Opinion

Tibbs, James Ishmael

Court: Court of Appeals of Texas
Filed: May 13, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.0%

noting that "this Court, ... has repeatedly endorsed {Cal- per's] understanding, including, in particular, the fourth category"

How later courts described this case

noting that "this Court, ... has repeatedly endorsed {Cal- per's] understanding, including, in particular, the fourth category"
noting that "the fourth category, so understood, resonates hann~ niously with one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice"
Stevens,]., concurring in the judgment
explaining the special nature of Bills of Attainder: "In these cases the legislative body, in addition to its legitimate functions, exercises . the powers and office ofjudge; it assumes, in the language of the text-books, judicia

Written by the judges who cited it.

The opinion

IN THE 252nd,CRIMINAL DISTRICT COURT

FOR THE COUNTY OF JEFFERSON R.ECEIVIED IN

sTATE oF TExAs eou~r oF

cRJWIINALAPPEALs

JAMES ISHMAEL TIBBS

MAY 13 2015

-Vs.- Cause No. 21560

THE STATE OF TEXAS Abel Acosta, Clerk

APPLICATION FOR WRIT

To: THE HONORABLE JUDGE WEST OF THE ABOVE SAID COURT.

Comes now,JAMES ISHMAEL TIBBS, •• pursuant to Artical I,Sec.

10,Clause 1,of the u.s.C.A. -(no state •.. shall p~ss any bill of

attainder,ex post facto law,or law impairing the Obligation Of ~o

Contracts; ..

.. Derek J. T. Adler, .. explaning that "the term' ex post facto law

wo~ld lit~rally refer to any law ... which gives legal consequences

to actions or events that took place before the date of its ...

passage" ..

Ogden,25 U.S. at 266, •. explaining that'the states are forbidd

en to pass any •. ex post facto law,by which a man shall be punishe

criminally or penally,by loss of life,of his liberty,property,for

an act,which,at the time of its commission,violated no existing 1

law of the land" ••

••• Specifically •••

A persons trial ends June 3rd,1994, •• under the laws that were

in effect the Judgment,Conviction,Sentance and Punishment was ove

Complete,.SEX OFFENDER REGISTRATION C.C.P. art.62.102, .. was not i

in effect untill Sept.1st, 1997,.it only applied to a person who

was eligable under applicable state law, •• Therefore Applicant is

not eligable,because this law was not in effect,it violates the

u.s.c.A. ex post facto and bill of attander Clause, •• sawyer V.

Whitly,112 Sct.2514, ••• Double Jeopardy Attaches,.because Multiple

Prosecutions for the same offence, .• a person who was tried convic

ted,sentanced and punished the Judgment held the new laws provisi

ons that were Adjudicated,.because of that; .. the Judge Orde~ed

a person to comply with .Sex Offinder Registration,C.C.P. Artical

62.102,Provisions, •. Failure to Comply where that law is applicabl

did not Require Indictment,.because the court Orders Failure to

Comply was CUREABLE and they were only arrested for a Capious

Profine or Contempt of Court Order, .• NOT A 25 to LIFE SENTANCE

TO PRISON_FOR THREE STRIKES FELONY CONVICTION •• which is a GLOSED

DOOR to the only Defence Avaliable A FIRST FEDERAL CLAIM OF ACTUA

INNOCENCE, see cf Lonkar V Thomas, 116 Set. 1293, •• First Federal

Claim Of Actual Innocence,.GATE-WAY-EXCEPTION,.where Schulp V.

Delo,115 Sct.851, •• no single juror acting rationally would lack

a reasonable doubt, .•• or vote to convict ,.is an AQUITTAL the end

RESULT

1•

It is outside an assment as to whether no single juror laked

a reasonable doubt, •. because an Aquittal is cl~arly de~ined in

the GATE-WAY-EXCEPTION,Actual Innocence Acception For Procedural

Bar On A First Federal Claim, ..• Exhibit (A) •• a Subpoina was

sereved on Buellas Tibbs Grisham,.However; she was not Present

for Trial,and her testimony was reguirea ~sa Matter of l~w, •.•

because it was favorable to Defence,Because; •• the D.A. KNEW that

the .• SY~OPSIS OF OFFENSE~.is false and that both of her children

had motives,and she was interviewed by (CPS)-Agents,NOVEM~ER 30th

1989, .. Applicant was interviewed, .. Bonnie,and Damiens punititave

confession to (CPS) was the reason she lied about being sexually

assaulted was because Applicant slapped JACK, •• I,admitted to the

accusation of slapping JACK the younges boy~ •• Applicant has been

denied Brady material that had the jury heared, •• it is more likle

than not no single juror would lack reasonable doubt,or voted to

convict, ••. ,,

Applicant,JAMES ISHMAEL TIBBS, swears under penalty of perjury in

compliance wi~h 28 U.S.C.A. 1746 that the £oregoing clai~s are

true and correct.

state Of texas

County of Jefferson

Swornto and subscribed on this,Jltb__,day of frfay 2ojS

()_~~'7Jk

~ A fiant

James Ishmael Tibbs

3955 Rothwell Str,

Beaumont,Texas 77705

•.. Relief •••

The trial Court to SUBPOENA Buellas Tibbs Grisham for a jury

trial,or a hearing to resolve the issue of whether a reasonable J

doubt exzisted,under the Actual Innocence Acception, or the Brady

V. Maryland,suppression of favorable evidence to Applicant, ••••

Also whether the ex post facto law is offended •••• and as to

whether in this particular case double jeopardy Attaches?

~~TFULLY SUBMITTED

~~/~-ih

James Ishmael Tibbs

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EXHIBIT (fi.)

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Journal of Criminal Law and Cr-iminology

Volume91

Article 4

Issue 2 Winter

Winter 2001

It's an Ex Post Fact: Supreme Court Misapplies the

Ex Post Facto Clause to Criminal Procedure

Statutes

Danielle Kitson

Follow this and additional works at: http:/ /scholarlycommons.law.northwestern.edu/jdc

0 Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal

Justice Commons

Recommended Citation

Danielle Kitson, It's an Ex Post Fact: Supreme Court Misapplies the Ex Post Facto Clause to Criminal Procedure Statutes, 91 J. Crim.

L. & Criminology429 {2000-2001)

This Supreme Court Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been

accepted for inclusion in Journal of Criminal Law and Criminology by an authorized administrator of Northwestern University School of Law Scholarly

Commons.

0091-4169/01/9102~

llrE jOUIINAl. OF CRIMINAL LAW &: CIU.\I!:'OLOCY Vul 91. N<l 'l

CoP}right C 2001 by Nonh,.-esttm Uni\'ersil)', School of uw t: S:\

i'teL-.J "'

IT'§ AN EX POST JFACT: SUPREME COURT

MII§APPLIES THE EX POST FACTO ClAUSE

TO CRIMINAL PROCEDURE STATUTES

Carmell v. Texas, 120 S. Ct. 1620 (2000)

I. INTRODUCTION

In Carmell v. Texas, 1 the Supreme Court held that the Ex

Post Facto Law Clause of the United States Constitution2 prohib-

ited the application of a Texas statute of criminal procedure 5 in

trials against sexual offenders for their offenses committed prior

to the amendment of the statute in 1995.4 The Court reasoned

that the amendment to the Texas statute altered the sufficiency

of the evidence needed to convict criminal defendants, and thus

it qualified as an ex fOSt facto law as such under the seminal

case of Calder v. Bull. In particular, the court was persuaded

that the facts of Carmell mirrored the 300 year-old case of Sir

John Fenwick, the same case that Justice Chase cited in CaldeT'

I120 s. Ct. 1620 (2000).

U.S. CONST. art. I, § 10, d. 1. ("No state shall ... pass any Bill of Atlainder. ex

post facto Law, or Law impairing the Obligation of Contracts ....·}.

' The Statute authorized conviction of sexual offenses on a victim's testimony

alone, under certain conditions. See TEx. CoDE CRIM. P. ANN. an. 38.07 (West2000)

(providing that a conviction "is supportable on the uncorroborated testimony of the

victim of a sexual offense if the victim informed any person, other than the defen-

dant, of the alleged offense within one year after the date on which the offense is al-

leged to have occurred," or if"the victim was younger than 18 years of age at the time

of the alleged offense.")

• See Cannell, 120 S. Ct. at 1643 (holding that petitioner's convictions pursuant to

Article 38.07 could not be sustained under the Ex Post Facto Law Clause).

See id. at 1625, 1631 (reasoning that "Article 38.07 is unquestionably a law 'that al-

ters the legal rules of evidence, and receives less, or different, testimony, than the law

required at the time of the commission of the offense, in order to convict the of-

fender."); Calder v. Bull, 3 U.S. 386,390 (1798) (noting that"e\'ery law that alters the

legal rules of evidence, and receives less, or different, testimony, than the law re-

quired at the time of the commission of the offence, in order to convict the of-

fender," is an ex post facto law).

3 U.S. at 389.

429

430 SUPREME COURT REVIEW (Vol. 91

for the proposition that statutes altering the sufficiency of the

evidence needed to convict were invalid ex post facto laws. 7

This Note argues that the Supreme Court's decision was inM

correct. First, the majority incorrectly found that Texas Article

38.07 altered the sufficiency of the evidence needed to obtain a

conviction. Instead, Texas Article 38.07 is functionally identical

to rules of witness competency, and is not ex post facto as such

under the principles of Calder. 9 Second, the Court erroneously

analopzed the facts of John Fenwick's case to Cannell's situaM

tion. Finally, even if the majority were correct in its assertion

that Texas Article 38.07 qualifies as an ex post facto law as deM

fined in Calder/ the majority ignored subsequent case law that

effectively reinterpreted the Calder definition, to the exclusion

of Calder's fourth category of ex post facto laws, those which al-

ter the legal rules of evidence. 12

II. BACKGROUND

A IllSTORY AND PURPOSE OF THE EX POST FACTO ClAUSE

Article I, Section I 0, clause 1 of the United States Constitu-

tion provides that "no state shall ... pass any bill of attainder, ex

See Cannell, 120 S. Ct. at 1629, 1631 (noting that "the circumstances of peti·

tioner's case parallel those of Fenwick's case 300 years earlier").

a See id. at 1648 (Ginsburg,]., dissenting) (arguing that the majority "places ... its

greatest weight on the 'sufficiency of the evidence' label," a label that "will not stick").

See id. at 1649 (Ginsburg, J., dissenting) (reasoning that "the corroboration re·

quirement of Article 38.07 is functionally identical to a conditional rule of witness

competency").

See id. at 1654 (Ginsburg, j., dissenting) (reasoning that the facts of the peti·

tioner's are distinguishable from the facts of Fenwick's case).

3 U.S. at 390 (writing for the majority, Justice Chase explained that there were

four categories of ex post facto laws:

1st. Every law that makes an action, done before the passing of the law, and which

was innocent when done, criminal; and punishes such action. 2nd. Every law that aggra·

vates a crime, or makes it greater than it was when committed. 3rd. Every law that changes

the punishment, and inflicts a greater punishment, than the law annexed to the crime,

when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or

different, testimony, than the Jaw required at the time of the commission of the offence, in

order to convict the offender.

The fourth category is at issue in Carmel!).

See id.; Cannell, 120 S. Ct. at 1651 (Ginsburg, J, dissenting) (reasoning that the

Calder definition had been changed, and that "a strong case can be made that ... [the

Court) pared the number of Calder categories down to three, eliminating altogether

the fourth category").

2001] CARMEIL V. TEXAS 431

post facto law, or law impairing the obligation of contracts. " 13

The framers of the Constitution drafted this clause in order to

restrain State legislatures from acts of injustice against citizens,

in both criminal and civil matters.'• In particular, the framers

were concerned with the power of the Parliament of Great Brit-

ain to pass bills of attainder and bills of "pains and penalties"

specifically against individuals or classes of individuals. Bills of

attainder irriposed a sentence of death and bills of pains and

penalties imposed lesser punishment. 15 The framers were con-

cerned that bills of attainder violated the principle of separation

of powers. When a legislature passed a bill of attainder, the leg-

islature passed judgment on an individual. The framers consid-

ered this act to be "an exercise ofjudicial power."'G

____________________________ Literally, the prohibition against ex post facto laws encom-

-passes any law ·with a retrospective application, that is, any law

applying "after the fact. " At the very heart of this prohibition is

the notion that a citizen cannot be deprived of life, liberty,

property, or reputation for an act which, at the time it was

committed, did not violate any law. 18 As the Court noted in

Ogden v. Saunders, 19 "laws of this character are oppressive, unjust,

and tyrannical; and, as such, are condemned by the universal

U.S. CoNST. art. I, § 10, cl. 1.

It is important to note that the clause includes three categories of impennissible

laws: bills of attainder, ex post facto laws, and laws impairing the obligation of con-

tracts. The first two deal with criminal matters; the third with civil maucrs. Se2

Ogden v. Saunders, 25 U.S. 213, 216 (1827) (explaining that the framers prohibited

bills of attainder and ex post facto laws "in order to restrain the State legislatures

from oppressing individuals by arbitrary sentences, clothed with the forms of legisla-

------'-tion, and from making retrospective laws applicable to criminal mauers").

See Calder, 3 U.S. at 389.

16 Id.

See id. at 390 (reasoning that the literal meaning of ex post facto is "on!)•, that a

law shall not be passed concerning, and after the fact, or thing done, or action com-

mitted"); DerekJ.T. Adler, Ex Post Facto Limitnlwns on Cluznges in ET.ridenliary Lou•: &-

peal of Accomplice Comlboralion Requirements, 55 FORDHAM L. RE\•. 1191, 1192 {1987)

(explaining that the term "ex post facto law" would "literallr refer to any law ...

which gives legal consequences to actions or events that took place before the date of

- - - - - - I · t s passage").

