                                                                         ACCEPTED
                                                                     12-15-00183-CR
                                                        TWELFTH COURT OF APPEALS
                                                                      TYLER, TEXAS
                                                                9/17/2015 9:00:00 AM
                                                                           Pam Estes
                                                                              CLERK


        Cause Number 12-15-00183-CR
                                                     FILED IN
                                              12th COURT OF APPEALS
                                                   TYLER, TEXAS
             Frederick Deshun Lee
                                              9/17/2015 9:00:00 AM
                        vs.                          PAM ESTES
                                                       Clerk

                The State of Texas


                  State’s Brief


On Appeal in Cause Number 31727, Counts 1 and 2
From the * District Court of Anderson County, Texas
        Hon. Pam Foster Fletcher, Presiding




                                             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




             Oral Argument is Waived
                   Table of Contents


Index of Authorities .................................. 3
Issue Presented ....................................... 1
Summary of the Argument ............................... 2
Argument .............................................. 2


 Response to Sole Issue: Because the underlying
 offense is a felony, the statute of limitations
 for the offense of aggravated assault on a public
 servant is three years. .............................. 2


Prayer ................................................ 7
Certificate of Compliance ............................. 8
Certificate of Service ................................ 8




12-15-00183-CR        State’s Brief                 pg. 2
                   Index of Authorities



Texas State Case Law

Bennett v. State, 415 S.W.3d 867
    (Tex. Crim. App. 2013) ......................... 2, 3

Fantich v. State, 420 S.W.3d 287
    (Tex. App. –Tyler 2013, no pet.) ............... 5, 6

State v. Schunior, --- S.W.3d ---, 2015 WL 1875972
    (Tex. App. –San Antonio 2015, pet. granted) ....... 6



Texas Code of Criminal Procedure

Art. 12.03 ...................................... 3, 4, 7

Art. 12.01 ............................................ 4



Texas Penal Code

§ 22.01 ...................................... 4, 5, 6, 7

§ 22.02 ............................................... 4




12-15-00183-CR         State’s Brief                pg. 3
                  Cause Number 12-15-00183-CR


                       Frederick Deshun Lee
                                  vs.
                        The State of Texas


To the Honorable Justices of the Court of Appeals:


     Appellee, the State of Texas, respectfully presents

this brief in support of the judge’s ruling refusing to

find that the statute of limitations on the charge of

aggravated assault on a public servant is only two years.

Lee’s convictions should be affirmed.



                       Issue Presented

     Response    to   Sole     Issue:   Because   the   underlying

offense is a felony, the statute of limitations for the

offense of aggravated assault on a public servant is

three years.




12-15-00183-CR               State’s Brief                   pg. 1
                 Summary of the Argument

       Appellant’s sole issue should be overruled because

the primary offense underlying the crime of aggravated

assault on a public servant is assault on a public

servant, a felony. Therefore, the statute of limitations

is three years. The indictment against Lee was presented

within the 3-year limit, and so his convictions should

be affirmed.



                           Argument

Response to Sole Issue: Because the underlying offense is
a felony, the statute of limitations for the offense of
aggravated assault on a public servant is three years.


       In 2013, the Court of Criminal Appeals released its

opinion in Bennett v. State, 415 S.W.3d 867 (Tex. Crim.

App.    2013).   Bennett   alleged    that   his   attorney    was

ineffective for failing to assert a violation of the

statute of limitations, even though he was indicted for

aggravated assault more than two years after the offense.



12-15-00183-CR             State’s Brief                      pg. 2
Id. at 868. The Court acknowledged that Art. 12.03(7) and

prior    opinions   issued   from   the   same   Court   were   in

conflict. Id. at 869. Without settling the conflict, the

Court found that Bennett’s counsel was not ineffective.

Id. The Court had previously held that the statute of

limitations for aggravated assault was three years. Id.

at 869. However, the Court found that Art. 12.03(7) of

the Code of Criminal Procedure could operate to make the

limitations period only two years.           It found defense

counsel was not ineffective for failing to assert a

violation of a statute of limitations in the midst of

this uncertainty. It also declared, “[T]he law is, at

best, unsettled as to whether the two-year statute of

limitations applies to aggravated assault…” Bennett at

869.

