            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0354-12



                                    STATE OF TEXAS

                                              v.

                           CARL ALAN BENNETT, Appellee

           ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIFTH COURT OF APPEALS
                            DALLAS COUNTY

       C OCHRAN, J., filed a concurring opinion.

                                       OPINION

       I agree with the majority that defense counsel was not ineffective for failing to raise

a limitations claim at trial. I also agree with the court of appeals that the law is “unsettled

as to whether the two-year statute of limitations applies to aggravated assault.” 1 Defense




       1
        State v. Bennett, No. 05-11-00252-CR, 2012 WL 11181, at *4 (Tex. App.–Dallas Jan. 4,
2012) (not designated for publication).
                                                           Bennett   Concurring Opinion         Page 2

counsel believed that the “catch-all” provision of Article 12.01(7)2 applies to aggravated

assault and therefore the statute of limitations is three years from the date of the offense. I

agree with defense counsel, but only the Texas Legislature can finally and firmly resolve this

quandary because Article 12.03(d) does appear to contradict Article 12.01(7). There is an

easy legislative fix: Change the title of “aggravated” assault and “aggravated” perjury to

“felony” assault and “felony” perjury. Then the statute of limitations for both offenses is

plainly and unambiguously three years.

                                                  I.

       The history of Texas statutes of limitations on various assaultive offenses is not

particularly illuminating on the present issue. The 1879 Penal Code divided all offenses into

either misdemeanors or felonies.3 Felonies were defined as those offenses punishable by

either death or imprisonment in the penitentiary; everything else was a misdemeanor.4

Simple assaults were classified as misdemeanors under the 1879 Penal Code because the

punishment was limited to a fine of between five and twenty-five dollars.5 An assault


       2
         TEX . CODE CRIM . PROC. art. 12.01. Article 12.01(7) reads,
       Except as provided in Article 12.03, felony indictments may be presented within
       these limits, and not afterward: . . . (7) three years from the date of the commission
       of the offense: all other felonies.
       3
           TEX . PENAL CODE art. 53 (1879) (“Offenses are divided into felonies and misdemeanors.”).
       4
         Id. art. 54 (“Every offense which is punishable by death or by imprisonment in the
penitentiary, either absolutely or as an alternative, is a felony; every other offense is a
misdemeanor.”).
       5
         Id. art. 495 (1879) (“The punishment for a simple assault, or for assault and battery,
unattended with circumstances of aggravations, shall be a fine not less than five nor more than
                                                            Bennett     Concurring Opinion      Page 3

became aggravated whenever it was committed under any of a wide variety of

circumstances,6 and those aggravated assaults were still misdemeanors, but were subject to

possible imprisonment in the county jail (not the penitentiary) for up to two years.7 Article

497 noted that, “[t]he circumstances of aggravation mentioned in the preceding article are

of differing degrees, and the jury are to consider these circumstances in forming their verdict

and assessing the punishment.”8 The 1879 Penal Code also set out the felony offense of

“assault with intent to commit some other offense,”9 which was subject to the felony three-



twenty-five dollars.”).
       6
          Id. art. 496. Those statutory aggravating circumstances included (1) assault on a peace
officer; (2) assault in a court or place of religious worship; (3) assault committed in another person’s
home; (4) assault “committed by a person of robust health or strength upon one who is aged or
decrepit”; (5) assault committed by a man upon a woman or child or by a woman upon a child; (6)
assault using a whip or cowhide; (7) assault resulting in serious bodily injury; (8) assault with a
deadly weapon (but without the intent to maim or murder); (9) premeditated assault using means
“calculated to inflict great bodily injury”; and (10) assault committed while “in disguise.”
       7
          Id. art. 498 (“The punishment for an aggravated assault or battery shall be a fine not less
than twenty-five nor more than one thousands dollars, or imprisonment in the county jail not less
than one month nor more than two years, or by both fine and imprisonment.”); see, e.g., Davis v.
State, 6 Tex. App. 133, at *4 (Tex. Ct. App. 1879) (statute of limitations for misdemeanor offense
of aggravated assault on a female was two years).
        8
            Id. art. 497.
       9
          Id. arts. 499-506. Those “other” offenses included assault with the intent to maim, with the
intent to murder, with the intent to rape, with the intent to rob, or assault in an attempt to commit
burglary. Id. For example, in Moore v. State, 20 Tex. App. 275 (Tex. Ct. App. 1886), the Court of
Appeals noted that the statute of limitations for assault with intent to commit rape was three years
because it fell into the catch-all “all other felonies” category, even though the statute of limitations
for a completed rape was only one year. Id. at *4. The court explained,
        The fact that we cannot see the reason of the rule in such cases cannot render those
        rules of limitation nugatory, and the maxim that where the reason of the rule fails the
        law ceases to operate does not apply to limitations. The one year’s limitation having
        been expressly restricted to the offense of rape cannot control the minor degrees of
                                                          Bennett    Concurring Opinion       Page 4

year statute of limitations.10 So, up until 1974, a simple assault was a misdemeanor, an

aggravated assault was an aggravated misdemeanor, and an assault with intent to commit

another specified crime was a felony. The first two, as misdemeanors, had a two-year statute

of limitations, while the third, as a felony, had a three-year statute of limitations.11 The world

of assaults was divided into two groups–misdemeanors and felonies–and the statute of

limitations depended solely upon that categorization.