Ogden, 25 U.S. at 266 (explaining that "the States are forbidden to pass any ...

ex post facto law, by which a man shall be punished criminally or penall)"• by loss of

life, of his liberty, property, or reputation, for an act which, at the time of its commis-

sion, violated no existing law of the land").

19 Id.

432 SUPREME COURT REVIEW [Vol. 91

sentence of civilized man. " The Court recognized in Calder

that entrusting State and Federal·legislatures with such power

was contrary to the core concept of free Republican govern-

ment, in which men enter into society willingly in order to form

a social compact. As Justice Chase explained, "this fundamen-

tal principle flows from the very nature of our free Republican

governments, that no man should be compelled to do what the

laws do not require; nor to refrain from acts which the laws

permit." 22 The framers of the Constitution infused a great deal

of power into the federal legislature, but also left a great deal of

power to the state legislatures to "enjoin, permit, forbid, and

punish; . . . declare new crimes; and establish rules of conduct

for all ... citizens in future cases; ... [and] command what is

right, and prohibit what is wrong." 23 However, the framers did

not entrust the federal or the state legislatures with the power to

"change innocence into guilt; or punish innocence as a crime;

or violate the right of an antecedent lawful private contract; or

the right of private property. "24

Commentators have noted that the Ex Post Facto Clause in

the Constitution serves three main functions. 25 First, it provides

notice to the public "to assure that legislative acts give fair warn-

ing of their effect. "26 Second, it protects the right of citizens to

reasonably rely on existing laws in choosing what actions to take,

without fear that the laws will be changed capriciously or mali-

/d. (" [T] he injustice and tyranny which characterizes ex post facto laws, consists

altogether in their retrospective operation, which applies with equal force, although

not exclusively, to bills of attainder.").

See Calder, 3 U.S. at 388; Wayne A. Logan, The Ex Post Facto Clause and the jurispru-

dence of Punishment, 35 AM. CRIM. L. REv. 1261, 1275 (1998) (noting that ':James Madi-

son proclaimed that 'ex post facto laws ... are contrary to the first principles of the

social compact, and to every principle of sound legislation").

Calder, 3 U.S. at 388.

u Id.

24 !d.

See Adler, supra note 17, at 1196-97; DavidS. Matteo, Welcome to Anytown, U.S.A.-

Harne of Beautiful Scenery (and a Convicted Sex Offender): Sex Offender Regis!ration and N()o

tifuatwn LAws in E.B. v. Verniero, 43 VILL. L. REv. 581, 595 (1998); Logan, supra note

21, at 1276.

See Carmell v. Texas, 120 S. Ct. 1620, 1650 (2000) (Ginsburg, J., dissenting)

(quoting Weaverv. Graham, 450 U.S. 24, 28-29 (1981) ); Adler, supra note 17, at 1196.

(noting that it "ensures that citizens are given fair warning of what acts will be penal-

ized and to what extent"); Matteo, supra note 25, at 595; Logan, supra note 21, at 1276

(noting that "ex post facto Jaws are especially unfair because they deprive citizens of

notice of the wrongfulness of behavior, and thus result in unjust deprivations").

2001] CARJviELL V. TEXAS 433

ciously. Third, it preserves the principle of separation of pow-

ers by ensuring that "legislatures do not meddle with the judici-

ary's task of adjudicating guilt and innocence in individual

cases. "28 The ban on ex post facto ·laws not only prevents the

legislature from adjudicating guilt and innocence for an indi-

vidual, but it also prevents the legislature from acting in an arbi-

trary or vindictive fashion while acting in a judicial vein.a

B. TIIE EARLY CASES: CALDER V. BULL AND CUMMINGS V. l\fiSSOURI

The early case of Calder v. BuU was the first to address the Ex

Post Facto Clause of the Constitution. so In the oft-quoted opin-

ion written by Justice Chase, the Court explored the parameters

of the Clause, and set out a four-category definition of ex post

facto laws. 31 In the case of Cummings v. Missouri, 12 the Court first

applied the fourth Calder category, regarding a law that "alters

the legal rules of evidence, and receives less, or different, testi-

mony, than the law required at the time of the commission of

the offence, in order to convict the offender...ss Consideration

of these two early cases is crucial to understanding which pro-

cedural provisions the Court understood to be ex post facto in

nature.

Calder v. Bull involved a resolution passed by the legislature

of Connecticut that set aside a decree of the Court of Probate of

Harford. 34 The decree in question disapproved and refused to

record Normand Morrison's will.S!l As a result of this legislative

See Adler, supra note 17, at 1197; Mary-Marsha Porter Loe, Arl;ansas Saual Of

fender Registration and Notification lAws: An Ex Post Facto Vrolation 7, 53 ARK. L. R£\'. 175,

189 (2000} (explaining that "in order to achieve fundamental fairness, people must

know the law before they act"); Co:rmell, 120 S. CL at 1650 (Ginsburg,j., dissenting)

(qwtingWeaver v. Graham, 450 U.S. 24, 28-29 (1981} } (noting that the Clause "per-

mit[s] individuals to rely on ... [a law's] meaning until explicidy changed").

sa See Carmell, 120 S. CL at 1650; Adler, supra note 17, at 1193-94 (explaining that

the framers included the Ex Post Facto Clause to "uphold the separation of powers by

preventing improper legislative interference in the judicial process").

See Adler, supra note 17, at 1197 (e.-.:plaining that the ban on ex post facto laws

"prevents arbitrary or vindictive acts on the part of the legislature"}; Matteo, supra

note 25, at 595.

sa SeeCalderv. Bull, 3 U.S. 386, 387 (1798}.

See supra note 11 (setting out the four-category definition).

71 u.s. 277 (1866).

Calder, 3 U.S. at 390.

Id. at 386.

55 ld.

434 SUPREME COURT REVIEW [Vol. 91

resolution, Mr. Morrison's will was probated and recorded. 36

Calder and his wife, who would have inherited the estate if the

will had not been probated, as the Court of Probate had origi-

nally ordered, were disinherited. 37 Caleb Bull, whose wife was

named in Mr. Morrison's will, inherited the estate. 38 Calder and

his wife claimed on appeal that the legislative resolution to set

aside the decree of the probate court was an ex post facto law. 59

The Court held that the legislative decree was not an invalid

ex post facto law. 40 Justice Chase reasoned that the Ex Post

Facto Clause encompassed only penal statues, and that the

"framers of the Constitution ... understood and used the words

in their known and appropriate signification, as referring to

crimes, pains, and penalties, and no further.""' Because Cal-

der's case involved a civil matter, the legislative resolution could

not be ex post facto under the Constitution as a matter of defi-

nition. 42 Justice Chase further explored the Ex Post Facto

Clause in reaching his holding, and explained there were four

types of ex post facto laws:

1st. Every law that makes an action, done before the passing of the law,

and which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was,

when committed. 3rd. Every law that changes the punishment, and in-

flicts a greater punishment, than the law annexed to the crime, when

committed. 4th. Every law that alters the legal rules of evidence, and

receives less, or different, testimony, than the law required at the time of

the commission of the offence, in order to convict the offender.

In developing this definition, Justice Chase explained that

he relied heavily on the works of William Blackstone and Rich-

See id.

' See id. at 387.

"'/d.

u Id.

•o See id. at 397 (noting that ex post facto laws are limited to penal statutes: "they

extend to penal statutes and no further; they are restricted in legal estimation to the

creation, and, perhaps, enhancement of crimes, pains and penalties") .

.. !d. See Adler, supra note 17, at 1193 (explaining that the Ex Post Facto Clause

has been interpreted to prohibit only legislative acts that operate to the detriment of

a criminal defendant).

3 U.S. at 397 (noting that "ex post facto laws must be limited in the manner al-

ready expressed [to criminal statues]; they must be taken in their technical, which is

also their common and general, acceptation, and are not to be understood in their

literal sense").

"ld. at 390.

2001] CARMELL V. TEXAS 435

ard Wooddeson, as well as the definitions given in the constitu-

tions of Maryland, North Carolina, and Massachusetts. 44

As an example of the fourth category of ex post facto laws,

Justice Chase cited briefly to the case of Sir John Fenwick in

1696. The details of this case are important because the Car-

mell Court relied significantly on them in determining that laws

that altered the sufficiency of evidence needed to obtain a

criminal conviction were ex post facto. 16

. In Sir John Fenwick's case, an act of Parliament proclaimed

that two witnesses were necessary to convict a person of high

treason. John Fenwick, a Jacobite, plotted with two co-

conspirators to restore James II to the throne after his over-

throw by King William Ill in the Revolution of 1688.19 The

number of conspirators expanded over the course of a few

months, and the throne began arresting the conspirators one by

one after three of them disclosed the restoration plot to the

King. 49 The conspirators were systematically arrested, tried,

convicted of treason and put to death.50

When Fenwick was eventually arrested, there were only two

witnesses among the group of conspirators who could prove

Fenwick's guilt, George Porter and Cardell Goodman.51 Fen-

wick's '\vUe was successful in bribing Goodman to leave the

country, and under the act of Parliament, Porter's testimony

alone would not be sufficient to obtain a conviction. 52

The House of Commons reacted to Goodman's absence by

passing a bill of attainder against Fenwick, nullifying the two-

See id. at 391. It is important to note that none of the Constitutions cited by Jus-

tice Chase included a provision for the fourth category of Calder. The Massachusetts

constitution provided that ex post facto laws were "laws made to punish actions done

before the existence of such laws, and which have not been declared crimes by pre-

ceding laws; the Maryland Constitution provided that ex post facto laws were "retro-

spective Jaws punishing facts committed before the existence of such Jaws, and by

them only declared criminal"; and the North Carolina Constitution provided the ex-

act same definition as the Maryland Constitution. ld. at 391-92.

See id. at 389 n.A.

See infra, Section IVA, at 37 (discussing the majority's analogy between the facts

ofCarmell's case and the facts of Fenwick's case).

SeeCarmell v. Texas, 120 S. Ct. 1620, 1629 (2000) .

.a Seeid.

c9 See id.

~ Seeid.

s• See id.

See id. at 1630.

436 SUPREME COURT REVIEW [Vol. 91

witness requirement in his case.53 Sir John Fenwick was be-

headed onJanuary 28, 1697. Justice Chase cited to Fenwick's

case as an example of ex post facto laws falling under the fourth

category, laws which alter the rules of evidence necessary to ob-

tain a conviction.

In their concurring opinions in Calder, Justices Paterson and

Iredell provided their own definitions of ex post facto laws. 56

Neither Iredell nor Paterson discussed Justice Chase's fourth

category. Justice Paterson adopted the language of the state

Constitutions of Maryland, North Carolina, and Massachusetts,

as well as William Blackstone's description of ex post facto

laws. Justice Iredell provided the following definition: "[legis-

latures] shall not pass any ex post facto law; or, in other words,

they shall not inflict a punishment for any act, which was inno-

cent at the time it was committed; nor increase the degree of

punishment previously denounced for any specific offence." In

adopting the language of the state constitutions, neither Justice

Iredell nor Justice Paterson made any mention of laws altering

the sufficiency of the evidence needed to obtain a criminal con-

viction when formulating a definition of ex post facto laws. 59

The Court did not consider the fourth Calder cat~ory again

until sixty-eight years later, in Cummings v. Missouri. In Cum-

mings, the Court applied the fourth Calder category to invalidate

a "test oath" imposed by the Missouri state constitution. 61 In the

wake of the Civil War, Missouri's legislature implemented the

oath, designed to ensure loyalty to the Union. The affiant of

the oath was required to deny "that he ha[d] ever 'been in

armed hostility to the United States, or to the lawful authorities

ss See id.

sc Id.

ss SeeCalderv. Bull, 3 U.S. 386,390 n.A (1798).

See id. at 395-400.

See id.; Carmell, 120 S. Ct. at 1651 (Ginsburg,]. dissenting) (highlighting the fact

that justices Paterson and Iredell in their own seriatim opinions gave no hint that

they considered rules of evidence to fall within the scope of the Clause") .

.ss 3 U.S. at 396 ("[W)hen after an action, indifferent in itself, is committed, the

Legislator, then, for the first time, declares it to have been a crime, and inflicts a pun-

ishment upon a person who has committed it.").

See Camzell, 120 S. Ct. at 1651 (Ginsburg,]., dissenting).

71 u.s. 277, 316 (1866).

61 Id.

See id.

2001] CARMELL V. TEXAS 437

thereof,"' or "that he ha[d] ever, 'by act or word,' manifested

his adherence to the cause of the enemies of the United States,

foreign or domestic . . .. " The Missouri constitution provided

that any person who was unable to take the oath was declared

incapable of holding certain offices in the state, including "'any

office of honor, trust, or profit. "64 These offices included the

posts of "councilman, director, or trustee, or other manager of

any corporation, public or private, . . . professor or teacher in

any educational

institution, or in any common or other

school. " Additionally, the constitution provided- that anyone

who did not take the oath could not practice law, or practice as

a "bishop, priest, deacon, minister, elder, or other clergyman, of

any religious persuasion, sect, or denomination. "66 Cummings,

a Roman Catholic Priest, was convicted of teaching and preach-

ing without first having taken the oath.67 Cummings challenged

the oath on the grounds that it was an invalid ex post facto law.GS

The Court held that the test oath violated the Ex Post Facto

Clause of the Constitution.69 Justice Field, writing for the Court,

adopted the Calder four-category formulation and reasoned that

the test oath fell under the fourth category, the prohibition on

laws that change the "rules of evidence by which less or different

testimony is sufficient to convict than was then required." Jus-

tice Field reasoned that the clauses in the test oath "subvert the

presumptions of innocence, and alter the rules of evidence,

which heretofore, under the universally recognized principles of

the common law, have been supposed to be fundamental and

unchangeable. "71 Justice Field explained that the test oath

merely assumed that parties v{ere guilty, without affording them

the presumption of innocence that is embedded in our legal

system.72 In promulgating such a test oath, Justice Field argued,

MId.

