Cause Number PD-1528-15

Frederick Deshun Lee v. The State of Texas

State’s Reply to Petition for Discretionary Review

On PDR from Cause No. 12-15-000183-CR

In the Court of Appeals, Twelfth District, at Tyler

And

Cause No. 31727 (Counts I and II)

In the 3rd Judicial District Court, Anderson County, Texas

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

PD-1528-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/3/2015 12:30:06 PM

Accepted 12/4/2015 12:20:41 PM

ABEL ACOSTA

CLERK
PD-1528-15 State’s Reply to PDR pg. 2

Table of Contents

Table of Contents .....................................2

Index of Authorities ..................................3

Issue Presented .......................................4

Summary of the Argument ...............................5

Argument ..............................................5

State’s Response to Sole Issue: The non-aggravated 

version of Aggravated Assault on a Public Servant 

is Assault on a Public Servant. The statute of 

limitations for Assault on a Public Servant is three 

years, and so the statute of limitations for 

Aggravated Assault on a Public Servant is also three 

years................................................5

Prayer ................................................9

Certificate of Compliance ............................10

Certificate of Service ...............................10
PD-1528-15 State’s Reply to PDR pg. 3

Index of Authorities

Texas State Case Law

Lee v. State, 12-15-00183-CR, 2015 WL 7019187 

(Tex. App. —Tyler Nov. 12, 2015) (mem. op.).......6

Whitelaw v. State, 29 S.W.3d 129 

(Tex. Crim. App. 2000)............................7

Texas Code of Criminal Procedure

Art. 12.01 .........................................6, 7

Art. 12.02 ............................................6

Art. 12.03 ...................................5, 6, 7, 8

Texas Penal Code

Sec. 22.02 ............................................8
PD-1528-15 State’s Reply to PDR pg. 4

Cause Number PD-15-1528-15

Frederick Deshun Lee v. The State of Texas

To the Honorable Judges of the Court of Criminal Appeals:

The State of Texas, by and through her Special 

Prosecution Unit, respectfully presents this Reply to 

Lee’s Petition for Discretionary Review. The State urges 

this Court to deny Lee’s Petition.

Issue Presented

Issue Raised by Lee: Whether the primary crime for 

Aggravated Assault on a Public Servant should be 

misdemeanor assault instead of felony assault, thus 

making the applicable statute of limitations two years?

State’s Response: The non-aggravated version of 

Aggravated Assault on a Public Servant is Assault on a 

Public Servant. The statute of limitations for Assault 

on a Public Servant is three years, and so the statute 
PD-1528-15 State’s Reply to PDR pg. 5

of limitations for Aggravated Assault on a Public Servant 

is also three years.

Summary of the Argument

Code of Criminal Procedure Article 12.03(d) should 

be interpreted to instruct us to simply remove the word 

“aggravated” to arrive at what it calls the “primary 

crime.” Under this interpretation, the statute of 

limitations for aggravated assault on a public servant 

is three years. Lee was indicted within the three-year 

period and so his convictions should stand.

Argument

State’s Response to Sole Issue: The non-aggravated version 

of Aggravated Assault on a Public Servant is Assault on a 

Public Servant. The statute of limitations for Assault on a 

Public Servant is three years, and so the statute of 

limitations for Aggravated Assault on a Public Servant is 

also three years.
PD-1528-15 State’s Reply to PDR pg. 6

Lee was indicted for aggravated assault on a public 

servant approximately 26 months after the date of the

offense. CR 1:6 Lee asserts that the indictment is barred 

by a statute of limitations. The State, the trial court, 

and the lower appellate court disagree. See Lee v. State, 

12-15-00183-CR, 2015 WL 7019187 (Tex. App. —Tyler Nov. 

12, 2015) (mem. op.).

At issue is the interplay of three Articles from the 

Code of Criminal Procedure Articles 12.01(7), 12.02(a), 

and 12.03(d). Misdemeanors have a two-year statute of 

limitations. Tex. Code Crim. Proc. 12.02(a). The default 

statute of limitations for felonies is three years. Tex. 

Code Crim. Proc. Art. 12.01(7). But there is also a 

provision that says an “aggravated” offense carries the 

same limitation period as the primary crime. Tex. Code 

Crim. Proc. Art. 12.03(d). “Primary crime” is not 

defined.

This Court acknowledged the unsettled status of this 

issue in State v. Bennett, 415 S.W.3d 867, 868 (Tex. 

Crim. App. 2013). The State asserts that the “primary 
PD-1528-15 State’s Reply to PDR pg. 7

crime” underlying “aggravated assault of a public 

servant” is “assault of a public servant.” Therefore, 

under Art. 12.01 and Art. 12.03, the statute of 

limitations is three years.

The first rule of statutory construction is to 

“interpret a statute in accordance with the plain meaning 

of its language, unless the language is ambiguous or the 

plain meaning leads to absurd results that the 

Legislature could not possibly have intended.” Whitelaw 

v. State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000). 

Article 12.03(d) states that “...any offense that bears the 

title ‘aggravated’ shall carry the same limitation period 

as the primary crime.” Because this statute emphasizes 

the word “aggravated,” the plain meaning of the statute 

says that the word “aggravated” should be removed to 

arrive at the “primary crime.” This does not lead to an 

absurd result in this case, but leaves the statute of 

limitations for this felony, whose primary crime is 

assault on a public servant, at three years.
PD-1528-15 State’s Reply to PDR pg. 8

In contrast, Lee’s interpretation would lead to an 

absurd result. Aggravated Assault on a Public Servant is 

a first degree felony. Tex. Penal Code Sec. 

22.02(b)(2)(B). Lee’s interpretation would render the 

statute of limitations for a first degree felony to be 

only two years, which is less than the statute of 

limitations for any other felony.

The plain meaning of Art. 12.03(d) provides for a 

three-year statute of limitations for the offense of 

Aggravated Assault on a Public Servant. Lee was indicted 

within this three-year period, and so his convictions 

should stand. 
PD-1528-15 State’s Reply to PDR pg. 9

Prayer

The State prays that this Honorable Court deny Lee’s 

petition for discretionary review. In the alternative, 

the State prays that this Honorable Court grant the 

petition for review, and issue an opinion clarifying 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
PD-1528-15 State’s Reply to PDR pg. 10

Certificate of Compliance

I hereby certify that, according to Microsoft Word 

2007, this response contains a total of only 1,042 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 State’s Reply to Lee’s Petition for 

Discretionary Review was served on Kenneth Nash and 

Nicholas Mensch, the attorneys for Lee, and the State 

Prosecuting Attorney, via www.efile.txcourts.gov, on 

this the 3rd day of December, 2015.

/s/ Melinda Fletcher

Melinda Fletcher