Ex Parte: Antonio Campozano Jr. ( 2020 )

AFFIRMED and Opinion Filed September 23, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01237-CR
EX PARTE ANTONIO CAMPOZANO JR.
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX19-90309-S
OPINION
Before Justices Schenck, Osborne, and Reichek
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).
1
CODIS is an acronym for the FBI’s Combined DNA Index System. See TEX. GOV’T CODE ANN.
§ 11.141(1). It is a database containing the DNA profiles of criminal offenders. Jenkins v. State, 493 S.W.3d
583, 592 n.8 (Tex. Crim. App. 2016).
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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
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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.
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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
2
The language we quote was added in 2001 and codified as article 12.01(1)(B). The amendment was
made retroactive to all cases not already time-barred. See Act of April 4, 2001, 77th Leg., R.S., ch. 12, §2,
2001 Tex. Gen. Laws 20, 20–21. The statute was amended in 2007 to designate the provision as article
12.01(1)(C). See The Jessica Lunsford Act, 80th Leg., R.S., ch. 593, §1.03, 2007 Tex. Gen. Laws 1120,
1120–21 (codified as TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(C)). The amendment was made
retroactive to any pending cases not already time barred. See id. ch. 593, §4.01(c), 2007 Tex. Gen. Laws at
1148. The substance of the provision did not change until passage of The Lavinia Masters Act in 2019. See
The Lavinia Masters Act, 86th Leg., R.S., ch. 408, §2, 2019 Tex. Sess. Law Serv. Ch. 408 (H.B. 8) (current
version at TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(C)). The revised language set forth in The Lavinia
Masters Act is also retroactive to all cases not barred by limitations. See id. at ch. 408, §12. Because the
issue is whether the case was barred by limitations after ten years, the relevant language is the language we
have quoted, which was in effect between 2001 and 2019 and is thus applicable to this case.
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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,
2020 WL 4457985, at *5 (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
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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.
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The defendant applied for pretrial habeas relief contending, among other
things, that limitations expired before the State requested DNA testing on the
recovered biological material. Id. at *2. In rejecting the defendant’s position, the
court relied upon Lovings to conclude that the applicable version of article 12.01
does not include any temporal limits on DNA testing just as it includes no limits on
investigations. Id. at *3. The court concluded: “We would have to insert language
into article 12.01(1)(C) to say there is no limitations period for sexual assault ‘if,
during the investigation and before the expiration of the limitations period biological
matter is collected and subjected to forensic DNA testing . . . .’ Just as in Lovings,
we will not rewrite the statute.” Id. at *4.
Although Montgomery is an unpublished decision and has no precedential
value, we are similarly persuaded by the reasoning in Lovings. The statute requires
the biological material be “subjected to DNA testing . . . .” See TEX. CODE CRIM.
PROC. ANN. art. 12.01(1)(C). Nothing in the statute imposes a limitation of ten years
or any other time period upon the conducting of DNA testing. We may not add to or
subtract from the language of an unambiguous statute. Ex parte Vela, 460 S.W.3d
610, 612 (Tex. Crim. App. 2015); Lovings, 480 S.W.3d at 111.
Seeking a different conclusion, appellant contends The Lavinia Masters Act,
which added language to article 12.01 and is codified in the current version of the
statute, shows the legislature recognizes that there was a ten-year time limit on DNA
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testing under the former statute. The current version of the statute, with The Lavinia
Masters Act amendments, states there is no limitation on sexual assault cases if:
(i) during the investigation of the offense biological matter is collected
and the matter:
(a) has not been subjected to forensic DNA testing; or
(b) has been 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[.]
TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(C).
Citing comments made by one of the Act’s sponsors, appellant contends that
by adding the new language exempting cases where biological evidence has not been
subjected to forensic DNA testing, the legislature acknowledged that the previous
version of the statute at issue in this case did not extend the statute of limitations
beyond ten years if DNA testing was not conducted within the ten-year limitations
period. Appellant further contends that two appellate court opinions, S.B.M. and
Edwards, conclude the DNA testing must be conducted within ten years for the State
to get the benefit of the unlimited-limitations provision.
