Grimes v. State

BAIRD, Judge,

dissenting.

In this case of first impression, we are called upon to determine whether the federal and/or state constitutions prohibit the retroactive application of Tex.Code Crim. Proc.Ann. art. 44.29(b) to cases tried before, but pending on appeal, at the time of the article’s effective date. 1 I respectfully *589 dissent to the majority opinion because I believe that appellant is entitled to relief for the following reasons.

I.FACTUAL SUMMARY

The facts are not disputed. At the punishment phase, the State introduced evidence, over objection, contrary to our holding in Walker v. State, 610 S.W.2d 481, 483 (Tex.Cr.App.1980). The jury sentenced appellant to the maximum punishment, life imprisonment and a $10,000 fine. On appeal, the State confessed error. The Court of Appeals found that the law in effect at the time of trial entitled appellant to a new trial as to guilt/innocence for error committed in the punishment phase of trial and remanded the cause to the trial court for a “full new trial.” Grimes v. State, No. 07-87-0137-CR (Tex.App. — Amarillo delivered June 21, 1988).

II.UNITED STATES CONSTITUTION

I agree with the majority’s treatment of Collins v. Youngblood, — U.S. —, 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990), wherein the Supreme Court dramatically altered the concept of what constitutes ex post facto laws under the federal constitution. That case interpreted Tex.Code Crim.Proe.Ann. art. 37.10(b) (allowing appellate courts to reform an improper verdict that assessed a punishment not authorized by law, where prior case law required a new trial), and rejected the proposition that art. 37.10(b) violated the ex post facto clause of U.S. Const, art. I, § 10. 2

Youngblood limits ex post facto laws to those which: 1) punish as a crime an act previously committed, which was innocent when done, 2) creates a more burdensome punishment for a crime after the crime was committed or 3) deprives one charged with a crime of any defense available according to the law in effect at the time the act was done. Youngblood expressly overruled former Supreme Court authority suggesting that ex post facto laws included those which affected “substantial” rights. Youngblood , — U.S. at —, 110 S.Ct. at 2724 .

The case at bar involves application of Tex.Code Crim.Proe.Ann. art. 44.29(b) (error in the punishment phase of noncapital trials requires a retrial only as to punishment). Under Youngblood’s narrow definition of ex post facto, art. 44.29(b) does not offend the ex post facto prohibition in the Federal Constitution. I therefore agree with the majority’s conclusion that Youngblood precludes appellant from relief under art. I, § 10 of the Federal Constitution.

III.TEXAS CONSTITUTION

A. Retroactive Legislation

Tex. Const, art. I, § 16 is worded differently than its federal counterpart. In addition to forbidding ex post facto laws, the Texas Constitution also prohibits “retroactive law.” 3 Of course, we “can invalidate a Texas law under § 16 without regard to whether the United States Supreme Court would invalidate the same law under § 10 of Art. I (of the United States Constitution).” Braden, The Constitution of the State of Texas: An Annotative and Comparitative Analysis 59 (1977). See also Cooper v. California, 386 U.S. 58, 62 , 87 S.Ct. 788, 791 , 17 L.Ed.2d 730 (1967) (state courts are free to impose stricter standards than mandated by federal constitution).

The majority “assum[es]” without deciding that Article I, Section 16’s proscription against retroactive law(s) is applicable to criminal cases. Grimes, slip op. at 9 (footnote omitted). In my view, the proscription against retroactive laws of art. I, § 16 is *590 not limited to civil matters. The Interpretive Commentary to art. I, § 16, with emphasis added, explains retroactive laws:

The Texas Constitution goes further than the United States Constitution for the former is not confined to forbidding ex post facto laws, i.e., retroactive penal legislation, but it also lays ban on any retroactive law. In prohibiting retroactive laws, the Texas Constitution seeks to safeguard rights not guaranteed by other constitutional provisions such as the impairment of the obligation of contracts and due process of law clauses. Mellinger v. City of Houston, 68 Tex. 37 , 3 S.W. 249 (1887).

A retroactive law is one meant to act on things that are past. As such, a statute is retroactive which takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability in respect to transactions or considerations already past, and which affects acts or rights accruing before it came into force. Turbeville v. Gowdy, Civ.App., 272 S.W. 559 (1925).

In Ex parte Alegria, 464 S.W.2d 868 (Tex.Cr.App.1971), the Court addressed whether a statute increasing the minimum period served for parole eligibility violated both art. I, § 10 of the Federal Constitution and art. I, § 16 of the state constitution when applied retroactively to an inmate. Presiding Judge Onion, writing for an unanimous Court, concluded both constitutions were violated; in so doing, he cited the above quoted Interpretive Commentary to art. I, § 16.

Additionally, when this Court held that the Prison Management Act violated both the federal and state constitutional provisions, Judge Clinton, in concurrence, reiterated that art. I, § 16 is broader than the federal prohibition.