64 Id.

Id. at317.

(,6 Id.

Id. at 316.

See id. at 307.

Id. at 332.

Id. at 326.

Id. at 328.

See id. (noting that the clauses in the test oath "assume that the panies are guilty:

they call upon the parties to establish their innocence; and they declare that such in~

'·

438 SUPREME COURT REWEW [Vol. 91

the state legislature had subverted one of the great principles of

"social security, to wit: that every man shall be presumed inno-

cent until he is proven guilty. " Justice Field reasoned that in

subverting one of the fundamental protections of the criminal

justice system, the presumption of innocence, the test oath al-

tered the rules of evidence with regard to the sufficiency of the

evidence needed to convict, and that the test oath was ex post

facto under the fourth Caldercategory. 74

C. THE COURT APPUES TilE FOURTH CATEGORY: KRING V.

MISSOURI, HOPT V. UTAH, AND THOMPSON V. MISSOURI

The Court next considered the fourth category of Calder in

1883's Kring v. Missouri. 15 Shortly after Kring, in 1884, the Court

took up the subject again in Hopt v. Territory of Utah. 76 In 1898,

the Court also addressed the fourth category of Calder in Thomp-

son v. Missouri. These cases are important because they

changed the way in which the Court regarded the fourth Calder

category, and tested the parameters of which laws fell under the

fourth category.

In Kring, the Court invalidated a Missouri law of criminal

procedure as an invalid ex post facto law under the fourth cate-

gory of Calder. 78 Kring was charged with first-degree murder,

but, after negotiations with the prosecutor, ultimately pled

guilty to second-degree murder. 79 When he was sentenced to

twenty-five years in prison, Kring appealed the conviction, claim-

ing that the prosecutor promised only a ten-year sentence.80

The Supreme Court remanded his case for further proceedings,

and Kring was then tried and convicted for first-degree murder

and sentenced to death. 81

nocence can be shown only in one way-by an inquisition, in the form of an expurga-

tory oath, into the consciences of the parties").

' !d. at 330.

7< See id.

'15 107 u.s. 221 (1882).

llO U.S. 574 (1884).

171 u.s. 380 ( 1898).

Kring, 107 U.S. at 235 (explaining that the Missouri law was "clearly ex post

facto").

See id. at 222.

See id.

er See id.

2001] CARlvlEIL V. TEXAS 439

_ The law in Missouri at the time that Kring committed the

offense provided that a criminal defendant could not be tried

for first-degree murder after an accepted plea of guilty for sec-

ond-degree murder '\vas entered. 82 In 1875, after Kring commit-

ted the offense, that law was abrogated, and criminal defendants

who pled guilty to second-degree murder could be tried for

first-degree murder.53

The U.S. Supreme Court held that the application of the

,f:Lew law to Kring was a violation of the Ex Post Facto Clause.84

This .holding adopted the fourth category of Calder, and gave it a

very liberal reading, noting that "any law passed after the com-

mission of an offense which, ...in relation to that offense, or its

consequences, alters the situation of a party to his disadvantage,

is an ex post facto law."85

In Hopt v. Territory of Utah, the Court limited Kring's some-

what expansive reading of the fourth category of Calder, and

upheld the application of an amended statute allowing felons to

testify in criminal cases. 86 The defendant in Hopt was convicted

of first-degree murder, and his conviction \vas reversed by the

Court of Appeals on a writ of error. 87 In his second trial, Hopt

was a~ convicted of first-degree murder, and sentenced to

death. The prosecution at this second trial offered the testi-

mony of a man who was serving a sentence for murder at the

time that he testifi.ed.89 As of the date that Hopt committed the

offense, Utah law provided that convicted felons were incompe-

tent to testify in criminal trials.9D Mter the date of the homicide,

but before the date ofHopt's first trial, the law was amended to

allow felons to testify.91 Hopt challenged his conviction on the

See id. at 224.

See id. at 223 (noting that the "law was abrogated, and for this reason the defen-

dant could be tried for murder in the first degree, nonvithstanding his conviction and

sentence for murder in the second degree").

See id.

as Id. at 235.

110 u.s. 574, 589 (1882)

tl7 Id. at 575.

83 Id.

See id. at 587.

~,See id.

See id. at 588.

440 SUPREME COURT REVIEW rvol. 91

basis that application of the new Utah law to his case violated

the Ex Post Facto Clause. 92

The Court held that application of the new Utah law, allow-

ing felons to testify in criminal trials, did not violate the Ex Post

Facto Clause. ' The Court reasoned that laws affecting witness

competency were not ex post facto under the fourth category of

Calder. Writing for the Court,Justice Harlan explained:

Statutes which simply enlarge the class of persons who may be com·

petent to testify in criminal cases are not ex post facto in their applica-

tion to prosecutions for crimes committed prior to their passage; for

they do not attach criminality to any act previously done, and which was

innocent when done, nor aggravate any crime theretofore committed,

nor provide a greater punishment therefore than was prescribed at the

time of its commission, nor do they alter the degree, or lessen the

amount or measure, of the proof which95

was made necessary to convic·

tion when the crime was committed.

Justice Harlan further explained that laws of witness compe-

tency did not fall under the fourth category of Calder because

they did not change "the quantity or degree of proof necessary

to establish . . . guilt," and because they did not change the in-

gredients of the offense or the ultimate facts necessary to estab-

lish guilt.96

In Thompson v. Missouri, the Court again altered the test for

determining whether a law fell under the fourth Calder category,

holding that a procedural law was ex post facto if it affected a

"substantial right" of the criminal defendant. 97 In Thompson, the

defendant was convicted of first-degree murder for the killing of

a priest with strychnine poison. Thompson's trial centered on

a p~escription for strychnine that the prosecution offered as

evidence against Thompson. 99 The trial court admitted letters

written in Thompson's hand, allowing the jury to compare the

100

letters to the strychnine prescription. At the time that

Thompson committed the offense, such letters were inadmissi-

See UJ.

s Id. at 590.

114

See UJ. at 589.

9S Id.

Id. at 589-90.

!17 171 u.s. 380, 384 (1898).

9a See id. at 380-81.

See id. at 381.

100

See id.

2001] CARMEIL V. TEXAS 441

101

ble as a matter of law. In 1895, the general assembly of Mis-

souri passed a law providing that "comparison of a disputed

writing with any writing proved . . . to be genuine shall be per-

mitted to be made by witnesses, and such writings and the evi-

dence of witnesses respecting the same may be submitted to the

court and jl:l!Y as evidence of the genuineness ... of the writing

102

in dispute. " Thompson challenged the application of this new

law to his case, arguing that the letters should not have been

admitted. 10s

The Court held that the application of the new Missouri law

did not violate the Ex Post Facto Clause.uH The Court analyzed

Kring and Hopt, and adopted the language that procedural laws

were ex post facto where they "alter the situation of a party to

105

his disadvantage. " The Court added, however, that the altera-

tion must affect a "substantial right" of the criminal defen-

dant.106 The Court concluded that "mere modes of procedure,"

107

were not ex post facto. Finally, Justice Harlan, writing for the

Court, explained that the law in this case was not ex post facto

because it did not "disturb the fundamental rule that the state,

as a condition of its right to take the life of an accused, must

overcome the presumption of his innocence, and establish his

guilt beyond a reasonable doubt." 108 Justice Harlan explained

that the ultimate question of whether Thompson had written

the prescription was left for the jury to decide, and that the

jury's decision was governed by the same duty before and after

109

the passage of the law.

•o• Seeid.

102 Id.

103

See id. at 382.

•ot Id. at 388.

105

I d. at 383.

105

See id. at 384 (noting that the law in Kring was invalidated because the right to

protection against a first-degree murder conviction was a "substantial one").

107

Id. at 386.Justice Harlan noted:

[l]t is well settled that the accwed is not entided of right to be tried in the exact mode, m

all respects, that may be prescribed for the trial of criminal ClSes at the time or the com-

mission of the offense charged against him ... so far as mere modes of procedure are con·

cemed, a pany has no more right in a criminal th:m in a civil action to insist that his case

shall be disposed of under the law in force when the act to be im·estigated is charged to

have taken place.

IGS Id. at 387.

109

Id. (reasoning that the ultimate determination "was left for the jury and the

duty of the jury. in that particular, 'vas the same after as before the passage of the

442 SUPREME COURT REVIEW [Vol. 91

D. MODERN INTERPRETATION OF THE EX POST FACfO CLAUSE:

.BEAZELL V. OHIO AND COLUNS V. YOUNGBLOOD

In the twentieth century, the Court addressed the question

of whether procedural statutes violated the Ex Post Facto Clause

in two important cases, Beazell v. Ohio110 and Collins v. Young-

111

blood. The Court in Beazell appeared to abandon the Kring and

Thompson tests for determining if procedural rules violated the

Ex Post Facto Clause, 112 and in Collins the Court adopted Beazell's

reasoning, overruling Kring and Thompson outright.m Beazell

and Collins changed the way the Court analyzed procedural

rules under the Ex Post Facto Clause. -

In Beazell, the Court upheld a statute of criminal procedure

dealing with defendants who were jointly indicted, tried, and

convicted. 114 The defendants in Beazell were jointly indicted for

embezzlement. 115 At the time the defendants committed the of-

fense, Ohio law provided that "when two or more persons are

jointly indicted for a felony, on application to the court for that

purpose, each shall be tried separately. "116 Mter the commission

of the defendants' offense, but before their trials, the law was

changed to provide, "when two or more persons are jointly in-

dicted for a felony, except a capital offense, they shall be tried

jointly, unless the court for good cause shown ... order that one

or more of said defendants shall be tried separately. "117 Beazell

118

was jointly tried with his co-defendant, and convicted. He

challenged application of the new law to his case on the basis

that it violated the Ex Post Facto Clause. 119

statute. The statue did nothing more than remove an obstacle arising out of a rule of

evidence .... ").

269 u.s. 167 (1925).

110

Ill 497 U.S. 37 (1990).

112

See Beazel~ 269 U.S. at 170-171.

115

See Collins, 497 U.S. at 43 (explaining that "the Beazell formulation is faithful to

our best understanding of the Ex Post Facto Clause: Legislatures may not retroac-

tively alter the definition of crimes or increase the punishment for criminal acts.");

ld. at 50-51 (overruling Kring, overruling Thompson).

114

See Beazel~ 269 U.S. at 171.

m ld. at 168.

116 ld.

117

ld. at 169.

118 ld.

119

See id.

2001] CARMEU V. TRYAS 443

The Court held that application of the new Ohio statute to

Beazell's case did not violate the Ex Post Facto Clause.'!:'() Justice

Stone, ·writing for the Court, set out the definition of ex post

facto laws as follows:

It is settled, by decisions of this court so well known that their citation

may be dispensed with, that any statute which punishes as a crime an act

previously committed, which was innocent when done, which makes

more burdensome the punishment for a crime, after its commission, or

which deprives one charged with crime of any defense available accord-

ing to law 121at the time when the act was committed, is prohibited as ex

post facto.

In setting out this definition, Justice Stone omitted the

fourth category of Calder. 122 However, the Court did reason that

the Ohio statute was not ex post facto, in part because "the

quantum and kind of proof required to establish guilt, and all

questions which may be considered by the court and jury in de-

termining guilt or innocence, remain the same." 123 Justice Stone

acknowledged that previous judicial decisions have held that al-

terations of the rules of evidence or procedure could be ex post

facto, and cited Calder, Cummings, and Kring.m But Justice

Stone explained that these kinds of procedural changes were

not to be considered ex post facto unless they deprived the ac-

cused of a defense. If they operated "only in a limited and un-

substantial manner to his disadvantage," they were not ex post

facto. 125 Finally, Justice Stone explained that there was no for-

mula for determining what alterations of procedure were "of

sufficient moment to transgress the constitutional prohibi-

tion."126 It could be argued that justice Stone collapsed the four-

~ategory Calder definition into three with this reasoning, includ-

J See id. at 171.

121

Id. at 169-70.

122

See id. (making no reference to any law that ualters the legal rules of evidence..

.").

123

Id. at 170.

124

Jd. (explaining that u(e)xpressions are tO be found in earlier JUdicial opmions lO

the effect that the constitutional limitation may be transgressed by alterations in the

rules of evidence or procedure").

125

Id. at 170-71.

126

ld. at 171.