When a statute is unambiguous, we do not turn to legislative history or
subsequent legislative amendments to construe it. See Chase v. State, 448 S.W.3d 6,
11 (Tex. Crim. App. 2014); Harris, 359 S.W.3d at 629. In this case, the statute
unambiguously does not include a temporal requirement that DNA testing be
conducted within ten years. Even if we were to consider the 2019 amendment to the
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statute, the amendment addresses limitations in cases where biological material was
obtained but no DNA testing has occurred, not in cases like the present one where
such testing has occurred. See TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(C)(i)(A).
Moreover, the two case authorities appellant relies upon do not support his
position and are easily distinguished. In S.B.M., a suspect arrested for sexual assault,
but not charged within ten years, sought to have his arrest record expunged by
arguing that limitations had run and it was too late to charge him. See S.B.M., 467
S.W.3d at 716. The court of appeals determined that the State was required to meet
all three prongs of the statutory standard, but it offered no opinion regarding when
the prongs must be met. See id. at 719. Instead, the court concluded the State could
not satisfy the third prong because application of that prong requires DNA testing
results and the testing in S.B.M.’s case showed there was not enough DNA to
produce a testing result. Id. Thus, the court concluded the State could not meet the
third prong and the ten-year limitation period would apply. Id.
The second opinion appellant relies upon has been withdrawn by the court of
appeals that issued it and replaced with a second opinion. See Ex parte Edwards, No.
01-19-00100-CR, 2019 WL 4019712 (Tex. App.—Houston [1st Dist.] Aug. 27,
2019), withdrawn on reh’g, No. 01-19-00100-CR, 2020 WL 4457985 (Tex. App.—
Houston [1st Dist.] Aug. 4, 2020, no pet. h.) (op. on reh’g). The first Edwards
opinion, like S.B.M., concluded that all three prongs must be met, but did not address,
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let alone impose, a requirement that all three prongs be met within ten years.
Edwards, 2019 WL 4019712, at *3–4.
Similarly, the new opinion on rehearing issued in Edwards does not state or
suggest that DNA testing must occur within ten years. See Edwards, 2020 WL
4457985, at *5, 8–9. In the second Edwards opinion, the appellate argument focused
on whether the State had provided sufficient proof of the third prong of the standard.
Id. at *8. To prove its case for applying no limitations, the State relied on police
reports that referred to DNA testing and a CODIS match rather than on direct
evidence of actual testing. Id. In contrast, in the case before us, the investigating
detective testified about the police investigation, and the DNA testing report and
CODIS match letter were admitted into evidence. Thus, the evidentiary failure that
led the Edwards court to conclude limitations had run is not present in this case. See
id. at *8–9.
Because the statute unambiguously does not require DNA testing take place
within any particular time period, the 2019 statutory changes address the separate
problem of untested sexual assault kits, and the cases appellant relies upon do not
support his position and are distinguishable, we are unpersuaded by his argument
that DNA testing must be undertaken within ten years. See Lovings, 480 S.W.3d at
111–12.
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B. Proof of Results
Appellant next contends that even if the State could conduct DNA testing
outside of ten years, the testing that was performed did not yield results. Appellant
contends this case is identical to Edwards in that the only testing result entered into
evidence was a CODIS match confirmation letter that requested further testing be
conducted. In fact, the evidence in this case is similar to Lovings rather than to
Edwards.
The evidence in Edwards that the court of appeals found insufficient to meet
the State’s burden of proof on the DNA testing prong of the limitations statute
consisted of police reports indicating the case had been assigned for “further
investigation regarding a CODIS match confirmation” and requesting an analysis of
the defendant’s buccal swabs to compare to the male DNA recovered from the
victim’s sexual-assault examination. Edwards, 2020 WL 4457985, at *9. The
evidence showed the results of analyzing the buccal swabs was still pending at the
time of the habeas hearing. Id. The State did not admit into evidence any direct
evidence showing testing results. Id. at *2–3. Reasoning that “testing results” are a
necessary statutory prerequisite, the court concluded the State had not met its burden
of proof. Id. at *9.
