IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0354-12
THE STATE OF TEXAS
v.
CARL ALAN BENNETT, Appellee
ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
KEASLER,J., delivered the opinion ofthe Court, in which KELLER,P.J.,JOHNSON,
HERVEY, COCHRAN, and ALCALA, JJ.,joined. KELLER, P.J., filed a concurring opinion,
in which PRICE, J., joined as to Part I. JOHNSON, J., filed a concurring opinion.
COCHRAN, J., filed a concurring opinion. MEYERS, J., filed a dissenting opinion. PRICE,
J., filed a dissenting opinion. WOMACK, J., concurred.
OPINION
In his motion for new trial, Carl Bennett alleged that he received ineffective assistance
of counsel. The trial judge agreed and granted him a new trial. The court of appeals reversed
and found that trial counsel was not ineffective for failing to challenge Bennett's indictment
on statute-of-limitations grounds because the legal basis of such a challenge was unsettled.
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0354-12
THE STATE OF TEXAS
v.
CARL ALAN BENNETT, Appellee
ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
KEASLER,J., delivered the opinion ofthe Court, in which KELLER,P.J.,JOHNSON,
HERVEY, COCHRAN, and ALCALA, JJ., joined. KELLER, P.J., filed a concurring opinion,
in which PRICE, J., joined as to Part I. JOHNSON, J., filed a concurring opinion.
COCHRAN, J., filed a concurring opinion. MEYERS, J., filed a dissenting opinion. PRICE,
J., filed a dissenting opinion. WOMACK, J., concurred.
OPINION
In his motion for new trial, Carl Bennett alleged that he received ineffective assistance
of counsel. The trial judge agreed and granted him a new trial. The court of appeals reversed
and found that trial counsel was not ineffective for failing to challenge Bennett's indictment
on statute-of-limitations grounds because the legal basis of such a challenge was unsettled.
BENNETT-2
We agree and affirm the court of appeals' judgment.
On December 1, 2009, Bennett was indicted for aggravated assault allegedly occurring
on June 5, 2007. After being found guilty, Bennett filed a motion for new trial alleging
ineffective assistance of counsel. Bennett claimed that the statute of limitations for
aggravated assault was two years, and therefore counsel's failure to challenge the indictment
on that basis deprived him of ineffective assistance of counsel. Bennett supplemented his
motion for new trial with his trial counsel's affidavit, in which he claimed that he did not
challenge the indictment on that basis because, based on his review of Texas Code of
Criminal Procedure article 12.01(6), 1 he believed that the statute of limitations was three
years. The judge granted Bennett a new trial, stating that while he would have denied such
a challenge because superior courts have held the statute of limitations to be three years,
counsel should have nonetheless preserved the issue for appeal. The State appealed.
Because the statute oflimitations is controlled by statute, the preliminary issue in the
court of appeals was determining which statute applied. Article 12.01 's catch-all provision
provides that all felonies not specifically listed have a three-year statute oflimitations, where
as article 12.03(d) states "[e]xcept as otherwise provided by this chapter, any offense that
bears the title 'aggravated' shall carry the same limitations period as the primary crime." In
this case, under article 12.0l's catch-all provision the statute of limitations for aggravated
1
TEX. CODE CRIM. PRO. art. 12.01(6) (West 2006) (providing a statute of
limitations of"three years from the date of the commission of the offense: all other
felonies.") (currently TEX. CODE CRIM. PRO. art. 12.01(7) (West 2012)).
BENNETT-3
assault would be three years; under article 12.03(d) it would be two. 2 In its analysis, the
court of appeals discovered that we have not spoken with one voice on the matter. 3 The court
noted that in Hunter v. State 4 we stated, in dicta and without citation to either statute, that the
statute of limitations for aggravated assault was three years. 5 In Ex parte Sa/as-again in
dicta, but with citations to both statutes-we stated that the limitations period "has long been
three years."6 In Ex parte Matthews, we cited to article 12.03(d) in finding that the statute
of limitation applicable to aggravated perjury is two years because that is the statute of
limitations applicable to perjury, the primary crime. 7 The court of appeals read Hunter and
Salas as holding the statute of limitations for aggravated assault is three years. 8
Acknowledging Bennett's claim that Matthews implicitly overruled the previous cases, it
found that the law is unsettled and therefore counsel could not be found ineffective for not
2
Id. art. 12.02 (West 2012) (providing a two-year statute of limitations for
misdemeanors); TEX. PENAL CODE§ 22.01(b).
3
See State v. Bennett, No. 05-11-00252-CR, 2012 WL 11181, *2-3 (Tex.
App.-Dallas Jan. 4, 2012) (mem. op, not designated for publication).
4
576 S.W.2d 395, 399 (Tex. Crim. App. 1979).
5
Bennett, 2012 WL 11181, at *2.
6
Ex parte Salas, 724 S.W.2d 67, 68 (Tex. Crim. App. 1987).
7
Ex parte Matthews, 933 S.W.2d 134, 136 (Tex. Crim. App. 1996), overruled on
other grounds by Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998).
8
Bennett, 2012 WL 11181, at *3.
BENNETT-4
asserting the statute-of-limitations challenge. 9 The court of appeals concluded that "the trial
court did not have discretion to grant a new trial based on failure to preserve that claim for
appellate purposes."Io
To prevail on this claim, Bennett must show that trial counsel's performance was
deficient and this deficient performance prejudiced him. II However, we have repeatedly
declined to find counsel ineffective for failing to take a specific action on an unsettled
issue. I2 Like the court of appeals, we find that the particular statute-of-limitations question
presented here is unsettled. At the time of Bennett's trial, Salas and Hunter-despite the
lack of substantive analysis or necessity to address the issue-supported counsel's belief that
the statute of limitations was three years. That Matthews may be inconsistent with our
previous cases' statements on the applicable statute-of-limitations period further supports the
conclusion that this is an unsettled issue. Our conclusion that the law is unsettled disposes
ofBennett's ineffective-assistance-of-counsel claim and precludes an opportunity to resolve
9
ld. at* 3 (citing Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005)).
Io ld. at* 4.
II Strickland v. Washington, 466 U.S. 668, 687 (1984).
I2 See, e.g., Ex parte Smith, 296 S.W.3d 78,81 (Tex. Crim. App. 2009); Ex parte
Roemer, 215 S.W.3d 887, 894 (Tex. Crim. App. 2007); Ex parte Bahena, 195 S.W.3d
704, 707 (Tex. Crim. App. 2006); Ex parte Chandler, 182 S.W.3d 350, 358-59 (Tex.
Crim. App. 2005).
BENNETT-S
the underlying statute-of-limitations issue. 13
The court of appeals' judgment is affirmed.
DELIVERED: November 27,2013
PUBLISH
13
See Chandler, 182 S.W.3d at 358-59 ("[L]egal advice which only later proves to
be incorrect does not normally fall below the objective standard of reasonableness under
Strickland.").
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0354-12
THE STATE OF TEXAS
v.
CARL ALAN BENNETT, Appellee
ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
KELLER, P.J., filed a concurring opinion in which PRICE, J., joined as to
part I.
I agree with the Court that, because the law was unsettled, counsel was not ineffective for
failing to raise a limitation claim. I write separately to explain why the applicable period of
limitation for the aggravated assault charged in this case was two years.