444 SUPREME COURT REVIEW [Vol. 91

ing changes in the rules of evidence in the definition only if

they deprived the accused of a defense. 127

In Collins, the Court adopted the Beazell definition of ex post

facto laws, and upheld a Texas statute that allowed reformation

128

of improper verdicts. Defendant Carroll Youngblood was

charged and convicted of aggravated sexual assault, and was

sentenced by ajury to life imprisonment and a $10,000 fine. 129

The imposition of a fine was not authorized by statute, and, un-

der the controlling case law, 130 the judgment and sentence were

void, and Youngblood was entitled to a new trial. 151 While

Youngblood was in the process of petitioning for habeas corpus

relief, the legislature passed a law allowing appellate courts to

reform improper verdicts. 132 Relying on this law, the trial court

reformed Youngblood's verdict by ordering deletion of the

fine. 155 Under the old version of the law, Youngblood would

have received a new trial after the improper verdict was ren-

dered. 154 Under the new law, the trial court was able to delete

the fine, thereby reforming the verdict without need for a new

trial. 155 Youngblood challenged the application of the new

Texas statute to his case on the basis that it violated the Ex Post

Facto Clause. 1!16

The Court held that the application of the Texas statute did

not violate the Ex Post Facto Clause.J.S7 Chief justice Rehnquist,

127

See Carmell v. Texas, 120 S. Ct. 1620, 1651 (2000) (Ginsburg,]., dissenting) (ar-

guing that the Caldercategories had been pared·down to three).

I:IB See Collins v. Youngblood, 497 U.S. 37, 52. (1990)

129

See id. at 39.

150

Bogany v. State, 661 S.W.2d 957 (1983).

1 1

s See CoUins, 497 U.S. at 39.

1 2

s See id. at 39-40 (citing TEx. CODE CRIM. P. ANN. art. 37.10(b) (West 1990)).

" See id. at 40.

1 4

s See id. at 39.

135

See id. at 40.

136 See id.

s /d. at 52 (noting that application of the law to "respondent therefore is not pro-

hibited by the Ex Post Facto Clause"). It is interesting to note that Justice Stevens,

author of the CarmeU majority opinion, concurred in the judgment in Collins. See id.

at 52 (Stevens,]., concurring in the judgment). Justice Stevens agreed with the con-

clusion in CoUins, but reasoned that the conclusion was "entirely consistent with out

precedents." Jd. at 52-53 {Stevens, J., concurring in the judgment); see infra note 143

(discussing the Court's decision in CoUins to overrule Kring and Thompson). Justice

Stevens reasoned that under the framework of Kring and Thompson, as interpreted by

Beaz.ell, the question of whether a procedural statute has a sufficiently drastic impact

on a defendant to be characterized as "substantial" is "a matter of degree." See Collins

...·'

2001] CARMELL V. TEXAS 445

writing for the Court, cited the four Calder categories, and noted

that the principles of the definition, and the meaning of the

Clause itself, was best summarized by Beazell: ·

[A]ny statute which punishes as a crime an act previously committed,

which was innocent when done; which makes more burdensome the

punishment for a crime, after its commission, or which deprh·es one

charged with crime of any defense available according to the law at the

time when the act was committed, is prohibited as ex post facto. ISS

Chief Justice Rehnquist noted that the Beazell formulation

omitted the fourth category of Calder, and explained that the

Beazell formulation was faithful to "our best knO\vled§e of the

original understanding of the Ex Post Facto Clause." sg Chief

Justice Rehnquist pointed out that the early state constitutions

mirrored the formulation of ex post facto laws set forth in

BeazeU. 14{) The Beazell formulation, according to Chief Justice

Rehnquist, comported with Blackstone's definition of ex post

facto laws as well. 141 Chief Justice Rehnquist ultimately applied

the elements of the Beazell formulation, one by one, to Young-

blood's case, and determined that the application of the new

Texas statute did not offend the Ex Post Facto Clause. 142

In addition to adopting and applying the Beazell formulation

for determining whether a law is ex post facto, the Collins Court

v. Youngblood, 497 U.S. 37,57 (1990) (Stevens,]., concurring in the judgment). Jus-

tice Stevens proposed a "threshold test," under which the Court would nullify a pro-

cedural statute if it affected "the modes of procedure by which a valid conviction or

sentence may be imposed." Id. at 58 (Stevens,]., concurring in the judgment); ste also

infra Section NA. at 38 Gustice Stevens' discussion of procedural laws that dispropor-

tionately aid the prosecution in obtaining a conviction).

ss Collins v. Youngblood, 497 U.S. 37,42 (1990) (quoting Bcazell v. Ohio, 269 U.S.

167 (1925)).

159

CoUins, 497 U.S. at 43.

140

See id. (citing and discussing the state constitutions of Maryland and North Caro-

lina).

141

Id. at 44 (Blackstone explained that ex post facto laws were passed ''when after

an action (indifferent in itself) is committed, the legislator then for the first time de-

clares it to have been a crime, and inflicts a punishment upon the person who has

committed it").

112

See id. at 52 ("The Texas statute allowing reformation of improper \"erdicts does

not punish as a crime an act previously committed, which was innocent when done;

nor make more burdensome the punishment for a crime, after its commission; nor

deprive one charged with crime of any defense available according to law at the time

when the act was committed. Its application to respondent therefore is not prohib-

ited by the Ex Post Facto Clause of Art. I,§ 10").

446 SUPREME COURT REVIEW [Vol. 91

overruled two earlier cases, Kring and Thompson. 143 In overruling

these cases, Chief Justice Rehnquist explained that Kring and

Thompson~ discussion of "substantial protections," and "substan-

tial personal rights," had "imported confusion into the interpre-

tation of the Ex Post Facto Clause. "144 The Court reasoned that

testing a statute to determine if it was "merely procedural" or if

it implicated a "substantial right" was not consistent with the

original understanding of the Ex Post Facto Clause at the time

that the Constitution was drafted. 145

III. FACTS AND PROCEDURAL HISTORY

In 1996, defendant Scott Leslie Carmell was charged in a 15-

count indictment by a Texas grand jury for various sexual of-

fenses committed against his stepdaughter. 146 Cannell was

charged with eight counts of indecency with a child, two counts

of aggravated sexual assault, and five counts of sexual assault

against his daughter; he was convicted on all fifteen counts in

the 367th District Court in Texas. 147 Carmell committed the of-

fenses against his daughter over a prolonged period of more

than four years, from February 1991 to March 1995. 148 Carmell's

daughter was twelve years old when Carmell began victimizing

her, and sixteen when the conduct ceased. 119 The assaults

ended in 1995, when Carmell's daughter told her mother what

had happened. 150 The Court sentenced Cannell to life impris-

onment for each of the two aggravated sexual assault offenses

and imposed concurrent twenty-year sentences for each of the

151

remaining thirteen counts in the indictment. Carmell was

'" Id. at 50, 51 (overruling Kring, overruling Thompson). It is interesting to note

that justice Stevens, the author of the majority opinion in Cannell, did not agree that

Kring and Thompson should be overruled. See Collins v. Youngblood, 497 U.S. 37, 52-

53 (1990) (Stevens,]., concurring in the judgment); see also supra note 137. Instead,

Justice Stevens argued that the Court's conclusion was "entirely consistent with our

precedents." Collins, 497 U.S. at 52-53.

141

Collins v. Youngblood, 497 U.S. 37,45 (1990).

145

See id. at 47 ("Neither of these decisions, in our view, is consistent with the un-

derstanding of the term 'ex post facto law' at the time the Constitution was

adopted").

It& SeeCarmell v. Texas, 120 S. Ct. 1620, 1624 (2000).

B7 See id.

148 See id.

li9 ld.

IW See id.

151

See id.

2001] CARMELL V. TEXAS 447

convicted on all fifteen counts in the indictment on the basis of

his daughter's uncorroborated testimony.' 52

In 1992, when Cannell began victimizing his daughter, the

Texas Code of Criminal Procedure provided:

A conviction under Chapter 21, Section 22.011, or Section 22;021,

Penal Code, is supportable on the uncorroborated testimony of the \ic-

tim of the sexual offense if the victim informed any person, other than

the defendant, of the alleged offense within sLx months after the date on

which the offense alleged to have occurred. The requirement that the

victim inform another person of an alleged offense does not apply if the

victim was younger than 14 years of age at the time of the alleged of-

fense.1ss

Under the Texas statute, a sexual offender could not be

convicted on the basis of a victim's testimony alone, unless one

of two exceptions applied. 154 The first exception created an

"outcry" provision; a victim's uncorroborated testimony was suf-

ficient to support a conviction if the victim told anyone, other

than the defendant, about the offense within she months after

the date on which the offense was committed.'~ The second

exception created a "child victim" provision, whlch applied

based on the victim's age; a victim's uncorroborated testimony

was sufficient to support a conviction if the victim was under

156

fourteen years old on the date of the offense. Cannell com-

mitted eleven offenses against his daughter during the time that

157

these provisions were in effect. Six of the offenses were com-

mitted when Carmell's daughter was under fourteen, and they

were not conteste d .158

On September 1, 1993, the Texas statute was amended.

The amendment extended the child victim exception to victims

under eighteen years of age. 159 Carmell was convicted in 1996

under the provisions of the amended statute. 1m Of the fifteen

counts for which Carmell was charged, he comr,nitted four of

152

See Cannell v. Texas, 120 S. Ct. 1620, 1624 (2000).

155

Seeid. at 1624 (quoting TEx. CODE CRIM. P. ANN. art. 38.07 (West 1983)).

154

See Cannell, 120 S. Ct. at 1625.

155

See id. at 1624-25.

156

See id. at 1625.

157

See id. at 1626.

158

See Cannell v. Texas,l20 S. Ct. 1620, 1626 (2000).

159

See supra note 3 (the amendment also extended the time period on the outcry

provision to one year); Carnzell, 120 S. Ct. at 1625.

160

See Carnzell, 120 S. Ct. at 1624.

448 SUPREME COURT REVIEW [Vol. 91

them while the older version of the statute was in place and

while his daughter was fourteen to fifteen years of age. 161 Thus,

if the older version of the statute were applied to these offenses,

Cannell's conviction could not stand; his daughter did not sat-

isfy the outcry provision and was not young enough to qualify

under the child victim provision of the statute. 162 Five of the

remaining offenses for which Cannell was charged occurred af-

ter the amendment of the statute and were therefore not con-

tested.163 The two counts of aggravated sexual assault, for which

life imprisonment sentences were imposed, were not at issue. 161

The defendant appealed four of his convictions for offenses

committed between june 1992 and july 1993, during which time

his daughter was fourteen and fifteen years old and before the

Texas law was amended. 165 On appeal, Cannell argued that the

older version of the Texas statute should have applied to those

offenses committed prior to the 1993 amendment. 166 Carmen

further asserted that the four convictions he was appealing

could not have stood under the older version of the statute be-

cause the victim's testimony was uncorroborated, the victim was

over fourteen years of age, and the victim had not made an out-

cry to satisfy the outcry provision. 167 Cannell argued that apply-

ing the new law to offenses committed before the statute was

amended violated the Constitutional prohibition on ex post

facto laws. 168

The Court of Appeals upheld Cannell's convictions, 169 hold-

ing that application of the amendment retrospectively to Car-

mell's offenses did not violate the Ex Post Facto Clause of the

Constitution. 170 The Court of Appeals reasoned that Texas Arti-

161

See id. at 1626.

162 See id.

I6S See id.

l&t SeeCarmell v. Texas, 120 S. Ct.l620,1626 (2000).

165 See id.

166 See id.

167 See id.

168

See id.

169

SeeCarmell v. Texas,"963 S.W.2d 833 (1998).

170

See id. at 836 (noting that "the statute as amended does not increase the pun-

ishment nor change the elements of the offense that the State must prove. It merely

'removes existing restrictions upon the competency of certain classes of persons as

witnesses' and is, thus, a rule of procedure") (quoting Hopt v. Utah, 110 U.S. 574, 590

(1884) ).

2001] CARMELL V. TEXAS 449

de 38.07 functioned as a rule of ·witness competency and '\vas

therefore not an ex post facto law under the holding of Hopt v.

171

Utah. The Texas Court of Criminal Appeals denied discre-

172

tionary review. The United States Supreme Court granted

Carmell's pro se petition for certiorari and appointed counsel. 173

IV. SUMMARY OF OPINIONS

A THE MAJORI1Y OPINION

On May 1, 2000, the Supreme Court reversed the decision

of the Court of Appeals of Texas, and vacated the convictions

against Carmell. Writing for the majority, Justice Stevens

ruled that the application of Texas Article 38.07, as amended, to

Cannell's four contested convictions, could not be sustained

under the Ex Post Facto Clause of the United States Constitu-

tion.175 In particular, the Court reasoned that application of

amended Texas Article 38.07 violated the Ex Post Facto Clause

under the fourth category of ex post facto laws as defined in the

176

early case of Calder v. BulL

The Court first analyzed the components of the Texas

statute, and determined that "Texas courts treat Article 38.07 as

a sufficiency of the evidence rule, rather than as a rule concern-

177

ing the competency or admissibility of evidence. " Justice Stev-

171

See Cannell, 963 S.W.2d. at 836; see also supra note 93.

'12 See Cannell, 120 S. Ct. at 1626.

175

SeeCarmell v. Texas, 120 U.S. 1620, 1626 (2000}.

m See id. at 1643.

175

See id. The Court split five to four in the decision, with Justices Scalia, Souter,,

Thomas, and Breyer joining in the majority opinion. Justice Ginsburg filed a dissent-

ing opinion, in which Chief Justice Rehnquist joined, as well as Justices O'Connor

and Kennedy. See id. at 1624. This split was described as extremely odd by commen-

tators. See Tony Mauro, U.S. Supreme Court 1999-2000 Tenn in Review; There Wt'Te Feu:er

Cases but Mlll'e ClDse Calls, 'TExAS lAWYER, july 10, 2000, at 8 (noting that Carme//"pro-

duced the rarest alignment in the court: a majority composed of the left and right

wings with all the members of the court's center-Rehnquist., O'Connor and Ken-

nedy-in dissent"). It is interesting to note that Justice Stevens concurred in the

judgment in Collins. See supra note 137, at 143 (discussing Justice Stevens' reasoning

that the question of whether procedural statutes violate the Ex Post Facto Clause is a

matter of degree); see also infra Section IVA, at 38-40 (discussion of procedural rules

altering the sufficiency of the evidence necessary to obtain a conviction).

