Frederick Deshun Lee v. State ( 2015 )


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  •                                                                                 ACCEPTED
    12-15-00183-CR
    TWELFTH COURT OF APPEALS
    TYLER, TEXAS
    8/24/2015 11:32:00 AM
    CATHY LUSK
    CLERK
    NO. 12-15-00183-CR
    FILED IN
    IN THE COURT OF APPEALS FOR           12th COURT OF APPEALS
    TYLER, TEXAS
    8/24/2015 11:32:00 AM
    THE TWELTH SUPREME JUDICIAL                 CATHY S. LUSK
    Clerk
    DISTRICT OF TEXAS
    AT TYLER, TEXAS
    FREDERICK DESHUN LEE v. THE STATE OF TEXAS
    Appeal from Cause Number 31727 (Counts I and II)
    3rd Judicial District Court of Anderson County
    Hon. Pam Foster Fletcher, Judge Presiding
    APPELLANT’S BRIEF
    STATE COUNSEL FOR OFFENDERS
    APPELLATE SECTION
    Nicholas Mensch
    State Bar of Texas No. 24070262
    P.O. Box 4005
    Huntsville, Texas 77342-4005
    (936) 437-5252
    (936) 437-5279 (fax)
    nicholas.mensch@tdcj.texas.gov
    Attorney for Appellant
    ORAL ARGUMENT NOT REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    APPELLANT:
    Frederick Deshun Lee, TDCJ# 1645475
    TRIAL AND APPELLATE COUNSEL:
    Nicholas Mensch
    State Bar of Texas No. 24070262
    State Counsel for Offenders
    P.O. Box 4005; Huntsville, Texas 77340
    (936) 437-5252/(936) 437-5279 fax
    APPELLEE:
    THE STATE OF TEXAS
    TRIAL COUNSEL:
    Cindy Garner
    State Bar of Texas No. 07673100
    Special Prosecution Unit
    904 E. Market St.
    Palestine, TX 758001
    (903) 723-0805/(903) 723-1469 fax
    APPELLATE COUNSEL:
    Melinda Mayo Fletcher
    State Bar of Texas No. 18403630
    Special Prosecution Unit
    P.O. Box 1744; Amarillo, Texas 79105
    (806) 367-9407/(866) 923-9253 fax
    ii
    TABLE OF CONTENTS
    IDENTITY OF PARTIES & COUNSEL ................................................................. ii
    INDEX OF AUTHORITIES.................................................................................... iii
    STATEMENT OF THE CASE .................................................................................. 2
    STATEMENT REGARDING ORAL ARGUMENT ............................................... 2
    ISSUE PRESENTED ................................................................................................. 2
    Whether the trial court erred by refusing to set aside both counts of the
    indictment because the statute of limitations for aggravated assault on a
    public servant had run? ........................................................................................ 4
    STATEMENT OF FACTS ........................................................................................ 3
    SUMMARY OF THE ARGUMENT ........................................................................ 4
    ARGUMENT ............................................................................................................. 4
    PRAYER .................................................................................................................. 11
    CERTIFICATE OF SERVICE ................................................................................ 12
    CERTIFICATE OF COMPLIANCE ....................................................................... 12
    iii
    INDEX OF AUTHORITIES
    Cases
    Boykin v. State,
    
    818 S.W.2d 782
    (Tex. Crim. App. 1991) ........................................................7
    Clinton v. State,
    354 S.W.3d (Tex. Crim. App. 2011) ..............................................................7
    Ex parte Keller
    
    173 S.W.3d 492
    (Tex. Crim. App. 2005) ........................................................7
    Ex parte Rieck,
    
    144 S.W.3d 510
    (Tex. Crim. App. 2004) ........................................................7
    Fantich v. State,
    
    420 S.W.3d 287
    (Tex. App.—Tyler 2013, no pet.) ................................ 4, 5, 6
    Gallardo v. State,
    
    768 S.W.2d 875
    (Tex. App.—San Antonio 1989. pet. ref'd) ..........................5
    Henson v. State,
    No. 05-97-01894-CR, 2000 Tex. App. LEXIS 5273 (Tex. App.—Dallas
    2000, pet. ref'd) ................................................................................................8
    Hernandez v. State,
    
    127 S.W.3d 768
    (Tex. Crim. App. 2004) ........................................................5
    Rushing v. State,
    
    353 S.W.3d 863
    (Tex. Crim. App. 2011) ........................................................7
    State v. Bennett,
    
