ACCEPTED
12-15-00183-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/17/2015 9:00:00 AM
Pam Estes
CLERK
Cause Number 12-15-00183-CR
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
Frederick Deshun Lee
9/17/2015 9:00:00 AM
vs. PAM ESTES
Clerk
The State of Texas
State’s Brief
On Appeal in Cause Number 31727, Counts 1 and 2
From the * District Court of Anderson County, Texas
Hon. Pam Foster Fletcher, Presiding
Melinda Fletcher
SBN 18403630
Special Prosecution Unit
P O Box 1744
Amarillo, Texas 79105
Phone 806.433.8720
Fax 866.923.9253
mfletcher@sputexas.org
Oral Argument is Waived
Table of Contents
Index of Authorities .................................. 3
Issue Presented ....................................... 1
Summary of the Argument ............................... 2
Argument .............................................. 2
Response to Sole Issue: Because the underlying
offense is a felony, the statute of limitations
for the offense of aggravated assault on a public
servant is three years. .............................. 2
Prayer ................................................ 7
Certificate of Compliance ............................. 8
Certificate of Service ................................ 8
12-15-00183-CR State’s Brief pg. 2
Index of Authorities
Texas State Case Law
Bennett v. State, 415 S.W.3d 867
(Tex. Crim. App. 2013) ......................... 2, 3
Fantich v. State, 420 S.W.3d 287
(Tex. App. –Tyler 2013, no pet.) ............... 5, 6
State v. Schunior, --- S.W.3d ---, 2015 WL 1875972
(Tex. App. –San Antonio 2015, pet. granted) ....... 6
Texas Code of Criminal Procedure
Art. 12.03 ...................................... 3, 4, 7
Art. 12.01 ............................................ 4
Texas Penal Code
§ 22.01 ...................................... 4, 5, 6, 7
§ 22.02 ............................................... 4
12-15-00183-CR State’s Brief pg. 3
Cause Number 12-15-00183-CR
Frederick Deshun Lee
vs.
The State of Texas
To the Honorable Justices of the Court of Appeals:
Appellee, the State of Texas, respectfully presents
this brief in support of the judge’s ruling refusing to
find that the statute of limitations on the charge of
aggravated assault on a public servant is only two years.
Lee’s convictions should be affirmed.
Issue Presented
Response to Sole Issue: Because the underlying
offense is a felony, the statute of limitations for the
offense of aggravated assault on a public servant is
three years.
12-15-00183-CR State’s Brief pg. 1
Summary of the Argument
Appellant’s sole issue should be overruled because
the primary offense underlying the crime of aggravated
assault on a public servant is assault on a public
servant, a felony. Therefore, the statute of limitations
is three years. The indictment against Lee was presented
within the 3-year limit, and so his convictions should
be affirmed.
Argument
Response to Sole Issue: Because the underlying offense is
a felony, the statute of limitations for the offense of
aggravated assault on a public servant is three years.
In 2013, the Court of Criminal Appeals released its
opinion in Bennett v. State, 415 S.W.3d 867 (Tex. Crim.
App. 2013). Bennett alleged that his attorney was
ineffective for failing to assert a violation of the
statute of limitations, even though he was indicted for
aggravated assault more than two years after the offense.
12-15-00183-CR State’s Brief pg. 2
Id. at 868. The Court acknowledged that Art. 12.03(7) and
prior opinions issued from the same Court were in
conflict. Id. at 869. Without settling the conflict, the
Court found that Bennett’s counsel was not ineffective.
Id. The Court had previously held that the statute of
limitations for aggravated assault was three years. Id.
at 869. However, the Court found that Art. 12.03(7) of
the Code of Criminal Procedure could operate to make the
limitations period only two years. It found defense
counsel was not ineffective for failing to assert a
violation of a statute of limitations in the midst of
this uncertainty. It also declared, “[T]he law is, at
best, unsettled as to whether the two-year statute of
limitations applies to aggravated assault…” Bennett at
869.
Since the Bennett opinion, courts have struggled to
settle the conflict in the statutes regarding the statute
of limitations for aggravated assault. The State urges
that the confusion does not exist in this particular
case. Even under Art. 12.03(7), the statute of
12-15-00183-CR State’s Brief pg. 3
limitations for aggravated assault on a public servant
is three years.