I. LIMITATIONS
A. The Statutes
The difficulty in determining the statute of limitations in this case results from the fact that
each ofthe two possibly applicable limitation statutes (Article 12.01 and Article 12.03) excepts from
BENNETT CONCURRENCE- 2
its scope any offenses controlled by the other statute. Article 12,01 says, "Except as provided in
Article 12.03, felony indictments may be presented within these limits, and not afterward." 1 It then
provides a list of felony offenses and their applicable limitation periods. 2 Aggravated assault appears
nowhere on the list/ but the list contains a catch-all provision that says "three years from the date
of the commission of the offense: all other felonies." 4 Unless excepted under Article 12.03, then,
aggravated assault would clearly fall within the catch-all provision and have a limitation period of
three years.
Article 12.03 says, "Except as otherwise provided by this chapter, any offense that bears the
title 'aggravated' shall carry the same limitation period as the primary crime. " 5 The primary crime
for aggravated assault is assault. 6 Although assault can sometimes be a felony/ the underlying
assault in this case is a Class A misdemeanor. 8 Under Article 12.02, the limitation period for a
Class A misdemeanor is two years. 9 If aggravated assault has the same limitation period as the
underlying assault, then the limitation period is two years, unless some other provision in Chapter
1
TEx. CoDE CRIM. PRoc. art. 12.01.
2 /d.
3
ld,passim.
4
!d. art. 12.01 (7).
5
!d. art. 12.03(d).
6
See TEX. PENAL CODE§ 22.02(a) ("A person commits an offense if the person commits
assault as defined in§ 22.01 and .... ")
7
See id. § 22.01(b), (b-1).
8
See id. § 22.01(a)(1), (b).
9
TEX. CODE CRJM. PROC. art. 12.02(a).
BENNETT CONCURRENCE- 3
12 creates an exception.
To summarize, if the "catch-all" provision in Article 12.01 controls, then the limitation
period is three years, but if the "same for aggravated as for primary crime" provision in Article 12.03
controls, then the limitation period is two years. Which provision controls depends in part upon how
each of the "except" clauses operates. Although resolving this issue appears at first to be a
complicated matter, it really is not. As I shall show below, both the legislative history of Article
12.03(d) and simple logic lead to the conclusion that the limitation period in this case is two years.
B. The Cases - Dicta Goes Both Ways
In the 1979 case of Hunter v. State, the defendant claimed that the indictment was defective
because it alleged in the disjunctive that he intentionally or knowingly committed the offense rather
than alleging it in the conjunctive. 10 In what was clearly an aside, the Court said that the use of the
disjunctive word "or" was far less misleading than an "on or about" allegation, but that "on or about"
allegations were routinely upheld. 11 During that off-topic discussion, the Court mentioned that the
statute oflimitations for the offense of aggravated assault was "a period of three years." 12 The Court
gave no citation for that proposition. 13 This discussion, which was clearly dictum and unsupported
by any authority, has no precedential value.
Eight years later, in Salas v. State, the issue before the Court was whether there was any
evidence that the defendant's first prior felony conviction became final before the commission of the
10
576 S.W.2d 395, 396 (Tex. Crim. App. 1979).
11 ld.
12
ld. at 399.
13 ld.
BENNETT CONCURRENCE- 4
offense in the second prior felony conviction, so as to satisfy the habitual-offender allegation in the
indictment. 14 The first prior conviction was final on January 15, 1971. 15 The defendant was indicted
on May 6, 1975, for the aggravated assault that resulted in his second felony conviction. 16 The Court
used a three-year limitation period to determine that the earliest possible date the second crime could
have been committed was May 6, 1972, making the defendant subject to the habitual-offender
provision. 17 In connection with the limitations discussion, the Court simply said, "The statute of
limitations for aggravated assault has long been three years." 18 In support of this proposition, the
Court cited the catch-all provision in Article 12.01, Article 12.03(d), the assault statute (Penal Code
§ 22.01), and former Penal Code Article 1147, the aggravated assault statute that existed before
1974. 19
The discussion oflimitation periods in Salas is problematic on a number oflevels. It did not
matter whether the limitation period for aggravated assault was two or three years: a limitation period
of two years would also have satisfied the habitual-offender allegations. 20 But more to the point,
14
724 S.W.2d 67, 67 (Tex. Crim. App. 1987).
15
!d. at 68.
16 !d.
17 !d.
18 !d.
19 !d.
20
Nor did the Court need to count back three years. The indictment specified an offense date
of April27, 1975, see id., and aggravated assault was not a felony until January 1, 1974, with the
advent of the modem Penal Code. See TEX. PENAL CODE, art. 1148 (Vernon's Supp. 1950)
(maximumpunishmentoftwoyears in jail); TEX.PENALCODE,art. 47 (Vernon's 1948) ("An offense
which may-not must-be punishable by death or by confinement in the penitentiary is a felony;
every other offense is a misdemeanor.").
BENNETT CONCURRENCE- 5
although the Salas court cited the relevant statutes, it did not explain how they gave rise to its
conclusion that the limitation period was three years. 21 So, the discussion in Salas was also dictum
and has no precedential value.
Next came Ex parte Matthews, in which the issue was whether the statute oflimitations was
tolled by the defendant's absence from the State. 22 The defendant had previously testified as an out-
of-state witness in a capital murder trial on June 12, 1981, and she left the state after she testified. 23
Around February or March of 1990, the State discovered facts that led to the defendant being
indicted on January 8, 1991, for aggravated perjury. 24 The State sought to rely upon a tolling
provision that provided that"[t ]he time during which a person is accused of an offense and is absent
from the State shall not be computed in the period oflimitation." 25 This Court held that the tolling
provision operated only when the State had some sort of formal accusation pending, so the limitation
period was not tolled. 26
During this discussion, the Court stated that the period oflimitations for aggravated perjury
was two years because an offense titled "aggravated" carries the same limitation as the primary crime
under Article 12.03(d). 27 The Court did not discuss the catch-all provision in Article 12.01 or the
21
Salas, passim.
22
933 S.W.2d 134, 135 (Tex. Crim. App. 1996), overruled on other grounds by Proctor
v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998).
23 !d.
24 !d.
25
!d. at 137.
26
!d. at 138.
27
!d. at 136.
BENNETT CONCURRENCE- 6
pronouncements made in Hunter and Salas in connection with the offense of aggravated assault. 28
In any event, the conclusion that the limitation period was two years was not necessary to the Court's
holding. Because the State did not discover the perjury for more than eight years, it mattered not
whether the limitation period was two years or three years. Thus, the discussion of the applicable
limitation period in Matthews was also dictum and has no precedential value.
Because all of our prior caselaw is dicta, we are essentially operating on a clean slate.
C. Before 1997
We must construe a statute in accordance with the plain meaning of its language unless the
language is ambiguous or the plain meaning would lead to absurd results that the legislature could
not have possibly intended. 29 In conducting this inquiry, we presume that the legislature intended
the entire statutory scheme to be effective. 30 Most of the relevant statutory scheme was in place
before 1997, but the "[e]xcept as otherwise provided" clause found in Article 12.03(d) was the result
of a 1997 amendment. 31 It is useful to set aside, for the moment, the 1997 amendment and assess
the meaning of the statutory language that was in place prior to 1997. I will then look at whether the
1997 amendment changes anything.
