PD-1528-15 PD-1528-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/23/2015 2:29:06 PM
Accepted 11/24/2015 11:46:27 AM
ABEL ACOSTA
No. _____________________ CLERK
IN THE COURT OF CRIMINAL APPEALS
FREDERICK DESHUN LEE v. THE STATE OF TEXAS
On Petition for Discretionary Review from
Appeal No. 12-15-00183-CR
in the Court of Appeals, Twelfth District, at Tyler
Trial Court Cause No. 31727 (Counts I and II)
3rd Judicial District Court
Anderson County, Texas
Hon. Pam Foster Fletcher, Judge Presiding
PETITION FOR DISCRETIONARY REVIEW
State Counsel for Offenders
Appellate Section
Nicholas Mensch
State Bar of Texas No. 24070262
P. O. Box 4005
November 24, 2015 Huntsville, TX 77342
(936) 437-5252
(936) 437-5279 (fax)
nicholas.mensch@tdcj.texas.gov
Attorney for Petitioner
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
PETITIONER:
Frederick Deshun Lee, TDCJ# 1645475
TRIAL AND APPELLATE COUNSEL FOR PETITIONER:
Nicholas Mensch
State Bar of Texas No. 24070262
State Counsel for Offenders
P.O. Box 4005; Huntsville, Texas 77342
(936) 437-5252/(936) 437-5279 fax
RESPONDENT:
The State Of Texas
TRIAL COUNSEL FOR RESPONDENT
Cindy Garner
State Bar of Texas No. 07673100
Special Prosecution Unit
500 South Seventh Street; Crockett, Texas 75835
(936) 545-5297
APPELLATE COUNSEL FOR RESPONDENT:
Melinda Mayo Fletcher
State Bar of Texas No. 18403630
Special Prosecution Unit
P.O. Box 1744; Amarillo, Texas 79105
(806) 367-9407/(866) 923-9253 fax
ii
TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................................. ii
Index of Authorities ................................................................................................. iv
Statement Regarding Oral Argument ....................................................................... 1
Statement of the Case................................................................................................ 1
Statement of Procedural History ............................................................................... 2
Ground for Review.................................................................................................... 2
Whether the primary crime for Aggravated Assault on a Public
Servant should be misdemeanor assault instead of felony assault,
thus making the applicable statute of limitations two years? ................... 4
Statement of Facts ..................................................................................................... 3
Argument................................................................................................................... 4
Prayer for Relief ...................................................................................................... 11
Certificate of Compliance ....................................................................................... 12
Certificate of Service .............................................................................................. 12
Appendix
iii
INDEX OF AUTHORITIES
Cases
Boykin v. State,
818 S.W.2d 782 (Tex. Crim. App. 1991) ........................................................7
Clinton v. State,
354 S.W.3d (Tex. Crim. App. 2011) ..............................................................7
Ex parte Keller
173 S.W.3d 492 (Tex. Crim. App. 2005) .................................................... 7-8
Ex parte Rieck,
144 S.W.3d 510 (Tex. Crim. App. 2004) ........................................................8
Fantich v. State,
420 S.W.3d 287 (Tex. App.—Tyler 2013, no pet.) .....................................2, 6
Gallardo v. State,
768 S.W.2d 875 (Tex. App.—San Antonio 1989. pet. ref'd) ..........................5
Henson v. State,
No. 05-97-01894-CR, 2000 Tex. App. LEXIS 5273 (Tex. App.—Dallas
2000, pet. ref'd) ............................................................................................ 8-9
Hernandez v. State,
127 S.W.3d 768 (Tex. Crim. App. 2004) ........................................................5
Ibarra v. State,
11 S.W.3d 189 (Tex. Crim. App. 1999) ..........................................................5
Lee v. State,
No. 12-15-00183-CR, 2015 Tex. App. LEXIS 11680 (Tex. App.—Tyler
November 12, 2015, pet. filed) ....................................................................1, 2
Rushing v. State,
353 S.W.3d 863 (Tex. Crim. App. 2011) ........................................................7
State v. Bennett,
415 S.W.3d 867 (Tex. Crim. App. 2013) ....................................................4, 8
iv
State v. Schunior,
No. 04-14-00347-CR, 2015 Tex. App. LEXIS 3898 (Tex. App.—San
Antonio 2015, pet. filed)..................................................................................1
Vasquez v. State,
557 S.W.2d 779 (Tex. Crim. App. 1977) ................................................. 5, 11
White v. State,
61 S.W.3d 424 (Tex. Crim. App. 2001) ..........................................................7
Statutes
Texas Code of Criminal Procedure art. 12.01 ..........................................................5
Texas Code of Criminal Procedure art. 12.01(1)-(6) .................................................5