I write to point out that our own prohibition against such laws is broader than the restrictive construction given “ex post facto law.” Under Article I, § 16 there is also a ban on any “retroactive law.”

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Including “retroactive law” in § 16 “evidences an intention to place a further restriction on the power of the legislature; and it must be held to protect every right [emphasis added] ... which may accrue under existing laws prior to the passage of any, which, if permitted a retroactive effect, would take away that right. A right has been well defined to be a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized and secured by law.” Mellinger v. City of Houston, 68 Tex. 37 , 3 S.W. 249, 253 (1887). See also Turbeville v. Gowdy, 272 S.W. 559, 561 [4] (Tex.Civ.App. — Fort Worth 1925).

Ex parte Rutledge, 741 S.W.2d 460, 463 (1987) (Clinton, J., joined by Miller and Duncan, JJ., concurring).

While the majority of the case law interpreting the retroactive law portion of art. I, § 16 concerns civil cases, that section also applies to criminal cases. Rutledge, 741 S.W.2d at 463 ; Alegria, 464 S.W.2d at 872 ; Mellinger, 3 S.W. at 253 . Therefore, I believe the majority errs in suggesting that the retroactive law prohibition may not apply to criminal matters. It does apply to criminal matters, and this Court has never interpreted the article to the contrary. 4

Further, I believe the majority opinion applies art. 44.29(b) in such a manner as to deprive appellant of a vested right acquired at the time of his trial. Therefore, this application art. 44.29(b) is a retroactive law prohibited by Art. I, § 16 of our Constitution.

B. Procedural Matters

The majority opinion contends that the retroactive law prohibition in art. I, § 16 “has never been made applicable to stat *591 utes merely affecting matters of procedure which do not disturb vested, substantive rights.” Grimes, slip op. at 9-10, citing Ex parte Abell, 613 S.W.2d 255 (Tex.1981); Merchant’s Fast Motor Lines, Inc. v. Railway Commission of Texas, 573 S.W.2d 502, 503 (Tex.1978). Those cases, and the cases cited therein, discuss what constitutes “vested substantive rights” in the civil context. Ex parte Abell, 613 S.W.2d at 260-261 , contains a list of cases wherein no vested substantive right has been found. Such situtations include authorization of additional remedy for collecting past-due child support, repeal prior to filing suit of statute granting statutory cause of action, change in municipal annexation law, change in city ordinance reducing salary of city employee and change in worker’s compensation statute for determining average weekly wage. While those cases find no vested substantive right, they clearly do not control what is a “right” in a criminal context.

It is well established that by simply la-belling a law “procedural,” a legislature does not thereby immunize it from scrutiny under art. I, § 10 of the Federal Constitution. Youngblood , — U.S. at —, 110 S.Ct. at 2721 ; Gibson v. Mississippi, 162 U.S. 565, 590 , 16 S.Ct. 904, 910 , 40 L.Ed. 1075 (1896). Nor should a procedural label preclude our analysis of the statute’s constitutionality under art. I, § 16’s proscription of retroactive laws. Consistent with the federal constitutional analysis, whether a procedural change has a sufficiently drastic impact on a defendant should be characterized as “substantial” for purposes of art. I, § 16, is a matter of degree. Beazell v. Ohio, 269 U.S. 167 , 46 S.Ct. 68 , 70 L.Ed. 216 (1925).

Clearly, the majority opinion affects a substantial right in contravention of art. I, § 16. As stated earlier, a right under art. I, § 16 has been defined as a well-founded claim; a well-founded claim means nothing more nor less than a claim recognized and secured by law. Ex parte Rutledge, 741 S.W.2d at 463 , citing Mellinger, 68 Tex. at 45 , 3 S.W. at 253 .

At the time appellant elected to have the jury assess his punishment, he had a right to an entirely new trial if harmful error occurred at the punishment phase of his trial. Prior to trial, appellant had to evaluate the relative merits of the judge or jury assessing punishment. During this evaluation, appellant and his counsel undoubtedly considered the effects of error before a jury — a new trial on the merits. For cases where the judge assesses punishment, appellate courts either treat the error as presumptively disregarded or remand the cause for the trial court to reassess punishment. Tolbert v. State, 743 S.W.2d 631 (Tex.Cr.App.1988) and cases cited therein.

Under the circumstances of the instant case, appellant would not have been entitled to any relief if he had elected to have the court assess punishment. See Miffleton v. State, 777 S.W.2d 76, 82 (Tex.Cr.App.1989). Thus, even if appellant and his counsel had perceived the trial court as more lenient than the jury, appellant relied upon the law in effect at the time of his trial (error at the punishment phase before a jury would entitle him to an entirely new trial). Simply put, had appellant known that error in the punishment phase would have resulted in a retrial on punishment only, his initial decision regarding punishment by the jury may have been different.

