Ex parte Campozano

610 S.W.3d 572

EX PARTE Antonio CAMPOZANO Jr.

No. 05-19-01237-CR

Court of Appeals of Texas, Dallas.

Opinion Filed September 23, 2020

Rehearing En Banc Denied October 15, 2020

Discretionary Review Refused March 3, 2021

Mark Lassiter, Law Offices of Mark T. Lassiter, 3300 Oak Lawn Avenue, Ste. 700, Dallas, TX 75219-4270, for Appellant.

Ricardo Vela Jr., Assistant District Attorney, John Creuzot, Dallas County District Attorney, Frank Crowley Courts Building, 133 N. Riverfront Blvd., LB19, Dallas, TX 75207, for State of Texas.

Before Justices Schenck, Osborne, and Reichek

OPINION

Opinion by Justice Reichek Antonio Campozano Jr. appeals the trial court's order denying relief on his pretrial application for writ of habeas corpus. Appellant contends the trial court misapplied the limitations statute and concluded incorrectly that the indictment against him is not time barred. Finding no error, we affirm.

BACKGROUND

The parties do not dispute the facts of this case. The alleged aggravated sexual assault occurred on November 18, 2000. The complainant did not know her assailant but described him to police as a thirty-to-forty-year-old Latino male driving a light-colored pickup truck. The complainant underwent a sexual assault examination during which biological material was recovered. The complainant offered no further cooperation, and police suspended the investigation.

In January 2001, serology testing on the biological material detected the presence of seminal fluid and spermatozoa. Because the complainant was not cooperating, police closed the case without ordering DNA testing. In August 2001, appellant's DNA profile was uploaded to the CODIS database.¹

In 2015, the biological material was submitted to a laboratory for DNA testing. On April 28, 2017, the laboratory produced a report showing one of the tested items contained DNA that was a mixture from the complainant and a male contributor. In 2017, the DNA profile was uploaded into CODIS. On June 26, 2018, the Dallas Police Department was notified that appellant's DNA sample on file matched the DNA from the male contributor.

Because of the CODIS match, the case was reopened and a new detective was assigned to the investigation. Appellant was indicted on October 26, 2018. Confirmatory DNA testing was performed in 2019. Appellant then sought pretrial habeas relief arguing that the statute of limitations for the offense was ten years under article 12.01 of the code of criminal procedure and the State's prosecution was time barred. See TEX. CODE CRIM. PROC. ANN. art. 12.01(2)(E).

After conducting an evidentiary hearing during which the investigating detective testified and documents related to the investigation and DNA testing were admitted into evidence, the trial court concluded that because appellant's identity could not be "readily ascertained" prior to the June 26, 2018 CODIS match, there was no limitations period for the offense under code of criminal procedure article 12.01, which governs limitations periods. See TEX. CODE CRIM. PROC. ANN. art. 12.01. On appeal, appellant challenges the trial court's application of article 12.01.

STANDARD OF REVIEW

A defendant may file a pretrial application for writ of habeas corpus to request relief on the ground the prosecution is barred by the statute of limitations. See Ex parte Smith , 178 S.W.3d 797, 802 (Tex. Crim. App. 2005). Habeas applicants must prove their claims by a preponderance of the evidence. See Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In reviewing a trial court order denying habeas relief, we view the facts in the light most favorable to the trial court's ruling, and we uphold the ruling absent an abuse of discretion. Id. The trial court, as fact finder, is the exclusive judge of witness credibility. Ex parte Amezquita , 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We afford almost total deference to a trial court's factual findings when the findings are based upon credibility and demeanor. Id. If, however, the trial court's determinations are questions of law, or else are mixed questions of law and fact that do not turn on an evaluation of witness credibility and demeanor, then we owe no deference to the trial court's determinations and review them de novo. State v. Ambrose , 487 S.W.3d 587, 596–97 (Tex. Crim. App. 2016).