    415 S.W.3d 867
    (Tex. Crim. App. 2013) ........................................................8
    State v. Schunior,
    No. 04-14-00347-CR, 2015 Tex. App. LEXIS 3898 (Tex. App.—San
    Antonio 2015, pet. filed).............................................................................. 4-5
    Vasquez v. State,
    
    557 S.W.2d 779
    (Tex. Crim. App. 1977) ........................................................5
    iv
    White v. State,
    
    61 S.W.3d 424
    (Tex. Crim. App. 2001) ...................................................... 6-7
    Statutes
    Texas Code of Criminal Procedure art. 12.01(7) ......................................................5
    Texas Code of Criminal Procedure art. 12.02(a) ....................................................10
    Texas Code of Criminal Procedure art. 12.03(d) ............................................ passim
    Texas Code of Criminal Procedure art. 21.02(6) ......................................................5
    Texas Government Code § 311.011(a) ......................................................................7
    Texas Government Code § 311.011(b) ......................................................................7
    Texas Government Code § 311.021...........................................................................7
    Texas Penal Code § 22.01(a) .............................................................................. 6, 10
    Texas Penal Code § 22.01(b) .....................................................................................6
    Texas Penal Code § 22.02 ................................................................................... 6, 10
    Treatises
    Dix and Schmolesky, 40 TEX. PRAC. SERIES § 6:1 (3rd ed. 2011) .............................5
    MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed.) .........................................9
    v
    NO. 12-15-00183-CR
    IN THE COURT OF APPEALS FOR
    THE TWELTH SUPREME JUDICIAL
    DISTRICT OF TEXAS
    AT TYLER, TEXAS
    FREDERICK DESHUN LEE v. THE STATE OF TEXAS
    Appeal from Cause Number 31727 (Counts I and II)
    3rd Judicial District Court of Anderson County
    Hon. Pam Foster Fletcher, Judge Presiding
    APPELLANT’S BRIEF
    TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
    COMES NOW FREDERICK DESHUN LEE, Appellant in cause number
    12-15-00183-CR, and submits this brief in accordance with the Texas Rules of
    Appellate Procedure and in support of his request for reversal of the trial court’s
    final judgment.
    1
    STATEMENT OF THE CASE
    On April 24, 2014 an Anderson County grand jury returned an indictment
    charging Appellant with two counts of Aggravated Assault of a Public Servant
    alleged to have occurred on or about February 29, 2012. (C.R. at 6-7). On June 5,
    2015, Appellant pled guilty to both counts as charged in the indictment pursuant to
    a plea bargain agreement and the trial court assessed his punishment at 17 years’
    confinement in the Texas Department of Criminal Justice (“TDCJ”) for each count.
    (3 R.R. at 21, C.R. at 99-109). The trial court certified that this criminal case “is a
    plea bargain case, but matters were raised by written motion filed and ruled on
    before trial and not withdrawn or waived, and the defendant has the right of
    appeal.” (C.R. at 102). No Motion for New Trial was filed. Thereafter, on July 2,
    2015, Appellant timely filed his notice of appeal for each count. (C.R. at 125-128).
    STATEMENT REGARDING ORAL ARGUMENT
    Appellant waives oral argument.
    ISSUE PRESENTED
    Whether the trial court erred by refusing to set aside both counts of the
    indictment because the statute of limitations for aggravated assault on a public
    servant had run?
    2
    STATEMENT OF FACTS
    On April 24, 2014 an Anderson County grand jury returned an indictment
    charging Appellant with two counts of Aggravated Assault of a Public Servant
    under Tex. Pen. Code § 22.02 alleged to have occurred on or about February 29,
    2012. (C.R. at 6-7). Specifically, the indictment alleged that on or about February
    29, 2012, in Anderson County, Texas, Appellant:
    (Count One): intentionally, knowingly, or recklessly cause bodily
    injury to Thomas Lobasso by stabbing him in the hand and/or wrist,
    and the defendant did then and there use or exhibit a deadly weapon,
    to wit: a sharp metal object, during the commission of said assault,
    and the defendant did then and there know that the said Thomas
    Lobasso was then and there a public servant, to-wit: an employee of
    the Texas Department of Criminal Justice, and that the said Thomas
    Lobasso was then and there lawfully discharging an official duty, to
    wit: supervising individuals in the custody of the Texas Department of
    Criminal Justice.
    (Count Two): intentionally, knowingly, or recklessly cause bodily
    injury to Derek Wooldridge by stabbing him in the arm, and the
    defendant did then and there use or exhibit a deadly weapon, to wit: a
    sharp metal object, during the commission of said assault, and the
    defendant did then and there know that the said Derek Wooldridge
    was then and there a public servant, to-wit: an employee of the Texas
    Department of Criminal Justice, and that the said Derek Wooldridge
    was then and there lawfully discharging an official duty, to wit:
    supervising individuals in the custody of the Texas Department of
    Criminal Justice.
    On March 31, 2015, the trial court heard Appellant’s Motion to Set Aside
    the Indictment in this case that alleged that the applicable statute of limitations in
    the case was two years. (2 R.R. at 7-10, C.R. at 74-76) After hearing arguments
    3
    from both the Appellant and the State, the trial court denied the motion. (2 R.R. at
    10). Thereafter, on June 5, 2015, Appellant pled guilty to both counts as charged in
    the indictment pursuant to a plea bargain agreement and the trial court assessed his
    punishment at 17 years’ confinement in the Texas Department of Criminal Justice
    (“TDCJ”) for each count. (3 R.R. at 21, C.R. at 99-109).
    SUMMARY OF THE ARGUMENT
    This Court should, at least in part, reconsider its decision in Fantich v. State,
    