176

See Carmell, 120 S. Ct- at 1624.

177

See id. at 1625 n.2 (explaining that the Texas statute included three compo-

nents: an "oi.ttcry" provision, a "child victim" provision, and "a sufficiency of the evi-

450 SUPREME COURT REVIEW [Vol. 91

ens based this determination on the differences between the

consequences of the rules of evidence admissibility, and the

·.consequences of Texas Article 38.07. 178 He noted that "when

evidence that should have been excluded is erroneously admit-

ted against a defendant" under the ordinary rules of evidence,

an appellate court will reverse a conviction and remand for a

new trial, whereas a "failure to comply with Article 38.07, by

contrast, results not in remand for a new trial, but in the rever-

sal of conviction and remand for entry of an order or acquit-

tal. n179

The Court then analyzed the history and purpose of the Ex

Post Facto Clause of the Constitution and adopted the defini-

tion of ex post facto laws set out in the early case of Calder v.

180

Bull. Justice Stevens explained that Justice Chase derived the

four-category definition of ex post facto laws outlined in Calder

largely from the treatise of Richard Wooddeson, "one of the

great scholars of the common law." 181 Justice Stevens noted that

the same formulation had been ap~roved by such great academ-

ics as Joseph Story and James Kent. 82 In support of the formula-

tion, the majority cited a host of Supreme Court cases that had

adopted the four-category formulation 183 and argued that these

dence rule respecting the minimum quantum of the evidence necessary to sustain a

conviction").

178

Carmen v. Texas, 120 S. Ct. 1620, 1625, n.2 (2000).

179 Id.

180

See id. at 1626-31 (noting that "this Court, ... has repeatedly endorsed {Cal-

per's] understanding, including, in particular, the fourth category"); for the four-

category definition of ex post facto laws in Calder v. Bull, see supra note 11.

181

See CarmeU, 120 S. Ct. at 1627-28 (noting that Wooddeson's treatise divided ex

post facto laws into three categories: "those respecting the crimes themselves; those

respecting the legal rules of evidence; and those affecting punishment (which .•• fur-

ther subdivided into Jaws creating a punishment and those making an existing pun-

ishment more severe)." The Court explained that Justice Chase's formulation

"correlate[s] precisely" to Calder's four categories).

181

See id. at 1628.

185

Id. at 1628-29. The Court cited Lynce v. Mathis, 519 U.S. 433, 441 (1997); Doh-

bert v. Florida, 432 U.S. 282, 293 (1977); Malloy v. South Carolina, 237 U.S. 180, 183-

84 (1915); Mallett v. North Carolina, 181 U.S. 589, 593-94 (1901); Thompson v. Mis-

souri, 171 U.S. 380, 382 (1898); Hawker v. New York, 170 U.S. 189, 201 (1898)

(Harlan,]., dissenting); Gibson v. Mississippi, 162 U.S. 565, 589-90 (1896); Duncan v.

Missouri, 152 U.S. 377, 382 (1894); Hopt v. Territory of Utah, llO U.S. 574, 589

(1884); Kring v. Missouri, 107 U.S. 221, 228 (1883), rev'd on other grounds, Collins v.

Youngblood, 497 U.S. 37 (1990); Gut v. State, 9 Wall. 35, 38 (1870); Ex parte Garland,

4 Wall. 333, 390-91 (1867) (Miller,J., dissenting); Cummings v. Missouri, 4 Wall. 277,

325-26 {1867).

2001] CARMEU V. TEXAS 451

cases adopted the fourth category ~ of Calder in particular,

"sometimes quoting Justice Chase's words verbatim, sometimes

simply paraphrasing. "185

In order to fully understand the implications of the fourth

category of Calder, the Court turned to the English case of Sir

186

John Fenwick. The same case is cited in Calder under the

fourth category for the proposition that statutes altering the suf-

ficiency of the evidence needed to convict a criminal defendant

187

are invalid, ex post facto laws. The majority analogized Fen-

wick's case to Carmell's, arguing that the laws in each case "al-

ter[ed] the legal rules of evidence," receiving less testimony

than the law required at the time the offenses were commit-

188

ted. Justice Stevens argued that the circumstances in Fen-

wick's case paralleled the circumstances in Cannell;

Just as the relevant law in Fenwick's case required more than one

witness' testimony to support a conviction ... , Texas' old version of Ar-

ticle 38.07 required more than the victim's testimony alone to sustain a

conviction.... And just like Fenwick's bill of attainder, which permitted

the House of Commons to convict him with less evidence than was oth-

erwise required, Texas' retrospective application of the amendment to

Article 38.07 permitted petitioner to be convicted with less than the pre-

VIOus . d quantum of eVl"dence. 169

1y reqwre

The Court then argued that the fourth category of Calder

functions as a safeguard against the subversion of "fundamental

justice."190 As Justice Stevens explained, the interests of funda-

mental justice were at the heart of the passage of the Ex Post

Facto Clause. 191 The framers desired to protect against laws that

1114

Calder v. Bull, 3 U.S. 386, 390 (1798) ("4th. Every Jaw that alters the legal rules

of evidence, and receives less, or different, testimony, than the law required at the

time of the commission of the offence, in order to convict the offender").

185

Carmell v. Texas, 120 S. Ct. 1620, 1628-29 (2000).

185

For a discussion of the facts of SirJohn Fenwick's case, see SU/Jril Section liB.

187

See Cannell, 120 S. Ct. at 1629-31; see also Calder, 3 U.S. at 389 (citing "the case of

Sir John Fenwick, in 1696" as an example of laws that "violated the rules of C\idence .

. . by admitting one witness, when the existing Jaw required two; by receiving evidence

without oath; or the oath of the \vife against the husband; or other testimony, which

the courts ofjustice would not admit. ..").

183

Camze1J. 120 S. Ct. at 1631.

189

Id. at 1631-32.

t!P Id. at 1632 (noting that "the fourth category, so understood, resonates hann~

niously with one of the principal interests that the Ex Post Facto Clause was designed

to serve, fundamental justice").

t91 Id.

452 SUPREME COURT REVIEW [Vol. 91

were "manifestly unjust and oppressive.''192 The majority insisted

that the fourth category addressed these concerns directly and

that "a law reducing the quantum of evidence required to con-

vict an offender is as grossly unfair as retrospectively eliminating

an element of the offense, increasing the punishment for an ex-

isting offense, or lowering the burden of proof.'' 193

The Court distinguished an ordinary amendment to the

rules of evidence from an alteration in the rules of evidence fa-

voring the prosecution. 194 Justice Stevens pointed out that most

amendments to the rules of evidence apply in an evenhanded

fashion, adversely affecting or benefiting both sides equally. 195 In

contrast, the Court argued that the amendment to Texas Article

38.07 could only benefit the prosecution. 196 Justice Stevens ar-

gued that retroactively applying any statute such as this one,

"making it easier to meet the threshold for overcoming the pre-

sumption" of innocence, is fundamentally unfair. 197 He argued

that in so doing, the government "refuses, after the fact, to play

by its own rules, altering them in a way that is advantageous only

to the State, to facilitate an easier conviction." 198 Thus, the

Court concluded that laws of this nature allow the government

to "subvert the presumption of innocence by reducing the

number of elements it must prove to overcome that presump-

tion; by threatening such severe punishment so as to induce a

plea to a lesser offense or a lower sentence; or by making it eas-

ier to meet the threshold for overcoming the presumption." 199

The majority concluded that the four category definition of

ex post facto laws outlined in Calder, including the fourth cate-

gory involving laws that alter the rules of evidence, continue to

191

Carmell v. Texas, 120 S. Ct. 1620, 1632 (2000) (adding that the Ex Post Facto

Clause was drafted "as an additional bulwark in favour of the personal security of the

subject, to protect against the favorite and most formidable instruments of tyranny").

193

Id. at 1632-33.

194

See id. at 1633.

195

See id. (reasoning that rules of evidence "are ordinarily evenhanded, in the sense

that they may benefit either the State or the defendant in any given case," and argu-

ing that regular rules regarding admissibility "do not at all subvert the presumption of

innocence, because they do not concern whether the admissible evidence is sufficient

to overcome the presumption").

196 See id.

197

/d. at 1633.

1118

Carmen v. Texas, 120 S. Ct. 1620, 1633 (2000).

199 Id.

2001] CARMELL V. TEXAS 453

200

be good law. The court also concluded that amended Texas

Article 38.07 fell under the fourth Calder category of ex post

201

facto laws. In light of this analysis, the Court held that retro-

active application of amended Texas Article 38.07 to Carmell's

contested four convictions violated the Ex Post Facto Clause of

the United States Constitution. 202

In response to the dissent's argument that Collins and Beazell

effectively re-formulated the definition· of ex post facto laws~3

without using the fourth category of Calder, Justice Stevens ar-

gued that instead, Collins did not abandon the fourth category

201

and ·was "rather cryptic. " The Cannell Court noted that Collins

referred to Calder's four categories as the "exclusive definition"

of ex post facto laws but also called Beazell's definition a "faith-

ful" rendition of the original understanding of the clause, even

205

though it omitted category four. A footnote in Collins ex-

plains, as the m~ority pointed out, that "the Beazell definition

omits the reference by Justice Chase in Calder v. Bull to altera-

tions in the legal rules of evidence. As cases subsequent to Cal-

der make clear, this language was not intended to prohibit the

application of new evidentiary rules in trials for crimes commit-

ted before the changes. "206 Justice Stevens acknowledged that

Collins went on to assert that the Beazell formulation was true to

the original understanding of the Ex Post Facto Clause.m But

Justice Stevens explained: "if Collins had intended to resurrect a

long forgotten original understanding of the Ex Post Facto

Clause, shorn of the fourth catego~ we think it strange that it

would have done so in a footnote." 8 The majority concluded

that Collins merely "eliminated a doctrinal hitch" that had de-

veloped in the case law, defining the scope of the Ex Post Facto

Clause along the lines of distinguishing between substantial pro-

tections and procedural provisions.m Thus, the Court summa-

rized, "Collins held that it was a mistake to stray beyond Calder's

~, See id. at 1643.

:ol Seeid.

202

See id.

%05 See infra Section IVB.

204

CarmeJl, 120 S. Ct. at 1635.

205

Cannell v. Texas, 120 S. Ct. 1620, 1635-36 (2000).

205

Id. at 1635. (quoting CoUins, 497 U.S. at 43, n. 3)

207

See Cannell, 120 S. Ct. at 1635.

20! Id. at 1636.

:209 Id.

454 SUPREME COURT REVIEW [Vol. 91

four categories, not that the fourth category was itself mis-

taken."210 Justice Stevens ultimately determined that the Calder

categories had not been abandoned in Beazell or Collins. 111 _

In response to the dissent's argument that the fourth cate-

gory applies only to laws that alter the burden of proof, 212 the

Court noted that there is no distinction between laws that alter

the burden of proof and laws that "reduce the quantum of the

evidence necessary to meet that burden. "213 The effect of both

kinds of laws, according to Justice Stevens, is the same: "the two

types of laws are indistinguishable in all meaningful ways rele-

vant to concerns of the Ex Post Facto Clause. 'The legal result

must be the same, for what cannot be done directly cannot be

done indirectly. The Constitution deals .with substance, not

shadows. '" 214 In other words, the distinction between a law alter-

ing the burden of proof and a law lowering the quantum of the

evidence needed to meet that burden of proof is merely techni-

cal.215 The effect of both, in regard to the legal result, however,

. th e same. 216

Finally, the Court argued that the dissent's reliance on Hopt

for the proposition that Article 38.07 functions as a rule of wit-

ness competency, 217 rather than a sufficiency of the evidence

rule, is misplaced, and that 38.07 does not function as a rule of

218

witness competency. In support of this contention, Justice

Stevens pointed out that both before and after the amendment

to Article 38.07, the victim's testimony was competent evidence

under the law. 219 Further, the mcyority explained that Hopt ex-

pressly distinguished between witness competency laws and laws

that "alter the degree, or lessen the amount or measure, of the

proof which was made necessary to conviction when the crime

210 Id.

111

See id.

212

See infra Section IVB.

s Carmen v. Texas, 120 S. Ct. 1620, 1637 (2000).

214

Id. (quoting Cummings v. Missouri, 71 U.S. 277,325 (1867)).

Carmel~ 120 S. Ct at 1637.

215

216 Seeid.

117

See supra Section liB.

218

Carmel~ 120 S.Ct. at 163843.

119

See id. at 1639.

