                                                                                ACCEPTED
                                                                            12-15-00183-CR
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                      8/24/2015 11:32:00 AM
                                                                              CATHY LUSK
                                                                                     CLERK



                      NO. 12-15-00183-CR
                                                            FILED IN
               IN THE COURT OF APPEALS FOR           12th COURT OF APPEALS
                                                          TYLER, TEXAS
                                                     8/24/2015 11:32:00 AM
              THE TWELTH SUPREME JUDICIAL                 CATHY S. LUSK
                                                              Clerk
                      DISTRICT OF TEXAS

                       AT TYLER, TEXAS


      FREDERICK DESHUN LEE v. THE STATE OF TEXAS


         Appeal from Cause Number 31727 (Counts I and II)
           3rd Judicial District Court of Anderson County
             Hon. Pam Foster Fletcher, Judge Presiding


                     APPELLANT’S BRIEF


                                 STATE COUNSEL FOR OFFENDERS
                                 APPELLATE SECTION

                                 Nicholas Mensch
                                 State Bar of Texas No. 24070262
                                 P.O. Box 4005
                                 Huntsville, Texas 77342-4005
                                 (936) 437-5252
                                 (936) 437-5279 (fax)
                                 nicholas.mensch@tdcj.texas.gov

                                 Attorney for Appellant


ORAL ARGUMENT NOT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
Frederick Deshun Lee, TDCJ# 1645475

TRIAL AND APPELLATE COUNSEL:
Nicholas Mensch
State Bar of Texas No. 24070262
State Counsel for Offenders
P.O. Box 4005; Huntsville, Texas 77340
(936) 437-5252/(936) 437-5279 fax

APPELLEE:
THE STATE OF TEXAS

TRIAL COUNSEL:
Cindy Garner
State Bar of Texas No. 07673100
Special Prosecution Unit
904 E. Market St.
Palestine, TX 758001
(903) 723-0805/(903) 723-1469 fax

APPELLATE COUNSEL:
Melinda Mayo Fletcher
State Bar of Texas No. 18403630
Special Prosecution Unit
P.O. Box 1744; Amarillo, Texas 79105
(806) 367-9407/(866) 923-9253 fax




                                       ii
                                          TABLE OF CONTENTS


IDENTITY OF PARTIES & COUNSEL ................................................................. ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 2

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2

ISSUE PRESENTED ................................................................................................. 2

    Whether the trial court erred by refusing to set aside both counts of the
    indictment because the statute of limitations for aggravated assault on a
    public servant had run? ........................................................................................ 4

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 4

ARGUMENT ............................................................................................................. 4

PRAYER .................................................................................................................. 11

CERTIFICATE OF SERVICE ................................................................................ 12

CERTIFICATE OF COMPLIANCE ....................................................................... 12




                                                            iii
                                      INDEX OF AUTHORITIES
Cases

Boykin v. State,
      818 S.W.2d 782 (Tex. Crim. App. 1991) ........................................................7

Clinton v. State,
      354 S.W.3d (Tex. Crim. App. 2011) ..............................................................7

Ex parte Keller
      173 S.W.3d 492 (Tex. Crim. App. 2005) ........................................................7

Ex parte Rieck,
      144 S.W.3d 510 (Tex. Crim. App. 2004) ........................................................7

Fantich v. State,
      420 S.W.3d 287 (Tex. App.—Tyler 2013, no pet.) ................................ 4, 5, 6

Gallardo v. State,
      768 S.W.2d 875 (Tex. App.—San Antonio 1989. pet. ref'd) ..........................5

Henson v. State,
     No. 05-97-01894-CR, 2000 Tex. App. LEXIS 5273 (Tex. App.—Dallas
     2000, pet. ref'd) ................................................................................................8

Hernandez v. State,
     127 S.W.3d 768 (Tex. Crim. App. 2004) ........................................................5

Rushing v. State,
      353 S.W.3d 863 (Tex. Crim. App. 2011) ........................................................7

State v. Bennett,
       415 S.W.3d 867 (Tex. Crim. App. 2013) ........................................................8

State v. Schunior,
       No. 04-14-00347-CR, 2015 Tex. App. LEXIS 3898 (Tex. App.—San
       Antonio 2015, pet. filed).............................................................................. 4-5

