Petition for Writ of Certiorari — Don Wilburn Collins, Petitioner v. Texas

NO. 20-_____

In the

Supreme Court of the United States

DON WILBURN COLLINS,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

Texas Court of Appeals for the Ninth District of Texas

PETITION FOR A WRIT OF CERTIORARI

E. TAY BOND

JERALD D. CROW

ATTORNEY AT LAW

200 WEST DAVIS STREET

CONROE, TX 77301

(936) 539-1007

ETAYBOND@GMAIL.COM

COUNSEL OF RECORD

ATTORNEY AT LAW

414 W. PHILLIPS STREET

SUITE 101

CONROE, TX 77301

(936) 672-1219

JERALD.CROW@GMAIL.COM

COUNSEL FOR PETITIONER

MAY 10, 2021

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Did the Texas appellate courts fail to realize

that the retroactive expansion of jurisdiction over a

previously exempt juvenile for capital murder violated

his ex post facto rights under the United States

Constitution?

ii

LIST OF PROCEEDINGS

Court of Criminal Appeals of Texas

No. PD-435-20

Don Wilburn Collins v. The State of Texas

Date of Final Opinion: February 10, 2021

_________________

Court of Appeals for the

Ninth District of Texas at Beaumont

No. 09-15-00089-CR

Don Wilburn Collins v. The State of Texas

Date of Final Opinion: March 29, 2017

_________________

359th District Court of Montgomery County, Texas

No. 15-01-00728

The State of Texas v. Don Wilburn Collins

Date of Judgment of Conviction by Court:

February 10, 2015

_________________

iii

359th District Court of Montgomery County, Texas

Nos. 6317-JV, 13-09-009849-JV, and 14-05-05423,

consolidated into No. 15-01-00728 in the 359th District

Court of Montgomery, Texas

The State of Texas v. Don Wilburn Collins

Date of Order Consolidating Cases: March 2, 2015

_________________

Juvenile Court of Montgomery County, Texas

Nos. 13-09-009849-JV, 12-09-09943-JV, and 6317-JV,

consolidated into No. 14-05-05423 in the 359th District

Court of Montgomery, Texas

The State of Texas v. Don Wilburn Collins

Date of Order Consolidating Cases: July 9, 2014

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PROCEEDINGS .......................................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 2

STATEMENT OF THE CASE .................................... 3

A. Procedural History ........................................... 3

B. Facts Material to Consideration of Questions Presented ................................................. 4

REASONS FOR GRANTING THE PETITION ......... 8

I.

PROSPECTIVE V. RETROSPECTIVE STATUTES ...... 8

CONCLUSION.......................................................... 11

v

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order of the Court of Criminal Appeals of Texas

Denying Petition for Discretionary Review

(February 10, 2021)

Opinion of the Court of Appeals for the

Ninth District of Texas (March 29, 2017).......... 2a

Judgment of the Court of Appeals for the

Ninth District of Texas (March 29, 2017)........ 43a

Judgment of Conviction By Jury

(February 10, 2015) .......................................... 45a

Indictment

(January 22, 2015)............................................ 50a

CONSTITUTIONAL AND STATUTORY PROVISIONS

Relevant Constitutional and

Statutory Provisions......................................... 53a

vi

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Calder v. Bull,

3 U.S. (3 Dall.) 386 (1798) .................................. 10

Carmell v. Texas,

529 U.S. 513 (2000) ............................................. 6

Commonwealth v. Jaimie Fuller,

421 Mass. 400 (1995) ......................................... 10

Decordova v. City of Galveston,

4 Tex. 470 (1849) ................................................. 8

Miller v. Florida,

482 U.S. 423 (1987) ............................................. 7

Russell v. Board of Trustees of Fireman,

Policemen and Fire Alarm Operators’

Pension Fund of Dallas Tex.,

968 F.2d 489, rehearing denied,

certiorari denied 507 U.S. 914 (1999) ................. 8

State v. Arellano, 801 S.W.2d 128

(Tex.App.–San Antonio 1990) ......................... 8, 9

United States v. Juvenile Male,

819 F.2d 468 (4th Cir. 1987)................................ 10

Weaver v. Graham,

450 U.S. 24, 101 S.Ct. 960,

67 L.Ed.2d 17 (1986) ......................................... 10

CONSTITUTIONAL PROVISIONS

U.S. Const. Art I, § 9............................................... 2, 5

vii

TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. § 1257(a) ..................................................... 1

Tex. Gov’t Code § 311.022 ......................................... 2, 8

Tex. Penal Code Ann. § 12.31(a) ................................ 7

Texas Family Code § 54.02(j) ........................... 4, 5, 7, 9

Texas Family Code § 54.03 ......................................... 7

Texas Family Code, Act 1995, 74th Leg., ch.

