            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

              M EYERS, J., filed a dissenting opinion.

                                DISSENTING OPINION

       Bennett filed a motion for new trial claiming that his counsel was ineffective for

failing to challenge the indictment on the basis that the two-year statute of limitations

barred his aggravated-assault charge. The trial judge said that he would not have granted

a motion to quash if one had been filed because he believed the statute of limitations to be

three years, but he granted the motion for new trial because defense counsel should have

preserved the issue for appellate review. The State appealed the trial court’s decision and
                                                                        Bennett Dissent–Page 2

the court of appeals reversed, holding that, “Because the law is, at best, unsettled as to

whether the two-year statute of limitations applies to aggravated assault, the trial court did

not have discretion to grant a new trial based on failure to preserve that claim for

appellate purposes.” State v. Bennett, No. 05-11-00252-CR, 2012 Tex. App. LEXIS 24 at

*10 (Tex. App.–Dallas January 4, 2012) (not designated for publication).

       The majority overlooks the question of whether the trial judge abused his

discretion. I disagree with the court of appeals that it was an abuse of discretion for the

trial judge to grant a new trial in this case. How can it be an abuse of discretion when

there is uncertainty in the law? To me, the fact that the law regarding the statute of

limitations was unsettled at the time of the trial indicates that the trial judge did not abuse

his discretion in granting a new trial.

       I would hold that the court of appeals erred in reversing the trial court’s order

granting a new trial. Because the majority affirms the court of appeals, I respectfully

dissent.




Filed: November 27, 2013

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