In contrast to Edwards, in the present case, the evidence includes testimony
from the investigating detective about the case, a forensic DNA testing report
revealing DNA of the complainant and a male contributor, the CODIS letter showing
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the DNA profile developed by the testing matched appellant’s DNA, and a second
forensic DNA report showing additional DNA testing confirming the CODIS match.
This is similar to the type of evidence described by the court in Lovings. See Lovings,
480 S.W.3d at 108 (parties stipulated that lab had issued DNA testing report showing
DNA of victim and one male contributor and a “hit” during CODIS search).
The current case is distinguishable from S.B.M., where testing did not produce
any testing results, and from Edwards, where the State failed to submit evidence of
testing results. Instead, the State showed that the biological material was subjected
to DNA testing. We conclude the evidence before the trial court was sufficient to
support the trial court’s conclusion that the State had met the second statutory prong.
Third Prong: Identity
Appellant next contends that he is a person whose identity was readily
ascertained. Appellant points out that his DNA profile had been in CODIS since
2001. Appellant contends if the State had taken even minimal steps to find him and
ascertain his identity it could easily have done so. Appellant quotes from the
investigating detective’s testimony at the habeas hearing where she admitted that a
person whose DNA profile was in CODIS could be readily ascertained. Appellant
suggests that the standard should be a suspect’s identity is readily ascertained if it
could be ascertained “easily and with certainty.”
In making his argument, appellant must distinguish Lovings, which holds
directly opposite to his position. As the court in Lovings put it, “[i]t is undisputed
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that appellant’s identity was not ascertained at the time the DNA sample collected
during J.L.'s sexual assault exam was tested. Appellant argues instead that his
identity could have been ‘readily ascertained’ if the State had looked for it.” Lovings,
480 S.W.3d at 112. Like appellant, the defendant in Lovings contended the
limitations statute imposed a duty on the State to search for a DNA match. Id. Citing
the maxim of expressio unis est exclusio alterius,3 the court noted that in three
separate statutes in the code of criminal procedure, the legislature had chosen to use
the word “ascertainable” and thus its choice of the word “ascertained” in the
limitations statute was significant. Id. The court further noted that the code of
criminal procedure imposes “diligence” and “reasonable diligence” obligations on
parties in several statutes and concluded, “[i]f the legislature meant to impose
additional duties on the State in the circumstances at issue here, it could have done
so explicitly.” Id. Because the police had no suspects, the DNA testing did not lead
to any suspect who was readily ascertained. Id.
We agree with Lovings. The statute as written does not require the State to
fish for suspects in the CODIS database. The evidence before the trial court showed
the biological material was “subjected to DNA testing” and after such testing, the
testing results did not “match the victim or any other person whose identity is readily
3
Meaning the expression of one thing is the exclusion of another. Williams v. State, 965 S.W.2d 506,
507 (Tex. Crim. App. 1998). It is a legal maxim based on logic and common sense sometimes used to
determine intent in statutes. Id.
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ascertained.” The complainant provided police with only a general description of the
suspect, and the State had only a DNA profile of an unknown perpetrator. Thus,
appellant’s identity was not readily ascertained at the time the biological evidence
was subjected to DNA testing.
The trial court found that appellant’s identity could not be readily ascertained
until June 26, 2018, when the CODIS match was made. Because the statute does not
impose a diligence requirement on the State to process DNA profiles into CODIS,
the record supports the trial court’s finding. See id.; see also Edwards, 2020 WL
4457985, at *9 n.16 (statute requires DNA results that show matter does not match
victim or person whose identity is readily ascertained not person whose identity is
readily ascertainable).
Appellant next contends that a straightforward application of the statute would
lead to absurd results because no one would be a person whose identity is readily
ascertained. We turn to Edwards to illustrate why appellant is incorrect.