2001] CARMELL V. TEXAS 455

220

was committed. " Article 38.07, the majority argued, is the lat-

ter- a sufficiency of the evidence rule.2:1•

The Court distinguished between laws of witness compe-

tency and sufficiency of the evidence laws by explaining that

witness competency laws apply in an evenhanded fashion,

whereas the sufficiency of the evidence laws work in perpetual

favor of the prosecution. 222 In this case, Justice Stevens argued,

Article 38.07 functioned as a sufficiency of the evidence rule,

working only in favor of the prosecution in every case.zn

B. JUSTICE GINSBURG'S DISSENT

In a dissendng opinion joined by Chief Justice Rehnquist,

Justice O'Connor, and Justice Kennedy, Justice Ginsburg at-

tacked the majority opinion on three general grounds. First,

Justice Ginsburg questioned the mcyority's conclusion that

Texas Article 38.07 is a "sufficiency of the evidence rule" and

argued that the statute is functionally equivalent to witness

competency and credibility rules, held to be non-violative of the

Ex Post Facto Clause under Hopt v. Utah.Zl-« Next, Justice Gins-

burg argued that the fourth category of Calder applied only to

those Ia'vs that lowered the prosecution's burden of persua-

sion.225 Justice Ginsburg noted that Texas Article 38.07 in no

way affected "the burden of persuasion that the prosecution

must satisfy to support a conviction."226 Finally, justice Ginsburg

argt!ed that the fourth category of Calder is no longer valid

law.227 She argued that Collins v. Youngblootfl.a "pared the num-

!d.

'l!J.Q

221 See id.

222

See id. at 1639-40 (noting that such rules will always run in the prosecution's fa-

vor, because "they always make it easier to convict the accused•••• Witness compe-

tency rules, to the contrary, do not necessarily run in the State's favor. A felon

witness competency rule, for example, might help a defendant if a felon is able to re-

late credible exculpatory evidence").

223

See id; See supra Section IVA, discussion of the majority's reliance on Fenwick's

case for the proposition that Texas Article 38.07 fell under the founh Ca/da category

of ex post facto laws.

• See Carmell v. Texas, 120 S. CL 1620, 1646 (2000). (Ginsburg, j. dissenting)

(noting that "the history of Article 38.07 bears out the view that irs focus has alwa)'S

been on the competency and credibility of the victim as a wibless"); Sa Hopt v. Terri-

tory ofUtah, 110 U.S. 574 (U.S. 1884).

mId. at 1647 (Ginsburg,j., dissenting).

mId.

m !d.

456 SUPREME COURT REVIEW [Vol. 91

ber of Calder categories down to three, eliminating altogether

the fourth category on which the Court ... so heavily relies. "229

The dissent first attacked the m'!iority by pointing out that

Texas Article 38.07 is not a "sufficiency of the evidence rule, as

the majority had claimed, but is rather a rule "functionally iden-

tical to a conditional rule of witness competency."230 According

to Justice Ginsburg, Texas Article 38.07 is an evidentia;y provi-

sion under which the jury may credit victim testimony. 23 Thus,

if a victim falls under one of the exceptions in the statute (ei-

ther by virtue of age alone, or by making an "outcry" within the

specified time period), the statute simply gives the victim full

testimonial stature, and an undiminished competency to tes-

tify.232 The premise for this statute, the dissent argued, is the

legislative judgment that accusations made by sexual assault vic-

tims above a certain age were not independently trustworthy. m

Justice Ginsburg likened the corroboration requirement in the

statute to corroboration requirements in similar evidentiary

provisions, particularly those regarding accomplices. 234 The dis-

sent argued that accomplice corroboration requirement stat-

utes, like Texas Article 38.07, were "designed to ensure the

credibility of the relevant witness," not to affect the sufficiency

of the evidence required to obtain a conviction. 235

Justice Ginsburg further indicated that the legislative history

of Texas Article 38.07 bears out the interpretation of 38.07 as a

witness competency and credibility provision. 236 As Justice Gins-

m 110 S.Ct. 2715 (1990).

229

Carmel/, 120 S. Ct. at 1651 (Ginsburg,]., dissenting).

230

Id. at 1649 (Ginsburg,]., dissenting).

231

See id. at 1646 (Ginsburg,]., dissenting) (reasoning that"the version of Article

38.07 applied at Cannell's trial was thus, in both effect and purpose, an evidentiary

rule governing the weight that may be given to the testimony of sexual assault victims

who had attained the age of 14").

252

ld. at 1645 (Ginsburg,]., dissenting) (noting that "If the victim is of a certain

age, the jury, in assessing whether the prosecution has met its burden of demonstrat-

ing guilt beyond a reasonable doubt, must give no weight to her testimony unless that

testimony is corroborated, either by other evidence going directly to guilt or by 'out-

cry'").

233

See id. (Ginsburg,]., dissenting).

254

See id. at 1645-46 (Ginsburg,]., dissenting) (stating that "it suffices to note that

Article 38.07's corroboration requirement rests on the same rationale that underpins

accomplice corroboration requirements: the notion that a particular witness, because

of his or her role in the events at issue, might not give trustworthy testimony").

255

ld. at 1645 (Ginsburg,]., dissenting).

236

See id. at 1646 (Ginsburg,]., dissenting).

2001] CARMEU V. TEXAS 457

burg explained, "the historical development of Article 38.07 re-

veals a progressive alleviation of restrictions on the competency

of victim testimony, not a legislative emphasis on the quantum

of evidence needed to convict."2S7 The dissent explained that

Article 38.07 was functionally equivalent to a witness credibility

statute: "If the former version of Article 38.07 had provided

that 'the testimony of the victim shall be inadmissible to prove

the defendant's guilt unless corroborated,' it would produce the

same results as the actual statute in every case."2l!l Under Hopt,zz9

Justice Ginsburg argued, rules of evidence affecting witness

competency do not violate the Ex Post Facto Clause of the Con-

stitution.240

Next, Justice Ginsburg argued that Article 38.07 did not al-

ter the prosecution's burden of persuasion and therefore did

not violate the Ex Post Facto Clause as interpreted through the

fourth category of Calder.241 The dissent pointed out that the

prosecution's burden of persuasion remains the same whether

or not Article 38.07 applies; regardless of its application, the

prosecution must prove all of the elements of the offense be-

yond a reasonable doubt. 242 As Justice Ginsburg noted, if the

prosecution seeks to obtain conviction on the basis of a victini's

uncorroborated testimony, and the witness satisfies one of the

exceptions under Article 38.07, the conviction can only be ob-

tained if the prosecution proves all the elements of the offense

beyond a reasonable doubt, regardless of the application of

38.07.243 Thus, satisfaction of 38.07 can be necessary to obtain a

conviction where the prosecution seeks to obtain the conviction

on the victim's uncorroborated testimony alone, but it is not suf

ficient unless the prosecution meets its burden of proving guilt

beyond a reasonable doubt. 244 Further,Justice Ginsburg argued,

the victim's testimony is not even necessary in many cases: "To

convict a defendant of sexual assault in Texas today as before

257

Id. (Ginsburg,]., dissenting).

:s Id. at 1649 (Ginsburg,]., dissenting).

2S9 110 u.s. 574 (1884).

G See id. at 589 (emphasizing that "[s] tarutes which simply enlarge the class of per-

sons who may be competent to testify in criminal cases are not ex post facto in their

application to prosecutions for crimes committed prior to their passage").

m See Cannell v. Texas, 120 S. Ct. 1620, 1647 (2000) (Ginsburg,]., dissenting).

242

See id. (Ginsburg,]., dissenting).

245

See id. (Ginsburg,]., dissenting).

244

See id. (Ginsburg,]., dissenting).

r.•

458 SUPREME COURT REVIEW [Vol. 91

1993, the prosecution need not introduce the victim's testimony

at all, much less any corroboration of that testimony."245 The

dissent ultimately concluded that Article 38.07 merely func-

tioned to restrict the State's method of proving its case, "without

affecting in any way the burden of persuasion that the prosecu-

tion must satisfy to support a conviction."246

Additionally, Justice Ginsburg argued that the amendment

to Article 38.07 did not "reduce the quantum of evidence neces-

sary" to convict, for the "simple reason that Texas has never re-

quired the prosecution to introduce any particular number of

witnesses or items of eroof to support a sexual assault convic-

tion" in the first place. Further, the dissent noted that Article

38.07 did not "subvert the presumptions of innocence," using

the language of the majority, because "the burden of persuasion

remained at all times with the State. "218

In sum, Justice Ginsburg depicted the "sufficiency of the

evidence" needed to convict as an evidentiary hurdle; the 1993

repeal of the corroboration requirement for victims between

the ages of fourteen and eighteen did not lower that hurdle, ac-

cording to Justice Ginsburg, but "simply expanded the range of

methods the State could use to surmount" that hurdle. 219

Finally, the dissent argued that the fourth category of Calder

has been effectively nullified by subsequent Supreme Court

cases. 250 Justice Ginsburg highlighted the fact that the four-

category definition of ex post facto laws in Calder was dictum, as

251

Calder involved a civil statute, not a criminal one. Further, the

dissent indicated that Justices Iredell and Paterson, in their own

concurring opinions, "gave no hint" that they considered the

ttS Id. (Ginsburg,]., dissenting).

246

Id. (Ginsburg,]., dissenting).

247

/d. (Ginsburg,]., dissenting).

248

Id. at 1648 (Ginsburg, J., dissenting) (noting that the majority's reliance on

Cummings v. Missouri, 4 Wall. 277 (1867), from which the phrase "subvert the pre·

sumptions of innocence" originated, was misplaced, because Cummings dealt with a

post-Civil War amendment that assumed parties were guilty of treason unless they

swore an oath to establish their innocence. The dissent noted that "nothing of the

kind" is involved in the Cannell case).

g Cannell, 120 S. Ct. 1648 (Ginsburg,]., dissenting).

~ Seeid. at 1651 (Ginsburg,]., dissenting).

251

See id. (Ginsburg, J., dissenting) (explaining that '1ustice Chase's formulation

was dictum, of course, because Calder involved a civil statute and the court held that

the statute was not ex post facto for that reason alone").

2001] CARMELL V. TEXAS 459

rules of evidence to fall ·within the scope of the Ex Post Facto

252

Clause. Justice Ginsburg pointed to the ex post facto formula-

tion in BeazeU and CoUins and noted that they omitted the fourth

category of Calder completely. 2Ss In Beazell, Justice Ginsburg

noted, the Court catalogued ex post facto laws without even

mentioning Calder's fourth category, 254 and CoUins approved of

this formulation, concluding that "the Beazell formulation is

faithful to our best knowledge of the original understanding of

the Ex Post Facto Clause: Legislatures may not retroactively al-

ter the definition of crimes or increase the punishment for

criminal acts. "255 -

The dissent attacked the majority's assertion that the Court

has repeatedly endorsed Justice Chase's fonnulation.s.u Al-

though the majority cited what Justice Ginsburg called "an im-

pressive-looking" array of cases in support of this assertion, she

pointed out that all of the cases cited "simply quoted or para-

phrased Chase's enumeration, a mechanical task that naturally

entailed a recitation of the fourth category.~2S Further, the dis-

sent noted that not one of these cases depended on the fourth

category for the judgment the Court reached.~ Justice Gins-

burg explained that the only two cases to strike down retroactive

application of rules as ex~ost facto under the fourth category of

Calder, Kring v. Missouri' and Thompson v. Utah, :UJ were both

261

overruled by Collins.

252

Id. (Ginsburg,]., dissenting) .

Su id. (Ginsburg,]., dissenting) (noting that "{a]s long ago as 1925, in Be~JUll v.

Ohio, .•. the Court catalogued ex post facto laws without mentioning Chase's fourth

category at

a1n .

• Su Beaull, 46 S. CL at 68 (defining ex post facto laws as "any statute which pun-

ishes as a crime an act previously committed, which was innocent when done, which

makes more burdensome the punishment for a crime, after ils commission, or which

deprives one charged with crime of any defense available according to law at lhe time

when the act was committed").

255

Cannell v, Texas, 120 S. Ct. 1620, 1651 (2000) (Ginsburg,j., dissenting) (quot-

ing Collins v. Youngblood, 497 U.S. 37,43 (1990)).

~ Car7Tielll20 S. Ct. at 1651 (Ginsburg,]., dissenting).

257

Id. (Ginsburg,]., dissenting).

258

Id. (Ginsburg,]., dissenting).

259

2 S. CL 443 (1883).

260

18 S. Ct. 620 (1898).

261

Su Cannell v. Texas, 120 S. Ct. 1620, 1652 (2000) (Ginsburg, J., dissenting)

(noting that "[i]t is true that the Court has on two occasions struck down as ex post

460 SUPREME COURT REWEW [Vol. 91

V. ANALYSIS

The decision in Carmell was incorrect for three reasons.

First, the majority incorrectly asserted that Texas Article 38.07 is

a statute altering the sufficiency of the evidence needed to ob-

262

tain a conviction. Rather, Texas Article 38.07 functions as a

rule of witness competency and is not ex post facto as such un-

der the principles of Calder. 263 Second, the Court in Cannell re-

lied too heavily on Sir John Fenwick's case, cited in Calder, in

reaching its holding. 264 Furthermore, the Court overstated the

analogy between the facts of this ancient case and Carmell's

situation. 265 Third, even if the majority were correct in its asser-

tion that Texas Article 38.07 qualifies as an ex post facto law

under the fourth Calder category, the majority ignored subse-

quent case law that effectively nullified that category.266 The ma-

jority's reasoning further confuses the precedent to be applied

in determining whether procedural laws violate the Ex Post

Facto Clause by ignoring the formulation set forth in Beazell and

adopted in Collins, a formulation that .had made important

strides toward eradicating such confusion.267

A SUFFICIENCY OF THE EVIDENCE OR WITNESS COMPETENCY

PROVISION?

