ACCEPTED 12-15-00183-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 8/24/2015 11:32:00 AM CATHY LUSK CLERK
NO. 12-15-00183-CR FILED IN IN THE COURT OF APPEALS FOR 12th COURT OF APPEALS TYLER, TEXAS 8/24/2015 11:32:00 AM THE TWELTH SUPREME JUDICIAL CATHY S. LUSK Clerk DISTRICT OF TEXAS
AT TYLER, TEXAS
FREDERICK DESHUN LEE v. THE STATE OF TEXAS
Appeal from Cause Number 31727 (Counts I and II) 3rd Judicial District Court of Anderson County Hon. Pam Foster Fletcher, Judge Presiding
APPELLANT’S BRIEF
STATE COUNSEL FOR OFFENDERS APPELLATE SECTION
Nicholas Mensch State Bar of Texas No. 24070262 P.O. Box 4005 Huntsville, Texas 77342-4005 (936) 437-5252 (936) 437-5279 (fax) nicholas.mensch@tdcj.texas.gov
Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Frederick Deshun Lee, TDCJ# 1645475
TRIAL AND APPELLATE COUNSEL: Nicholas Mensch State Bar of Texas No. 24070262 State Counsel for Offenders P.O. Box 4005; Huntsville, Texas 77340 (936) 437-5252/(936) 437-5279 fax
APPELLEE: THE STATE OF TEXAS
TRIAL COUNSEL: Cindy Garner State Bar of Texas No. 07673100 Special Prosecution Unit 904 E. Market St. Palestine, TX 758001 (903) 723-0805/(903) 723-1469 fax
APPELLATE COUNSEL: 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 & COUNSEL ................................................................. ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 2
STATEMENT REGARDING ORAL ARGUMENT ............................................... 2
ISSUE PRESENTED ................................................................................................. 2
Whether the trial court erred by refusing to set aside both counts of the indictment because the statute of limitations for aggravated assault on a public servant had run? ........................................................................................ 4
STATEMENT OF FACTS ........................................................................................ 3
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT ............................................................................................................. 4
PRAYER .................................................................................................................. 11
CERTIFICATE OF SERVICE ................................................................................ 12
CERTIFICATE OF COMPLIANCE ....................................................................... 12
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
Ex parte Rieck, 144 S.W.3d 510 (Tex. Crim. App. 2004) ........................................................7
Fantich v. State, 420 S.W.3d 287 (Tex. App.—Tyler 2013, no pet.) ................................ 4, 5, 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
Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004) ........................................................5
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) ........................................................8
State v. Schunior, No. 04-14-00347-CR, 2015 Tex. App. LEXIS 3898 (Tex. App.—San Antonio 2015, pet. filed).............................................................................. 4-5
Vasquez v. State, 557 S.W.2d 779 (Tex. Crim. App. 1977) ........................................................5
iv White v. State, 61 S.W.3d 424 (Tex. Crim. App. 2001) ...................................................... 6-7 Statutes
Texas Code of Criminal Procedure art. 12.01(7) ......................................................5
Texas Code of Criminal Procedure art. 12.02(a) ....................................................10
Texas Code of Criminal Procedure art. 12.03(d) ............................................ passim
Texas Code of Criminal Procedure art. 21.02(6) ......................................................5
Texas Government Code § 311.011(a) ......................................................................7
Texas Government Code § 311.011(b) ......................................................................7
Texas Government Code § 311.021...........................................................................7
Texas Penal Code § 22.01(a) .............................................................................. 6, 10
Texas Penal Code § 22.01(b) .....................................................................................6
Texas Penal Code § 22.02 ................................................................................... 6, 10
Treatises
Dix and Schmolesky, 40 TEX. PRAC. SERIES § 6:1 (3rd ed. 2011) .............................5
MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed.) .........................................9
v NO. 12-15-00183-CR
IN THE COURT OF APPEALS FOR
THE TWELTH SUPREME JUDICIAL
DISTRICT OF TEXAS
Appeal from Cause Number 31727 (Counts I and II) 3rd Judicial District Court of Anderson County Hon. Pam Foster Fletcher, Judge Presiding
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW FREDERICK DESHUN LEE, Appellant in cause number
12-15-00183-CR, and submits this brief in accordance with the Texas Rules of
Appellate Procedure and in support of his request for reversal of the trial court’s
final judgment.
1 STATEMENT OF THE CASE
On April 24, 2014 an Anderson County grand jury returned an indictment
charging Appellant 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, Appellant 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 trial court certified that this criminal case “is a
plea bargain case, but matters were raised by written motion filed and ruled on
before trial and not withdrawn or waived, and the defendant has the right of
appeal.” (C.R. at 102). No Motion for New Trial was filed. Thereafter, on July 2,
2015, Appellant timely filed his notice of appeal for each count. (C.R. at 125-128).
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument.
ISSUE PRESENTED
Whether the trial court erred by refusing to set aside both counts of the
indictment because the statute of limitations for aggravated assault on a public
servant had run?
2 STATEMENT OF FACTS
On April 24, 2014 an Anderson County grand jury returned an indictment
charging Appellant 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, Appellant:
(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 Appellant’s Motion to Set Aside
the Indictment in this case that alleged that the applicable statute of limitations in
the case was two years. (2 R.R. at 7-10, C.R. at 74-76) After hearing arguments
3 from both the Appellant and the State, the trial court denied the motion. (2 R.R. at
10). Thereafter, on June 5, 2015, Appellant 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).