Texas Code of Criminal Procedure art. 12.01(7) ............................................. 4, 5, 6
Texas Code of Criminal Procedure art. 12.02(a) ......................................................9
Texas Code of Criminal Procedure art. 12.03(d) ............................................ passim
Texas Code of Criminal Procedure art. 21.02(6) ......................................................5
Texas Code of Criminal Procedure art. 42.08(b) ......................................................4
Texas Government Code § 311.011(a) ......................................................................7
Texas Government Code § 311.011(b) ......................................................................8
Texas Government Code § 311.021...........................................................................7
Texas Penal Code § 22.01(a) ............................................................................ 6, 7, 9
Texas Penal Code § 22.01(b) .....................................................................................6
Texas Penal Code § 22.02 ......................................................................................6, 9
v
Treatises
MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed.) .........................................9
vi
Frederick Deshun Lee petitions this Court to review the Twelfth Court of
Appeals’ opinion and judgment affirming the trial court’s judgment:
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested. This Court has granted the State’s Petition
for Discretionary Review in State v. Schunior, No. 04-14-00347-CR, 2015 Tex.
App. LEXIS 3989 at ** 3 (Tex. App.—San Antonio 2015, pet. granted, No. PD-
0526-15) but did not permit oral argument. Schunior also involves the
determination of what the applicable statute of limitations for aggravated assault
related offenses is.
STATEMENT OF THE CASE
On April 24, 2014 an Anderson County grand jury returned an indictment
charging Petitioner with two counts of Aggravated Assault of a Public Servant
alleged to have occurred on or about February 29, 2012. (C.R. at 6-7). On June 5,
2015, Petitioner pled guilty to both counts as charged in the indictment pursuant to
a plea bargain agreement and the trial court assessed his punishment at 17 years’
confinement in the Texas Department of Criminal Justice (“TDCJ”) for each count.
(3 R.R. at 21, C.R. at 99-109). The Twelfth Court of Appeals affirmed the trial
court’s denial of his motion to set aside the indictment that claimed the applicable
statute of limitations for aggravated assault of a public servant was two years. Lee
v. State, No. 12-15-00183-CR, 2015 Tex. App. LEXIS 11680 (Tex. App.—Tyler
1
November 12, 2015, pet. filed) (not designated for publication). This Court should
grant review as the Twelfth Court of Appeals has decided an issue of state law that
has not been settled by this Court. See Tex. R. App. 66.3(b).
STATEMENT OF PROCEDURAL HISTORY
The Twelfth Court of Appeals affirmed the trial court’s denial of Petitioner’s
motion to set aside the indictment that claimed the applicable statute of limitations
for aggravated assault of a public servant was two years. Lee v. State, No. 12-15-
00183-CR, 2015 Tex. App. LEXIS 11680 (Tex. App.—Tyler November 12, 2015,
pet. filed) (not designated for publication).1 Relying upon their own decision in
Fantich v. Texas, 420 S.W.3d 287 (Tex. App.—Tyler 2013, no pet.), the Court of
Appeals held that the applicable statute of limitations for Aggravated Assault on a
Public Servant was three years as the primary crime of assaulting a public servant
is a felony. (see Appendix). No motion for rehearing was filed.
GROUND FOR REVIEW
Whether the primary crime for Aggravated Assault on a Public Servant should be
misdemeanor assault instead of felony assault, thus making the applicable statute
of limitations two years?
1
The panel that decided this case was composed of, Worthen, CJ., Hoyle and Neely, JJ.,
with Justice Hoyle signing the Memorandum Opinion.
2
STATEMENT OF FACTS
On April 24, 2014 an Anderson County grand jury returned an indictment
charging Petitioner with two counts of Aggravated Assault of a Public Servant
under Tex. Pen. Code § 22.02 alleged to have occurred on or about February 29,
2012. (C.R. at 6-7). Specifically, the indictment alleged that on or about February
29, 2012, in Anderson County, Texas, Petitioner:
(Count One): intentionally, knowingly, or recklessly cause bodily
injury to Thomas Lobasso by stabbing him in the hand and/or wrist,
and the defendant did then and there use or exhibit a deadly weapon,
to wit: a sharp metal object, during the commission of said assault,
and the defendant did then and there know that the said Thomas
Lobasso was then and there a public servant, to-wit: an employee of
the Texas Department of Criminal Justice, and that the said Thomas
Lobasso was then and there lawfully discharging an official duty, to
wit: supervising individuals in the custody of the Texas Department of
Criminal Justice.
