Texas Stamp


PD-1092-20 04/21/2021

1. “The First Court erred by holding that a shotgun objection and a complaint about another part of the statute preserved the appellant’s appellate argument. This conflicts with this Court’s holding in Resendez [v. State, 307 S.W.3d 308 (Tex. Crim. App. 2009)].”

2. “The First Court erred by holding that the State had to admit DNA test results at a pretrial habeas hearing challenging the validity of the charging instrument.”

3. “This limitations claim is not cognizable on pretrial habeas because it requires going beyond the face of the charging instrument.”

Edwards was indicted in 2017 for aggravated sexual assault allegedly committed in 2003. The statute of limitations is normally ten years. Tex. Code Crim. Proc. art. 12.01(2)(E), 12.03(d). However, there is no limitations period when biological material 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 Tex. Code Crim. Proc. art. 12.01(1)(C)(i)(b). Edwards filed a pretrial writ based on limitations. The evidence admitted at the hearing showed that 1) a rape kit was done and Edwards was identified as a suspect in 2003, 2) the case was closed due to lack of communication from the victim, 3) the kit was not tested until 2013, 4) a CODIS hit for appellant came back the next year. Edwards argued the limitations exemption did not apply because his identity was “readily ascertainable” at the time of the investigation. He called this “a hundred percent my argument,” and cited two cases where that was the issue. See Ex parte Montgomery, No. 14-17-00025-CR, 2017 WL 3271088 (Tex. App.—Houston [14th Dist.] August 1, 2017, pet ref’d) (not designated for publication), and Ex parte Lovings, 480 S.W.3d 106 (Tex. App.—Houston [14th Dist. 2015, no pet.). The trial court denied relief. It clarified that it did so because Edwards’s identity was not readily ascertainable at the time of the investigation.

The court of appeals reversed on a different theory. Edwards argued on appeal that the extended limitations period was inapplicable because the State failed to offer any direct evidence of the DNA testing or results. The court of appeals agreed. It rejected the State’s argument that Edwards did not present this theory to the trial court despite acknowledging that the “readily ascertainable” aspect of the limitations exemption was the focus of the disagreement at the hearing; appellant raised a broad complaint about limitations, and the court of appeals did not want to be hyper-technical or split hairs. The court then focused on the absence of evidence of forensic testing and results. It found insufficient the stipulated evidence contained in the offense report that a rape kit was done, testing was completed, and a CODIS match was investigated in part by obtaining new buccal swabs of Edwards. Finally, it pointed out that the latest swabs had not been tested at the time of the hearing.

The State reiterates its complaints to the court of appeals but adds a threshold issue. The State argues that limitations claims of this type should not be litigated through pretrial writs because no indictment for sexual assault is time barred on its face; development of a factual record of the investigation is always required. For that reason, a motion to quash or litigation at trial as a defense would be more appropriate. Regarding preservation, a boilerplate petition must be supplemented with specific argument at the hearing to preserve a specific complaint. That was the holding of Resendez. The argument at the hearing, and appellant’s explicit agreement with the trial court, focused on only one part of the third prong—whether his identity was readily ascertainable. There was no hint that relief was sought based on lack of admission of DNA test results. Had Edwards said so, his complaint could have been addressed at a time when it could have made a difference. On the merits, the State makes two points. First, Edwards should have had the burden to disprove the applicability of the exemption because he was the movant below. Second, if the State had the burden of proof, there is no basis for requiring a certain mode. The offense report included everything required to satisfy the exemption.

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