    420 S.W.3d 287
    (Tex. App—Tyler, 2013, no pet.), as to what constitutes a
    “primary offense.” Simply construing the primary offense of assault by simply
    looking whether the assault, minus the term aggravated, is still a felony does not
    answer the question of what is the primary offense. By using the common
    definition of “primary”, (most important[,] most basic or essential,[or] happening
    or coming first[.]), Appellant contends that the “primary offense” in this case is
    misdemeanor assault. Thus, the applicable statute of limitations is two years.
    ARGUMENT
    Whether the trial court erred by refusing to set aside both counts of the
    indictment because the statute of limitations for aggravated assault on a
    public servant had run?
    “The purpose of a statute of limitations in the criminal context is to protect
    the accused from having to defend against stale criminal charges and to prevent
    punishment for acts committed in the remote past.” State v. Schunior, No. 04-14-
    4
    00347-CR, 2015 Tex. App. LEXIS 3989 at ** 3 (Tex. App.—San Antonio 2015,
    pet. filed) (designated for publication), citing to Dix and Schmolesky, 40 TEX.
    PRAC. SERIES § 6:1 (3rd ed. 2011) and Hernandez v. State, 
    127 S.W.3d 768
    , 772
    (Tex. Crim. App. 2004). “A statute of limitations is construed strictly against the
    State and liberally in favor of the defendant.” Schunior, 2015 Tex. App. LEXIS
    3989 at ** 3, citing to Gallardo v. State, 
    768 S.W.2d 875
    , 880 (Tex. App.—San
    Antonio 1989, pet. ref’d). In other words, the burden of proof is on the State to
    show that the offense alleged was committed prior indictment and within the
    applicable statute of limitations. Vasquez v. State, 
    557 S.W.2d 779
    (Tex. Crim.
    App. 1977). The indictment must show on its face that the prosecution is not
    barred by limitations. Tex. Code of Crim. Proc. Art. 21.02(6).
    This Court has examined the issue of what is the statute of limitations for
    aggravated assault in Fantich v. Texas, 
    420 S.W.3d 287
    (Tex. App.—Tyler 2013,
    no pet.). Specifically, this Court analyzed the question of “whether the limitation
    period for the offense of aggravated assault is two or three years.” 
    Id. at 288-289.
    This Court answered this question by examining Tex. Code of Crim. Proc. Art.
    12.01(7) and 12.03(d). 
    Id. at 290.
    Finding no ambiguity, this Court stated “[f]or
    aggravated assault, the primary crime is assault which is defined in section 22.01 of
    the penal code.” 
    Id. Finally, this
    Court held that because Section 22.01 has
    different classifications, misdemeanors and felony assaults, the applicable statute
    5
    of limitations depends on what classification the assault is. 
    Id. If it
    is a felony
    assault, then the statute of limitations is three years. 
    Id., see also
    Tex. Pen. Code §
    22.01(b). If it is a misdemeanor assault, then the applicable statute of limitations is
    two years. 
    Id., see also
    Tex. Pen. Code 22.01(a). According to this Court, “either
    misdemeanor or felony assault can be the ‘primary crime’ for aggravated assault.
    
