Opinion
No. 05-11-00252-CR
01-04-2012
THE STATE OF TEXAS, Appellant v. CARL ALAN BENNETT, Appellee
REVERSE and REMAND and Opinion Filed January 4, 2012
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-46793-S
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Myers
Opinion by Justice Murphy
The trial court granted appellee's motion for new trial based on a claim of ineffective assistance of counsel, and the State appeals that order. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3) (West 2006). We reverse.
Pursuant to an indictment filed December 1, 2009, Carl Alan Bennett was charged with aggravated assault for a June 5, 2007 incident. See Tex. Pen. Code Ann. § 22.02(a)(2) (West 2011). After a jury found appellee guilty of the offense, appellee filed a motion for new trial claiming ineffective assistance of counsel. Specifically, appellee asserted the two-year statute of limitations barred the aggravated assault charge and trial counsel was ineffective for failing to challenge the indictment on that basis. Appellee also submitted an affidavit from his trial counsel in which counsel stated he did not file a motion to set aside the indictment or otherwise object based on the statute of limitations because he believed the three-year limitations period applied.
The trial court granted a new trial. At the hearing, the court stated:
[H]ad a motion to quash been filed, I would not have granted it because prior courts have indicated it's three years. In plain language it says it's three years. The issue of whether or not it should be two years has apparently never been raised before on the 12.03(d) issue, and that's what the Court should look at.The trial court explained that trial counsel nevertheless should have made an objection to preserve the issue for higher-court review.
The Court of Appeals is the one to make that determination. I can't. I'm bound by prior decisions saying it's two years or three years. So that's what I would have done.
The State raises three issues on appeal, claiming error in the trial court's decision to grant a new trial. First, the State claims the trial court relied on appellee's untimely amendment to the motion for new trial. According to the State, the amendment added a new claim that appellee's counsel was ineffective for not preserving for appeal his statute of limitations objection. Second, the State challenges the trial court's determination that trial counsel was ineffective for failing to preserve a two-year statute of limitations objection, when controlling case law established applicability of a three-year statute of limitations for aggravated assault. The State claims in its third issue that the trial court erred "because application of the basic principles of statutory construction leads to one conclusion" that aggravated assault is subject to the three-year statute of limitations now contained in article 12.01(7) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 12.01(7) (West Supp. 2011). The State's second issue, which we resolve in its favor, is dispositive. As a result, we do not reach the first and third issues. See Tex. R. App. P. 47.1.
We review a trial court's decision to grant a new trial under an abuse of discretion standard. See State v. Herndon, 215 S.W.3d 901, 906-07 (Tex. Crim. App. 2007). A trial court does not have the discretion to grant a new trial "unless the defendant shows that he is entitled to one under the law." Id. at 907. To prevail on an ineffective-assistance-of-counsel claim, a defendant must show that trial counsel performed deficiently and that this deficient performance prejudiced the defendant. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App. 2007). To show deficient performance, the defendant must prove by a preponderance of the evidence that his trial counsel's representation fell below the standard of professional norms. See Strickland, 466 U.S. at 688. To show prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. Our review of counsel's performance is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Chapter twelve of the Texas Code of Criminal Procedure prescribes limitations periods for specific offenses. Article 12.01 provides the limitations periods for felonies "[e]xcept as provided in Article 12.03." See Tex. Code Crim. Proc. Ann. art. 12.01(1)-(7). Subsection (7) of article 12.01 prescribes a three-year limitations period for "all other felonies" not specifically delineated in article 12.01(1)-(6). Article 12.03 is titled "Aggravated offenses, attempt, conspiracy, solicitation, organized criminal activity"; subsection (d) provides: "Except as otherwise provided by [chapter twelve], any offense that bears the title 'aggravated' shall carry the same limitation period as the primary crime." Tex. Code Crim. Proc. Ann. art. 12.03(d) (West 2005). The felony offense of aggravated assault is not listed in article 12.01(1)-(6).
The three-year limitations period for "all other felonies" was contained in subsection (6) of the version of article 12.01 that was in effect at the time of appellee's alleged aggravated assault in this case. See Act of May 25, 2005, 79th Leg., R.S., ch. 1162, § 6, 2005 Tex. Gen. Laws 3802, 3806-07 (amended 2007 and 2009) (current version at Tex. Code Crim. Proc. Ann. art. 12.01(7) (West Supp. 2011)).
The State claims the three-year limitations period for "all other felonies" in article 12.01(7) applies to aggravated assault under the court of criminal appeals' decisions in Ex parte Salas, 724 S.W.2d 67 (Tex. Crim. App. 1987) and Hunter v, State, 576 S.W.2d 395 (Tex. Crim. App. 1979).