As noted above, article 12.01 begins by saying that it prescribes the time limits "[e]xcept as
provided in Article 12.03." This language suggests that the provisions of Article 12.03 trump any
provisions found in Article 12.01. The point at which the provisions of Article 12.01 and 12.03
28 'd.,passzm.
1,
.
29
Boykin v. State, 818 S.W.2d 782,785 (Tex. Crim. App. 1991).
30
Bays v. State, 396 S.W.3d 580, 584 (Tex. Crim. App. 2013).
31
See Acts 1997, 75th Leg., ch. 740, § 2.
BENNETT CONCURRENCE - 7
appear to be in conflict is with respect to Article 12.01 's three-year catch-all provision. The import
of this language, then, is that the catch-all provision applies to unlisted felonies unless the felony is
covered by the provisions of Article 12.03. Because aggravated assault is an "aggravated" offense,
the plain language of the statute, at least prior to 1997, seems to dictate that Article 12.03(d) applies
rather than the three-year catch-all provision.
It might be argued that the "[e]xcept as provided in Article 12.03" phrase means that the
provisions of Article 12.03 could lengthen the limitation period beyond the period in the catch-all
provision but not shorten it. That is, Article 12.03 could, arguably, be construed as permitting
periods oflimitation oflonger than three years but not shorter, so that the catch-all provision would
provide a minimum limitation period of three years for felonies. 32 That would be consistent with the
fact that the catch-all provision currently prescribes the shortest limitation period in Article 12.0 1.
This may be what the Salas court assumed when it cited both to the catch-all provision and to article
12.03(d).
But even if the language of Article 12.01 could conceivably be read that way, it is not the
most natural reading. And such a reading is inconsistent with the apparently absolute language (at
least before 1997) of Article 12.03. Article 12.03(d) simply said that an aggravated offense carries
the same limitation period as the primary crime; it did not (and does not) say that it carries at least
the same limitation period.
Moreover, reading the "except as provided in Article 12.03" phrase to only lengthen
limitation periods makes sense only if the three-year catch-all provision is thought to set a minimum
32
Judge Cochran's concurrence does in fact assume that the intent of the Legislature in
enacting Article 12.01(7) was that "all felonies have, at a minimum, a three-year statute of
limitations[.]"
BENNETT CONCURRENCE- 8
limitation period of three years for felonies. But when Chapter 12 was reshaped in 1973 in what is
now the current limitations framework, Article 12.01 included in its list of limitation periods for
specific offenses a one-year limitation period for felony sex offenses. 33 Though that provision was
removed two years later/4 its presence negates the idea that the legislature thought it was setting a
minimum three-year limitation period for felonies.
Finally, the idea that Article 12.03 could only lengthen the period oflimitation runs aground
when one considers what offenses were actually covered by Article 12.03(d). The reshaping of
Chapter 12 and the enactment of the 1974 Penal Code occurred at the same time in the same
legislation. 35 When that occurs, we generally assume that lawmakers are aware of how the various
provisions will work together. 36 In enacting the 1974 Penal Code, the legislature created at least five,
and possibly six, pairs of primary and aggravated offenses: (1) kidnapping and aggravated
kidnapping, 37 (2) rape and aggravated rape, 38 (3) assault and aggravated assault, 39 (4) robbery and
33
See TEX. CODE CRIM. PROC. ANN. art. 12.01, historical note (Vernon's 1977) (referring
to 1975 amendment).
34
See id. (text and historical note).
35
See Acts 1973, 6Jfd Leg., ch. 399, § 1 (penal code),§ 2(B) (Chapter 12), eff. January 1,
1974.
36
Tapps v. State, 294 S.W.3d 175, 179 (Tex. Crim. App. 2009).
37
TEX. PENAL CODE ANN. §§ 20.03, 20.04 (Vernon's 1974).
38
ld. §§ 21.02, 21.03.
39
ld. §§ 22.01, 22.02.
BENNETT CONCURRENCE- 9
aggravated robbery, 40 (5) perjury and aggravated perjury, 41 and (possibly) (6) promotion of
prostitution and aggravated promotion of prostitution. 42
If Article 12.03(d) were designed only to lengthen limitation periods beyond that prescribed
by the catch-all provision, then one would expect such an effect to be the norm with respect to the
aggravated offenses that the legislature had enacted. But of the six aggravated offenses identified,
only one is an example in which 12.03(d) lengthens the limitation period: aggravated robbery.
Robbery was (and still is) subject to a five-year limitation period, 43 but aggravated robbery was not
(and still is not) found in the list of offenses contained in Article 12.01. So Article 12.03(d) ensured
that aggravated robbery would carry the five-year limitation period that attaches to robbery instead
of the three-year limitation period found in the catch-all provision.
But at the time the scheme was first enacted, none of the other aggravated offenses could be
affected that way. Kidnapping and aggravated kidnapping were both felonies 44 that were not
included in the list when Article 12.01 was revamped in 1973,45 and thus, they were both subject to
the three-year catch-all provision. Rape and aggravated rape were explicitly made subject to a one-
40
!d. §§ 29.02, 29.03.
41
!d. §§ 37.02, 37.03.
42
!d. §§ 43.03, 43.04. Though titled "aggravated" in conformity with the requirements
of Article 12.03(d), the aggravated promotion of prostitution does not explicitly incorporate the
crime of promotion of prostitution by its Penal Code section. I express no opinion on whether
this offense pair falls within the ambit of Article 12.03(d).
43
See TEX. CODECRIM. PROC. art. 12.01(3)(A)(Vernon's 1977). See also TEX.CODECRIM.
PROC. art. 12.01(4)(A) (current).
44
See TEX. PENAL CODE§§ 20.03(c), 20.04(b) (Vernon's 1974).
45
See TEX.CODE CRJM. PROC. art. 12.01,passim (Vernon's 1977).
BENNETT CONCURRENCE- 10
year limitation period. 46 When this one-year limitation period was removed in 1975, the legislature
did not replace it with anything, effectively relegating both of those felony offenses,47 as in the case
of the kidnapping offenses, to the three-year catch-all provision.
The remaining three aggravated offenses-aggravated assault, aggravated perjury, and
aggravated promotion of prostitution-all straddled the misdemeanor-felony divide with their lesser
counterparts. When first enacted in 1973, assault was just a misdemeanor. 48 Aggravated assault was
a third-degree felony at the time. 49 Perjury was a Class A misdemeanor while aggravated perjury
was a third-degree felony/ 0 and the same was true, respectively, for promotion of prostitution and
aggravated promotion of prostitution. 51
If we construe the statutory limitation scheme to assign aggravated versions of these offenses
the two-year limitation period that attaches to their misdemeanor counterparts, then Article 12.03(d)
operates with meaningful effect with respect to at least half of the five or six aggravated offenses at
issue (i.e. meaningful effect given in the context of aggravated robbery, aggravated assault,
aggravated perjury, and (possibly) aggravated promotion of prostitution). By contrast, if we construe
the statutory limitation scheme to assign the aggravated versions of these offenses the three-year
46
See id., historical note (referring to deleted subd. (4), which had read: "one year from the
date of the commission of the offense: any felony in Penal Code Chapter 21 (Sexual Offenses)").