First, the majority's decision was incorrect because Justice

Stevens incorrectly asserted that Texas Article 38.07 is a rule al-

tering the sufficiency of the evidence needed to obtain convic-

tion. Instead, Texas Article 38.07 functions as a law of witness

competency and credibility. 268 The mcyority's reasoning focused

facto the retroactive application of rules governing the functioning of the criminal

trial process-but both decisions have since been overruled").

262

See id. at 1648 (Ginsburg,]., dissenting) (arguing that the Court's "sufficiency of

the evidence label ... will not stick").

m See id. at 1649 (Ginsburg,J., dissenting) (reasoning that "the corroboration re-

quirement of Article 38.07 is functionally identical to a conditional rule of witness

competency").

264

See id. at 1629 (turning to a lengthy discussion of Fenwick's case for "guidance").

m See id.. at 1654 (Ginsburg, J., dissenting) (reasoning that the facts of the peti-

tioner's case do not parallel the facts of Fenwick's case "300 years earlier").

266

See id.. at 1651 (Ginsburg, J, dissenting) (reasoning that "a strong case can be

made that CoUins pared the number of Calder categories down to three, eliminating

altogether the fourth category on which the Court today so heavily relies").

267

See Collins v. Youngblood, 497 U.S. 37, 45 (1990) (noting that prior precedent

had "imported confusion into the interpretation of the Ex Post Facto Clause").

m See supra note 9.

2001] CARMELL V. TEXAS 461

on the notion that "requiring only the victim's testimony to

convict, rather than the victim's testimony plus other corrobo-

rating evidence is surely 'less testimony required to convict. '"21,;9

As such, the majority argued that Texas Article 38.07 is a suffi-

ciency of the evidence rule that "governs the sufficiency of [the]

facts for meeting the burden of proof. "270 _

The majority's reasoning neglects one fundamental fact

about Article 38.07: it does riot alter the reasonable doubt bur-

·- den that the prosecution must carry in order to obtain a convic-

tion.271 As the dissent pointed out, "[u]nder both the old and

the new versions of the statute, the applicable standard is proof

beyond a reasonable doubt."272 The majority insists that requir-

ing only the victim's testimony, rather than the victim's testi-

mony plus corroborating evidence, lowers the bar on what the

prosecution has to overcome to meet this burden, but this rea-

273

soning is flawed. The prosecution is not required to produce

the victim's testimony in order to obtain a conviction; the

prosecution may put any evidence it chooses before the jury,

and as long as the prosecution meets its burden of proof, the

274

conviction '\viii stand. Texas Article 38.07 does not alter that

fundamental burden ofproof. 275

Moreover, even if the prosecution were to produce only the

testimony of a victim who did meet the requirements under Ar-

ticle 38.07, that testimony would not be sufficient unless the

269

Cannell v. Texas, 120 S. Ct. 1620, 1631 (2000).

270

Id. at 1639. ~

271

Seeid. at 1647 (Ginsburg,J., dissenting).

mid. (Ginsburg,]., dissenting).

m See Adler, supra note 17, at 1204-06 (explaining that accomphce corroboration

statutes, which are equivalent to Texas Article 38.07 in that they require corroborat-

ing evidence to "sustain a conviction," do not alter the ultimate burden of proof for

the trier of fact. Rather, they set out a threshold determination for the judge of

whether the testimony can be put before the trier of fact).

274

See Adler, supra note 17, at 1204-05. The author explains that accomplice cor-

roboration laws require a judge to make a preliminary determination of whether the

evidence may be put before the trier of fact. If the judge determines that there is suf-

ficient corroborating evidence, the testimony may be put before the trier of fact. If

there is not sufficient corroborating evidence, the witness rna)" not testif}•. Texas Arti-

cle 38.07 functions as an accomplice corroboration law does: so long as the judge de-

termines that there is corroborating evidence, the testimony is put before the trier of

fact, but the ultimate issue of whether the prosecution has met its burden of proof

remains a question for the trier of fact. .

275

See CarmeU, 120 S. Ct. at 1647 (Ginsburg,]., dissenting).

462 SUPREME COURT REVIEW [Vol. 91

prosecution could convince a jury of the defendant's guilt be-

276

yond a reasonable doubt. Thus, 38.07 in no way affects the

burden that the prosecution must meet or the amount of evi-

. d to meet It.

d ence requrre . m

In fact, Article 38.07 functions exactly as a law of witness

competency does, making Cannell's case analogous to Hcrpt. 278

As the dissent correctly explained, the policies behind 38.07 and

laws of witness competency are the same: in the passage of each

of these types of laws, the legislature expresses concern about

the credibility of a certain class of witnesses based on the special

circumstances involved in their case. 279 The laws function in the

same manner as the dissent argues, because "if the victim is of a

certain age, the jury, in assessing whether the prosecution has

met its burden of demonstrating guilt beyond a reasonable

doubt, must give no weight to her testimony unless that testi-

280

mony is corroborated. " Likewise, a law of witness competency

provides that the testimony of a certain class of witnesses is to be

given no weight by the jury. Because 38.07 operates as a rule of

witness competency, the dissent argued, it is analogous to Hcrpt,

and is not ex post facto because it "simply enlarge[s] the class of

281

persons who may be competent to testify in criminal cases."

The dissent's analysis of 38.07 as a law of witness compe-

tency is preferable to the m~ority's analysis of it as a sufficiency

of the evidence rule, because the dissent's view comEorts best

with the purposes of the Ex Post Facto Law Clause. 2 The ex

post facto ban assures citizens fair warning and reasonable reli-

ance and prohibits the legislature from improperly interfering

283

in the judicial process. Article 38.07, like an accomplice cor-

281

roboration statute, is consistent with these goals and purposes.

276 See id.

m See Adler, supra note 17.

278

See id.

279

See CanneU, 120 S. Ct. at 1645 (Ginsburg,]., dissenting) ("Texas's requirement of

corroboration or outcry, like similar provisions in other jurisdictions, is premised on a

legislative judgment that accusations made by sexual assault victims above a certain

age are not independently trustworthy").

280

Id. (Ginsburg,]., dissenting).

281

Id. at 1653 (Ginsburg,]., dissenting).

282

See Adler, supra note 17, at 1219; see also supra Section IIA, discussion of the

three main purposes for the Ex Post Facto Clause.

' See id.

28< See id.

2001] CARMELL V. TEXAS 463

Although a citizen may not be aware of the evidentiary protec-

tions provided in Article 38.07, she has constructive notice that

sexual contact with a minor is a criminal offense.ID Likewise, a

citizen may not be aware of the laws requiring accomplice cor-

roboration, but she has constructive notice about the criminal

nature of her actions.286

Moreover, an accomplice corroboration requirement is not

a rule that is meant to induce reliance on the part of the gen-

eral public, and neither is Article _38.07.w Finally, Texas Article

38.07, like a rule of accomplice corroboration, is not a "capri-

cious or vindictive legislative action that is repugnant to the ex

post facto prohibition. "288 Article 38.07 and laws of accomplice

corroboration do not "single out" any particular person or

group, and are not used as a means of political oppression or

retribution. 289

B. THE MAJORITYS ANALYSIS OF FENWICK'S CASE

·Second, the moJority's decision is incorrect because Justice

Stevens relied too heavily on Sir John Fenwick's case, cited in

Callier; in reaching the conclusion that Texas Article 38.07

qualified as an ex post facto law under the fourth Calder cate-

gory.290 The moJority explained that an analysis of Fenwick's

case would be helpful because it is cited in Calder as an example

of the fourth category of ex post facto laws. 291 The majority de-

voted a substantial portion of the opinion to discussing the facts

of Fenwick's case and to analogizing those facts to Cannell's

situation. 292 Ultimately, the Court concluded that Texas Article

ms See id. (noting that a defendant is "on constructi\'e notice of the cnminal nature

of her action and the degree to which society would seek to punish it'').

:oas See id.

w Seeid.

w ld.

m Id; see also supra Section VA (discussion of the egregious nature of laws that sm-

gle out individuals).

) See supra, Section IVA, at 38-39 (discussion of the majority's anal)'Sis ofFem·.ick's

case).

291

See CanneU, 120 S. Ct. at 1629 ("Justice Chase and Wooddcson both cited scver:tl

examples of ex post facto laws, and, in particular, cited the case of SirJohn Fcm~ick as

an example of the fourth category. To better understand the type of law that falls

within that category, then, we tum to Fenwick's case for prelimin:lf)' guidance").

292

See supra Section IVA (discussion of majority's analogy between Frnu'lcl> and

Carmell); seea/sosupraSection liB (discussion ofthe factsofFenwick's C41Se).

464 SUPREME COURT REVIEW [Vol. 91

38.07 fell under the fourth Caltkr category of ex post facto laws

because the facts in Carmel! paralleled those in Fenwick's case. 29'

Although Justice Chase did cite to Fenwick's case as an ex-

ample of the fourth category, Fenwick's case was never discussed

again by the Supreme Court, not even in those cases that in-

volved a procedural rule that would come under the fourth

294

category of Calder. If Fenwick's case were considered an im-

portant guiding principle in a determination of ex post facto

laws under the fourth Calder category, the Court would have

used it as such in the precedent cases addressing procedural

statutes. 295 Additionally, Fenwick's case is mentioned only briefly

in Calder296 and is cited as an example of more than one category

of ex post facto laws. 297 As the dissent noted, the four-category

formulation in Calder is itself only dictum. 298 The majority made

no attempt to explain why Fenwick's case should be resurrected

as a '~ide" for determining if procedural laws were ex post

facto. In short, the majority diverged from the reasoning of

well-establish precedent in using Fenwick's case, a case men-

tioned only briefly in Calder and never again, as a mcyor deter-

minant that Texas Article 38.07 violated the Ex Post Facto

Clause of the Constitution.300

293

See Cannell, 120 S. Ct. at 1632; see also supra Section 'N.A. (discussion of major-

ity's reliance on Fenwick).

m See Cummings, 71 U.S. 277; Kring v. Missouri, 107 U.S. 221 (1883); Hopt, 110

U.S. 574; Thompson v. Missouri, 171 U.S. 380 (1898); Beazell v. Ohio, 269 U.S. 167

(1925); Collins v. Youngblood, 497 U.S. 37 (1990).

295

See Cummings, 71 U.S. 277; Kring, 107 U.S. 221; Hopt, 110 U.S. 574; Thompson,

171 U.S. 380; Beazell, 269 U.S. 167; Collins, 497 U.S. 37. None of these cases make any

reference to Fenwick sexample.

296

See Calder, 3 U.S. at 389 (Fenwick's case is mentioned in a footnote. The entire

text of the footnote reads: "The case of Sir John Fenwick, in 1696").

297

See id. (citing Fenwick's case for two propositions, "declaring acts to be treason,

which were not treason, when committed," and violating "the rules of evidence (to

supply a deficiency of legal proof) by admitting one witness, when the exiting Jaw re-

quired two").

298

See Cannell. 120 S. Ct at 1651 (Ginsburg, J., dissenting) (noting that Justice

Chase's formulation was dictum, because Calder involved a civil statute).

299

See id. at 1629.

500

See id. at 1629-1632 (whereas Calder mentioned Fenwick's case in passing, the

majority in CarmeU makes it a central focus of inquiry; the majority fully discusses the

facts of the case, analogizes them to Carmell's case, and determines that the two fact

patterns are so similar, that Texas Article 38.07 must fall under the fourth category of

Calder); /d. at 1641 (in responding to the dissenting opinion, as well, the majority re-

lies on Fenwick's case as "the guide").

2001] CARMEU V. TEXAS 465

Furthermore, even if the majority were correct in relying on

Fenwick's case to invalidate Texas Article 38.07, Justice Stevens

overstated the analogy between the facts of Fenwick's case and

301

the facts of Carmell's. Most, importantly, Fenwick's case in-

volved a Bill of Attainder; the Parliament passed a special piece

of legislation tarpeted at one individual and one individual

alone: Fenwick. 30 No such situation existed in Cannell's case.

In Carmell, the legislature passed a general piece of legislation

targeting criminal procedure in all sex offense cases. 31J3 The dis-

tinction betvveen these two types of legislative actions is para-

mount;304 the Framers regarded Bills of Attainder as especially

egregious to a fundamental notion of justice, and as such, im-

plicates all of the reasons the framers promulgated the Ex Post

Facto Clause. 305 A Bill of Attainder, the Court argued in Cum-

mings~ usurps the judicial function and removes all of the pro-

tections of trial from the criminal defendant. 506

In contrast, Texas Article 38.07 does not implicate the con-

cerns of the Ex Post Facto Clause.so7 Texas Article 38.07 was not

s~t See id. at 1631-32 (the majority noted that "Indeed, the circumstances of peti-

tioner's case parallel those ofFenwick's case 300 years earlier").

~ Id. at 1630; See Cummings, 71 U.S. at 323 (noting that bills of attainder "are gen-

erally directed against individuals by name," and that "[b] ills of this sort. .. have been

most usually passed in England in times of rebellion, or gross subservency to the

crown, or of violent political excitements; periods, in which all nations are most liable

(as well the free as the enslaved) to forget their duties, and to trample upon the rights

and liberties of others").

S!l3 See TEx. CODE CRn.t. P. ANN. an. 38.07 (West 2000); sc.e also Carmel/, 120 S. CL at

1624.

sot See Calder, 3 U.S at 390. Ifjustice Chase cited Fenwick's case because of the par-

ticularly egregious act of Parliament in altering the rules of evidence to ltugel one mdz-

vidual, than the Cannell Coun's analogy fails. Texas Article 38.07, unlike the law in

Fenwick's case, was not amended in order to target an individual.

