                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00360-CV


EX PARTE S.B.M.




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            FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                      TRIAL COURT NO. 2013-40334-362

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                                  OPINION1

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                               I. INTRODUCTION

        The sole issue we address in this expunction appeal is whether the

evidence admitted at the expunction hearing established that the statute of

limitations for the sexual assault offense that S.B.M. had been arrested for had


        1
        The undersigned was assigned authorship of this opinion on April 30,
2015.
expired prior to the filing of S.B.M.’s petition for expunction.      Because the

evidence established that the statute of limitations exception set forth in article

12.01(1)(C) of the code of criminal procedure did not apply, because the general

ten-year sexual assault statute of limitations therefore applied, and because that

ten-year limitations period had expired prior to the filing of S.B.M.’s petition for

expunction, we will reverse the trial court’s judgment denying S.B.M.’s

expunction and remand this case to the trial court for entry of appropriate orders

granting S.B.M.’s petition for expunction.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      In March 2003, R.W. reported that she had been sexually assaulted. She

underwent a sexual assault examination. The sexual assault kit was delivered to

the Texas Department of Public Safety (DPS) lab for testing.         The DPS lab

detected semen on a vaginal swab and on R.W.’s panty liner. The State arrested

S.B.M. in September 2003 for the sexual assault, and S.B.M. provided a DNA

sample so that it could be compared to the biological matter collected from R.W.

The DPS lab compared the biological matter found on R.W.’s vaginal swab,

including a sperm fraction, and on her panty liner to S.B.M.’s DNA sample. After

reviewing the forensic DNA testing, the lab analyst articulated his conclusion in

the lab report; he concluded that a “[c]omparison to reference samples cannot be

made due to insufficient male DNA on the panty liner . . . or the sperm fraction of

the vaginal swab.”    The lab report, admitted into evidence at the expunction

hearing, shows that for each specimen of the biological matter collected from

                                         2
R.W., “DNA from specimen . . . and the sperm fraction . . . was amplified and

typed at ten regions of the Y-chromosome.        The following results . . . were

obtained.”   The results list “NR” for all ten points of comparison of the Y-

chromosome from S.B.M.’s DNA sample to the Y-chromosome from the DNA in

three specimens of biological matter collected from R.W., so that the report

contains thirty findings of “NR.” “NR” is defined in the lab report to mean “no

result.” The State subsequently attempted to indict S.B.M. for the sexual assault

of R.W., but the grand jury no-billed him.

      In April 2013, S.B.M. moved to expunge the records relating to his 2003

arrest pursuant to code of criminal procedure article 55.01(a)(2)(B), asserting that

he had never been charged with the offense and that his prosecution for it was

no longer possible because the ten-year statute of limitations period had

expired.2 See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B) (West Supp. 2014).

The State asserted that the prosecution of S.B.M for the sexual assault was still

possible because this sexual assault fell within article 12.01(1)(C)’s exception to

the general ten-year sexual assault statute of limitations. See Tex. Code Crim.

Proc. Ann. art. 12.01(1)(C) (West 2015) (providing no limitations apply to sexual


      2
        S.B.M.’s motion for expunction also asserted another ground for
expunction, and his first issue on appeal challenges the trial court’s failure to
consider that ground for expunction. But because we hold that the trial court
abused its discretion by failing to grant an expunction based on article
55.01(a)(2)(B), we need not address his first issue. See Tex. R. App. P. 47.1
(requiring appellate court to address only issues necessary for disposition of the
appeal).

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assault offense if forensic DNA testing of biological matter collected from victim

does not match the victim or “any other person whose identity is readily

ascertained”). The trial court agreed with the State and denied S.B.M.’s request

for an expunction.

                               III. STANDARD OF REVIEW

          Generally, we review a trial court’s ruling on an expunction petition under

an abuse-of-discretion standard. See S.J. v. State, 438 S.W.3d 838, 841 (Tex.

App.—Fort Worth 2014, no pet.); Tex. Dep’t of Pub. Safety v. Dicken, 415

S.W.3d 476, 478 (Tex. App.––San Antonio 2013, no pet.); Ex parte Cephus, 410

S.W.3d 416, 418 (Tex. App.––Houston [14th Dist.] 2013, no pet.). But to the

extent a ruling on the expunction petition turns on a question of law, we review

the ruling de novo because a trial court has no discretion in determining what the

law is or in correctly applying the law to the facts. S.J., 438 S.W.3d at 841; Tex.

Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.––Houston [14th

Dist.] 2008, no pet.).

          Statutory construction is a question of law. City of Rockwall v. Hughes,

246 S.W.3d 621, 625 (Tex. 2008); Dicken, 415 S.W.3d at 478. When construing

statutes, our primary objective is to ascertain and give effect to the legislature’s

intent.     See Tex. Gov’t Code Ann. § 312.005 (West 2013); TGS-NOPEC

Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011); City of Rockwall,

246 S.W.3d at 625; Dicken, 415 S.W.3d at 478. To discern that intent, we begin

with the statute’s words; we give a statute’s words their plain and common

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meaning unless a contrary intention is apparent from the context or unless such

a construction leads to absurd results. Crosstex Energy Servs., LP v. Pro Plus,

Inc., 430 S.W.3d 384, 389–90 (Tex. 2014); City of Rockwall, 246 S.W.3d at 625–

26; Dicken, 415 S.W.3d at 478; see also Tex. Gov’t Code Ann. § 311.011(a)

(West 2013) (“Words and phrases shall be read in context and construed

according to the rules of grammar and common usage.”).

             IV. EXPUNCTION STATUTE3 AND STATUTE OF LIMITATIONS

      Article 55.01 of the code of criminal procedure provides a statutory right to

expunge criminal records. See Tex. Code Crim. Proc. Ann. art. 55.01; McCarroll

v. Tex. Dep’t of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002,

no pet.). Article 55.01(a)(2)(B) sets forth one of the statutory grounds for an

expunction; it entitles a person to an expunction if

      the person has been released and the charge, if any, has not
      resulted in a final conviction and is no longer pending and there was
      no court-ordered community supervision . . . provided that
      prosecution of the person for the offense for which the person was
      arrested is no longer possible because the limitations period has
      expired.

Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B). The statute of limitations for

sexual assault is ten years. Id. art. 12.01(2)(E). But article 12.01(1)(C) sets forth

an exception to this general ten-year statute of limitations:



      3
      Although the expunction statute is codified in the code of criminal
procedure, an expunction proceeding is civil in nature. See, e.g., J.H.J., 274
S.W.3d at 806.

                                          5
      [F]elony indictments may be presented within these limits, and not
      afterward:

             (1) no limitation:

                    ....

                    (C)    sexual assault, 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[.]

Id. art. 12.01(1)(C).

      An expunction will be granted only when a petitioner satisfies all statutory

conditions. See Dicken, 415 S.W.3d at 479; Cephus, 410 S.W.3d at 418; J.H.J.,

274 S.W.3d at 806; McCarroll, 86 S.W.3d at 378.          The petitioner bears the

burden of demonstrating that each statutory condition has been met. Dicken,

415 S.W.3d at 478; Cephus, 410 S.W.3d at 418; J.H.J., 274 S.W.3d at 806.

                             V. EXPUNCTION REQUIRED

      The evidence admitted at the expunction hearing conclusively established

that concerning S.B.M.’s arrest for allegedly sexually assaulting R.W., he had

been released, no final conviction had resulted, he was not placed on community

supervision, and the general ten-year sexual assault statute of limitations had

expired prior to the date S.B.M. had filed his expunction petition. See Tex. Code

Crim. Proc. Ann. art. 55.01(a)(2)(B). The State did not dispute these facts at the

expunction hearing and does not do so in this appeal.           Instead, the State

asserted in the trial court and asserts on appeal that article 12.01(1)(C)’s

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exception to the ten-year sexual assault statute of limitations applies here, so

that no statute of limitations exists and that, therefore, S.B.M. failed to establish

that the limitations period for this sexual assault offense had expired. In his

second issue, S.B.M. argues that the trial court abused its discretion by

determining that article 12.01(1)(C)’s limitations exception applies here.