47
See TEX PENAL CODE§§ 21.02(c), 21.03(b) (Vernon's 1974).
48
!d. § 22.01(b).
49
!d. § 22.02(c).
50
!d. §§ 37.02(b), 37.03(b).
51
!d. §§ 43.03(b), 43.04(b).
BENNETT CONCURRENCE- 11
limitation period found in the catch-all provision, then we relegate the meaningful effect of 12.03 (d)
to only one aggravated offense out of the five or six at issue (i.e. meaningful effect given only in the
context of aggravated robbery). Given the relatively large proportion of aggravated offenses that
straddled the misdemeanor-felony divide with their lesser counterparts, the latter construction makes
little sense.
D. After 1997
In 1997, with HB 921, the legislature added aggravated sexual assault of a child to the listed
offenses found in Article 12.01, as follows:
(5) ten years from the 18th birthday of the victim of the offense:
***
(C) aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code; 52
With the same bill, the legislature added to Article 12.03(d) the phrase "Except as otherwise
provided by this chapter. " 53 The bill analysis for HB 921 explains the purpose of this change as
follows, "Amends Article 12.03(d), Code of Criminal Procedure, by making a conforming change. " 54
The conforming change was necessary because limitations for sexual assault was, at the time, five
years. 55 Absent the "except" phrase, the new, explicit ten-year limitation period in Article
12.01(5)(C) would conflict with Article 12.03(d)'s old "same for aggravated as for primary crime"
52
Acts 1997, 75 1h Leg., ch. 740, § 1.
53
Id., § 2.
54
Bill Analysis, House Comm. on Criminal Jurisprudence, H.B. 921, § 2 (April 9, 1997),
See also Bill Analysis, Senate Research Center, H. B. 921, § 2 (May 17, 1997).
55
TEX. CODE CRIM. PROC. art. 12.01(4)(C) (West 1996, 1998).
BENNETT CONCURRENCE- 12
provision. The express purpose of adding the "except" phrase to Article 12.03(d) was to give effect
to the explicit ten-years-from-eighteenth-birthday limitation period for aggravated sexual assault of
a child in Article 12.01.
Since then, the Legislature has added a second aggravated offense to the listed offenses in
Article 12.01: aggravated kidnapping with the intent to violate or abuse the victim sexually. The
current version of Article 12.01 therefore exp,licitly lists the limitation status oftwo "aggravated"
offenses. 56 Because the status of these two "aggravated" offenses are explicitly listed in Article
12.01, they are excepted from the operation of Article 12.03(d).
But aggravated assault is not explicitly listed in Article 12.01. The only way aggravated
assault could fall within the exception to Article 12.03(d) and by that means escape the "same for
aggravated as for primary crime" provision is if it were included in the catch-all provision for
unlisted felonies. That is, the "same for aggravated as for primary crime" provision would apply
unless the three-year catch-all phrase, by virtue of being another provision in the chapter, trumps it.
But, as explained above, the legislature's express purpose in adding the "except" clause to Article
12.03(d) was to resolve the conflict between the new ten-year-from-18th-birthday limitation
provisions that had been added to Article 12.01 in the same bill and the old "same for aggravated as
for primary crime" limitation provision. Article 12. 03(d)'s "except" clause was designed specifically
to apply to listed offenses.
It is, further, plainly illogical to conclude that the exception applies to the offenses that fall
within the three-year catch-all provision. Construing the three-year catch-all provision to supersede
56
See TEX. CODE CRIM. PROC. art. 12.0l(l)(B) (no limitation), (5)(B) (20 years from the
18 1h birthday of a victim younger than 17 years).
BENNETT CONCURRENCE- 13
Article 12.03 (d)'s "same for aggravated as for primary crime" provision would eviscerate the latter
provision entirely because it would make any aggravated offense-whether listed or not listed-an
exception to its dictates. Not a single aggravated offense would be subject to the "same for
aggravated as for primary crime" provision. Not a one. Article 12.03(d) would have zero
application.
And if the three-year catch-all provision trumps the "same for aggravated as for primary
crime" provision, the limitation period for aggravated robbery would be three years even though
limitations for plain robbery is five years. It seems unlikely (to say the least) that the legislature
would have intended the limitation period for robbery to be longer than that for aggravated robbery.
If anything, the exception added to Article 12.03(d) reinforces the notion that the legislature intended
for aggravated assault to have the same limitation period as assault because, while the legislature has
explicitly set out exceptions involving aggravated sexual assault and aggravated kidnapping, it has
not done so for aggravated assault.
The conclusion demanded by both legislative history and logic is that Article 12.03(d)
controls, and the limitation period for the aggravated-assault offense in this case was two years. 57
E. Judge Johnson and Judge Cochran's Concurrences
Judge Johnson's concurrence contends that it would be an absurd result to construe the
limitation period for aggravated assault as being the same as for a misdemeanor, i.e. two years.
While Judge Johnson is correct that sexual assault and kidnapping currently have limitation terms
57
This does not mean that the limitation period for aggravated assault will always be two
years. If the underlying assault is a felony, that offense would fall within the three-year catch-all
provision, and 12.03(d) would confer the same limitation period to an aggravated assault based on
that underlying felony.
BENNETT CONCURRENCE- 14
that exceed the three-year catch-all provision, that was not true when Article 12.03(d) was enacted.
As explained above, when 12.03(d) was enacted in 1974, all sex offenses had a limitation period of
one year (which is less than the two-year period for misdemeanors), and the offense of kidnapping
was not even listed in Article 12.01, which meant that both kidnapping and aggravated kidnapping
fell within the three-year catch-all provision, with or without Article 12.03(d). 58
I agree with Judge Johnson that we can look at surrounding statutory provisions in assessing
whether the plain language of a statutory provision under consideration is absurd. But in conducting
that inquiry-in determining whether the legislature could not have possibly intended what the
statutory language seems to say-we should look to the surrounding provisions that were in effect
or were enacted at the time the legislature enacted the statute under consideration, not at provisions
that were passed years or even decades later. 59 The biggest difficulty with Judge Jolrnson's
concurrence, as I see it, is that it attempts to ascertain the legislature's intent in 1974 by looking at
statutes that were passed long after that time, while failing to consider the statutory framework that
was actually in place in 1974.
Judge Johnson's concurrence next contends that the legislature surely could not have
intended to impose the same limitation period for a violent offense such as aggravated assault as for
a misdemeanor assault that merely involves an offensive or provocative touching. But some
misdemeanor assaults-causing bodily injury and threatening imminent bodily injury--do qualify
58
See this opinion at notes 33, 44-46, and accompanying text.
59
See Volosen v. State, 227 S.W.3d 77, 80 (Tex. Crim. App. 2007) ("in interpreting a prior
law, we generally accord little weight to subsequent legislative enactments").
BENNETT CONCURRENCE- 15
as violent offenses. 60
Moreover, Judge Johnson's concurring opinion does not take into account the fact that
aggravated assault was a misdemeanor before 1974. 61 When the legislature passed Article 12.03(d)
in 1974 it also made aggravated assault a third degree felony, 62 the lowest possible felony at the time,
just one level above a Class A misdemeanor. 63 Times have changed: aggravated assault is now a first
or second degree felony 64 and there is now a class of felonies below third degree. 65 But the absurd-
results inquiry turns on what the legislature could have possibly intended in 1974, when the statute
was enacted, not what it could have intended if it had enacted the statute today. We should keep in
mind that the 1974legislature is the same legislature that placed a one-year limitation period on all
sexual offenses-something that would be unthinkable today.
