PD-1528-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/3/2015 12:30:06 PM
Accepted 12/4/2015 12:20:41 PM
ABEL ACOSTA
Cause Number PD-1528-15 CLERK
Frederick Deshun Lee v. The State of Texas
State’s Reply to Petition for Discretionary Review
On PDR from Cause No. 12-15-000183-CR
In the Court of Appeals, Twelfth District, at Tyler
And
Cause No. 31727 (Counts I and II)
In the 3rd Judicial District Court, Anderson County, Texas
Melinda Fletcher
SBN 18403630
Special Prosecution Unit
P O Box 1744
Amarillo, Texas 79105
Phone 806.433.8720
Fax 866.923.9253
December 4, 2015 mfletcher@sputexas.org
Table of Contents
Table of Contents ..................................... 2
Index of Authorities .................................. 3
Issue Presented ....................................... 4
Summary of the Argument ............................... 5
Argument .............................................. 5
State’s Response to Sole Issue: The non-aggravated
version of Aggravated Assault on a Public Servant
is Assault on a Public Servant. The statute of
limitations for Assault on a Public Servant is three
years, and so the statute of limitations for
Aggravated Assault on a Public Servant is also three
years. ............................................... 5
Prayer ................................................ 9
Certificate of Compliance ............................ 10
Certificate of Service ............................... 10
PD-1528-15 State’s Reply to PDR pg. 2
Index of Authorities
Texas State Case Law
Lee v. State, 12-15-00183-CR, 2015 WL 7019187
(Tex. App. —Tyler Nov. 12, 2015) (mem. op.) ....... 6
Whitelaw v. State, 29 S.W.3d 129
(Tex. Crim. App. 2000) ............................ 7
Texas Code of Criminal Procedure
Art. 12.01 ......................................... 6, 7
Art. 12.02 ............................................ 6
Art. 12.03 ................................... 5, 6, 7, 8
Texas Penal Code
Sec. 22.02 ............................................ 8
PD-1528-15 State’s Reply to PDR pg. 3
Cause Number PD-15-1528-15
Frederick Deshun Lee v. The State of Texas
To the Honorable Judges of the Court of Criminal Appeals:
The State of Texas, by and through her Special
Prosecution Unit, respectfully presents this Reply to
Lee’s Petition for Discretionary Review. The State urges
this Court to deny Lee’s Petition.
Issue Presented
Issue Raised by Lee: 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?
State’s Response: The non-aggravated version of
Aggravated Assault on a Public Servant is Assault on a
Public Servant. The statute of limitations for Assault
on a Public Servant is three years, and so the statute
PD-1528-15 State’s Reply to PDR pg. 4
of limitations for Aggravated Assault on a Public Servant
is also three years.
Summary of the Argument
Code of Criminal Procedure Article 12.03(d) should
be interpreted to instruct us to simply remove the word
“aggravated” to arrive at what it calls the “primary
crime.” Under this interpretation, the statute of
limitations for aggravated assault on a public servant
is three years. Lee was indicted within the three-year
period and so his convictions should stand.
Argument
State’s Response to Sole Issue: The non-aggravated version
of Aggravated Assault on a Public Servant is Assault on a
Public Servant. The statute of limitations for Assault on a
Public Servant is three years, and so the statute of
limitations for Aggravated Assault on a Public Servant is
also three years.
PD-1528-15 State’s Reply to PDR pg. 5
Lee was indicted for aggravated assault on a public
servant approximately 26 months after the date of the
offense. CR 1:6 Lee asserts that the indictment is barred
by a statute of limitations. The State, the trial court,
and the lower appellate court disagree. See Lee v. State,
12-15-00183-CR, 2015 WL 7019187 (Tex. App. —Tyler Nov.
12, 2015) (mem. op.).
At issue is the interplay of three Articles from the
Code of Criminal Procedure Articles 12.01(7), 12.02(a),
and 12.03(d). Misdemeanors have a two-year statute of
limitations. Tex. Code Crim. Proc. 12.02(a). The default
statute of limitations for felonies is three years. Tex.
Code Crim. Proc. Art. 12.01(7). But there is also a
provision that says an “aggravated” offense carries the
same limitation period as the primary crime. Tex. Code
Crim. Proc. Art. 12.03(d). “Primary crime” is not
defined.
This Court acknowledged the unsettled status of this
issue in State v. Bennett, 415 S.W.3d 867, 868 (Tex.
Crim. App. 2013). The State asserts that the “primary
PD-1528-15 State’s Reply to PDR pg. 6
crime” underlying “aggravated assault of a public
servant” is “assault of a public servant.” Therefore,
under Art. 12.01 and Art. 12.03, the statute of
limitations is three years.
The first rule of statutory construction is to
“interpret a statute in accordance with the plain meaning
of its language, unless the language is ambiguous or the
plain meaning leads to absurd results that the
Legislature could not possibly have intended.” Whitelaw
v. State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000).
Article 12.03(d) states that “…any offense that bears the
title ‘aggravated’ shall carry the same limitation period
as the primary crime.” Because this statute emphasizes
the word “aggravated,” the plain meaning of the statute
says that the word “aggravated” should be removed to
arrive at the “primary crime.” This does not lead to an
absurd result in this case, but leaves the statute of
limitations for this felony, whose primary crime is
assault on a public servant, at three years.
PD-1528-15 State’s Reply to PDR pg. 7
In contrast, Lee’s interpretation would lead to an
absurd result. Aggravated Assault on a Public Servant is
a first degree felony. Tex. Penal Code Sec.
22.02(b)(2)(B). Lee’s interpretation would render the
statute of limitations for a first degree felony to be
only two years, which is less than the statute of
limitations for any other felony.
The plain meaning of Art. 12.03(d) provides for a
three-year statute of limitations for the offense of
Aggravated Assault on a Public Servant. Lee was indicted
within this three-year period, and so his convictions
should stand.
PD-1528-15 State’s Reply to PDR pg. 8
Prayer
The State prays that this Honorable Court deny Lee’s
petition for discretionary review. In the alternative,
the State prays that this Honorable Court grant the
petition for review, and issue an opinion clarifying 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
PD-1528-15 State’s Reply to PDR pg. 9
Certificate of Compliance
I hereby certify that, according to Microsoft Word
2007, this response contains a total of only 1,042 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 State’s Reply to Lee’s Petition for
Discretionary Review was served on Kenneth Nash and
Nicholas Mensch, the attorneys for Lee, and the State
Prosecuting Attorney, via www.efile.txcourts.gov, on
this the 3rd day of December, 2015.
/s/ Melinda Fletcher
Melinda Fletcher
PD-1528-15 State’s Reply to PDR pg. 10