262, § 34(j)(1) and (2)(A), eff. Jan.1, 1996 .. 2, 5, 6

Texas Family Code, Act 1999, 76th Leg., ch.

1477, § 39(a) and (d), eff. Sept. 1, 1999 .......... 2, 9

Texas Family Code, Act 1999, 76th Leg., ch.

1477, § 8(j)(1) and (2), eff. Jan. 1, 1999 .......... 2, 5

JUDICIAL RULES

Sup. Ct. R. 10 ........................................................... 10

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Don Wilburn Collins, respectfully petitions for a writ of certiorari to review the judgment of

the Texas Court of Criminal Appeals in this case.

OPINIONS BELOW

The 359th District Court of Texas, Montgomery

County, following a jury trial, entered a judgment of

conviction on February 11, 2015. (App.45a). The Court

of Appeals, Ninth District of Texas of Beaumont

affirmed the judgment on March 29, 2017. (App.2a,

43a). The Texas Court of Criminal Appeals denied a

petition for discretionary review on February 10,

2021. (App.1a).

JURISDICTION

This Court has jurisdiction over the petition pursuant to 28 U.S.C. § 1257(a), as the denial of review

by the Texas Court of Criminal Appeals (App.1a) is

the final judgment rendered by the state courts of

Texas.

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The following constitutional provisions and

statutes are included below in the appendix.

Constitutional Provisions

•

U.S. Const. Art I, § 9. (App.53a)

Texas Statutes

•

Texas Family Code, Act 1995, 74th Leg.,

ch. 262, § 34(j)(1) and (2)(A), eff. Jan.1,

1996. (App.54a)

•

Texas Family Code, Act 1999, 76th Leg., ch.

1477, § 8(j)(1) and (2), eff. Jan. 1, 1999.

(App.59a)

•

Texas Family Code, Act 1999, 76th Leg., ch.

1477, § 39(a) and (d), eff. Sept. 1, 1999.

(App.65a)

•

Texas Government Code, § 311.015. (App.68a)

•

Texas Government Code, § 311.016. (App.68a)

•

Texas Government Code, § 311.021. (App.69a)

•

Texas Government Code, § 311.022. (App.70a)

3

STATEMENT OF THE CASE

This is an appeal of a Texas capital murder

conviction in a juvenile case and a sentence of 40

years imprisonment. The issues in the case involve

constitutional provisions of the United States regarding

ex post facto laws and their retrospective application

to a defendant.

A.

Procedural History

1. September 18, 2012–Petition for Discretionary

Transfer-Murder (CR II, 106).

2. October 12, 2012–Motion and Order to Dismiss

the Petition for Discretionary Transfer (CR II, 112).

3. September 16, 2013–Petition for Discretionary

Transfer (COA, 12; no record copy).

4. January 22, 2015–Indictment (CR V, 629).

5. January 30, 2015–Order of Transfer (CR V,

642; no record copy).

6. February 11, 2015–Order Consolidating Case

in Nos. 6317-JV, 13-09-009849-JV, and 14-05-05423,

consolidated into No. 15-01-00728 (CR II, 119).

7. February 10, 2015–Judgment of Conviction and

sentence (CR5, 697).

8. February 15, 2015–Notice of Appeal (CR5, 707).

9. October 23, 2015–Brief filed with 9th Court of

Appeals (09-15-00089-CR).

10. March 29, 2017–9th Court of Appeals

affirmed.

4

11. May 15, 2017–Filed Petition for Discretionary

Review with the Texas Court of Criminal Appeals

(PD-0469-17) which was “stored”.

12. November 12, 2019–Filed Application for a

Writ of Habeas Corpus with the Texas Court of

Criminal Appeals (WR-90,936-01)

13. April 1, 2020–Relief granted by the Texas

Court of Criminal Appeals on Writ of Habeas Corpus,

approving an extension to file Out-of-Time Petition

for Discretionary Review.

14. May 6, 2020–Extension of time granted by

the Court of Criminal Appeals in which to file the

Petition for Discretionary Review (PD-0435-20).

15. June 23, 2020–Petition for Discretionary

Review filed with the Court of Criminal Appeals (PD0432-20).

16. February 10, 2021–Refusal of Petition for

Discretionary Review from the Court of Criminal

Appeals (PD-0435-20).

B.

