Page 133 - Texas police Association Peace Officer Guide 2017

See Duncantell v. State, 230 S.W.3d 835, 842 (Tex. App.—Hous. [14th Dist.] 2007, pet. ref’d)
(finding that defendant violated Texas Penal Code § 38.15 by repeatedly disregarding officers’
orders to stand away from crime scene); Key v. State , 88 S.W.3d 672, 676 (Tex. App.—Tyler
2002, pet. ref’d) (concluding that defendant “engaged in conduct other than speech in refusing to
obey the directives of” a police officer to remain on the sidewalk, which the officer “believed
was necessary to prevent [defendant] from assaulting” another individual). Likewise, this Court
has held that failure to comply with a police officer’s instruction to stand back is not protected
speech and gives the officer probable cause to arrest under Texas Penal Code § 38.15. See
Haggerty, 391 F.3d at 657 (“[W]hile Haggerty’s relevant actions included speech, a reasonable
officer could have believed that they were not limited to speech: Haggerty stepped forward
toward [an officer] after having previously been warned to not interfere and was within relative
proximity (10 to 15 feet away).”). Based on this precedent, a reasonable officer could have
believed that there was a fair probability that Childers violated Texas Penal Code § 38.15 by
failing to comply with Iglesias’s instruction to move the truck.

For the foregoing reasons, the district court’s order of dismissal is AFFIRMED.

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Childers v. Iglesias, No. 16-10442, 5 Cir., Feb. 9 , 2017.
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LIMITATIONS – AGG. ASSAULT

On April 17, 2013, Appellee, Victor Manuel Schunior, Jr., was indicted on four counts of
aggravated assault with a deadly weapon, all of which arose out of a single incident. According
to the indictment, the counts occurred on or around February 19, 2011. Appellee filed a motion
to dismiss and a pre-trial application for habeas corpus relief, arguing that the State was barred
from prosecution because the statute of limitations for aggravated assault had run.

Finding that the correct statute of limitations for the aggravated assault charged was two years,
the trial court granted Appellee’s request for habeas relief and dismissed the indictment with
prejudice. The State appealed to the San Antonio Court of Appeals, arguing that Article 12.01(7)
of the Texas Code of Criminal Procedure applies a three-year limitation period for aggravated
assault. The court of appeals disagreed and affirmed the trial court’s order dismissing the
indictment.

The State filed a petition for discretionary review on the following two grounds:
1. Is the limitation period for aggravated assault governed by Article 12.01(7) rather than
Article 12.03(d) of the Code of Criminal Procedure?
2. If the limitation period for aggravated assault is governed by Article 12.03(d), does the
lesser-included offense with the greater limitation period control when the lesser-included
offenses of the aggravated assault include both misdemeanor assault and a felony?

We hold that aggravated assault is governed by Article 12.03(d), not Article 12.01(7), and we
hold that the lesser-included offense with the greater limitation period does not control.

A Peace Officer’s Guide to Texas Law 128 2017 Edition