(Count Two): intentionally, knowingly, or recklessly cause bodily
injury to Derek Wooldridge by stabbing him in the arm, and the
defendant did then and there use or exhibit a deadly weapon, to wit: a
sharp metal object, during the commission of said assault, and the
defendant did then and there know that the said Derek Wooldridge
was then and there a public servant, to-wit: an employee of the Texas
Department of Criminal Justice, and that the said Derek Wooldridge
was then and there lawfully discharging an official duty, to wit:
supervising individuals in the custody of the Texas Department of
Criminal Justice.
On March 31, 2015, the trial court heard Petitioner’s Motion to Set Aside the
Indictment that alleged that the applicable statute of limitations was two years. (2
R.R. at 7-10, C.R. at 74-76) After hearing arguments from both the Petitioner and
3
the State, the trial court denied the motion. (2 R.R. at 10). Thereafter, on June 5,
2015, Petitioner pled guilty to both counts as charged in the indictment pursuant to
a plea bargain agreement and the trial court assessed his punishment at 17 years’
confinement in the Texas Department of Criminal Justice (“TDCJ”) for each count.
(3 R.R. at 21, C.R. at 99-109). Pursuant to Tex. Code Crim. Proc. Art. 42.08(b), the
sentences were cumulated on Petitioner’s conviction for Harassment in Cause No.
30,830 out of the 3rd District Court of Anderson County. (C.R. at 105-108).
ARGUMENT
Whether the primary crime for Aggravated Assault on a Public Servant
should be misdemeanor assault instead of felony assault, thus making the
applicable statute of limitations two years?
In 2013, this Court issued an opinion in State v. Bennett, 415 S.W.3d 867
(Tex. Crim. App. 2013). Although this Court found that Mr. Bennett’s trial counsel
was not ineffective for failing to assert a statute of limitations violation, this Court
did acknowledge that Tex. Code Crim. Proc. Art. 12.01(7) could operate to the
make statute of limitations for aggravated assault only two years and stated “[T]he
law is, at best, unsettled as to whether the two-year statute of limitations applies to
aggravated assault…”. Id. at 869.
“The enactments of statues of limitations protect the accused from having to
defend themselves against charges when the basic facts may have become
obscured by the passage of time and to minimize the dangers of official
4
punishment because of acts in the far-distant past. Such a time limit may also have
the salutary effect of encouraging law enforcement officials promptly to
investigate suspected criminal activity.” Hernandez v. State, 127 S.W.3d 768, 772
(Tex. Crim. App. 2004). See also Ibarra v. State, 11 S.W.3d 189, 193 (Tex. Crim.
App. 1999). A statute of limitations is construed strictly against the State and
liberally in favor of the defendant. Gallardo v. State, 768 S.W. 2d 875, 880 (Tex.
App.—San Antonio 1989, pet. ref’d). In other words, the burden of proof is on the
State to show that the offense alleged was committed prior indictment and within
the applicable statute of limitations. Vasquez v. State, 557 S.W.2d 779 (Tex. Crim.
App. 1977). The indictment must show on its face that the prosecution is not
barred by limitations. Tex. Code of Crim. Proc. Art. 21.02(6).
Article 12.01 of the Texas Code of Criminal Procedure is the principal
statute for identifying the statute of limitation applicable to a given felony offense.
Article 12.01 begins by stating “[e]xcept as provided in Article 12.03” and
categorizes the limitations period by first identifying specific limitation periods for
specific offenses. See Tex. Code of Crim. Proc. Art. 12.01(1)-(6). Subsection (7)
states the limitations period for “all other felonies” is three years. Aggravated
Assault is not identified in Subsections (1)-(6), but is subject to the “except as
provided” language of Article 12.03. Tex. Code Crim. Proc. Art. 12.03(d) provides
5
that “[e]xcept as otherwise provided by this chapter, any offense that bears the title
aggravated shall carry the same limitation period as the primary crime.”