SUMMARY OF THE ARGUMENT
This Court should, at least in part, reconsider its decision in Fantich v. State,
420 S.W.3d 287 (Tex. App—Tyler, 2013, no pet.), as to what constitutes a
“primary offense.” Simply construing the primary offense of assault by simply
looking whether the assault, minus the term aggravated, is still a felony does not
answer the question of what is the primary offense. By using the common
definition of “primary”, (most important[,] most basic or essential,[or] happening
or coming first[.]), Appellant contends that the “primary offense” in this case is
misdemeanor assault. Thus, the applicable statute of limitations is two years.
ARGUMENT
Whether the trial court erred by refusing to set aside both counts of the indictment because the statute of limitations for aggravated assault on a public servant had run?
“The purpose of a statute of limitations in the criminal context is to protect
the accused from having to defend against stale criminal charges and to prevent
punishment for acts committed in the remote past.” State v. Schunior, No. 04-14-
4 00347-CR, 2015 Tex. App. LEXIS 3989 at ** 3 (Tex. App.—San Antonio 2015,
pet. filed) (designated for publication), citing to Dix and Schmolesky, 40 TEX.
PRAC. SERIES § 6:1 (3rd ed. 2011) and Hernandez v. State, 127 S.W.3d 768, 772
(Tex. Crim. App. 2004). “A statute of limitations is construed strictly against the
State and liberally in favor of the defendant.” Schunior, 2015 Tex. App. LEXIS
3989 at ** 3, citing to 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).
This Court has examined the issue of what is the statute of limitations for
aggravated assault in Fantich v. Texas, 420 S.W.3d 287 (Tex. App.—Tyler 2013,
no pet.). Specifically, this Court analyzed the question of “whether the limitation
period for the offense of aggravated assault is two or three years.” Id. at 288-289.
This Court answered this question by examining Tex. Code of Crim. Proc. Art.
12.01(7) and 12.03(d). Id. at 290. Finding no ambiguity, this Court stated “[f]or
aggravated assault, the primary crime is assault which is defined in section 22.01 of
the penal code.” Id. Finally, this Court held that because Section 22.01 has
different classifications, misdemeanors and felony assaults, the applicable statute
5 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 this Court, “either
misdemeanor or felony assault can be the ‘primary crime’ for aggravated assault.
Id.
On April 24, 2014 an Anderson County grand jury returned an indictment
charging Appellant 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). Under this Court’s analysis in Fantich, it would appear Appellant is
out of luck with his statute of limitations claim as under Fantich, the primary
offense would be the felony assault of a public servant. Tex. Pen. Code § 22.01(b).
Appellant, however, disagrees with this Courts determination of what constitutes a
“primary offense” under Tex. Code of Crim. Proc. Art. 12.03(d) and contends in
this case, the primary offense is still misdemeanor assault under Tex. Pen. Code §
22.01(a). Thus, the statute of limitations for aggravated assault of a public servant
should be 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.
6 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).1 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.
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.
1 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 The term “primary crime” is not defined by Tex. Code of Crim. Proc. Art.
12.03(d). Appellant 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.” State v. Bennett, 415 S.W.3d 867, 873, n. 42 (Tex. Crim. App. 2013)
(Keller, P.J., concurring). 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 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 appear to 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,” could mean “most important[,]
8 most basic or essential,[or] happening or coming first[.]” MERRIAM-WEBSTER
COLLEGIATE DICTIONARY (11th ed.).2 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: supervising individuals in the custody of the Texas Department of Criminal Justice.
(emphasis added)
Causing bodily injury to the victims by stabbing them was the most basic or
essential element in this offense. The elements of the offense of aggravated assault
on a public servant are:
2 Available at http://www.merriam-webster.com/dictionary/primary (last accessed August 14, 2015).
9 (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 Appellant’s conviction for
aggravated assault on a public servant. 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
Appellant with two counts of Aggravated Assault of a Public Servant alleged to
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. The trial court erred by
denying Appellant’s Motion to Set Aside the Indictment in this case. (2 R.R. at
10).
10 PRAYER
Appellant Frederick Deshun Lee prays that this Court reverse the trial
court’s judgment and render judgment in his favor as the applicable statute of
limitations has run. Appellant also prays for such other relief that this Court may
deem appropriate.
Respectfully submitted, STATE COUNSEL FOR OFFENDERS
/s/ Nicholas Mensch Nicholas Mensch State Bar of Texas No. 24070262 P.O. Box 4005 Huntsville, Texas 77342-4005 (936) 437-5252 (936) 437-5279 (fax) nicholoas.mensch@tdcj.texas.gov
11 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Appellant’s Brief 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), this 24th day of August, 2015.
Melinda Fletcher Special Prosecution Unit P. O. Box 1744 Amarillo, TX 79501 Facsimile no. 866-923-9253 E-mail address: mfletcher@sputexas.org
Allyson Mitchell Anderson County District Attorney 500 N. Church St. Palestine, TX 75801 (903) 723-7400/(903) 723-7818 (fax) E-mail address: amitchell@co.anderson.tx.us
/s/ Nicholas Mensch Nicholas Mensch Attorney for Appellant
CERTIFICATE OF COMPLIANCE
This document complies with the type-volume limitation of Texas Rule of
Appellate Procedure 9.4(i) because this brief contains 2,140 words.