### 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 3 rd 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 CLERKPD

- 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

- aggra vated 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 ye ars. ................................ ............... 5

Prayer
................................ ................ 9 Certificate of Compliance
............................ 10 Ce rtificate of Service
............................... 10PD

- 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. 2 2.02
................................ ............ 8PD

- 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 Ju dges of the Court of Criminal Appeals:

The S tate of Texas, by and through her S pecial Prosecution Unit, respectfully presents this Re ply 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 ins tead 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 S ervant is three years, and so the statutePD

- 1528

- 15 State’s Reply to PDR pg. 5 of limitations for Aggravated Assau l t 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 indi cted 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 limitati ons 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 “primaryPD

- 1528

- 15 State’s Reply to PDR pg. 7 crime” underlying “aggravated assault of a public servant” is “assault of a public servant.” Therefo re, 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 t hat 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 lim itations 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.orgPD

- 1528

- 15 State’s Reply to PDR pg. 10 

## Certificate of Compliance
I hereby c ertify that, according to Microsoft Word 2007, this response contain s 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 o f Service
I hereby certify that a true and correct copy of the foregoing State’s Re ply 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 3 rd day of December, 2015.

/s/ Melinda Fletcher Melinda Fletcher