Vasquez v. State,
     557 S.W.2d 779 (Tex. Crim. App. 1977) ........................................................5


                                                          iv
White v. State,
      61 S.W.3d 424 (Tex. Crim. App. 2001) ...................................................... 6-7
Statutes

Texas Code of Criminal Procedure art. 12.01(7) ......................................................5

Texas Code of Criminal Procedure art. 12.02(a) ....................................................10

Texas Code of Criminal Procedure art. 12.03(d) ............................................ passim

Texas Code of Criminal Procedure art. 21.02(6) ......................................................5

Texas Government Code § 311.011(a) ......................................................................7

Texas Government Code § 311.011(b) ......................................................................7

Texas Government Code § 311.021...........................................................................7

Texas Penal Code § 22.01(a) .............................................................................. 6, 10

Texas Penal Code § 22.01(b) .....................................................................................6

Texas Penal Code § 22.02 ................................................................................... 6, 10

Treatises

Dix and Schmolesky, 40 TEX. PRAC. SERIES § 6:1 (3rd ed. 2011) .............................5

MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed.) .........................................9




                                                        v
                               NO. 12-15-00183-CR

                        IN THE COURT OF APPEALS FOR

                       THE TWELTH SUPREME JUDICIAL

                               DISTRICT OF TEXAS

                                AT TYLER, TEXAS


          FREDERICK DESHUN LEE v. THE STATE OF TEXAS


                  Appeal from Cause Number 31727 (Counts I and II)
                    3rd Judicial District Court of Anderson County
                      Hon. Pam Foster Fletcher, Judge Presiding


                              APPELLANT’S BRIEF


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW FREDERICK DESHUN LEE, Appellant in cause number

12-15-00183-CR, and submits this brief in accordance with the Texas Rules of

Appellate Procedure and in support of his request for reversal of the trial court’s

final judgment.




                                         1
                          STATEMENT OF THE CASE

      On April 24, 2014 an Anderson County grand jury returned an indictment

charging Appellant with two counts of Aggravated Assault of a Public Servant

alleged to have occurred on or about February 29, 2012. (C.R. at 6-7). On June 5,

2015, Appellant pled guilty to both counts as charged in the indictment pursuant to

a plea bargain agreement and the trial court assessed his punishment at 17 years’

confinement in the Texas Department of Criminal Justice (“TDCJ”) for each count.

(3 R.R. at 21, C.R. at 99-109). The trial court certified that this criminal case “is a

plea bargain case, but matters were raised by written motion filed and ruled on

before trial and not withdrawn or waived, and the defendant has the right of

appeal.” (C.R. at 102). No Motion for New Trial was filed. Thereafter, on July 2,

2015, Appellant timely filed his notice of appeal for each count. (C.R. at 125-128).

              STATEMENT REGARDING ORAL ARGUMENT

       Appellant waives oral argument.

                               ISSUE PRESENTED

      Whether the trial court erred by refusing to set aside both counts of the

indictment because the statute of limitations for aggravated assault on a public

servant had run?




                                          2
                            STATEMENT OF FACTS

      On April 24, 2014 an Anderson County grand jury returned an indictment

charging Appellant with two counts of Aggravated Assault of a Public Servant

under Tex. Pen. Code § 22.02 alleged to have occurred on or about February 29,

2012. (C.R. at 6-7). Specifically, the indictment alleged that on or about February

29, 2012, in Anderson County, Texas, Appellant:

      (Count One): intentionally, knowingly, or recklessly cause bodily
      injury to Thomas Lobasso by stabbing him in the hand and/or wrist,
      and the defendant did then and there use or exhibit a deadly weapon,
      to wit: a sharp metal object, during the commission of said assault,
      and the defendant did then and there know that the said Thomas
      Lobasso was then and there a public servant, to-wit: an employee of
      the Texas Department of Criminal Justice, and that the said Thomas
      Lobasso was then and there lawfully discharging an official duty, to
      wit: supervising individuals in the custody of the Texas Department of
      Criminal Justice.

