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See Duncantell v. State, 230 S.W.3d 835, LIMITATIONS – AGG. ASSAULT
842 (Tex. App.—Hous. [14th Dist.] 2007, pet.
ref’d) (finding that defendant violated Texas On April 17, 2013, Appellee, Victor
Penal Code § 38.15 by repeatedly disregarding Manuel Schunior, Jr., was indicted on four
officers’ orders to stand away from crime counts of aggravated assault with a deadly
scene); Key v. State, 88 S.W.3d 672, 676 (Tex. weapon, all of which arose out of a single inci-
App.—Tyler 2002, pet. ref’d) (concluding that dent. According to the indictment, the counts
defendant “engaged in conduct other than occurred on or around February 19, 2011.
speech in refusing to obey the directives of” a Appellee filed a motion to dismiss and a pre-
police officer to remain on the sidewalk, which trial application for habeas corpus relief, argu-
the officer “believed was necessary to prevent ing that the State was barred from prosecution
[defendant] from assaulting” another individ- because the statute of limitations for aggravat-
ual). Likewise, this Court has held that failure ed assault had run.
to comply with a police officer’s instruction to
stand back is not protected speech and gives Finding that the correct statute of limita-
the officer probable cause to arrest under Texas tions for the aggravated assault charged was
Penal Code § 38.15. See Haggerty, 391 F.3d at two years, the trial court granted Appellee’s
657 (“[W]hile Haggerty’s relevant actions request for habeas relief and dismissed the
included speech, a reasonable officer could indictment with prejudice. The State appealed
have believed that they were not limited to to the San Antonio Court of Appeals, arguing
speech: Haggerty stepped forward toward [an that Article 12.01(7) of the Texas Code of
officer] after having previously been warned to Criminal Procedure applies a three-year limi-
not interfere and was within relative proximity tation period for aggravated assault. The court
(10 to 15 feet away).”). Based on this prece- of appeals disagreed and affirmed the trial
dent, a reasonable officer could have believed court’s order dismissing the indictment.
that there was a fair probability that Childers
violated Texas Penal Code § 38.15 by failing to The State filed a petition for discretionary
comply with Iglesias’s instruction to move the review on the following two grounds:
truck. 1. Is the limitation period for aggravated
assault governed by Article 12.01(7) rather
For the foregoing reasons, the district than
court’s order of dismissal is AFFIRMED. Article 12.03(d) of the Code of Criminal
Procedure?
Childers v. Iglesias, No. 16-10442, 5th Cir., 2. If the limitation period for aggravated
Feb. 9th, 2017. 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 gov-
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