            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

       P RICE, J., filed a dissenting opinion.

                                  DISSENTING OPINION

       I agree with Presiding Judge Keller that the applicable statute of limitations for the

particular aggravated assault in this case is two years, not three, and I therefore join Part I of

her concurring opinion. Ill-considered dicta from our own precedents and contrary lower

court opinions notwithstanding, it is clear enough to me from the face of the statutory

language that the limitations period is two years. Judge Keller’s discussion of the legislative
                                                                                          Bennett — 2


history reinforces this conclusion.1 I part company with Judge Keller, and with the Court,

in that I would hold both that the applicable limitations period is two years and that trial

counsel rendered constitutionally ineffective assistance of counsel in failing to seek dismissal

of the indictment on that basis. Because the Court today does not, I respectfully dissent.

        Judge Keller’s concurring opinion documents that there was a lack of any on-point

case law at the time of the appellee’s trial that squarely held that the limitations period is two

years.2 There are at least two court of appeals opinions in which the lower courts felt

constrained by this Court’s previous dicta to hold that it is, in fact, three.3 But, as Judge

Keller’s limitations analysis today persuasively demonstrates, the statutory language is

plainly to the contrary. Moreover, there was case law at the time of trial from which the

appellee’s trial counsel could readily have fashioned a substantial argument that the statute

should indeed be construed according to its plain import.4

        1

        Presiding Judge Keller’s Concurring Opinion at 6-13.
        2

        Id. at 3-6.
        3

       Monroe v. State, 871 S.W.2d 801, 805 (Tex. App.—Houston [14th Dist.] 1994, no pet.);
Peacock v. State, 690 S.W.2d 613, 616 (Tex. App.—Tyler 1985, no pet.).
        4

         A lawyer is obliged to zealously represent his client’s interests within the bounds of the law.
T EX. D ISCIPLINARY R ULES P ROF’L C ONDUCT preamble ¶ 3. He has, moreover, “a duty to use legal
procedure for the fullest benefit of the client’s cause,” so long as the bases for his advocacy is not
frivolous. Id. at R. 3.01 & cmt. 1. A legal contention is frivolous “if the lawyer is unable either to
make a good faith argument that [the contention] is consistent with existing law or that it may be
supported by a good faith argument for an extension, modification or reversal of existing law.” Id. at
cmt. 2. The language of Articles 12.01 and 12.03(d) of the Code of Criminal Procedure, together with
                                                                                        Bennett — 3


       The Sixth Amendment guarantees an accused the benefit of trial counsel who is

familiar with the applicable law.5 Should trial counsel’s investigation of that law reveal

ambiguity or uncertainty, he must advise his client with respect to any difficult choices that

such ambiguity or uncertainty may engender, offering his best estimate of how it will

eventually be resolved, so that his client will be able to make an informed decision. Trial

counsel should not ordinarily be found deficient under these circumstances just because his

best guess later proves inaccurate with respect to how the law may be clarified in the future.

That, I think, is the gist of the case law that the Court invokes today to deny the appellee’s

ineffective-assistance-of-counsel claim.6

       But I do not think this principle should apply invariably. In an adversarial system, it

is difficult to imagine any rational justification for an attorney’s failure to urge a trial court

to follow the plain dictates of a statute that would favorably—and finally—dispose of his

client’s case just because there is dicta out there that essentially assumes—sans critical




this Court’s opinion in Matthews, provided a basis for the appellee’s trial counsel to argue that the
applicable limitations period is two years that was anything but frivolous. T EX. C ODE C RIM. P ROC.
arts. 12.01, 12.03(d); Ex parte Matthews, 933 S.W.2d 134 (Tex. Crim. App. 1996), overruled on other
grounds by Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998).
       5

        See Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998) (“[T]o be reasonably likely
to render effective assistance to his client, a lawyer must be sufficiently abreast of developments in
criminal law aspects implicated in the case at hand.”).
       6

        Majority Opinion at 4 n.12.
                                                                                           Bennett — 4


exegesis—that the statute would be construed other than by its plain import.7 Trial counsel

did not require a “crystal ball” to appreciate that there was nothing to lose and potentially

everything to gain by raising the limitations issue on the appellee’s behalf.8 No doubt, had

trial counsel consulted with the appellee about the pros and cons of pursuing a limitations

claim, the appellee would eagerly have chosen to do so. And I can think of no reasonable

strategic or tactical consideration that could support advising the appellee to choose any

differently.9 There is simply no advantage to be gained from failing to pursue a good-faith

statute-of-limitations claim (at least outside the parameters of a negotiated plea). Finally, as

Judge Keller’s concurring opinion today makes abundantly clear, the appellee would

ultimately (even if not immediately) have prevailed with such a limitations claim had he

timely raised it in the trial court,10 and the charges against him would have been dismissed

        7

        We have said that a claim of ineffective assistance of counsel is not foreclosed by the fact that
an issue is one of first impression if the legal proposition that trial counsel failed to invoke “should
have been evident from a plain reading of the . . . statute itself[.]” Welch, 981 S.W.2d at 185.
        8

        See Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim. App. 2005) (“[A] bar card does not
come with a crystal ball attached . . . [and] legal advice which only later proves to be incorrect does
not normally fall below the objective standard of reasonableness under Strickland [v. Washington, 466
U.S. 668 (1984)].”).
        9

          See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (“[W]hen no reasonable
trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective
standard of reasonableness as a matter of law[.]”).
        10

         We have held that—at least to the extent that it operates as a “factual defense”—a statute-of-
limitations claim “is forfeited if not asserted at or before the guilt/innocence stage of trial.” Proctor,
967 S.W.2d at 844. See Phillips v. State, 362 S.W.3d 606, 617 (Tex. Crim. App. 2011) (“We have
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with prejudice. In short, there is no reasonable cost-benefit analysis that would excuse trial

counsel’s omission here.

        I would hold that the appellee’s trial counsel performed deficiently and that his

deficiency seriously prejudiced his client. I would therefore reverse the judgment of the

court of appeals and leave intact the trial court’s order granting of the appellee’s motion for

new trial. Because the Court does not, I respectfully dissent.




FILED:          November 27, 2013
PUBLISH




stated, in a post-Proctor case, that a limitations bar may be raised in a pretrial motion to quash or
dismiss, a pretrial writ, at trial, on direct appeal, or in a collateral proceeding.”). I withhold judgment
whether the appellee’s limitations claim in this case is of a kind that he could vindicate by post-
conviction application for writ of habeas corpus in contemplation of Phillips.