       Since the Bennett opinion, courts have struggled to

settle the conflict in the statutes regarding the statute

of limitations for aggravated assault. The State urges

that the confusion does not exist in this particular

case.     Even   under   Art.   12.03(7),    the    statute     of



12-15-00183-CR            State’s Brief                       pg. 3
limitations for aggravated assault on a public servant

is three years.

       An offense that bears the title “aggravated” shall

carry the same limitation period as the primary crime.

Tex. Crim. Proc. Code Art. 12.03(d). 1 Lee was charged

with    two    counts     of   aggravated       assault     on   a     public

servant.      (CR    1:6-7)    Aggravated       assault     on   a     public

servant is a second degree felony offense. Tex. Penal

Code    §     22.02(b)(2)(B).        The    primary     crime     of    this

aggravated offense, assault on a public servant, is a

third       degree   felony      offense.      Tex.     Penal     Code.     §

22.01(b)(1). The statute of limitations for an assault

on a public servant is three years. Tex. Code Crim. Proc.

Art. 12.01(7). Therefore, the statute of limitations for

an aggravated assault on a public servant is also three

years. Tex. Crim. Proc. Code Art. 12.03(d).

       Lee disagrees with the State in that he asserts that

the “primary crime” of aggravated assault on a public



1 The statute says, “Except as otherwise provided by this chapter…”  The facts
of this case do not fit within the exceptions that are otherwise provided by
the chapter.


12-15-00183-CR                 State’s Brief                            pg. 4
servant is the misdemeanor offense of assault. According

to   his    argument,           this   would      make   the     statute    of

limitations only two years because of the misdemeanor

nature of the primary crime. The State disagrees, and

asserts that the “primary crime” in this case is the

felony     offense         of   assault   on   a   public      servant.    The

outcome of this appeal hinges on the determination of

whether the underlying “primary crime” of aggravated

assault on a public servant is a felony or a misdemeanor.

     Penal Code § 22.01 outlines the criminal offense of

Assault. Subsection (a) defines the misdemeanor offense

of assault. Subsection (b) defines the felony offense of

assault     on    a    public      servant.    This      Court    previously

conceded that § 22.01 does include a “felony assault.”

See Fantich v. State, 420 S.W.3d 287, 290 (Tex. App. –

Tyler 2013, no pet.) (“But either misdemeanor or felony

assault     can       be    the   ‘primary     crime’     for     aggravated

assault.”)

     Fantich questioned the statute of limitations for

the offense of aggravated assault with a deadly weapon.



12-15-00183-CR                    State’s Brief                           pg. 5
This Court noted that the indictment against Fantich did

not allege facts that would render his assault a felony

under Penal Code § 22.01. Based on that decision, this

Court found the statute of limitations for aggravated

assault with a deadly weapon to be two years. Fantich at

291. The San Antonio Court of Appeals arrived at the same

conclusion in another case involving aggravated assault

with a deadly weapon. See State v. Schunior, --- S.W.3d

---, 2015 WL 1875972, at *8 (Tex. App. –San Antonio 2015,

pet. granted). The State appealed the Schunior decision

and   the   Court   of   Criminal   Appeals   has   granted    the

petition for review.

      Unlike the crimes involved in Fantich and Schunior,

the crime of assault on a public servant does appear in

Penal Code § 22.01 and it is a felony. Tex. Penal Code §

22.01(b)(1). This distinction is glaring, not subtle.

      This crime is not aggravated because the victim is a

public servant; the crime is aggravated in this case by

the use or exhibition of a deadly weapon. (CR 1:6) Without

the deadly weapon, the offense would still be a felony,



12-15-00183-CR            State’s Brief                       pg. 6
per Penal Code § 22.01. This is the “primary crime,” and

Art. 12.03(7) declares the statute of limitations to be

three years for this felony offense.

    Lee’s    sole   issue   should   be   overruled   and    his

convictions should be affirmed.



                            Prayer

     The State prays that this Honorable Court affirm the

ruling of the trial court and declare 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




12-15-00183-CR          State’s Brief                       pg. 7
                 Certificate of Compliance

         I hereby certify that, according to Microsoft

Word, this brief contains a total of only 1304 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 Brief for the State was served on Nicholas

Mensch, the attorney for Lee, via electronic mail on this

the 17th day of September, 2015.



                                        /s/ Melinda Fletcher



                                        Melinda Fletcher




12-15-00183-CR          State’s Brief                      pg. 8