    Id. On April
    24, 2014 an Anderson County grand jury returned an indictment
    charging Appellant with two counts of aggravated assault of a public servant under
    Tex. Pen. Code § 22.02 alleged to have occurred on or about February 29, 2012.
    (C.R. at 6-7). Under this Court’s analysis in Fantich, it would appear Appellant is
    out of luck with his statute of limitations claim as under Fantich, the primary
    offense would be the felony assault of a public servant. Tex. Pen. Code § 22.01(b).
    Appellant, however, disagrees with this Courts determination of what constitutes a
    “primary offense” under Tex. Code of Crim. Proc. Art. 12.03(d) and contends in
    this case, the primary offense is still misdemeanor assault under Tex. Pen. Code §
    22.01(a). Thus, the statute of limitations for aggravated assault of a public servant
    should be two years.
    “[C]ourts are required to construe a statute in accordance with the plain
    meaning of its literal text unless the language of the statue is ambiguous or the
    plain meaning leads to an absurd result.” White v. State, 
    61 S.W.3d 424
    , 428 (Tex.
    6
    Crim. App. 2001), citing Boykin v. State, 
    818 S.W.2d 782
    (Tex. Crim. App. 1991).
    “To determine the plain meaning of a statute, [a court applies] the canons of
    construction.” Clinton v. State, 
    354 S.W.3d 795
    , 800 (Tex. Crim. App. 2011),
    citing to Rushing v. State, 
    353 S.W.3d 863
    , 865 (Tex. Crim. App. 2011).1 A Court
    looks at the “collective’ intent or purpose of the legislators who enacted the
    legislation.” 
    Id., citing Boykin,
    818 S.W.2d at 785. “Words or phrases shall be read
    in context and construed according to the rule of grammar and common usage.”
    Tex. Gov’t Code § 311.011(a). “Moreover, ‘words or phrases that have acquired a
    technical or particular meaning, whether by legislative definition or otherwise,
    shall be construed accordingly.’” Ex parte Keller, 
    173 S.W.3d 492
    , 499 (Tex.
    Crim. App. 2005) (Keller, P.J., dissenting), citing to Ex parte Rieck, 
    144 S.W.3d 510
    , 512 (Tex. Crim. App. 2004) and Tex. Gov’t Code § 311.011(b). “When
    determining the fair, objective meaning of an undefined statutory term, [a] Court
    may consult standard dictionaries.” 
    Id. Tex. Code
    of Crim. Proc. Art. 12.03(d)
    provides:
    Except as otherwise provided by this chapter, any offense that bears
    the title “aggravated” shall carry the same limitation period as the
    primary crime.
    1
    See Tex. Gov’t Code § 311.021. “In enacting a statute, it is presumed that: (1) compliance
    with the constitution of this state and the United States is intended; (2) the entire statute is
    intended to be effective; (3) a just and reasonable result is intended; (4) a result of feasible
    execution is intended; and (5) public interest is favored over any private interest.”
    7
    The term “primary crime” is not defined by Tex. Code of Crim. Proc. Art.
    12.03(d). Appellant contends that “primary crime” cannot simply refer to whatever
    offense matches the title of the instant offense minus the word “aggravated,” or
    even if the assault minus the term aggravated is a felony or misdemeanor, not only
    because the statute nowhere so states, but also because there exists at least one
    offense with no such primary crime – aggravated promotion of prostitution. For
    example, though titled “aggravated” in conformity with the requirements of Tex.
    Code of Crim. Proc. Art. 12.03(d), the aggravated promotion of prostitution does
    not explicitly incorporate the crime of promotion of prostitution by its Penal Code
    section.” State v. Bennett, 
    415 S.W.3d 867
    , 873, n. 42 (Tex. Crim. App. 2013)
    (Keller, P.J., concurring). Thus, it is uncertain what “primary crime” means as to
    that offense. 
    Id. Since there
    are zero primary crimes, that offense is not controlled
    by Tex. Code of Crim. Proc. Art. 12.03(d). Henson v. State, No. 05-97-01894-CR,
    2000 Tex. App. LEXIS 5273 (Tex. App.—Dallas 2000, pet. ref’d) (not designated
    for publication). Based on this example, determining the applicable statute of
    limitations based on whether the assault, minus the term aggravated, is a felony or
    misdemeanor, or if it is an aggravated form, does not appear to settle what exactly
    the “primary crime” is.
    Again, the term “primary crime” is not defined by Tex. Code of Crim. Proc.
    Art. 12.03(d). “Primary,” as in “primary crime,” could mean “most important[,]
    8
    most basic or essential,[or] happening or coming first[.]” MERRIAM-WEBSTER
    COLLEGIATE DICTIONARY (11th ed.).2 In this case, the two counts of the indictment