In Fantich v. Texas, 420 S.W.3d 287 (Tex. App.—Tyler 2013, no pet.), the
Twelfth Court of Appeals examined the issue of what is the statute of limitations
for aggravated assault, specifically, the question of “whether the limitation period
for the offense of aggravated assault is two or three years.” Id. at 288-289. The
Court answered this question by examining Tex. Code of Crim. Proc. Art.
12.01(7) and 12.03(d). Id. at 290. The Twelfth Court of Appeals held that because
Section 22.01 has different classifications, misdemeanors and felony assaults, the
applicable statute of limitations depends on what classification the assault is. Id. If
it is a felony assault, then the statute of limitations is three years. Id., see also Tex.
Pen. Code § 22.01(b). If it is a misdemeanor assault, then the applicable statute of
limitations is two years. Id., see also Tex. Pen. Code 22.01(a). According to the
Court, “either misdemeanor or felony assault can be the ‘primary crime’ for
aggravated assault.” Id.
Petitioner was charged and convicted of two counts of aggravated assault of
a public servant under Tex. Pen. Code § 22.02 alleged to have occurred on or about
February 29, 2012. (C.R. at 6-7). Under the Twelfth Court’s analysis in Fantich,
Petitioner would be out of luck as the primary offense would be the felony assault
of a public servant. Tex. Pen. Code § 22.01(b). Petitioner; however, contends that
6
“primary offense” under Tex. Code of Crim. Proc. Art. 12.03(d) should mean
“most important[,] most basic or essential,[or] happening or coming first[.]” Based
upon this definition, the primary offense would in this case be misdemeanor assault
under Tex. Pen. Code § 22.01(a). Thus, the applicable statute of limitations is two
years.
“[C]ourts are required to construe a statute in accordance with the plain
meaning of its literal text unless the language of the statue is ambiguous or the
plain meaning leads to an absurd result.” White v. State, 61 S.W.3d 424, 428 (Tex.
Crim. App. 2001), citing Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).
“To determine the plain meaning of a statute, [a court applies] the canons of
construction.” Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011),
citing to Rushing v. State, 353 S.W.3d 863, 865 (Tex. Crim. App. 2011).2 A Court
looks at the “collective’ intent or purpose of the legislators who enacted the
legislation.” Id., citing Boykin, 818 S.W.2d at 785. “Words or phrases shall be read
in context and construed according to the rule of grammar and common usage.”
Tex. Gov’t Code § 311.011(a). “Moreover, ‘words or phrases that have acquired a
technical or particular meaning, whether by legislative definition or otherwise,
shall be construed accordingly.’” Ex parte Keller, 173 S.W.3d 492, 499 (Tex.
2
See Tex. Gov’t Code § 311.021. “In enacting a statute, it is presumed that: (1)
compliance with the constitution of this state and the United States is intended; (2) the entire
statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result of
feasible execution is intended; and (5) public interest is favored over any private interest.”
7
Crim. App. 2005) (Keller, P.J., dissenting), citing to Ex parte Rieck, 144 S.W.3d
510, 512 (Tex. Crim. App. 2004) and Tex. Gov’t Code § 311.011(b). “When
determining the fair, objective meaning of an undefined statutory term, [a] Court
may consult standard dictionaries.” Id. Tex. Code of Crim. Proc. Art. 12.03(d)
provides:
Except as otherwise provided by this chapter, any offense that bears
the title “aggravated” shall carry the same limitation period as the
primary crime.
The term “primary crime” is not defined by Tex. Code of Crim. Proc. Art.
12.03(d). Petitioner contends that “primary crime” cannot simply refer to whatever
offense matches the title of the instant offense minus the word “aggravated,” or
even if the assault minus the term aggravated is a felony or misdemeanor, not only
because the statute nowhere so states, but also because there exists at least one
offense with no such primary crime – aggravated promotion of prostitution. For
example, though titled “aggravated” in conformity with the requirements of Tex.
Code of Crim. Proc. Art. 12.03(d), the aggravated promotion of prostitution does
not explicitly incorporate the crime of promotion of prostitution by its Penal Code
section.” Bennett, 415 S.W.3d at 873, fn. 42. Thus, it is uncertain what “primary
crime” means as to that offense. Id. Since there are zero primary crimes, that
offense is not controlled by Tex. Code of Crim. Proc. Art. 12.03(d). Henson v.