      Under the plain language of article 12.01(1)(C), an exception to the ten-

year sexual assault statute of limitations is triggered when (1) during the

investigation of a sexual assault biological matter is collected, (2) the biological

matter is subjected to forensic DNA testing, and (3) the forensic DNA testing

results show that the matter does not match the victim or any other person

whose identity is readily ascertained. See id. art. 12.01(1)(C). The third prong is

at issue here. The biological matter subjected to forensic DNA testing in this

case did not belong to R.W.––the matter tested was semen on R.W.’s panty liner

and a sperm fragment found in R.W.’s vaginal swab.           But the forensic DNA

testing results of the biological matter do not show that the matter does not

match any other person whose identity is readily ascertained.          Instead, the

results simply show nothing.     The results of the forensic DNA testing of the

biological matter collected from R.W. are thirty “NR”s––meaning literally, as

defined in the lab report itself, “no result.” The conclusion drawn by the lab

analyst after reviewing the thirty “no results” from the forensic DNA testing of the

biological matter collected from R.W. was that a “[c]omparison to reference

samples cannot be made due to insufficient male DNA on the panty liner . . . or

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the sperm fraction of the vaginal swab.” Thus, the record establishes that the

biological matter collected from R.W. contains insufficient DNA for forensic DNA

testing of it to show anything, including that the DNA in the biological matter

matches or does not match any male.

      The plain language of article 12.01(1)(C) requires, at a minimum, as a

prerequisite to its application, that the biological matter collected contain a

sufficient quantity of DNA to enable forensic DNA testing to be performed; the

statute provides that no limitations period exists for the prosecution of a sexual

assault when “biological matter is collected and subjected to forensic DNA testing

and the testing results show” the matter matches neither the victim nor another

person whose identity is readily ascertained. Id. (emphasis added). Because the

biological matter collected from R.W. and subjected to forensic DNA testing

showed nothing––no results were attainable because “insufficient male DNA”

existed in the biological matter collected from R.W.’s panty liner and in the sperm

fraction collected from R.W.’s vaginal swab––we hold that as a matter of law

article 12.01(1)(C) does not currently apply here to render the general ten-year

sexual assault statute of limitations inapplicable.4 See id.; Tex. Gov’t Code Ann.


      4
       We note that our decision today does not preclude the possibility that if,
through scientific advances in DNA testing, the forensic testing of the biological
matter collected from R.W. is able to yield actual readable test results (not NRs)
showing that the DNA profile in the collected biological matter does not match
R.W. or any other person whose identity is readily ascertained, there is no
reason article 12.01(1)(C) could not apply at that time. Moreover, because an
expunction proceeding bears no relation to the attachment of jeopardy, if article
12.01(1)(C) becomes applicable at some point in the future, even S.B.M. could
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§ 311.011; Crosstex Energy Servs., 430 S.W.3d at 389–90; City of Rockwall, 246

S.W.3d at 625–26; Dicken, 415 S.W.3d at 478. Because article 12.01(1)(C) does

not apply here and because S.B.M. conclusively established the elements

necessary to obtain an expunction under article 55.01(a)(2)(B), we hold that the

trial court abused its discretion by denying S.B.M.’s petition for expunction. See

T.C.R. v. Bell Cnty. Dist. Attorney’s Office, 305 S.W.3d 661, 671–72 (Tex. App.—

Austin 2009, no pet.) (construing terms of expunction statute and holding that

trial court abused its discretion by denying expunction); Carson v. State, 65

S.W.3d 774, 780–81 (Tex. App.—Fort Worth 2001, no pet.) (op. on reh’g)

(construing expunction statute and holding that trial court abused its discretion in

scope of expunction granted); see also Fuller v. State, No. 03-08-00675-CV,

2009 WL 2410453, at *2 (Tex. App.—Austin Aug. 6, 2009, no pet.) (mem. op.)

(reversing expunction denial because the appellant satisfied all statutory

requirements, including a showing that the statute of limitations had expired).

We sustain S.B.M.’s second issue.

                                 VI. CONCLUSION

      Having determined that we need not address S.B.M.’s first issue and

having sustained S.B.M.’s second issue, we reverse the trial court’s order

denying his motion to expunge the records relating to his 2003 arrest for the


potentially be charged with the offense. Our narrow holding today is limited
strictly to the expunction ruling made by the trial court based on the evidence
admitted at that hearing.

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alleged sexual assault of R.W., and we remand this case to the trial court for

entry of appropriate orders expunging S.B.M.’s files and records related to that

arrest.

                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J. concurs without opinion.

DELIVERED: June 11, 2015




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