This is not to say that every procedural rule affects a substantial right. For example, in Ex parte Johnson, 697 S.W.2d 605 (Tex.Cr.App.1985), a plurality of this Court held that art. I, § 16 was not offended by the retroactive application of Tex.Code Crim.Proc.Ann. art. 37.10(b) (reformation on appeal of judgments with unlawful punishments, rather than remanding for new trial). However, the right affected in Ex parte Johnson does not embrace a law relied upon when making strategy decisions. See also Youngblood v. Collins, — U.S. —, 110 S.Ct. 2715 .

Article 44.29(b) came into effect after appellant and his counsel made the punishment election. Retroactive application of art. 44.29(b) undoubtedly works to the detriment of appellant, not merely by removing a right to which he was entitled at the *592 time of trial, but also by removing a right upon which he likely relied in making trial strategy decisions. Therefore, it is implausible to conclude that retroactive application of art. 44.29(b) does not affect a substantial right for purposes of art. I, § 16.

C. Prospective Operation

The majority opinion also states that “a defendant has no vested right to an entirely new trial when errors relating only to the assessment of his punishment are committed. See Ex parte Johnson, 697 S.W.2d 605 (Tex.Cr.App.1985) (statutory amendment providing for reformation on appeal of judgments with unlawful punishments, rather than remanding for new trial, held applicable to all cases pending on appeal at the time of amendment).” Grimes, slip op. at 10. In my judgment, the majority fails to recognize that the retroactive application of art. 37.10(b) does not involve a strategy decision, as does art. 44.29(b).

Moreover, the precedential force of Ex parte Johnson is questionable. First, it is a plurality opinion. Second, as stated above, the retroactive application of reforming a judgment on appeal affects a less substantial right; that is, it does not involve a law relied upon to make a strategy decision. Third, Ex parte Johnson is limited by the language employed therein: “Thus, in the absence of express legislative intent to the contrary, the new law controls litigation from its effective date and applies to both pending and future actions.” Ex parte Johnson, 697 S.W.2d at 607-608 (footnote omitted) (emphasis added). The statute at issue in Ex parte Johnson, art. 37.10(b), which became effective June 11, 1985, is devoid of any language as to whether the amendment shall apply to eases tried or indicted after a particular date.

After the effective date of art. 37.10(b), the legislature passed Tex.Gov’t Code Ann. § 311.022 (effective October 1, 1985), which provides that, “A statute is presumed to be prospective in its operation unless expressly made retrospective.” (Emphasis added.) Art. 44.29 was enacted after § 311.022, and thus it is subject to § 311.022’s prospective application.

Retrospective laws are commonly regarded with disfavor, Hutchings v. Slemons, 141 Tex. 448 , 174 S.W.2d 487 (1943), and statutes generally are not be to applied retroactively. Ex parte Abahosh, 561 S.W.2d 202, 204 (Tex.Cr.App.1978); Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977).

Lastly, the majority opinion also errs in its construction of § 311.022, where it “discerns no conflict” between § 311.022 and the application of art. 44.29 to the case at bar because art. 44.29 “will be applied prospectively in the trial courts after the causes have been remanded.” Grimes, slip op. at 11 n. 9. That argument is essentially a non sequitur. That construction of § 311.022 overlooks the obvious: Article 44.29 concerns an act occurring in the future, namely, procedure on re trial; simply because it concerns a future event does not mean that the procedural mechanism can be applied retroactively to cases tried before its effective date. The article is not prospective for purposes of § 311.022.

Such a construction is inconsistent with the plain language of § 311.022, that a statute is presumed to be prospective in its operation unless expressly made retro: spective. Article 44.29 is not expressly retrospective; therefore, it is presumed to apply prospectively. Clearly, § 311.022 is required to be read in compliance with art. I, § 16’s prohibition against “retroactive law”. Tex.Gov’t Code Ann. § 311.021(1).

IV. CONCLUSION

For these reasons, I respectfully dissent to the majority opinion.

. The District Attorney’s ground for review states, “The Court of Appeals erred in holding that application of Art. 44.29(b), V.A.C.C.P., was retroactive and improper."

*589 The State Prosecuting Attorney's grounds for review state:

1) The Court of Appeals erred in remanding the case for a full trial.

2) The Court of Appeals erred in holding that Art. 44.29(b) as applied to appellant constituted an unconstitutional retroactive ex post facto law.

. U.S. Const, art. I, § 10 provides in part that, “No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any title of Nobility."

. Art. I, § 16 provides, “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”

. The majority opinion cites Cooley, A Treatise on Constitutional Limitations, 773 n. 1 (8th ed. 1927) for the proposition that the retroactive law language in art. I, § 16 does not apply to criminal cases. Grimes, slip op. at 9 n. 6. Interestingly, the United States Supreme Court has noted that Professor Cooley’s nineteenth century treatise contributed to the "confusion into the interpretation of the Ex Post Facto Clause.” Youngblood , — U.S. at —, 110 S.Ct. at 2715 .