State, No. 05-97-01894-CR, 2000 Tex. App. LEXIS 5273 (Tex. App.—Dallas
8
2000, pet. ref’d) (not designated for publication). Based on this example,
determining the applicable statute of limitations based on whether the assault,
minus the term aggravated, is a felony or misdemeanor, or if it is an aggravated
form, does not settle what exactly the “primary crime” is.
Again, the term “primary crime” is not defined by Tex. Code of Crim. Proc.
Art. 12.03(d). “Primary,” as in “primary crime,” is defined as “most important[,]
most basic or essential,[or] happening or coming first[.]” MERRIAM-WEBSTER
COLLEGIATE DICTIONARY (11th ed.).3 In this case, the two counts of the indictment
provided:
(Count One): intentionally, knowingly, or recklessly cause bodily
injury to Thomas Lobasso by stabbing him in the hand and/or
wrist, and the defendant did then and there use or exhibit a deadly
weapon, to wit: a sharp metal object, during the commission of said
assault, and the defendant did then and there know that the said
Thomas Lobasso was then and there a public servant, to-wit: an
employee of the Texas Department of Criminal Justice, and that the
said Thomas Lobasso was then and there lawfully discharging an
official duty, to wit: supervising individuals in the custody of the
Texas Department of Criminal Justice.
(Count Two): intentionally, knowingly, or recklessly cause bodily
injury to Derek Wooldridge by stabbing him in the arm, and the
defendant did then and there use or exhibit a deadly weapon, to wit: a
sharp metal object, during the commission of said assault, and the
defendant did then and there know that the said Derek Wooldridge
was then and there a public servant, to-wit: an employee of the Texas
Department of Criminal Justice, and that the said Derek Wooldridge
was then and there lawfully discharging an official duty, to wit:
3
Available at http://www.merriam-webster.com/dictionary/primary (last accessed
November 22, 2015).
9
supervising individuals in the custody of the Texas Department of
Criminal Justice.
(emphasis added)
The elements of the offense of aggravated assault on a public servant are:
(1) intentionally, knowingly, or recklessly causes bodily injury to
another;
(2) the actor knew that the person he assaulted was a public servant;
(3) the person assaulted was discharging official duties at the time of
the assault;
(4) the person assaulted was lawfully discharging official duties; and
(5) uses or exhibits a deadly weapon during the commission of the
assault.
Tex. Pen. Code § 22.02.
Listing the elements of the offense clearly shows that the most important or
most basic element or essential element of aggravated assault on a public servant is
still intentionally, knowingly, or recklessly causes bodily injury to another person.
In other words, it is the primary offense that underlies Petitioner’s conviction for
aggravated assault on a public servant. It is the foundation, the most important and
basic element in the offense. Without the actual assault, there would be no charge.
See Tex. Pen. Code § 22.02. This “primary offense” would then be misdemeanor
assault. See Tex. Pen. Code § 22.01(a). Thus, the applicable statute of limitations
would be two years in this case. See Tex. Code of Crim. Proc. Art. 12.02(a).
The State filed the indictment in this case on April 24, 2014 charging
Petitioner with two counts of Aggravated Assault of a Public Servant alleged to
10
have occurred on or about February 29, 2012. This is clearly over the two year
statute of limitations that should be applied to this offense. A charging instrument
filed after the period of limitations is without authority of law. Vasquez, 557
S.W.2d 783 fn. 6. The conviction against Petitioner should be dismissed.
PRAYER
Wherefore, Petitioner prays that this Court grant this petition, set his case for
submission, and reverse the Twelfth Court of Appeal’s judgment, and render
judgment in Petitioner’s favor as the applicable statute of limitations has run.
Petitioner also prays for such other relief that this Court may deem appropriate.
Respectfully submitted,
State Counsel for Offenders
Attorney for Petitioner
/s/ Nicholas Mensch
Nicholas Mensch
State Bar of Texas No. 24070262
P. O. Box 4005
Huntsville, TX 77342
(936) 437-5252
(936) 437-5279 (fax)
nicholas.mensch@tdcj.texas.gov
11
CERTIFICATE OF COMPLIANCE
In accordance with Rule 9.4, Rules of Appellate Procedure, I certify that this
computer-generated document complies with the typeface requirements of Rule
9.4(e) and is comprised of 2,224 words (excluding the items exempted in Rule
9.4(i)(1)).
/s/ Nicholas Mensch
Nicholas Mensch
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Petition for
Discretionary Review was served upon opposing counsel noted below, by one or
more of the following: certified mail (return receipt requested), facsimile transfer,
or electronic mail (e-mail), on this 23rd day of November, 2015.
