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



                                 THE STATE OF TEXAS

                                              v.

                           CARL ALAN BENNETT, Appellee

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

        K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J., J OHNSON,
H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J., filed a concurring opinion,
in which P RICE, J., joined as to Part I. J OHNSON, J., filed a concurring opinion.
C OCHRAN, J., filed a concurring opinion. M EYERS, J., filed a dissenting opinion. P RICE,
J., filed a dissenting opinion. W OMACK, J., concurred.

                                       OPINION

       In his motion for new trial, Carl Bennett alleged that he received ineffective assistance

of counsel. The trial judge agreed and granted him a new trial. The court of appeals reversed

and found that trial counsel was not ineffective for failing to challenge Bennett’s indictment

on statute-of-limitations grounds because the legal basis of such a challenge was unsettled.
                                                                                   BENNETT—2

We agree and affirm the court of appeals’ judgment.

       On December 1, 2009, Bennett was indicted for aggravated assault allegedly occurring

on June 5, 2007. After being found guilty, Bennett filed a motion for new trial alleging

ineffective assistance of counsel.      Bennett claimed that the statute of limitations for

aggravated assault was two years, and therefore counsel’s failure to challenge the indictment

on that basis deprived him of ineffective assistance of counsel. Bennett supplemented his

motion for new trial with his trial counsel’s affidavit, in which he claimed that he did not

challenge the indictment on that basis because, based on his review of Texas Code of

Criminal Procedure article 12.01(6),1 he believed that the statute of limitations was three

years. The judge granted Bennett a new trial, stating that while he would have denied such

a challenge because superior courts have held the statute of limitations to be three years,

counsel should have nonetheless preserved the issue for appeal. The State appealed.

       Because the statute of limitations is controlled by statute, the preliminary issue in the

court of appeals was determining which statute applied. Article 12.01’s catch-all provision

provides that all felonies not specifically listed have a three-year statute of limitations, where

as article 12.03(d) states “[e]xcept as otherwise provided by this chapter, any offense that

bears the title ‘aggravated’ shall carry the same limitations period as the primary crime.” In

this case, under article 12.01’s catch-all provision the statute of limitations for aggravated



       1
         T EX. C ODE C RIM. P RO. art. 12.01(6) (West 2006) (providing a statute of
limitations of “three years from the date of the commission of the offense: all other
felonies.”) (currently T EX. C ODE C RIM. P RO. art. 12.01(7) (West 2012)).
                                                                                   BENNETT—3

assault would be three years; under article 12.03(d) it would be two.2 In its analysis, the

court of appeals discovered that we have not spoken with one voice on the matter.3 The court

noted that in Hunter v. State4 we stated, in dicta and without citation to either statute, that the

statute of limitations for aggravated assault was three years.5 In Ex parte Salas—again in

dicta, but with citations to both statutes—we stated that the limitations period “has long been

three years.”6 In Ex parte Matthews, we cited to article 12.03(d) in finding that the statute

of limitation applicable to aggravated perjury is two years because that is the statute of

limitations applicable to perjury, the primary crime.7 The court of appeals read Hunter and

Salas as holding the statute of limitations for aggravated assault is three years.8

Acknowledging Bennett’s claim that Matthews implicitly overruled the previous cases, it

found that the law is unsettled and therefore counsel could not be found ineffective for not




       2
       Id. art. 12.02 (West 2012) (providing a two-year statute of limitations for
misdemeanors); T EX. P ENAL C ODE § 22.01(b).
       3
      See State v. Bennett, No. 05-11-00252-CR, 2012 WL 11181, *2-3 (Tex.
App.—Dallas Jan. 4, 2012) (mem. op, not designated for publication).
       4
           576 S.W.2d 395, 399 (Tex. Crim. App. 1979).
       5
           Bennett, 2012 WL 11181, at *2.
       6
           Ex parte Salas, 724 S.W.2d 67, 68 (Tex. Crim. App. 1987).
       7
         Ex parte Matthews, 933 S.W.2d 134, 136 (Tex. Crim. App. 1996), overruled on
other grounds by Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998).
       8
           Bennett, 2012 WL 11181, at *3.
                                                                                BENNETT—4

asserting the statute-of-limitations challenge.9 The court of appeals concluded that “the trial

court did not have discretion to grant a new trial based on failure to preserve that claim for

appellate purposes.” 10

       To prevail on this claim, Bennett must show that trial counsel’s performance was

deficient and this deficient performance prejudiced him.11 However, we have repeatedly

declined to find counsel ineffective for failing to take a specific action on an unsettled

issue.12 Like the court of appeals, we find that the particular statute-of-limitations question

presented here is unsettled. At the time of Bennett’s trial, Salas and Hunter—despite the

lack of substantive analysis or necessity to address the issue—supported counsel’s belief that

the statute of limitations was three years. That Matthews may be inconsistent with our

previous cases’ statements on the applicable statute-of-limitations period further supports the

conclusion that this is an unsettled issue. Our conclusion that the law is unsettled disposes

of Bennett’s ineffective-assistance-of-counsel claim and precludes an opportunity to resolve




       9
            Id. at * 3 (citing Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005)).
       10
            Id. at * 4.
       11
            Strickland v. Washington, 466 U.S. 668, 687 (1984).
       12
         See, e.g., Ex parte Smith, 296 S.W.3d 78, 81 (Tex. Crim. App. 2009); Ex parte
Roemer, 215 S.W.3d 887, 894 (Tex. Crim. App. 2007); Ex parte Bahena, 195 S.W.3d
704, 707 (Tex. Crim. App. 2006); Ex parte Chandler, 182 S.W.3d 350, 358-59 (Tex.
Crim. App. 2005).
                                                                          BENNETT—5

the underlying statute-of-limitations issue.13

       The court of appeals’ judgment is affirmed.




DELIVERED: November 27, 2013

PUBLISH




       13
          See Chandler, 182 S.W.3d at 358-59 (“[L]egal advice which only later proves to
be incorrect does not normally fall below the objective standard of reasonableness under
Strickland.”).