Further, Judge Johnson's expression of incredulity just amounts to saying that it seems
unlikely that the legislature intended a two-year limitation period for aggravated assault. If one looks
at the statute from the perspective of the 1974legislature, intending a two-year limitation period does
not seem at all unlikely, but even if it did, that is not the same as saying that the legislature could not
have possibly intended it.
Judge Cochran contends that several pre-1974 offenses were precursors to the modem
60
See TEX. PENAL CODE§ 22.0l(a)(l), (2).
61
See this opinion at note 20 and accompanying text.
62
See this opinion at note 49 and accompanying text.
63
See TEX PENAL CODE§§ 12.03(a), 12.04(a) (Vernon's 1974).
64
See TEX PENAL CODE§ 22.02(b) (current).
65
See ld. § 12.04(a).
BENNETT CONCURRENCE- 16
aggravated-assault offense, and that, included among these precursor offenses were felony offenses
that proscribed "assault with intent" to commit some other offense, such as murder, rape, robbery,
and burglary. 66 In my view, these "assault with intent" offenses were not precursors to the modem
aggravated-assault offense but were instead precursors to the modem attempt offenses. 67 Before
1974, there was no general attempt statute. 68 Attempt offenses were codified on an ad hoc basis.
There was an "attempt" offense for burglary, 69 but no attempt offense existed for murder or
robbery. 70 An "attempt" offense existed for rape, but only to the extent it was not already covered
by the offense of assault with intent to commit rape. 71 The promulgation of "assault with intent"
offenses was one of the ways in which the legislature proscribed uncompleted versions of major
crimes. These offenses were grouped together in their own chapter of the Penal Code, separate from
the chapter in which aggravated assault was proscribed. 72
Judge Cochran's concurrence observes that changing the name of the offense of"aggravated
66
See TEX. PENAL CODE, , arts. 1160-1164 (1948).
67
The offenses of maiming, disfiguring, and castration describe conduct that would fall
within the modem aggravated assault offense, but those offenses are worded very differently
from the modern aggravated assault offense. See id., arts. 1166-1168. By contrast, the pre-1974
offense titled aggravated assault contains provisions that are similar to the modem offense with
that name. See TEX. PENAL CODE,, art. 1147(6), (7) (Supp. 1972).
68
See TEX. PENAL CODE, passim (1948).
69
ld, art. 1402.
70
See id, Title 15, Ch. 16, arts. 1256-1258 and Title 17, Ch. 7, arts. 1408-1409.
71
Id, art. 1190 ("but not such as to bring it within the definition of assault with intent to
commit rape").
72
See id, Title 15, Ch. 2 (titled "Aggravated Assault and other offenses") and Title 15,
Ch. 4 (titled "Assault with intent to commit some other offenses").
BENNETT CONCURRENCE- 17
assault" to "felony assault" would make clear that the offense is not governed by Article 12.03 and
has a different limitation period than the unaggravated version of assault. But Judge Cochran's
discussion shows an example of the legislature doing precisely the opposite. As Judge Cochran
observes, the pre-1974 offense of assault with intent to commit rape was construed by this Court to
have a longer limitation period than the offense of rape, despite the fact that assault with intent to
commit rape was essentially an uncompleted rape. The 1974 Penal Code changed that by essentially
merging what was the offense of assault with intent to commit rape into the offense of attempted
rape. The result was that the limitation period for both offenses became the same, which at the time
was one year.
As Judge Cochran points out, the legislature could have exempted the offense of aggravated
assault from Article 12.03 by giving it a different name. Or it could have assigned aggravated assault
an express limitation period in Article 12.01, just as it has done for other offenses. The legislature
has done neither of these things. As it is, the language of the current statutory scheme affords no
logical basis for excluding aggravated assault from the "same for aggravated as for primary crime"
mandate of Article 12.03(d), and doing so renders that statute meaningless.
II. CONCLUSION
Although I conclude that the limitations period for the aggravated assault offense in this case
was two years, I agree with the Court that the law was unsettled. Consequently, I join the Court's
opm10n.
Filed: November 27, 2013
Publish
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0354-12
THE STATE OF TEXAS
v.
CARL ALAN BENNETT, Appellee
ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
JOHNSON, J., filed a concurring opinion.
CONCURRING OPINION
I join the Court's opinion, which affirms the judgment of the court of appeals based on the
unsettled state of the law in regard to the term of the statute of limitations for the offense that was
alleged by the indictment. After considering the statutes at issue, I conclude that the term is three
years.
One of our rules of statutory construction tells us that we construe a statute in accordance
with its plain meaning unless the plain meaning would produce absurd results that the legislature
could not possibly have intended. Boykin v. State, 818 S.W.2d 782,785 (Tex. Crim. App. 1991).
I would hold that this is such a case.
2
In examining the language in Article 12.03, I find that three of the four paragraphs,
concerning attempt, criminal conspiracy, solicitation, and organized criminal activity, all have the
same term of limitations as does the offense at issue. Only the fourth paragraph, aggravated
offenses, is different; it sets the term oflimitation at that of a lesser-included offense. Then, looking
at Article 12.01, I find that, for two of the six aggravated offenses, robbery and kidnapping, the
unaggravated offense is a felony and is specifically assigned a term of five years. Unaggravated
sexual assault is also a felony and has a specific term of ten years. Only unaggravated assault,'
perjury, and promotion of prostitution are misdemeanors, and each, if aggravated, is a felony. By
the elements of the offense, neither perjury nor promotion of prostitution are violent offenses,
leaving assault as the only violent offense with a term of two years. Surely the legislature did not
intend that a serious, violent felony would have the same statute-of-limitations term as a
misdemeanor that may involve merely causing physical contact that another person will regard as
offensive or provocative.
Clearly, given the widely differing views expressed in the various concurring opinions, only
the legislature can say definitively what it intended.
Filed: November 27, 2013
Publish
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0354-12
STATE OF TEXAS
v.
CARL ALAN BENNETT, Appellee
ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
COCHRAN, J., filed a concurring opinion.
OPINION
I agree with the majority that defense counsel was not ineffective for failing to raise
a limitations claim at trial. I also agree with the court of appeals that the law is "unsettled
as to whether the two-year statute of limitations applies to aggravated assault." 1 Defense
1
State v. Bennett, No. 05-11-00252-CR, 2012 WL 11181, at *4 (Tex. App.-Dallas Jan. 4,
20 12) (not designated for publication).
Bennett Concurring Opinion Page 2
counsel believed that the "catch-all" provision of Article 12.01 (7)2 applies to aggravated
assault and therefore the statute of limitations is three years from the date of the offense. I
agree with defense counsel, but only the Texas Legislature can finally and firmly resolve this
quandary because Article 12.03(d) does appear to contradict Article 12.01(7). There is an
easy legislative fix: Change the title of "aggravated" assault and "aggravated" perjury to
"felony" assault and "felony" perjury. Then the statute of limitations for both offenses is
plainly and unambiguously three years.
I.