Melinda Fletcher
Special Prosecution Unit
P. O. Box 1744
Amarillo, TX 79105
Telephone no. 806-367-9407
Facsimile no. 866-923-9253
E-mail address: mfletcher@sputexas.org
Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, TX 78711
E-mail address: information@spa.texas.gov
/s/ Nicholas Mensch
Nicholas Mensch
12
No. _____________________
IN THE COURT OF CRIMINAL APPEALS
FREDERICK DESHUN LEE v. THE STATE OF TEXAS
On Petition for Discretionary Review from
Appeal No. 12-15-00183-CR
in the Court of Appeals, Twelfth District, at Tyler
Trial Court Cause No. 31727 (Counts I and II)
3rd Judicial District Court
Anderson County, Texas
Hon. Pam Foster Fletcher, Judge Presiding
APPENDIX
Twelfth Court of Appeals Memorandum Opinion ...................................... Exhibit A
Twelfth Court of Appeals Memorandum Opinion ...................................... Exhibit A
NO. 12-15-00183-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
FREDERICK DESHUN LEE, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Frederick Deshun Lee appeals his convictions for two counts of aggravated assault on a
public servant, for which he was sentenced to imprisonment for seventeen years for each offense.
In one issue, Appellant argues that the trial court erred by refusing to set aside the indictment.
We affirm.
BACKGROUND
Appellant was charged by indictment with two counts of aggravated assault on a public
servant. Appellant moved to set aside the indictment, arguing that the two year statute of
limitations had run. Following a hearing on Appellant’s motion, the trial court overruled it.
Thereafter, Appellant pleaded “guilty” as charged, and the trial court sentenced him to
imprisonment for seventeen years for each offense. This appeal followed.
STATUTE OF LIMITATIONS
In his sole issue, Appellant argues that the trial court erred by refusing to set aside the
indictment because the two year statute of limitations had run. His argument focuses on the
construction of Texas Code of Criminal Procedure, Article 12.03.
Standard of Review and Governing Law
Statutory construction is a question of law subject to de novo review. See Krause v.
State, 405 S.W.3d 82, 85 (Tex. Crim. App. 2013). When interpreting the meaning of a statute,
we seek to effectuate the collective intent of the legislators who enacted the legislation. See id.;
Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (citing Boykin v. State, 818
S.W.2d 782, 785 (Tex. Crim. App. 1991)). To determine collective intent, we first look to the
literal text, which provides the best means to determine the fair, objective meaning of that text at
the time of its enactment. See Clinton, 354 S.W.3d at 800.
Unless the statutory language is ambiguous or application of the statute’s plain meaning
would cause an absurd result, we do not consider extratextual factors. See id. We determine a
statute’s plain meaning by applying the canons of construction, which include a list of
presumptions regarding legislative intent. Id. (citations omitted); see also TEX. GOV’T CODE
ANN. § 311.021 (West 2013). It is presumed that (1) compliance with the constitutions of this
state and the United States is intended; (2) the entire statute is intended to be effective; (3) a just
and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public
interest is favored over any private interest. Id. § 311.021; Clinton, 354 S.W.3d at 800.
Texas Code of Criminal Procedure, Article 12.01 is the primary statute for determining
the limitation period for felony indictments. See TEX. CODE CRIM. PROC. ANN. art. 12.01 (West
Supp. 2014). Article 12.01 categorizes the limitation period for felony offenses, which ranges
from “no limitation” to three years. See id. It also expressly subjects itself to any limitations that
may be provided for in Article 12.03. See id. Subsections (1) through (6) set the limitation
period for specific felony offenses. See id. art. 12.01(1)–(6). Subsection (7) provides that the
limitation period for “all other felonies” is “three years from the date of the commission of the
offense.” See id. art. 12.01(7). Aggravated assault is not enumerated in subsections (1) through
(6), but this does not automatically trigger application of subsection (7) because of the statute’s
prior reference to Article 12.03. See id.
Article 12.03 provides the framework for determining the limitation period for attempt,
conspiracy, solicitation, organized criminal activity, and aggravated offenses not enumerated in
Article 12.01. See TEX. CODE CRIM. PROC. ANN. art. 12.03 (West 2005). Article 12.03(d) provides
that “[e]xcept as otherwise provided by this chapter, any offense that bears the title ‘aggravated’
shall carry the same limitation period as the primary crime.” Id. art. 12.03(d). Because
2
aggravated assault is not enumerated in Article 12.01, we apply the language in Article 12.03(d)
to determine the limitation period for the offense alleged in this case. See id. arts. 12.01,
12.03(d).