ANALYSIS

In his sole issue on appeal, appellant contends the trial court did not properly apply the plain words of the applicable version of article 12.01. The construction of statutes is a matter of law that we review de novo. Harris v. State , 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). We construe statutes of limitations strictly against the State and liberally in favor of the defendant. Ex parte Lovings , 480 S.W.3d 106, 111 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

When a statute is clear and unambiguous, we may not add or subtract from the language of the statute but rather give effect to what the legislature has expressed. See Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We construe the words in the statute according to the rules of grammar and common usage and read them in context. TEX. GOV'T CODE ANN. § 311.011(a) ; Harris , 359 S.W.3d at 629. We presume every word has a purpose and that each word, phrase, clause, and sentence should be given effect, if reasonably possible. Boykin , 818 S.W.2d at 785. We may consult extra-textual sources only if the statutory language is ambiguous or leads to absurd results that the legislature could not have possibly intended. Harris , 359 S.W.3d at 629.

The Statute

We begin our analysis by considering the language of the statute. The applicable version of article 12.01 describes several categories of offenses for which there is no limitations period. Under this provision, sexual assault has no limitations period "if during the investigation of the offense biological matter is collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained." See Act of April 4, 2001, 77th Leg., R.S., ch. 12, § 1, 2001 Tex. Gen. Laws 20, 20 (amended) (current version at TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(C) ).² Although the limitations statute refers expressly only to sexual assault, it applies equally to aggravated sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 12.03(d) (subjecting aggravated version of offense to same limitations period as primary offense); see also Ex parte Montgomery , No. 14-17-00025-CR, 2017 WL 3271088, at *3 (Tex. App.—Houston [14th Dist.] Aug. 1, 2017, pet. ref'd) (mem. op., not designated for publication) (aggravated sexual assault and sexual assault have same limitations period). For cases of sexual assault that do not meet the requirements to be treated as having no limitations, the statute of limitations for aggravated sexual assault is ten years. See TEX. CODE CRIM. PROC. ANN. arts. 12.01(2)(E), 12.03(d).

The parties agree the "no limitation" provision of the applicable former statute established three required prongs. See Ex parte Edwards , No. 01-19-00100-CR, 608 S.W.3d 325, 331–33 (Tex. App.—Houston [1st Dist.] Aug. 4, 2020, no pet. h.) (op. on reh'g); Ex parte S.B.M. , 467 S.W.3d 715, 719 (Tex. App.—Fort Worth 2015, no pet.). The parties further agree that the record establishes the State has met the first prong by recovering biological material during the investigation of the offense. The parties disagree about whether this case qualifies for unlimited limitations under the other two prongs.

Second Prong: The Timing and Adequacy of DNA Testing

A. Timing of DNA Testing

The second prong requires that the biological evidence that was collected be "subjected to DNA testing." Appellant first contends that a plain reading of the statute requires the DNA testing must occur within ten years to trigger the unlimited limitations provision. Because it is undisputed the DNA testing did not occur within ten years, appellant contends the State cannot meet the second prong of the statute.

Appellant concedes that the Fourteenth District Court of Appeals has issued an opinion that directly contradicts his assertion. Appellant contends, however, that changes to the statute made in the 2019 legislative session support his position, and that two cases decided after the changes indicate appellate courts accept that all three of the statutory prongs must be satisfied within ten years to trigger the unlimited-limitations exception. The State responds that the plain language of the statute does not impose any temporal limits on the DNA testing.

Because they are central to the analysis, we begin our discussion with two cases from the Fourteenth Court of Appeals. In Ex parte Lovings , the court considered whether limitations had run on a 1998 sexual assault when DNA testing was conducted in 2004, a CODIS match with the defendant was made in 2013, and the defendant was indicted in 2014. See Lovings , 480 S.W.3d at 108. The defendant sought pretrial habeas relief, arguing limitations had run because the investigation required by the statute was closed in 1998 and not reopened until more than ten years later in 2013. Id. at 111. In rejecting this contention, the court reasoned that the statute did not include any modifiers such as "open," "active," or "ongoing" for the word "investigation" and did not impose any temporal limitations on the length of the investigation. Id. at 111–12.

Subsequently, in Montgomery , the Fourteenth Court issued an unpublished opinion that appellant concedes is contrary to his position. The victim was sexually assaulted in 1989, but police did not request DNA testing on recovered biological evidence until 2012. See Montgomery , 2017 WL 3271088, at *1. After testing was completed and the DNA results were matched to the defendant by CODIS, the State indicted the defendant in 2015. Id.

The defendant applied for pretrial habeas relief contending, among other things, that...