asserting that fundamental error was shown because “the constitutional prohibition against ex post facto legislation is not an individual right at all . . . ” and “the people may not waive this prohibition, either individually or collectively, any more than they may consent to be imprisoned for conduct which does not constitute a crime”
How later courts described this case
- asserting that fundamental error was shown because “the constitutional prohibition against ex post facto legislation is not an individual right at all . . . ” and “the people may not waive this prohibition, either individually or collectively, any more than they may consent to be imprisoned for conduct which does not constitute a crime”
- holding that an ex post facto claim may be presented for the first time on appeal because a categorical prohibition may not be waived
- finding constitutional ex post facto prohibition is fundamental systemic requirement that cannot be waived
- holding that no preservation is required to raise ex post facto complaint in criminal cases
Written by the judges who cited it.
The opinion
MANSFIELD, Judge,
dissenting.
Because I do not believe that the ex post facto clauses of the Texas and United States Constitutions are implicated in this case, I respectfully dissent.
Appellant was indicted, in four separate indictments, for the offense of aggravated sexual assault of a child, said offenses alleged to have taken place on or about January 1, February 1 and March 1 of 1983. Texas Penal Code § 21.05 was in effect at the time the offenses alleged in the indictment occurred.
Texas Penal Code § 21.05 was repealed and was replaced by Texas Penal Code § 22.021, effective for conduct committed on or after September 1, 1983. Texas Penal Code § 22.021 provides:
(a) A person commits an offense:
(1) if the person:
(B) intentionally or knowingly
*226 (i) causes the penetration of the anus or female sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor; or
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus or sexual organ of another person, including the actor; or
(iv) causes the anus of a child to contact the mouth, anus or sexual organ of another person, including the actor; and
(2) if:
(B) the victim is younger than 14 years of age.
Texas Penal Code § 21.05 refers to the definition of sexual abuse under Texas Penal Code § 21.04, which contains the phrase “with intent to arouse or gratify the sexual desire of any person....” The indictments do not contain this language and track the language of Texas Penal Code § 22.021. Under § 22.021, the State is not required to prove the charged person acted “with intent to arouse or gratify the sexual desire of any person.”
The jury convicted appellant on all four charges and sentenced him to terms of 49, 22, 40 and 15 years confinement in the Texas Department of Criminal Justice-Institutional Division. The Fifth Court of Appeals affirmed all four convictions in an unpublished opinion. 1
It is clear that appellant’s conduct in 1988 was a violation of Texas Penal Code § 21.05 and would also be a violation of Texas Penal Code § 22.021. The issue is whether omission of the phrase “with intent to arouse or gratify the sexual desire of any person” is merely a defect in the indictment or resulted in conviction of appellant for behavior which was not then proscribed by law, thereby violating the ex post facto clause.
An ex post facto law is one that: (1) punishes as a crime conduct previously committed which was not a crime at the time committed; (2) deprives a person charged with an offense of any defense available at the time of its commission; or (3) increases the punishment for an offense beyond the maximum in effect at the time of its commission. Grimes v. State, 807 S.W.2d 582 (Tex.Crim.App.1991); Collins v. Youngblood, 497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990).
Appellant’s conduct was a criminal offense under either version of the statute, which means he fails to meet the first part of the test described above. As his conduct is a first degree felony under either version of the statute, he cannot claim an increase in the maximum punishment beyond that in effect at the time of commission; he thus fails the third part of the test. Appellant claims that application of Texas Penal Code § 22.021 prevented him from introducing evidence that he did not have the intent to “arouse or gratify the sexual desire of any person,” thereby depriving him of a defense.
Appellant, at trial, never attempted to raise the ex post facto claim; neither did he offer any evidence that he did not have the intent to “arouse or gratify the sexual desire of any person.” His defense consisted of a denial that he committed the alleged offenses. Furthermore, intent to “arouse or gratify the sexual desire of any person” can be inferred from appellant’s conduct, and the evidence is sufficient under either statute to support this inference. McKenzie v. State, 617 S.W.2d 211 (Tex.Crim.App.1981). As he never offered this defense — much less an ex post facto claim at trial — he cannot complain that he was deprived of any fundamental right to do so. Additionally, we have held that we will not consider errors not called to the trial court’s attention, including those alleged to be of constitutional dimensions. Rogers v. State, 640 S.W.2d 248, 264 (Tex.Crim.App.1982); Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1991). Even if appellant’s ex post facto claim were meritorious, his failure to raise it at trial precludes him from raising it on appeal. Appellant does not show that the error claimed is one of first impression or otherwise not subject *227 to waiver. Ex parte Chambers, 688 S.W.2d 483 (Tex.Crim.App.1984).
It is my opinion, however, because appellant’s conduct was a crime (first degree felony) under either statute, the punishment range was the same under either statute and the State would have put on the same evidence under either statute that the error complained of by appellant is a defect in the indictment and not a violation of the ex post facto clause.
Appellant never objected to the indictment. Article 1.14 of the Texas Code of Criminal Procedure provides that failure to object to a defect of form or of substance in an indictment before trial on the merits waives the right to raise the matter on appeal. The indictment meets the constitutional requirements that it name the person indicted and that it identify the offense or offenses charged with sufficient specificity so as to allow the person charged to prepare a defense. See Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990) and Cook v. State, 902 S.W.2d 471 (1995). Appellant, by failing to object, waived any complaint on appeal with respect to the indictment.
Finally, appellant fails to show that he was harmed by being tried and convicted under Texas Penal Code § 22.021. The record shows overwhelming evidence of appellant’s guilt and the evidence raised no issue of whether appellant acted with the intent to arouse or gratify the sexual desire of any person. Thus, any error in the indictment is harmless beyond a reasonable doubt. Tex. App.Proc. Rule 81(b)(2).
I would affirm the judgment of the court of appeals.
. Appellant was also convicted of two additional offenses of aggravated sexual assault of a child which occurred in 1989. He does not appeal those convictions.