      (Count Two): intentionally, knowingly, or recklessly cause bodily
      injury to Derek Wooldridge by stabbing him in the arm, and the
      defendant did then and there use or exhibit a deadly weapon, to wit: a
      sharp metal object, during the commission of said assault, and the
      defendant did then and there know that the said Derek Wooldridge
      was then and there a public servant, to-wit: an employee of the Texas
      Department of Criminal Justice, and that the said Derek Wooldridge
      was then and there lawfully discharging an official duty, to wit:
      supervising individuals in the custody of the Texas Department of
      Criminal Justice.

      On March 31, 2015, the trial court heard Appellant’s Motion to Set Aside

the Indictment in this case that alleged that the applicable statute of limitations in

the case was two years. (2 R.R. at 7-10, C.R. at 74-76) After hearing arguments


                                          3
from both the Appellant and the State, the trial court denied the motion. (2 R.R. at

10). Thereafter, on June 5, 2015, Appellant pled guilty to both counts as charged in

the indictment pursuant to a plea bargain agreement and the trial court assessed his

punishment at 17 years’ confinement in the Texas Department of Criminal Justice

(“TDCJ”) for each count. (3 R.R. at 21, C.R. at 99-109).

                      SUMMARY OF THE ARGUMENT

      This Court should, at least in part, reconsider its decision in Fantich v. State,

420 S.W.3d 287 (Tex. App—Tyler, 2013, no pet.), as to what constitutes a

“primary offense.” Simply construing the primary offense of assault by simply

looking whether the assault, minus the term aggravated, is still a felony does not

answer the question of what is the primary offense. By using the common

definition of “primary”, (most important[,] most basic or essential,[or] happening

or coming first[.]), Appellant contends that the “primary offense” in this case is

misdemeanor assault. Thus, the applicable statute of limitations is two years.

                                   ARGUMENT

      Whether the trial court erred by refusing to set aside both counts of the
indictment because the statute of limitations for aggravated assault on a
public servant had run?

      “The purpose of a statute of limitations in the criminal context is to protect

the accused from having to defend against stale criminal charges and to prevent

punishment for acts committed in the remote past.” State v. Schunior, No. 04-14-


                                          4
00347-CR, 2015 Tex. App. LEXIS 3989 at ** 3 (Tex. App.—San Antonio 2015,

pet. filed) (designated for publication), citing to Dix and Schmolesky, 40 TEX.

PRAC. SERIES § 6:1 (3rd ed. 2011) and Hernandez v. State, 127 S.W.3d 768, 772

(Tex. Crim. App. 2004). “A statute of limitations is construed strictly against the

State and liberally in favor of the defendant.” Schunior, 2015 Tex. App. LEXIS

3989 at ** 3, citing to Gallardo v. State, 768 S.W. 2d 875, 880 (Tex. App.—San

Antonio 1989, pet. ref’d). In other words, the burden of proof is on the State to

show that the offense alleged was committed prior indictment and within the

applicable statute of limitations. Vasquez v. State, 557 S.W.2d 779 (Tex. Crim.

App. 1977). The indictment must show on its face that the prosecution is not

barred by limitations. Tex. Code of Crim. Proc. Art. 21.02(6).

      This Court has examined the issue of what is the statute of limitations for

aggravated assault in Fantich v. Texas, 420 S.W.3d 287 (Tex. App.—Tyler 2013,

no pet.). Specifically, this Court analyzed the question of “whether the limitation

period for the offense of aggravated assault is two or three years.” Id. at 288-289.

This Court answered this question by examining Tex. Code of Crim. Proc. Art.

12.01(7) and 12.03(d). Id. at 290. Finding no ambiguity, this Court stated “[f]or

aggravated assault, the primary crime is assault which is defined in section 22.01 of

the penal code.” Id. Finally, this Court held that because Section 22.01 has

different classifications, misdemeanors and felony assaults, the applicable statute


                                         5
of limitations depends on what classification the assault is. Id. If it is a felony

assault, then the statute of limitations is three years. Id., see also Tex. Pen. Code §

22.01(b). If it is a misdemeanor assault, then the applicable statute of limitations is

two years. Id., see also Tex. Pen. Code 22.01(a). According to this Court, “either

misdemeanor or felony assault can be the ‘primary crime’ for aggravated assault.

Id.

      On April 24, 2014 an Anderson County grand jury returned an indictment

charging Appellant with two counts of aggravated assault of a public servant under

Tex. Pen. Code § 22.02 alleged to have occurred on or about February 29, 2012.