In Salas, the court of criminal appeals emphasized that the limitations period for aggravated assault "has long been three years," referencing articles 12.01 and 12.03(d). See Salas, 724 S.W.2d at 68. As part of the court's analysis of the appellant's no-evidence challenge to the enhancement allegations, the court presumed in Salas that the aggravated assault felony was committed within three years of the indictment. See id at 68-69. In the earlier case of Hunter, the court stated in dicta, without citing to article 12.01 or article 12.03(d), that the limitations period for aggravated assault is three years. See Hunter, 576 S.W.2d at 399.
The State further claims that it is significant that Hunter and Salas were decided before the legislature amended article 12.03(d) in 1997 to add the language "[e]xcept as otherwise provided by this chapter." Specifically, the State argues that Hunter and Salas were decided when the language and structure of articles 12.01 and 12.03(d) seemed to indicate that article 12.01 was subordinate to article 12.03(d), and in those decisions, the court "was making clear that aggravated assault had the 3-year statute of limitations" of article 12.01. Thus, according to the State, this language added by the 1997 amendment to article 12.03(d) "was entirely consistent with the implicit mandate that stems from [the court's] having acknowledged the existence of both [articles 12.01(7) and 12.03(d)] and having expressly concluded that the 3-year statute of limitations from the former applied to aggravated assault, not the 2-year statute of limitations from the latter."
See Act of May 24, 1997, 75th Leg., R.S., ch. 740, § 2, 1997 Tex. Gen. Laws 2403.
Appellee claims that a two-year limitations period applies to aggravated assault under the plain language of article 12.03(d) because the limitations period for aggravated assault is the same as the limitations period for the primary crime of misdemeanor assault, which is two years. See Tex. Pen. Code Ann. § 22.01(a)-(b); Tex. Code Crim. Proc. Ann. art. 12.02(a).
Appellee does not cite, and we are not aware of, any appellate court decision applying anything other than a three-year limitations period to aggravated assault. Instead, appellee relies on the court of criminal appeals' decision in 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). In that case, the court applied similar reasoning as that urged by appellee in stating that a two-year limitations period applies to aggravated perjury under article 12.03(d)-that is, the statute of limitations for perjury is two years under article 12.02(a) and, accordingly, aggravated perjury has the same statute of limitations under the plain language of article 12.03(d). See id. at 136.
Appellee also relies on a Houston court of appeals' decision in Ex parte Tamez in which the court stated that a two-year limitations period applies to aggravated perjury. 4 S.W.3d 854 (Tex. App.-Houston [1st Dist.] 1999), aff'd, 38 S.W.3d 159 (Tex. Crim. App. 2001). That court also rejected the argument, similar to the State's argument here, that the 1997 legislative amendment to article 12.03(d) adding the language "[e]xcept as otherwise provided by this chapter" was intended to assign aggravated perjury the three-year limitations period under the "all other felonies" subsection in article 12.01. See id. at 856; see also State v. Coleman, 962 S.W.2d 267, 268 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) (stating that "although the statute of limitations for the felony offense of aggravated perjury is inconsistent with that of most other felonies, nonetheless, article 12.03(d) unambiguously means what it says").
Trial and intermediate appellate courts are bound to follow precedent. See Lubbock Cnty., Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) ("It is not the function of a court of appeals to abrogate or modify established precedent."). Under Hunter and Salas, a three- year statute of limitations applies to the felony of aggravated assault. At the hearing on appellee's motion for new trial, his counsel testified by affidavit that he believed the three-year statute of limitations applied to aggravated assault, and the trial court indicated it would have denied a motion to quash because the trial court is bound by this precedent. Even if the court of criminal appeals' decisions in Hunter and Salas arguably could have been implicitly overruled as a result of the court's reasoning in Matthews that the two-year limitations period applies to aggravated perjury, the law remains unsettled. Accordingly, appellee's counsel could not have been ineffective for not preserving for appeal a claim that the two-year limitations period applies to aggravated assault. Counsel is not liable for an error in judgment on an unsettled proposition of law. See Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005); Ex parte Welch, 981 S.W. 2d 183, 184 (Tex. Crim. App. 1998) (counsel will not be found ineffective where the claimed error is based on unsettled law). Nor is counsel required to make futile objections that have no merit. See Chandler, 182 S.W.3d at 356 (reasonably competent counsel need not perform a useless or futile act such as requesting a jury instruction to which the defendant is not legally or factually entitled). Similarly, counsel cannot be considered ineffective in the event that a higher court subsequently decides the two-year limitations period applies to aggravated assault. See id. at 359 (counsel's performance measured against law in effect at time of trial; counsel's legal advice later proved incorrect normally not deficient performance).
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. See Herndon, 215 S.W.3d at 906-07 (trial court has no discretion to grant new trial unless defendant shows entitled "under the law"). We sustain the State's second issue and reverse the trial court's order granting a new trial and remand this case for further proceedings.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
1100252F.U05