The history of Texas statutes of limitations on various assaultive offenses is not
particularly illuminating on the present issue. The 1879 Penal Code divided all offenses into
either misdemeanors or felonies. 3 Felonies were defined as those offenses punishable by
either death or imprisonment in the penitentiary; everything else was a misdemeanor. 4
Simple assaults were classified as misdemeanors under the 1879 Penal Code because the
punishment was limited to a fine of between five and twenty-five dollars. 5 An assault
2
TEX. CODE CRIM. PROC. art. 12.01. Article 12.01(7) reads,
Except as provided in Article 12.03, felony indictments may be presented within
these limits, and not afterward: ... (7) three years from the date of the commission
of the offense: all other felonies.
3
TEX. PENAL CODE art. 53 (1879) ("Offenses are divided into felonies and misdemeanors.").
4
Id. art. 54 ("Every offense which is punishable by death or by imprisonment in the
penitentiary, either absolutely or as an alternative, is a felony; every other offense is a
misdemeanor.").
5
Id. art. 495 (1879) ("The punishment for a simple assault, or for assault and battery,
unattended with circumstances of aggravations, shall be a fine not less than five nor more than
Bennett Concurring Opinion Page 3
became aggravated whenever it was committed under any of a wide variety of
circumstances, 6 and those aggravated assaults were still misdemeanors, but were subject to
possible imprisonment in the county jail (not the penitentiary) for up to two years. 7 Article
497 noted that, "[t]he circumstances of aggravation mentioned in the preceding article are
of differing degrees, and the jury are to consider these circumstances in forming their verdict
and assessing the punishment." 8 The 1879 Penal Code also set out the felony offense of
"assault with intent to commit some other offense," 9 which was subject to the felony three-
twenty-five dollars.").
6
!d. art. 496. Those statutory aggravating circumstances included (1) assault on a peace
officer; (2) assault in a court or place of religious worship; (3) assault committed in another person's
home; (4) assault "committed by a person of robust health or strength upon one who is aged or
decrepit"; (5) assault committed by a man upon a woman or child or by a woman upon a child; (6)
assault using a whip or cowhide; (7) assault resulting in serious bodily injury; (8) assault with a
deadly weapon (but without the intent to maim or murder); (9) premeditated assault using means
"calculated to inflict great bodily injury"; and (1 0) assault committed while "in disguise."
7
!d. art. 498 ("The punishment for an aggravated assault or battery shall be a fine not less
than twenty-five nor more than one thousands dollars, or imprisonment in the county jail not less
than one month nor more than two years, or by both fine and imprisonment."); see, e.g., Davis v.
State, 6 Tex. App. 133, at *4 (Tex. Ct. App. 1879) (statute of limitations for misdemeanor offense
of aggravated assault on a female was two years).
8
!d. art. 497.
9
!d. arts. 499-506. Those "other" offenses included assault with the intent to maim, with the
intent to murder, with the intent to rape, with the intent to rob, or assault in an attempt to commit
burglary. !d. For example, in Moore v. State, 20 Tex. App. 275 (Tex. Ct. App. 1886), the Court of
Appeals noted that the statute of limitations for assault with intent to commit rape was three years
because it fell into the catch-all "all other felonies" category, even though the statute of limitations
for a completed rape was only one year. !d. at *4. The court explained,
The fact that we cannot see the reason of the rule in such cases cannot render those
rules oflimitation nugatory, and the maxim that where the reason of the rule fails the
law ceases to operate does not apply to limitations. The one year's limitation having
been expressly restricted to the offense of rape cannot control the minor degrees of
Bennett Concurring Opinion Page 4
year statute of limitations. 10 So, up until 1974, a simple assault was a misdemeanor, an
aggravated assault was an aggravated misdemeanor, and an assault with intent to commit
another specified crime was a felony. The first two, as misdemeanors, had a two-year statute
oflimitations, while the third, as a felony, had a three-year statute oflimitations. 11 The world
of assaults was divided into two groups-misdemeanors and felonies-and the statute of
limitations depended solely upon that categorization.
II.
The 1974 Penal Code condensed the three categories of assaultive offenses into just
two: simple assault, which is a misdemeanor, and aggravated assault, which is a felony. The
current Code of Criminal Procedure provision, Article 12.01, sets out the statute of
limitations for various specified felonies and ends with a residual or "catch-all" provision
that states that the statute of limitations for all unspecified felonies is three years. 12 Article
12.02 then states that the statute of limitations for all misdemeanors is two years. 13 Article
that crime, because the particular enumeration excludes offenses not enumerated,
and, there being no special time fixed for the minor degrees, they would fall within
the purview of the general statute of three years_ provided for "all other felonies."
(Code Crim. Proc., art. 199).
I d.
10
I d. arts. 499-505 (setting out various punishments of imprisonment in the penitentiary, with
a minimum of two years up to a maximum often years for assault with intent to commit robbery).
11
See, e.g., Stratman v. State, 436 S.W.2d 144, 146 (Tex. Crim. App. 1969) (felony offense
of assault with intent to commit murder had three year statute of limitations).
12
TEX. CODE CRIM. PROC. art. 12.01(7).
13
TEX. CODE CRIM. PROC. art. 12.02.
Bennett Concurring Opinion Page 5
12.03 deals with the various permutations of the primary offense that might be charged:
aggravated offenses, attempts, conspiracies, solicitations, and organized criminal activity.
In each case, the statute of limitations for the attempted offense, the conspiracy, the
solicitation, or the aggravated offense follows that of the primary offense as it was already
categorized under Article 12.01 or 12.02. 14 Thus, there is no statute of limitations for
attempted murder, manslaughter, some sexual assaults, continuous sexual abuse of a child,
or indecency with a child because the completed offense has no statute of limitations under
Article 12.01 (1 ). 15 The statute of limitations for attempted assault is two years because
assault is a misdemeanor and it has a two year statute of limitations under Article 12.02. 16
The statute oflimitations for conspiracy to commit money laundering is seven years because
the statute of limitations for the felony offense of money laundering is seven years under
Article 12.0 1(3)(E). 17 The statute oflimitations for solicitation of a felony is the same as that
for the felony solicited. 18 And the statute of limitations for aggravated offenses, unless
specified elsewhere in Chapter 12, is the same as the primary offense. 19
The rule of Article 12.03 would appear to be simple: categorize the charged offense
14
!d. art. 12.03.
15
!d. art. 12.03(a).
16 !d.
17
!d. art. 12.03(b).
18
!d. art. 12.03(c).
19
!d. art. 12.03(d).
Bennett Concurring Opinion Page 6
as a felony or a misdemeanor. If the charged offense is a felony look under the various
provisions of Article 12.01 to see ifthere is a special statute of limitations. If not, then the
residual or "catch-all" provision of three years applies to all unspecified felonies. If the
charged offense is a misdemeanor, then the statute oflimitations is two years. If the charged
offense falls in one of the "special circumstances" categories, the regular limitations period
for the offense applies.
In most instances, an "aggravated" offense elevates a felony offense to a more serious
felony offense-e.g., aggravated robbery, aggravated sexual assault, aggravated kidnapping.
