Lee, Frederick Deshun

• Court: Texas Supreme Court
• Decided: December 4, 2015
• Docket: PD-1528-15
• Status: Published

Opinion

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

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.

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.

PD-1528-15 State’s Reply to PDR pg. 10