's mother testifying that she does not want him to go to jail. Mrs. Brown has made a lasting tribute to her son. Many talk forgiveness and mercy but she has walked the talk. Jerry Brown will be remembered a long time because of the incredible charity and mercy of his family. If it had been my child, I cannot say I could have shown the forgiveness that JB's family has shown. Of course, now I have the example of his mother to guide me. In any event, it is hard to imagine that Brent will get jail time if the victim's mother is asking for mercy and he has complied with the court's requirements of no drinking or unlicensed driving.