But in some instances, the "aggravated" offense is a felony while the simple offense is a
misdemeanor, e.g. simple assault is a misdemeanor and aggravated assault is a felony; simple
perjury is a misdemeanor and aggravated perjury is a felony. Did the Texas Legislature
intend that the aggravated offense-the felony-be governed by Article 12.01, the statute of
limitations for all felonies, or by the misdemeanor statute of limitations in Article 12.02?
That is the underlying question in this case.
c
Texas courts have, in the post-1974 era, simply assumed that the statute oflimitations
for all misdemeanor assaults is two years and that the statute oflimitations for aggravated or
felony assaults is three years. In Ex parte Salai 0 we blithely noted that "[t]he statute of
20
724 S.W.2d 67 (Tex. Crim. App. 1987).
Bennett Concurring Opinion Page 7
limitations for aggravated assault has long been three years[,]" 21 and in Hunter v. State 22 we
stated that the State could prove that the charged offense "was committed at any time before
the return of the indictment and within the statute oflimitations for the offense of aggravated
assault, a period of three years.'m In both cases, this Court assumed that there was no doubt
on the issue at all: a felony aggravated assault fell into the three-year "catch-all" felony
statute of limitations of Article 12.01. Period. The intermediate courts of appeals followed
suit and all have simply stated, without further discussion or analysis, that the statute of
limitations for the felony offense of aggravated assault is three years. 24
But, in Ex parte Matthews, 25 this Court, again blithely, assumed that the statute of
limitations for the felony offense of aggravated perjury was two years under Article 12.03 (d)
which reads:
Except as otherwise provided by this chapter, any offense that bears the title
21
Id at 68.
22
576 S.W.2d 395 (Tex. Crim. App. 1979).
23
!d. at 399.
24
See, e.g., Monroe v. State, 871 S.W.2d 801, 805 (Tex. App.-Houston [14th pist.] 1994,
no pet.) ("In this case the offense of aggravated assault has a three year period of limitation.");
Peacock v. State, 690 S.W.2d 613, 616 (Tex. App.-Tyler 1985, no pet.) ("The statute oflimitations
for aggravated assault is three years.");_ see also Gilmore v. State, No. 14-97-00887-CR, 1999 WL
976499, at *9 (Tex. App.-Houston [14th Dist.] Oct. 28, 1999, no. pet.) (setting out jury instructions
and defense counsel's argument that the statute of limitations for the offense of aggravated assault
is three years).
25
933 S.W.2d 134 (Tex. Crim. App. 1996), overruled on other grounds by Proctor v. State,
967 S. W.2d 840 (Tex. Crim. App. 1998).
Bennett Concurring Opinion Page 8
"aggravated" shall carry the same limitation period as the primary crime. 26
And intermediate courts of appeals have followed Matthews in holding that the statute of
limitations for the felony offense of aggravated perjury is two years. 27
Clearly, one of these two lines of cases is wrong, but which one is it? As Professors
Dix and Schmolesky have noted, Article 12.03(d) is in conflict with the residuary or "catch-
all" provision of Article 12.01(7) in at least the two instances of aggravated assault and
aggravated perjury because, in both, the "primary" offense is a misdemeanor, but the
"aggravated" offense is a felony. 28 Professors Dix and Schmolesky would resolve the
dilemma by saying that the "aggravated" offense statute is the more specific provision and
thus trumps the more general residual provision of Article 12.01(7). 29
But, in addressing an analogous situation, we held tha:t the "aggregation" of numerous
misdemeanor thefts into a single felony offense invokes the felony statute oflimitations, not
the misdemeanor two-year statute of limitations for the primary theft offenses. 30 As this
Court explained, Section 31.09 (aggregated theft) "creates a separate offense and defines
26
TEX. CODE CRIM. PROC. art. 12.03(d).
27
See, e.g., Ex parte Tamez, 4 S. W.3d 854, 856 (Tex. App.-Houston [1st Dist.] 1999), aff'd,
38 S.W.3d 159 (Tex. Crim. App. 2001); State v. Coleman, 962 S.W.2d 267, 268 (Tex.
App.-Houston [1st Dist.] 1998, pet. refd); Ex parte Zain, 940 S.W.2d 253,254 (Tex. App.-San
Antonio 1997, no pet.).
28
40 GEORGE E. DIX&JOHNM. SCIDv10LESKY, CRIMINALPRACTICEANDPROCEDURE § 6:29
at 261-62 (Texas Practice 3rd ed. 2011).
29
!d. at 261 (citing the Code Construction Act, TEX. Gov'T CODE § 311.026(b)).
30
Graves v. State, 795 S.W.2d 185, 187 (Tex. Crim. App. 1990).
Bennett Concurring Opinion Page 9
conduct for purposes of jurisdiction, punishment and period of limitations from
prosecution." 31 Is not the "aggregation" of misdemeanor thefts into a single felony offense
logically the same as the "aggravation" of a misdemeanor assault into the felony offense?
Is there some reason to think that the Legislature intended to treat an "aggregated" felony
theft differently from an "aggravated" felony assault for purposes of jurisdiction or
limitations? I cannot think of any persuasive rationale for why the Legislature would declare
that all felonies have, at a minimum, a three-year statute oflimitations except for aggravated
assault and aggravated perjury simply because of the title of those offenses. Presumably,
then, ifthe Legislature did nothing more than change the name ofboth of those offenses from
"aggravated" assault or perjury to "felony" assault or perjury, the statute oflimitations would
clearly be three years as are all other "residual" felony offenses. The Legislature could make
its intention clear by either (1) changing the name of these two offenses, or (2) amending
article 12.03(d) to explicitly note its application to these two felony offenses. 32
At any rate, I agree that defense counsel in this case was not constitutionally deficient
31 ld.
32
Article 12.03(d) might be amended to read:
Except as otherwise provided by this chapter, any offense that bears the title
"aggravated," including aggravated assault and aggravated perjury, shall carry the
same limitation period as the primary crime.
Although there is an offense titled "Aggravated Promotion ofProstitution," that crime is so different
from the offenses described in "Promotion of Prostitution" that it would seem peculiar to presume
that the Legislature intended that this first or third degree "aggravated" offense have the same statute
oflimitations as the various limitations for the misdemeanor, state jail felony, or third degree felony
offenses set out in "Promotion of Prostitution" offense. Application of Article 12.03(d) would
appear particularly inept here.
Bennett Concurring Opinion Page 10
for believing that the statute of limitations for aggravated assault is, as we have blithely
noted, three years and for therefore not filing a motion to quash the indictment.
Filed: November 27, 2013
Publish
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0354-12
THE STATE OF TEXAS
v.
CARL ALAN BENNETT, Appellee
ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
MEYERS, J., filed a dissenting opinion.
DISSENTING OPINION
Bennett filed a motion for new trial claiming that his counsel was ineffective for
failing to challenge the indictment on the basis that the two-year statute of limitations
barred his aggravated-assault charge. The trial judge said that he would not have granted
a motion to quash if one had been filed because he believed the statute of limitations to be
three years, but he granted the motion for new trial because defense counsel should have
preserved the issue for appellate review. The State appealed the trial court's decision and
Bennett Dissent-Page 2
the court of appeals reversed, holding that, "Because the law is, at best, unsettled as to
whether the two-year statute of limitations applies to aggravated assault, the trial court did
not have discretion to grant a new trial based on failure to preserve that claim for
appellate purposes." State v. Bennett, No. 05-11-00252-CR, 2012 Tex. App. LEXIS 24 at
*10 (Tex. App.-Dallas January 4, 2012) (not designated for publication).