(C.R. at 6-7). Under this Court’s analysis in Fantich, it would appear Appellant is

out of luck with his statute of limitations claim as under Fantich, the primary

offense would be the felony assault of a public servant. Tex. Pen. Code § 22.01(b).

Appellant, however, disagrees with this Courts determination of what constitutes a

“primary offense” under Tex. Code of Crim. Proc. Art. 12.03(d) and contends in

this case, the primary offense is still misdemeanor assault under Tex. Pen. Code §

22.01(a). Thus, the statute of limitations for aggravated assault of a public servant

should be two years.

      “[C]ourts are required to construe a statute in accordance with the plain

meaning of its literal text unless the language of the statue is ambiguous or the

plain meaning leads to an absurd result.” White v. State, 61 S.W.3d 424, 428 (Tex.


                                          6
Crim. App. 2001), citing Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).

“To determine the plain meaning of a statute, [a court applies] the canons of

construction.” Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011),

citing to Rushing v. State, 353 S.W.3d 863, 865 (Tex. Crim. App. 2011).1 A Court

looks at the “collective’ intent or purpose of the legislators who enacted the

legislation.” Id., citing Boykin, 818 S.W.2d at 785. “Words or phrases shall be read

in context and construed according to the rule of grammar and common usage.”

Tex. Gov’t Code § 311.011(a). “Moreover, ‘words or phrases that have acquired a

technical or particular meaning, whether by legislative definition or otherwise,

shall be construed accordingly.’” Ex parte Keller, 173 S.W.3d 492, 499 (Tex.

Crim. App. 2005) (Keller, P.J., dissenting), citing to Ex parte Rieck, 144 S.W.3d

510, 512 (Tex. Crim. App. 2004) and Tex. Gov’t Code § 311.011(b). “When

determining the fair, objective meaning of an undefined statutory term, [a] Court

may consult standard dictionaries.” Id. Tex. Code of Crim. Proc. Art. 12.03(d)

provides:

       Except as otherwise provided by this chapter, any offense that bears
       the title “aggravated” shall carry the same limitation period as the
       primary crime.




1
    See Tex. Gov’t Code § 311.021. “In enacting a statute, it is presumed that: (1) compliance
with the constitution of this state and the United States is intended; (2) the entire statute is
intended to be effective; (3) a just and reasonable result is intended; (4) a result of feasible
execution is intended; and (5) public interest is favored over any private interest.”

                                               7
      The term “primary crime” is not defined by Tex. Code of Crim. Proc. Art.

12.03(d). Appellant contends that “primary crime” cannot simply refer to whatever

offense matches the title of the instant offense minus the word “aggravated,” or

even if the assault minus the term aggravated is a felony or misdemeanor, not only

because the statute nowhere so states, but also because there exists at least one

offense with no such primary crime – aggravated promotion of prostitution. For

example, though titled “aggravated” in conformity with the requirements of Tex.

Code of Crim. Proc. Art. 12.03(d), the aggravated promotion of prostitution does

not explicitly incorporate the crime of promotion of prostitution by its Penal Code

section.” State v. Bennett, 415 S.W.3d 867, 873, n. 42 (Tex. Crim. App. 2013)

(Keller, P.J., concurring). Thus, it is uncertain what “primary crime” means as to

that offense. Id. Since there are zero primary crimes, that offense is not controlled

by Tex. Code of Crim. Proc. Art. 12.03(d). Henson v. State, No. 05-97-01894-CR,

2000 Tex. App. LEXIS 5273 (Tex. App.—Dallas 2000, pet. ref’d) (not designated

for publication). Based on this example, determining the applicable statute of

limitations based on whether the assault, minus the term aggravated, is a felony or

misdemeanor, or if it is an aggravated form, does not appear to settle what exactly

the “primary crime” is.

      Again, the term “primary crime” is not defined by Tex. Code of Crim. Proc.