!!lS See Cummings, 71 U.S. at 323 (explaining the special nature of Bills of Attainder:

"In these cases the legislative body, in addition to its legitimate functions, exercises .

the powers and office ofjudge; it assumes, in the language of the text-books, judicia)

magistracy; it pronounces upon the guilt of the party, without any of the fonns or

safeguards of trial; it determines the sufficiency of the proofs produced, whether con-

formable to the rules of evidence or othenvise; and it fixes the degree or punishmem

in accordance with its own notions of the enormity of the offensen); sa al.ro ~1ark

Strasser, Ex Post Facto Laws, Bills ofAttainder, and the Definilwn of Punuhment: on Dama,

the Hawaii Amendment. and Federal Constitutional Constraints, 48 S\'RACUSE L RE.V. 227,

238-39 (1998).

s!:'6 See id.

'Y7 See Carmell, 120 S. Ct. at 1650-51 (Ginsburg, J., dissenting) (noting that Texas

Article 38.07 does not implicate either of two important purposes for which the E.x

466 SUPREME COURT REVIEW [Vol. 91

passed with Scott Leslie Cannell in mind but as a general meas-

ure, affecting all citizens. As the dissent argued, "the amend-

ment of Texas 38.07 simply brought the rules governing certain

victim testimony in sexual offense prosecutions into conformi:;ra

with Texas law governing witness testimony generally." 3 8

Moreover, Texas Article 38.07 removed none of the protections

of a criminal trial; Cannell received a full trial, with benefit of

counsel, before a jury, and he was presumed innocent until the

prosecution could prove, beyond a reasonable doubt, that he

had committed the offenses for which he was charged. Because

Fenwick's case involved a Bill of Attainder, it is inherently dif-

ferent from Cannell's case; whereas Fenwick was the target of

"vindictive" legislation, aimed specifically at him, Carmell was

simply subjected to a general procedural rule applied to all

criminal defendants in sex offense cases.

C. THE Mi\)'ORI1YS TREATMENT OF BEAZELLAND COLLINS

Third, the majority's decision was incorrect because even if

Justice Stevens was correct in his assertion that Article 38.07

meets the definition set forth in the fourth Calder category, the

majority ignored precedent that effectively nullified that cate-

gory.309 The maJority argued that Collins was at best "cryptic" on

the issue of whether the fourth Calder category was still good

Iaw. 31 ° Further, the majority argued that if Collins intended to

nullify the fourth category of Calder, "we think it strange that it

511

would have done so in a footnote.'' These arguments avoid

the ultimate conclusion reached by Collins.m First, Collins paid

deference to the four categories of Calder, but only as a general

principle, and the Court further explained that the Beazell defini-

tion was the one best suited to the original understanding of the

Post Facto clause was promulgated: "to assure that legislative Acts give fair warning of

their effect and permit individuals to rely on their meaning until explicitly changed,"

and to "[restrict] governmental power by restraining arbitrary and potentially vindic-

tive legislation").

308

Id. at 1651 (Ginsburg,]., dissenting) .

.!.09 See CoUins, 497 U.S. at 37.

510

See Carmell, 120 S. Ct. at 1635 (noting that "it seems most accurate to say that

CoUins is rather cryptic").

m Id. at 1636.

512

It is interesting to note that CoUinswas authored by Chief justice Rehnquist, who

dissented in CarmeU. Wouldn't Chiefjustice Rehnquist, the author of CollinsJ be in the

best position to determine if the Court meant to nullify the fourth principle of Caldm

Of course.

2001] CARMEIL V. TEXAS 467

313

framers. The majority is correct that the Collins Court men-

tioned Beazell's omission of the fourth Calder category in a foot-

note, but tlle fact that the Court did so does not necessarily

mean that it was any less serious about adopting the Beazell defi-

nition. It is important to note tllat directly after tlle Collins

Court explained tlle omission, it adopted the Beazell definition

as "faithful to our best knowledge of the original understanding

of the Ex Post Facto Clause." 314

Most importantly, in analyzing the facts involved in Collins,

the Court did not apply the four categories of Calder, the Court

ultimately applied the Beazell formulation in determining that

the Texas statute did not offend the Ex Post Facto Clause, even

though the statute was a rule of procedure.:us The majority in

Carmell ignored tlle fact that the Collins Court ultimately applied

the Beazell formulation, and ignored the fact that the Collins

Court did so with a rule of procedure, one which typically

should have been subjected to analysis under the fourth cate-

316

gory of Calder. The Collins Court"s ultimate application of the

Beazell formulation as a pragmatic matter, along with its ringing

endorsement of the Beazell formulation in direct comparison

with the four Calder categories (and the explicit recognition that

Beazell omitted the fourth category) lead to one inescapable

conclusion: the Collins court effectively nullified the fourth

category of Calder, and replaced the four-category Calder formu-

lation with the more general formulation provided in BeazelL 117

313

See CoUins, 497 U.S. at 42-43.

Sl4 Id.

315

See id. at 51. The Court applied the Beazell test in reaching its holdin~ "The

Texas statute allowing reformation of improper verdicts does not punish as a crime

an act previously committed, which was innocent when done; nor make more bur-

densome the punishment for a crime, after its commission; nor deprive one charged

with crime of any defense available according to law at the time when the act was

committed. Its application to respondent therefore is not prohibited by the Ex Post

Facto Clause."

516

See Carmell, 120 S. Ct. at 1635-36.

517

See Neil Colman McCabe and Cynthia Ann Bell, Ex Post Facto Pruvzswns of Stale

Constitutions, 4 EMERGING IssuEs ST. CONST. L. 133, 134-35 (1991) (explaining that the

"four categories ... have not stood the test of time," and that Collms Court narrowed

the scope of the Ex Post Facto Clause, and curtailed the fourth cntegory); Victoria L

Miller, VII. Criminal Prow:lure: Trial and Post-tritzllssues, 29 RUTCERS LJ. 1257, 1288

(1998) (acknowledging that the CoUins Court adopted the BeDUll formulation for the

definition of ex post facto laws, and acknowledging that the Bcaull formulation omit-

ted the fourth category of Calde1); Matteo, supra, note 25, at 595.

i-.-1

468 SUPREME COURT REVIEW [Vol. 91

Thus, Carmell majority's response that Collins is "cryptic" is un-

persuasive.

VI. CONCLUSION

The Supreme Court's decision in Carmell was incorrect for

three reasons. First, the majority erroneously concluded that

Article 38.07 was a rule affecting the sufficiency of the evidence

needed to convict.m In reality, 38.07 does not affect the ulti-

mate sufficiency of the evidence standard: the prosecution's

burden of proving its case beyond a reasonable doubt. s19 Addi-

tionally, 38.07 functions exactly like a rule of witness compe-

tency, the alterations of which were upheld in Hopt. 320 Second,

the majority in Carmell relied too heavily on a three-hundred-

year-old case that was mentioned only briefly in Calder v. Bull,

and never again, even in cases that implicated Calder's fourth

principle. 521 In addition, the mcyority's reliance on that case was

misplaced; the facts surrounding Fenwick's execution are in-

herently different from the facts in Carmell.m Third, even if the

mcyority were correct in its assertion that 38.07 fell under the

fourth category of Calder, the mcyority ignored important

precedent that effectively nullified that category. 323 As a result,

the majority frustrated what the Collins Court sought to achieve:

eradication of the confusion surrounding whether procedural

rules violated the Ex Post Facto Clause. 324 Thanks to the Carmell

Court, the situation is now more confused than ever.

Danielle Kitson

sJs See supra notes 254-55; see also supra Section VB (discussion of Article 38.07 as a

law of witness competency).

m See id.

s See supra note 94.

s See supra Section VA (discussion ofthe m~ority's reliance on Fenwick's case).

sn See id.

su See supra note 310; see also supra Section VC (discussion of the abandonment of

Calder's fourth category.

" See supra note 260.

., 416/2015 Legal Definition of'Ex Post Facto'

Not every change in a convicted person's situation violates the Ex Post Facto Clause. A law implicates

the Ex Post Facto Clause only if it criminalizes conduct that was not a crime when it was committed,

increases the punishment for a crime beyond what it was at the time the act was committed, or deprives a

person of a defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 42-

43 (1990). Courts have held that legislation may lawfully impose new requirements on convicted persons

if the statute's 'overall design and effect' indicates a 'non-punitive intent.' United States v. Huss, 7 F.3d

1444, 1447 (9th Cir.'93).

data:texllhtml:charset=utf-R%3Csoan%20stvle%3D%22cnlor%~%?0rnhiO%?r.%?00%?r.%?00\%~%?11fnnl-f::amilv•t.~•t.?n'Tim,..,ot.?nN.,..,ot,?nRnrn,n'•t. 111

E ~J

':"' 41612015 Collins v. Youngblood, 497 U.S. 37 (1990)

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Syllabus

COLLINS, DIRECTOR, TEXAS DEPARTMENT OFCRIMINAL JUSTICE,

INSTITUTIONALDIVISION v. YOUNGBLOOD

CEirriORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 89-742. Argued March 19, 1990- Decided June 21, 1990

Respondent was convicted in a Texas state court of aggravated

sexual assault and sentenced to life imprisonment and a $10,000

fine. After his conviction and sentence were affirmed on direct

appeal, he applied for a writ of habeas corpus in state court,

arguing that Texas law did not authorize both a fine and prison

term for his offense, and thus that his judgment and sentence were

void and he was entitled to a new trial. The court, bound by a

State Court of Criminal Appeals' decision, recommended that the

writ be granted. Before the writ was considered by the Court of

Criminal Appeals however, a new statute was passed allowing an

appellate court to reform an improper verdict assessing a

punishment not authorized by law. Thus, the Court of Criminal

Appeals reformed the verdict by ordering that the fine be deleted

and denied the request for a new trial. Arguing that the new Texas

law's retroactive application violated the Ex Post-Facto Clause of

Art. 1, 10, respondent filed a writ of habeas corpus in Federal

https:/twww.law.cornell .edu/supctlhtmii89-742.ZS.html 1/::1

~ .j

~· 41612015 Collins v. Youngblood, 497 U.S. 37 (1990)

District Court, which was denied. The Court of Appeals reversed.

Relying on the statement in Thompson v. Utah, 170 U.S. 343, that

retroactive procedural statutes violate the Ex Post-Facto Clause

unless they "leave untouched all the substantial protections with

which existing law surrounds the ... accused," the court held that

respondent's right to a new trial under former Texas law was a

"substantial protection."

Held:

1. Although the rule of Teague v. Lane, 489 U.S. 288- which

prohibits the retroactive application of new rules to cases on

collateral review - is grounded in important considerations of

federal-state relations, it is not jurisdictional in the sense that this

Court, despite a limited grant of certiorari, must raise and decide r:

the issue sua sponte. Since Texas has chosen not to rely on Teague,

the merits of respondent's claim will be considered. P. 3. ,·.

;7->. ·.·•

.... --

_··: / -.,. .

.·:_;.

. _;'~~

2. The application of the Texas statute to respondent is not ~. . -~- .· :

prohibited by the Ex Post-Facto Clause. Pp. 3-14.

(a) The definition of an ex post-facto law as one that (1) punishes

as a crime an act previously committed, which was innocent when

done, (2) makes more burdensome the punishment for a crime,

after its commission, or (3) deprives one charged with a crime of

any defense available according to law at the time when the act

was committed, Beazell v. Ohio, 269 U.S. 167, is faithful to this

Court's best knowledge.of the original underst~rding of the Clause:

Legislatures may not retroactively ~lter the definition of crimes or

increase the punishment for criminal acts. Respondent concedes

that Texas' statute does not fall within the Beazell categories,

since it is a procedural change in the law. However, h·e errs in

arguing that this Court's decisions have not limite.d the Clause's

scope to those categories, but have stated more broadly that

retroactive legislation contravenes the Clause if it deprives an

accused of a "substantial protection" under law existing at the time

of the crime, and that the new_ trial guaranteed by Texas law is

such a protection. When cases have described as "procedural" those

changes that do not violate.the Clause even though they work to

the accused's disadvantage, see, e.g.,

. .

Beazell,

·. .

supra, at 171, it is

logical to presume that '"procedurar' refers to changes in the

procedures by which a criminal case is adjudicat~d as opposed to

substantive changes in the law; .the ·:substantial protection"

discussion in Beazell, Duncan v. Missouri, 152 U.S. 377, 382-383,

and Malloyv. South Carolina, 237 U.S. 180·, 183, has imported

confusion into the Clause's interpretation and should be read to

mean that a legislature does not immunize a law from scrutiny

under the Clause simply by labeling the law "procedural." It should

not be read to adopt without explanation an undefined

enlargement of the Clause. Pp. 3-9.

(b) Kring v. Missouri, 107 U.S. 221, and Thompson v. Utah, supra,

htlps:/lwww .I em .cornell.edu/supctlhtmi/89-742.ZS.html ?J?.

Collins v. Youngblood, 497 U.S. 37 (1990)

are inconsistent with the understanding of the term "ex post-facto

law" at the time the Constitution was adopted, rely on reasoning

that this Court has not followed since Thompson was decided, and

have caused confusion in state and lower federal courts about the

Clause's scope. Kring and Thompson are therefore overruled. Pp. 9-

14.

882 F. 2d 956, reversed.

Rehnquist, C.J., delivered the opinion of the Court, in which

White, Blackmun, O'Connor, Scalia, and Kennedy, JJ., joined.

Stevens, J., filed an opinion concurring in the judgment, in which

Brennan and Marshall, JJ., joined.

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