                                                                    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