Art. 12.03(d). “Primary,” as in “primary crime,” could mean “most important[,]


                                         8
most basic or essential,[or] happening or coming first[.]” MERRIAM-WEBSTER

COLLEGIATE DICTIONARY (11th ed.).2 In this case, the two counts of the indictment

provided:

      (Count One): intentionally, knowingly, or recklessly cause bodily
      injury to Thomas Lobasso by stabbing him in the hand and/or
      wrist, and the defendant did then and there use or exhibit a deadly
      weapon, to wit: a sharp metal object, during the commission of said
      assault, and the defendant did then and there know that the said
      Thomas Lobasso was then and there a public servant, to-wit: an
      employee of the Texas Department of Criminal Justice, and that the
      said Thomas Lobasso was then and there lawfully discharging an
      official duty, to wit: supervising individuals in the custody of the
      Texas Department of Criminal Justice.

      (Count Two): intentionally, knowingly, or recklessly cause bodily
      injury to Derek Wooldridge by stabbing him in the arm, and the
      defendant did then and there use or exhibit a deadly weapon, to wit: a
      sharp metal object, during the commission of said assault, and the
      defendant did then and there know that the said Derek Wooldridge
      was then and there a public servant, to-wit: an employee of the Texas
      Department of Criminal Justice, and that the said Derek Wooldridge
      was then and there lawfully discharging an official duty, to wit:
      supervising individuals in the custody of the Texas Department of
      Criminal Justice.

      (emphasis added)

      Causing bodily injury to the victims by stabbing them was the most basic or

essential element in this offense. The elements of the offense of aggravated assault

on a public servant are:



2
   Available at http://www.merriam-webster.com/dictionary/primary (last accessed August 14,
2015).

                                            9
       (1) intentionally, knowingly, or recklessly causes bodily injury to
           another;
       (2) the actor knew that the person he assaulted was a public servant;
       (3) the person assaulted was discharging official duties at the time of
           the assault;
       (4) the person assaulted was lawfully discharging official duties; and
       (5) uses or exhibits a deadly weapon during the commission of the
           assault.

       Tex. Pen. Code § 22.02.

       Listing the elements of the offense clearly shows that the most important or

most basic element or essential element of aggravated assault on a public servant is

still intentionally, knowingly, or recklessly causes bodily injury to another person.

In other words, it is the primary offense that underlies Appellant’s conviction for

aggravated assault on a public servant. Without the actual assault, there would be

no charge. See Tex. Pen. Code § 22.02. This “primary offense” would then be

misdemeanor assault. See Tex. Pen. Code § 22.01(a). Thus, the applicable statute

of limitations would be two years in this case. See Tex. Code of Crim. Proc. Art.

12.02(a). The State filed the indictment in this case on April 24, 2014 charging

Appellant with two counts of Aggravated Assault of a Public Servant alleged to

have occurred on or about February 29, 2012. This is clearly over the two year

statute of limitations that should be applied to this offense. The trial court erred by

denying Appellant’s Motion to Set Aside the Indictment in this case. (2 R.R. at

10).



                                          10
                                    PRAYER

      Appellant Frederick Deshun Lee prays that this Court reverse the trial

court’s judgment and render judgment in his favor as the applicable statute of

limitations has run. Appellant also prays for such other relief that this Court may

deem appropriate.

                                      Respectfully submitted,
                                      STATE COUNSEL FOR OFFENDERS

                                      /s/ Nicholas Mensch
                                      Nicholas Mensch
                                      State Bar of Texas No. 24070262
                                      P.O. Box 4005
                                      Huntsville, Texas 77342-4005
                                      (936) 437-5252
                                      (936) 437-5279 (fax)
                                      nicholoas.mensch@tdcj.texas.gov




                                        11
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Appellant’s Brief was

served upon opposing counsel noted below, by one or more of the following:

certified mail (return receipt requested), facsimile transfer, or electronic mail (e-

mail), this 24th day of August, 2015.

Melinda Fletcher
Special Prosecution Unit
P. O. Box 1744
Amarillo, TX 79501
Facsimile no. 866-923-9253
E-mail address: mfletcher@sputexas.org

Allyson Mitchell
Anderson County District Attorney
500 N. Church St.
Palestine, TX 75801
(903) 723-7400/(903) 723-7818 (fax)
E-mail address: amitchell@co.anderson.tx.us

                                        /s/ Nicholas Mensch
                                        Nicholas Mensch
                                        Attorney for Appellant


                      CERTIFICATE OF COMPLIANCE

      This document complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4(i) because this brief contains 2,140 words.


                                        /s/ Nicholas Mensch
                                        Nicholas Mensch
                                        Attorney for Appellant


                                          12