Fantich v. State
We recently addressed the question of the applicable statute of limitations in an
aggravated assault case in Fantich v. State, 420 S.W.3d 287 (Tex. App.–Tyler 2013, no pet.). In
that case, we concluded that Articles 12.01 and 12.03 are not ambiguous and applied their plain
meaning to determine the limitation period for criminal conspiracy to commit aggravated assault.
See id. at 290. In construing the language of the indictment, we explained that it alleged
aggravated assault because it alleged “bodily injury requiring hospitalization and the use of a
deadly weapon.” Id. (citing TEX. PENAL CODE ANN. § 22.02(a) (West 2011)). We also
concluded that either misdemeanor or felony assault can be the “primary crime” for aggravated
assaults. See Fantich, 420 S.W.3d at 290. And since the indictment in that case did not allege
any other facts that would render the primary crime a felony assault under Section 22.01, the
primary crime was a misdemeanor assault with a limitations period of two years. See id. at 291.
However, in a footnote, we noted that an assault under Section 22.01 is a felony if committed
against certain types of victims. Id. at 291 n.3 (citing TEX. PENAL CODE ANN. § 22.01(b)(1)
(West Supp. 2014) (assault is third degree felony if committed against public servant lawfully
discharging official duty or in retaliation or on account of exercise of official power or duty)).
Appellant acknowledges our holding in Fantich, but he urges us to reconsider the
decision. He suggests that the common meaning of the term “primary” is “most important[,]
most basic or essential, [or] happening or coming first[.]” Thus, Appellant contends that we
should conclude that the primary crime in this case is misdemeanor assault. Having considered
Appellant’s argument and our analysis in Fantich, we conclude that the analysis set forth in
Fantich is sound and should be applied in this case.
Limitations Period for Aggravated Assault on a Public Servant
In the instant case, Appellant was charged with aggravated assault on a public servant.
See TEX. PENAL CODE ANN. § 22.01(b). Specifically, the indictment alleged that Appellant
committed the offense as follows:
COUNT ONE: intentionally, knowingly, or recklessly cause bodily injury to Thomas
Lobasso by stabbing him in the hand and/or wrist, and the defendant did then and there use or
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exhibit a deadly weapon, to-wit: a sharp metal object, during the commission of said assault, and
the defendant did then and there know that the said Thomas Lobasso was then and there a public
servant, to-wit: an employee of the Texas Department of Criminal Justice, and that the said
Thomas Lobasso was then and there lawfully discharging an official duty, to-wit: supervising
individuals in the custody of the Texas Department of Criminal Justice.
COUNT TWO: intentionally, knowingly, or recklessly cause bodily injury to Derek
Woldridge by stabbing him in the arm, and the defendant did then and there use or exhibit a
deadly weapon, to-wit: a sharp metal object, during the commission of said assault, and the
defendant did then and there know that the said Derek Woldridge was then and there a public
servant, to-wit: an employee of the Texas Department of Criminal Justice, and that the said
Thomas Lobasso was then and there lawfully discharging an official duty, to-wit: supervising
individuals in the custody of the Texas Department of Criminal Justice.
Here, much like in Fantich, the indictment alleges aggravated assault because it alleges that
Appellant caused bodily injury requiring hospitalization and that he used or exhibited a deadly
weapon. See TEX. PENAL CODE ANN. 22.02(a). But unlike in Fantich, the indictment in the
instant case alleges that Appellant committed these crimes against public servants who were each
lawfully discharging an official duty. These additional allegations render the primary crime in
this case a felony assault. See TEX. PENAL CODE ANN. 22.01(b)(1). Because the primary crime
of the aggravated assaults in this case is a felony, the limitation period for the aggravated assaults
alleged in the indictment is three years. See TEX. CODE CRIM. PROC. ANN. arts. 12.01(7),
12.03(d). For the reasons set forth in Fantich, we conclude that our construction of the pertinent
statutes in this case does not lead to an absurd result. See Fantich, 420 S.W.3d at 291–93.
Therefore, we hold that the trial court did not err in refusing to set aside the indictment.
Appellant’s sole issue is overruled.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered November 12, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 12, 2015
NO. 12-15-00183-CR
FREDERICK DESHUN LEE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 31727)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.