    provided:
    (Count One): intentionally, knowingly, or recklessly cause bodily
    injury to Thomas Lobasso by stabbing him in the hand and/or
    wrist, and the defendant did then and there use or exhibit a deadly
    weapon, to wit: a sharp metal object, during the commission of said
    assault, and the defendant did then and there know that the said
    Thomas Lobasso was then and there a public servant, to-wit: an
    employee of the Texas Department of Criminal Justice, and that the
    said Thomas Lobasso was then and there lawfully discharging an
    official duty, to wit: supervising individuals in the custody of the
    Texas Department of Criminal Justice.
    (Count Two): intentionally, knowingly, or recklessly cause bodily
    injury to Derek Wooldridge by stabbing him in the arm, and the
    defendant did then and there use or exhibit a deadly weapon, to wit: a
    sharp metal object, during the commission of said assault, and the
    defendant did then and there know that the said Derek Wooldridge
    was then and there a public servant, to-wit: an employee of the Texas
    Department of Criminal Justice, and that the said Derek Wooldridge
    was then and there lawfully discharging an official duty, to wit:
    supervising individuals in the custody of the Texas Department of
    Criminal Justice.
    (emphasis added)
    Causing bodily injury to the victims by stabbing them was the most basic or
    essential element in this offense. The elements of the offense of aggravated assault
    on a public servant are:
    2
    Available at http://www.merriam-webster.com/dictionary/primary (last accessed August 14,
    2015).
    9
    (1) intentionally, knowingly, or recklessly causes bodily injury to
    another;
    (2) the actor knew that the person he assaulted was a public servant;
    (3) the person assaulted was discharging official duties at the time of
    the assault;
    (4) the person assaulted was lawfully discharging official duties; and
    (5) uses or exhibits a deadly weapon during the commission of the
    assault.
    Tex. Pen. Code § 22.02.
    Listing the elements of the offense clearly shows that the most important or
    most basic element or essential element of aggravated assault on a public servant is
    still intentionally, knowingly, or recklessly causes bodily injury to another person.
    In other words, it is the primary offense that underlies Appellant’s conviction for
    aggravated assault on a public servant. Without the actual assault, there would be
    no charge. See Tex. Pen. Code § 22.02. This “primary offense” would then be
    misdemeanor assault. See Tex. Pen. Code § 22.01(a). Thus, the applicable statute
    of limitations would be two years in this case. See Tex. Code of Crim. Proc. Art.
    12.02(a). The State filed the indictment in this case on April 24, 2014 charging
    Appellant with two counts of Aggravated Assault of a Public Servant alleged to
    have occurred on or about February 29, 2012. This is clearly over the two year
    statute of limitations that should be applied to this offense. The trial court erred by
    denying Appellant’s Motion to Set Aside the Indictment in this case. (2 R.R. at
    10).
    10
    PRAYER
    Appellant Frederick Deshun Lee prays that this Court reverse the trial
    court’s judgment and render judgment in his favor as the applicable statute of
    limitations has run. Appellant also prays for such other relief that this Court may
    deem appropriate.
    Respectfully submitted,
    STATE COUNSEL FOR OFFENDERS
    /s/ Nicholas Mensch
    Nicholas Mensch
    State Bar of Texas No. 24070262
    P.O. Box 4005
    Huntsville, Texas 77342-4005
    (936) 437-5252
    (936) 437-5279 (fax)
    nicholoas.mensch@tdcj.texas.gov
    11
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of this Appellant’s Brief was
    served upon opposing counsel noted below, by one or more of the following:
    certified mail (return receipt requested), facsimile transfer, or electronic mail (e-
    mail), this 24th day of August, 2015.
    Melinda Fletcher
    Special Prosecution Unit
    P. O. Box 1744
    Amarillo, TX 79501
    Facsimile no. 866-923-9253
    E-mail address: mfletcher@sputexas.org
    Allyson Mitchell
    Anderson County District Attorney
    500 N. Church St.
    Palestine, TX 75801
    (903) 723-7400/(903) 723-7818 (fax)
    E-mail address: amitchell@co.anderson.tx.us
    /s/ Nicholas Mensch
    Nicholas Mensch
    Attorney for Appellant
    CERTIFICATE OF COMPLIANCE
    This document complies with the type-volume limitation of Texas Rule of
    Appellate Procedure 9.4(i) because this brief contains 2,140 words.
    /s/ Nicholas Mensch
    Nicholas Mensch
    Attorney for Appellant
    12