In Edwards, the court recited facts from the police report and several
supplemental reports about the investigation. According to the police report, the
victim identified her assailant as “Maurice,” a man whom she had met at the club
where she worked and whom she had dated a few times. See Edwards, 2020 WL
4457985, at *2. The victim told police she did not know “Maurice’s” last name, but
she was described in the report as very hysterical and the officer who interviewed
her felt she was not being entirely truthful about her relationship with Maurice and
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was withholding information. Id. Two witnesses at the crime scene gave police the
license plate number for the assailant’s vehicle. Id. Upon tracing the license plate
number, police discovered an outstanding warrant linking the vehicle to “Maurice
Edwards.” Id. The warrant also gave police the suspect’s date of birth and Texas
driver’s license number. Id. After running a criminal history for “Maurice Edwards,”
the investigating officer noted that the information for “Maurice Ellis Edwards”
matched information provided by the victim. Id. Two weeks after the offense, when
the investigation was closed, the suspect was listed as “Maurice Ellis Edwards.” Id.
In a footnote to the Edwards opinion, the court noted that it need not determine
whether the defendant’s identity was “readily ascertained” because there was no
“statutorily required evidence of forensic DNA testing results.” See Edwards, 2020
WL 4457985, at *9 n.16. However, the court went on to note the evidence in the
record showing that in supplemental reports prepared four days and fourteen days
after the offense, the police had already identified appellant as the suspect. Id.
Although the court did not reach the issue of whether the defendant’s identity was
readily ascertained, the court’s discussion in footnote sixteen suggests skepticism
that the State could satisfy the third prong even if it had provided adequate evidence
of DNA testing results.
In such a situation, where a suspect’s identity is readily ascertained as a result
of the investigation, the “no limitations” provision of article 12.01 would not apply.
See id.; see also Martinez v. State, No. 03-12-00273-CR, 2014 WL 1208774, at *2
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(Tex. App.—Austin Mar. 20, 2014, no pet.) (mem. op., not designated for
publication) (defendant argued ten-year limitations applied to him because police
had enough information to ascertain his identity at time DNA sample was collected;
case decided on other grounds). Thus, we reject appellant’s suggestion that a plain
reading of the statute would render absurd results by allowing the State to always
benefit from unlimited limitations by indefinitely postponing DNA testing.
Constitutionality of the Third Prong
As a final argument under the third prong, appellant contends the
interpretation of “readily ascertained” advanced in Lovings and cited with approval
in Edwards renders article 12.01 unconstitutionally vague because the phrase “any
other person whose identity is readily ascertained” would be subject to arbitrary and
discriminatory enforcement.
Appellant did not assert that the statute was unconstitutionally vague in the
trial court habeas proceedings. Our review of the trial court’s order denying habeas
relief is limited to issues properly raised and addressed before the trial court. Ex
parte Perez, 536 S.W.3d 877, 880–81 (Tex. App.—Houston [1st Dist.] 2017, no
pet.); Ex parte Bolivar, 386 S.W.3d 338, 345 (Tex. App.—Corpus Christi–Edinburg
2012, no pet.). Because it was not preserved, we will not consider this new argument
on appeal.
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We conclude the trial court did not err in finding appellant’s identity was not
readily ascertained. Thus, the State met the requirements of the third prong of the
limitations statute.
Conclusion
Because we conclude the State has shown all three prongs required to apply
the “no limitation” provision of the limitations statute, we deny appellant’s sole
issue. See TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(C); Lovings, 480 S.W.3d at
111–12; see also Montgomery, 2017 WL 3271088, at *3–4. We conclude the trial
court did not abuse its discretion in denying relief on appellant’s writ application.
See Kniatt, 206 S.W.3d at 664.
We affirm the trial court’s order denying relief on appellant’s pretrial
application for writ of habeas corpus.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
PUBLISH
TEX. R. APP. P. 47.2(b)
191237F.P05
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