The majority overlooks the question of whether the trial judge abused his
discretion. I disagree with the court of appeals that it was an abuse of discretion for the
trial judge to grant a new trial in this case. How can it be an abuse of discretion when
there is uncertainty in the law? To me, the fact that the law regarding the statute of
limitations was unsettled at the time of the trial indicates that the trial judge did not abuse
his discretion in granting a new trial.
I would hold that the court of appeals erred in reversing the trial court's order
granting a new trial. Because the majority affirms the court of appeals, I respectfully
dissent.
Filed: November 27, 2013
Publish
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0354-12
THE STATE OF TEXAS
v.
CARL ALAN BENNETT, Appellee
ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
PRICE, J., filed a dissenting opinion.
DISSENTING OPINION
I agree with Presiding Judge Keller that the applicable statute of limitations for the
particular aggravated assault in this case is two years, not three, and I therefore join Part I of
her concurring opinion. Ill-considered dicta from our own precedents and contrary lower
court opinions notwithstanding, it is clear enough to me from the face of the statutory
language that the limitations period is two years. Judge Keller's discussion of the legislative
Bennett - 2
history reinforces this conclusion. 1 I part company with Judge Keller, and with the Court,
in that I would hold both that the applicable limitations period is two years and that trial
counsel rendered constitutionally ineffective assistance of counsel in failing to seek dismissal
of the indictment on that basis. Because the Court today does not, I respectfully dissent.
Judge Keller's concurring opinion documents that there was a lack of any on-point
case law at the time of the appellee's trial that squarely held that the limitations period is two
years. 2 There are at least two court of appeals opinions in which the lower courts felt
constrained by this Court's previous dicta to hold that it is, in fact, three. 3 But, as Judge
Keller's limitations analysis today persuasively demonstrates, the statutory language is
plainly to the contrary. Moreover, there was case law at the time of trial from which the
appellee's trial counsel could readily have fashioned a substantial argument that the statute
should indeed be construed according to its plain import. 4
Presiding Judge Keller's Concurring Opinion at 6-13.
2
!d. at 3-6.
Monroe v. State, 871 S.W.2d 801, 805 (Tex. App.-Houston [14th Dist.] 1994, no pet.);
Peacockv. State, 690 S.W.2d 613,616 (Tex. App.-Tyler 1985, no pet.).
4
A lawyer is obliged to zealously represent his client's interests within the bounds of the law.
TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble~ 3. He has, moreover, "a duty to use legal
procedure for the fullest benefit of the client's cause," so long as the bases for his advocacy is not
frivolous. !d. at R. 3.01 & cmt. 1. A legal contention is frivolous "ifthe lawyer is unable either to
make a good faith argument that [the contention] is consistent with existing law or that it may be
supported by a good faith argument for an extension, modification or reversal of existing law." !d. at
cmt. 2. The language of Articles 12.01 and 12.03(d) ofthe Code of Criminal Procedure, together with
Bennett - 3
The Sixth Amendment guarantees an accused the benefit of trial counsel who is
familiar with the applicable law. 5 Should trial counsel's investigation of that law reveal
ambiguity or uncertainty, he must advise his client with respect to any difficult choices that
such ambiguity or uncertainty may engender, offering his best estimate of how it will
eventually be resolved, so that his client will be able to make an informed decision. Trial
counsel should not ordinarily be found deficient under these circumstances just because his
best guess later proves inaccurate with respect to how the law may be clarified in the future.
That, I think, is the gist of the case law that the Court invokes today to deny the appellee's
ineffective-assistance-of-counsel claim. 6
But I do not think this principle should apply invariably. In an adversarial system, it
is difficult to imagine any rational justification for an attorney's failure to urge a trial court
to follow the plain dictates of a statute that would favorably-and finally-dispose of his
client's case just because there is dicta out there that essentially assumes-sans critical
this Court's opinion in Matthews, provided a basis for the appellee's trial counsel to argue that the
applicable limitations period is two years that was anything but frivolous. TEX. CODE CRIM. PROC.
arts. 12.01, 12.03(d); Ex parte Matthews, 933 S. W.2d 134 (Tex. Crim. App. 1996), overruled on other
grounds by Proctor v. State, 967 S. W.2d 840 (Tex. Crim. App. 1998).
See Ex parte Welch, 981 S. W.2d 183, 185 (Tex. Crim. App. 1998) ("[T]o be reasonably likely
to render effective assistance to his client, a lawyer must be sufficiently abreast of developments in
criminal law aspects implicated in the case at hand.").
6
Majority Opinion at 4 n.l2.
Bennett - 4
exegesis-that the statute would be construed other than by its plain import. 7 Trial counsel
did not require a "crystal ball" to appreciate that there was nothing to lose and potentially
everything to gain by raising the limitations issue on the appellee's behalf. 8 No doubt, had
trial counsel consulted with the appellee about the pros and cons of pursuing a limitations
claim, the appellee would eagerly have chosen to do so. And I can think of no reasonable
strategic or tactical consideration that could support advising the appellee to choose any
differently. 9 There is simply no advantage to be gained from failing to pursue a good-faith
statute-of-limitations claim (at least outside the parameters of a negotiated plea). Finally, as
Judge Keller's concurring opinion today makes abundantly clear, the appellee would
ultimately (even if not immediately) have prevailed with such a limitations claim had he
timely raised it in the trial court, 10 and the charges against him would have been dismissed
7
We have said that a claim of ineffective assistance of counsel is not foreclosed by the fact that
an issue is one of first impression if the legal proposition that trial counsel failed to invoke "should
have been evident from a plain reading of the ... statute itself[.]" Welch, 981 S. W.2d at 185.
8
See Ex parte Chandler, 182 S. W.3d 350,359 (Tex. Crim. App. 2005) ("[A] bar card does not
come with a crystal ball attached ... [and] legal advice which only later proves to be incorrect does
not normally fall below the objective standard of reasonableness under Strickland [v. Washington, 466
U.S. 668 (1984)].").
9
See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) ("[W]hen no reasonable
trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective
standard of reasonableness as a matter of law[.]").
10
We have held that-at least to the extent that it operates as a "factual defense"-a statute-of-
limitations claim "is forfeited if not asserted at or before the guilt/innocence stage of trial." Proctor,
967 S.W.2d at 844. See Phillips v. State, 362 S.W.3d 606,617 (Tex. Crim. App. 2011) ("We have
Bennett - 5
with prejudice. In short, there is no reasonable cost-benefit analysis that would excuse trial
counsel's omission here.
I would hold that the appellee's trial counsel performed deficiently and that his
deficiency seriously prejudiced his client. I would therefore reverse the judgment of the
court of appeals and leave intact the trial court's order granting of the appellee's motion for
new trial. Because the Court does not, I respectfully dissent.
FILED: November 27, 2013
PUBLISH
stated, in a post-Proctor case, that a limitations bar may be raised in a pretrial motion to quash or
dismiss, a pretrial writ, at trial, on direct appeal, or in a collateral proceeding."). I withhold judgment
whether the appellee's limitations claim in this case is of a kind that he could vindicate by post-
conviction application for writ of habeas corpus in contemplation of Phillips.