                                                  II.

       The 1974 Penal Code condensed the three categories of assaultive offenses into just

two: simple assault, which is a misdemeanor, and aggravated assault, which is a felony. The

current Code of Criminal Procedure provision, Article 12.01, sets out the statute of

limitations for various specified felonies and ends with a residual or “catch-all” provision

that states that the statute of limitations for all unspecified felonies is three years.12 Article

12.02 then states that the statute of limitations for all misdemeanors is two years.13 Article



       that crime, because the particular enumeration excludes offenses not enumerated,
       and, there being no special time fixed for the minor degrees, they would fall within
       the purview of the general statute of three years provided for “all other felonies.”
       (Code Crim. Proc., art. 199).
Id.
       10
        Id. arts. 499-505 (setting out various punishments of imprisonment in the penitentiary, with
a minimum of two years up to a maximum of ten years for assault with intent to commit robbery).
       11
          See, e.g., Stratman v. State, 436 S.W.2d 144, 146 (Tex. Crim. App. 1969) (felony offense
of assault with intent to commit murder had three year statute of limitations).
       12
            TEX . CODE CRIM . PROC. art. 12.01(7).
       13
            TEX . CODE CRIM . PROC. art. 12.02.
                                                         Bennett    Concurring Opinion     Page 5

12.03 deals with the various permutations of the primary offense that might be charged:

aggravated offenses, attempts, conspiracies, solicitations, and organized criminal activity.

In each case, the statute of limitations for the attempted offense, the conspiracy, the

solicitation, or the aggravated offense follows that of the primary offense as it was already

categorized under Article 12.01 or 12.02.14 Thus, there is no statute of limitations for

attempted murder, manslaughter, some sexual assaults, continuous sexual abuse of a child,

or indecency with a child because the completed offense has no statute of limitations under

Article 12.01(1).15 The statute of limitations for attempted assault is two years because

assault is a misdemeanor and it has a two year statute of limitations under Article 12.02.16

The statute of limitations for conspiracy to commit money laundering is seven years because

the statute of limitations for the felony offense of money laundering is seven years under

Article 12.01(3)(E).17 The statute of limitations for solicitation of a felony is the same as that

for the felony solicited.18 And the statute of limitations for aggravated offenses, unless

specified elsewhere in Chapter 12, is the same as the primary offense.19

       The rule of Article 12.03 would appear to be simple: categorize the charged offense


       14
            Id. art. 12.03.
       15
            Id. art. 12.03(a).
       16
            Id.
       17
            Id. art. 12.03(b).
       18
            Id. art. 12.03(c).
       19
            Id. art. 12.03(d).
                                                        Bennett    Concurring Opinion     Page 6

as a felony or a misdemeanor. If the charged offense is a felony look under the various

provisions of Article 12.01 to see if there is a special statute of limitations. If not, then the

residual or “catch-all” provision of three years applies to all unspecified felonies. If the

charged offense is a misdemeanor, then the statute of limitations is two years. If the charged

offense falls in one of the “special circumstances” categories, the regular limitations period

for the offense applies.

       In most instances, an “aggravated” offense elevates a felony offense to a more serious

felony offense–e.g., aggravated robbery, aggravated sexual assault, aggravated kidnapping.

But in some instances, the “aggravated” offense is a felony while the simple offense is a

misdemeanor, e.g. simple assault is a misdemeanor and aggravated assault is a felony; simple

perjury is a misdemeanor and aggravated perjury is a felony. Did the Texas Legislature

intend that the aggravated offense–the felony–be governed by Article 12.01, the statute of

limitations for all felonies, or by the misdemeanor statute of limitations in Article 12.02?

That is the underlying question in this case.

       Texas courts have, in the post-1974 era, simply assumed that the statute of limitations

for all misdemeanor assaults is two years and that the statute of limitations for aggravated or

felony assaults is three years. In Ex parte Salas20 we blithely noted that “[t]he statute of




       20
            724 S.W.2d 67 (Tex. Crim. App. 1987).
                                                          Bennett    Concurring Opinion       Page 7

limitations for aggravated assault has long been three years[,]”21 and in Hunter v. State 22 we

stated that the State could prove that the charged offense “was committed at any time before

the return of the indictment and within the statute of limitations for the offense of aggravated

assault, a period of three years.”23 In both cases, this Court assumed that there was no doubt

on the issue at all: a felony aggravated assault fell into the three-year “catch-all” felony

statute of limitations of Article 12.01. Period. The intermediate courts of appeals followed

suit and all have simply stated, without further discussion or analysis, that the statute of

limitations for the felony offense of aggravated assault is three years.24

       But, in Ex parte Matthews,25 this Court, again blithely, assumed that the statute of

limitations for the felony offense of aggravated perjury was two years under Article 12.03(d)

which reads:

