              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

         J OHNSON, J., filed a concurring opinion.

                            CONCURRING OPINION

         I join the Court’s opinion, which affirms the judgment of the court of appeals based on the

unsettled state of the law in regard to the term of the statute of limitations for the offense that was

alleged by the indictment. After considering the statutes at issue, I conclude that the term is three

years.

         One of our rules of statutory construction tells us that we construe a statute in accordance

with its plain meaning unless the plain meaning would produce absurd results that the legislature

could not possibly have intended. Boykin v. State, 818 S.W.2d 782,785 (Tex. Crim. App. 1991).

I would hold that this is such a case.
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        In examining the language in Article 12.03, I find that three of the four paragraphs,

concerning attempt, criminal conspiracy, solicitation, and organized criminal activity, all have the

same term of limitations as does the offense at issue. Only the fourth paragraph, aggravated

offenses, is different; it sets the term of limitation at that of a lesser-included offense. Then, looking

at Article 12.01, I find that, for two of the six aggravated offenses, robbery and kidnapping, the

unaggravated offense is a felony and is specifically assigned a term of five years. Unaggravated

sexual assault is also a felony and has a specific term of ten years. Only unaggravated assault,

perjury, and promotion of prostitution are misdemeanors, and each, if aggravated, is a felony. By

the elements of the offense, neither perjury nor promotion of prostitution are violent offenses,

leaving assault as the only violent offense with a term of two years. Surely the legislature did not

intend that a serious, violent felony would have the same statute-of-limitations term as a

misdemeanor that may involve merely causing physical contact that another person will regard as

offensive or provocative.

        Clearly, given the widely differing views expressed in the various concurring opinions, only

the legislature can say definitively what it intended.



Filed: November 27, 2013
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