An offense that bears the title “aggravated” shall
carry the same limitation period as the primary crime.
Tex. Crim. Proc. Code Art. 12.03(d). 1 Lee was charged
with two counts of aggravated assault on a public
servant. (CR 1:6-7) Aggravated assault on a public
servant is a second degree felony offense. Tex. Penal
Code § 22.02(b)(2)(B). The primary crime of this
aggravated offense, assault on a public servant, is a
third degree felony offense. Tex. Penal Code. §
22.01(b)(1). The statute of limitations for an assault
on a public servant is three years. Tex. Code Crim. Proc.
Art. 12.01(7). Therefore, the statute of limitations for
an aggravated assault on a public servant is also three
years. Tex. Crim. Proc. Code Art. 12.03(d).
Lee disagrees with the State in that he asserts that
the “primary crime” of aggravated assault on a public
1 The statute says, “Except as otherwise provided by this chapter…” The facts
of this case do not fit within the exceptions that are otherwise provided by
the chapter.
12-15-00183-CR State’s Brief pg. 4
servant is the misdemeanor offense of assault. According
to his argument, this would make the statute of
limitations only two years because of the misdemeanor
nature of the primary crime. The State disagrees, and
asserts that the “primary crime” in this case is the
felony offense of assault on a public servant. The
outcome of this appeal hinges on the determination of
whether the underlying “primary crime” of aggravated
assault on a public servant is a felony or a misdemeanor.
Penal Code § 22.01 outlines the criminal offense of
Assault. Subsection (a) defines the misdemeanor offense
of assault. Subsection (b) defines the felony offense of
assault on a public servant. This Court previously
conceded that § 22.01 does include a “felony assault.”
See Fantich v. State, 420 S.W.3d 287, 290 (Tex. App. –
Tyler 2013, no pet.) (“But either misdemeanor or felony
assault can be the ‘primary crime’ for aggravated
assault.”)
Fantich questioned the statute of limitations for
the offense of aggravated assault with a deadly weapon.
12-15-00183-CR State’s Brief pg. 5
This Court noted that the indictment against Fantich did
not allege facts that would render his assault a felony
under Penal Code § 22.01. Based on that decision, this
Court found the statute of limitations for aggravated
assault with a deadly weapon to be two years. Fantich at
291. The San Antonio Court of Appeals arrived at the same
conclusion in another case involving aggravated assault
with a deadly weapon. See State v. Schunior, --- S.W.3d
---, 2015 WL 1875972, at *8 (Tex. App. –San Antonio 2015,
pet. granted). The State appealed the Schunior decision
and the Court of Criminal Appeals has granted the
petition for review.
Unlike the crimes involved in Fantich and Schunior,
the crime of assault on a public servant does appear in
Penal Code § 22.01 and it is a felony. Tex. Penal Code §
22.01(b)(1). This distinction is glaring, not subtle.
This crime is not aggravated because the victim is a
public servant; the crime is aggravated in this case by
the use or exhibition of a deadly weapon. (CR 1:6) Without
the deadly weapon, the offense would still be a felony,
12-15-00183-CR State’s Brief pg. 6
per Penal Code § 22.01. This is the “primary crime,” and
Art. 12.03(7) declares the statute of limitations to be
three years for this felony offense.
Lee’s sole issue should be overruled and his
convictions should be affirmed.
Prayer
The State prays that this Honorable Court affirm the
ruling of the trial court and declare that the statute
of limitations for aggravated assault on a public servant
is three years.
Respectfully Submitted,
/s/ Melinda Fletcher
Melinda Fletcher
SBN 18403630
Special Prosecution Unit
P O Box 1744
Amarillo, Texas 79105
Phone 806.433.8720
Fax 866.923.9253
mfletcher@sputexas.org
12-15-00183-CR State’s Brief pg. 7
Certificate of Compliance
I hereby certify that, according to Microsoft
Word, this brief contains a total of only 1304 words. The
length of this document is in compliance with the Texas
Rules of Appellate Procedure.
/s/ Melinda Fletcher
Melinda Fletcher
Certificate of Service
I hereby certify that a true and correct copy of
the foregoing Brief for the State was served on Nicholas
Mensch, the attorney for Lee, via electronic mail on this
the 17th day of September, 2015.
/s/ Melinda Fletcher
Melinda Fletcher
12-15-00183-CR State’s Brief pg. 8