       Except as otherwise provided by this chapter, any offense that bears the title




       21
            Id. at 68.
       22
            576 S.W.2d 395 (Tex. Crim. App. 1979).
       23
            Id. at 399.
       24
          See, e.g., Monroe v. State, 871 S.W.2d 801, 805 (Tex. App.–Houston [14th Dist.] 1994,
no pet.) (“In this case the offense of aggravated assault has a three year period of limitation.”);
Peacock v. State, 690 S.W.2d 613, 616 (Tex. App.–Tyler 1985, no pet.) (“The statute of limitations
for aggravated assault is three years.”); see also Gilmore v. State, No. 14-97-00887-CR, 1999 WL
976499, at *9 (Tex. App.–Houston [14th Dist.] Oct. 28, 1999, no. pet.) (setting out jury instructions
and defense counsel’s argument that the statute of limitations for the offense of aggravated assault
is three years).
       25
        933 S.W.2d 134 (Tex. Crim. App. 1996), overruled on other grounds by Proctor v. State,
967 S.W.2d 840 (Tex. Crim. App. 1998).
                                                          Bennett    Concurring Opinion      Page 8

       “aggravated” shall carry the same limitation period as the primary crime.26

And intermediate courts of appeals have followed Matthews in holding that the statute of

limitations for the felony offense of aggravated perjury is two years.27

       Clearly, one of these two lines of cases is wrong, but which one is it? As Professors

Dix and Schmolesky have noted, Article 12.03(d) is in conflict with the residuary or “catch-

all” provision of Article 12.01(7) in at least the two instances of aggravated assault and

aggravated perjury because, in both, the “primary” offense is a misdemeanor, but the

“aggravated” offense is a felony.28 Professors Dix and Schmolesky would resolve the

dilemma by saying that the “aggravated” offense statute is the more specific provision and

thus trumps the more general residual provision of Article 12.01(7).29

       But, in addressing an analogous situation, we held that the “aggregation” of numerous

misdemeanor thefts into a single felony offense invokes the felony statute of limitations, not

the misdemeanor two-year statute of limitations for the primary theft offenses.30 As this

Court explained, Section 31.09 (aggregated theft) “creates a separate offense and defines


       26
            TEX . CODE CRIM . PROC. art. 12.03(d).
       27
         See, e.g., Ex parte Tamez, 4 S.W.3d 854, 856 (Tex. App.–Houston [1st Dist.] 1999), aff’d,
38 S.W.3d 159 (Tex. Crim. App. 2001); State v. Coleman, 962 S.W.2d 267, 268 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref’d); Ex parte Zain, 940 S.W.2d 253, 254 (Tex. App.–San
Antonio 1997, no pet.).
       28
         40 GEORGE E. DIX & JOHN M. SCHMOLESKY , CRIMINAL PRACTICE AND PROCEDURE § 6:29
at 261-62 (Texas Practice 3rd ed. 2011).
       29
            Id. at 261 (citing the Code Construction Act, TEX . GOV ’T CODE § 311.026(b)).
       30
            Graves v. State, 795 S.W.2d 185, 187 (Tex. Crim. App. 1990).
                                                            Bennett    Concurring Opinion       Page 9

conduct for purposes of jurisdiction, punishment and period of limitations from

prosecution.”31 Is not the “aggregation” of misdemeanor thefts into a single felony offense

logically the same as the “aggravation” of a misdemeanor assault into the felony offense?

Is there some reason to think that the Legislature intended to treat an “aggregated” felony

theft differently from an “aggravated” felony assault for purposes of jurisdiction or

limitations? I cannot think of any persuasive rationale for why the Legislature would declare

that all felonies have, at a minimum, a three-year statute of limitations except for aggravated

assault and aggravated perjury simply because of the title of those offenses. Presumably,

then, if the Legislature did nothing more than change the name of both of those offenses from

“aggravated” assault or perjury to “felony” assault or perjury, the statute of limitations would

clearly be three years as are all other “residual” felony offenses. The Legislature could make

its intention clear by either (1) changing the name of these two offenses, or (2) amending

article 12.03(d) to explicitly note its application to these two felony offenses.32

       At any rate, I agree that defense counsel in this case was not constitutionally deficient



       31
            Id.
       32
           Article 12.03(d) might be amended to read:
         Except as otherwise provided by this chapter, any offense that bears the title
         “aggravated,” including aggravated assault and aggravated perjury, shall carry the
         same limitation period as the primary crime.
Although there is an offense titled “Aggravated Promotion of Prostitution,” that crime is so different
from the offenses described in “Promotion of Prostitution” that it would seem peculiar to presume
that the Legislature intended that this first or third degree “aggravated” offense have the same statute
of limitations as the various limitations for the misdemeanor, state jail felony, or third degree felony
offenses set out in “Promotion of Prostitution” offense. Application of Article 12.03(d) would
appear particularly inept here.
                                                    Bennett   Concurring Opinion    Page 10

for believing that the statute of limitations for aggravated assault is, as we have blithely

noted, three years and for therefore not filing a motion to quash the indictment.

Filed: November 27, 2013
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