Ieppert v. State

McCORMICK, Presiding Judge,

dissenting.

The issue in this case is whether appellant can raise his ex post facto claim for the first time on appeal. Because the majority holds he can, I dissent.

The facts of the case are not complex. Appellant was convicted of sexually assaulting the complainant over about an eight-year period of time. The State introduced into evidence appellant’s confession in which he admitted molesting the complainant but claimed the seven-year-old complainant initiated the contact. Appellant testified at trial and denied molesting the complainant. Appellant testified he lied when he confessed because somebody promised him he would receive probation and not go to jail. Appellant testified everything in his confession was either untrue or taken out of context.

The State indicted appellant under V.T.C.A., Penal Code, Section 22.021, which did not become effective until after the commission of the crimes here. The Legislature expressly provided that an offense committed before the effective date of Section 22.021 would be covered by the law in effect when the offense occurred. The law in effect when appellant committed these offenses was set out in V.T.C.A., Penal Code, Sections 21.05 and 21.10. Sections 21.05 and 21.10, which appellant claims are the statutes under which he should have been prosecuted, required the State to prove appellant .acted “with intent to arouse or gratify the sexual desire of another person.” Section 22.021, which appellant claims is the statute under which he was prosecuted, did not require the State to prove appellant acted “with intent to arouse or gratify the sexual desire of another person.”

On appeal to the Dallas Court of Appeals, appellant claimed his convictions violate the ex post facto clause. The Dallas Court of Appeals held appellant waived his ex post facto claim because he failed to raise it in the trial court.

The brief appellant filed here does not address the Court of Appeals’ holding that he waived his ex post facto claim. Instead, appellant’s brief addresses the merits of his ex post facto claim. Appellant argues the ex post facto application of Section 22.021 to him unfairly made his conduct a criminal offense after its commission, lessened the State’s burden of proof, and deprived him of the opportunity to place into evidence testimony that he did not have the intent “to arouse or gratify the sexual desire of any person” when he engaged in the conduct.

The majority resolves the procedural default issue by deciding in a formalistic manner the ex post facto provisions are “systemic” requirements which can not be “forfeited” or “waived.” See Marin v. State, 851 S.W.2d 275, 278 (Tex.Cr.App.1993). I submit the analysis should be more substantive than that. In resolving the procedural default issue, we should identify what rights appellant claims are violated by an ex post facto application of Section 22.021 to him, and then decide whether these rights “are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.” See Marin, 851 S.W.2d at 278 .

We should begin by looking at the mischief the ex post facto clause is designed to prevent. An ex post facto law is one that: (1) punishes as a crime conduct previously committed, which was innocent when done; (2) makes more burdensome the punishment of a crime after its commission; or (3) deprives one charged with a crime of any defense available at the time when the act was committed. Collins v. Youngblood, 497 U.S. 37, 51-53 , 110 S.Ct. 2715, 2724 , 111 L.Ed.2d 30 (1990); Grimes v. State, 807 S.W.2d 582, 585 (Tex.Cr.App.1991). “[Rjetrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty....” Collins, 497 U.S. at 43 , 110 S.Ct. at 2720 .

The question here essentially boils down to one of fairness. See Ex parte Bonham, 707 S.W.2d 107, 108 (Tex.Cr.App.1986). For ex *225 ample, if a defendant for whatever reason finds himself in the unfortunate position of having been convicted for conduct that was completely innocent when done, fairness might dictate that he be allowed to raise an ex post facto claim for the first time on appeal. The right not to be prosecuted for conduct which was completely innocent when done arguably is a right “considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.” See Marin, 851 S.W.2d at 278 . Of course, appellant can not make this claim here since his conduct was criminal, and the evidence would support a conviction, under either version of the statute. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Cr.App.1981). No one can seriously argue appellant’s conduct was unfairly made criminal after the fact or that his conduct was completely innocent when done.

No, what appellant essentially claims here is that his prosecution under Section 22.021 deprived him of the opportunity to present a defense which would have been available to him had the State prosecuted him under the correct statute. See Collins, 497 U.S. at 51-53 , 110 S.Ct. at 2724 . Appellant, in effect, claims his failure to timely raise his ex post facto claim should be excused because otherwise he has unfairly been denied the opportunity to assert as a defense before a new jury that he did not have the intent “to arouse or gratify the sexual desire of any person” when he engaged in the prohibited conduct.

This is a complete about-face from what appellant claimed at trial. Appellant’s factual theory at trial was he did not engage in any of the prohibited conduct. On this record, it is not unfair to hold any right appellant has under the ex post facto clause to present a defense at retrial inconsistent with the one he presented at his first trial is not “so fundamental to the proper functioning of our adjudicatory process” so as to excuse appellant’s failure to timely raise the matter in the trial court. See Marin, 851 S.W.2d at 279 .

There are other considerations here not mentioned in the majority opinion. The State’s valid interest in the finality of this conviction, the judiciary’s valid interest in conserving judicial resources, and society’s valid interest in protecting our children from child molesters and the complainant from the trauma of a retrial all militate against excusing appellant’s failure to timely raise his ex post facto claim. And, holding appellant waived his ex post facto claim when he could have preserved it by simply making a timely objection in the trial court does not violate principles of fundamental fairness. The only unfairness I see here is to society when the majority allows this legally guilty appellant under either version of the statute to engage in the kind of gamesmanship we see here. Appellant should have timely raised his ex post facto claim in the trial court so he later could have had the opportunity for the Court of Appeals to decide whether application of Section 22.021 to appellant actually violated the ex post facto clause, and whether any violation of the ex post facto clause harmed appellant. See Texas Rules of Appellate Procedure 52(a) and 81(b)(2).

I would hold appellant “forfeited” his ex post facto claim. Because the majority fails to do so, I dissent.

WHITE, J., joins this dissent.