Facts Material to Consideration of Questions

Presented

In June of 1998, Robert Middleton, an eight-yearold child, was doused with gasoline by Don Wilburn

Collins, a 13-year-old child, born on April 4, 1985, and

set on fire (Clerk’s Record 2, 106). Middleton suffered

burns over 95% of his body and later developed skin

cancer due to complications from his burn wounds in

1998, and died in April 2011. The 1998 Texas Family

Code § 54.02(j) prohibited the transfer and prosecution

of thirteen-year-old juveniles in felony court and further

prohibited the transfer and prosecution of children who

5

had reached their eighteenth birthday before being

prosecuted. Acts 1995, 74th Leg., ch. 262, § 34(j)(2)(A),

eff. Jan.1, 1996 In 1999, the Texas Legislature amended § 54.02(j)(2)(A) of the Texas Family Code to permit

the transfer and trial of children charged with felony

capital murder to ages 10 but under age 17 effective

September 1, 1999. Acts, 1999, 76th Leg., ch 1477,

§ 8, effective September 1, 1999.

After Middleton’s death in 2011, Petitioner was

charged with Middleton’s murder, transferred to felony

court for trial, convicted of capital murder, and

sentenced to 40 years imprisonment pursuant to the

1999 amendments to Texas Family Code § 54.02(j)

(2)(A). Family Code § 1477, § 8, eff. September 1, 1999.

Petitioner says the application of the 1999 Texas

Family Code Amendments § 54.02(j)(2)(A) to Petitioner’s case violated his rights under the ex post facto

provisions of the Constitution, Art I, sec. 9.

The transfer and prosecution of Petitioner’s

juvenile capital murder case pursuant to the 1999

Texas Family Code Amendments was a violation of

Petitioner’s rights under the ex post facto provisions

of art. 1, § 9 of the United States Constitution, as the

State brought a case against the Petitioner from which

he was immune when the act that began this was

committed.

An ex post facto law is one which either (1)

punishes as a crime an act previously committed which

was innocent when done; (2) changes the punishment

and inflicts a greater punishment than the law

attached to a criminal offense when committed; (3)

deprives a person charged with a crime any defense

available at the time the act was committed; or (4)

6

alters 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 offender. Carmell v. Texas, 529 U.S. 513

(2000).

In 1998, the Texas Family Code prohibited both

the transfer and prosecution of thirteen (13) year old

children in district court and transfer and prosecution

of children in district court who had reached the age

of 18 prior to their transfer and prosecution. Act of May

31, 1995, 74th Leg., R.S., ch 262, § 34.

Petitioner was 13-years-old on June 28, 1998

(DOB: April 4, 1985) and was exempt from transfer

and prosecution as an adult in felony court under

Texas law. The State of Texas, in the person of the

County Attorney who handled this matter, brought

juvenile petitions for assault. However, County

Attorney dismissed them, thus willfully allowing the

Petitioner to age out past juvenile jurisdiction for the

underlying assault. In so doing, it exposed Petitioner

to a punishment much more severe than the six or so

years he might have spent in a juvenile institution in

Texas. The transfer exposed Petitioner to a lengthy

adult prison sentence for either assault [aggravated

by serious bodily injury in this case] or capital murder.

Likewise, Petitioner was 27 years of age at the

time he was transferred and tried for the murder of

Middleton and was exempt from transfer and prosecution in felony court. Petitioner and his attorneys began

challenging the possible transfer of his juvenile case

to felony court as an ex post facto violation of his

rights on January 8, 2014, by written motion during

juvenile proceedings in Petitioner’s case [The clerk’s

record in Volume 3 shows the motion at pg 169.] Peti-

7

tioner has continued to maintain his ex post facto

defense throughout each appellate step in his case.

Defense counsel argued specifically that application

of the 1999 Texas Family Code Amendments to his case

would deprive him of the opportunity to challenge

the jurisdiction of the trial court to transfer and

prosecute him for acts which were not prosecutable

when done. At the conclusion of the transfer hearing,

the Court transferred Petitioner’s case for trial to

felony court upon a charge of felony capital murder

pursuant to the provisions of the 1999 amendments

to § 54.02(j) of the Texas Family Code (7 R.R. 84).

Petitioner was 29-years-old at the time of his trial.

When Petitioner’s case was transferred, he became

subject to a sentence of life imprisonment in the event

of his conviction for capital murder. Tex. Penal Code

Ann. § 12.31(a).

By prosecuting Petitioner under the provisions

of the 1999 Family Code Amendments, he became

subject to a possible life imprisonment upon conviction

for murder rather than a 40-year sentence under §§ c)

and (3) of the 1995 Texas Family Code. The exposure

to more severe sentences upon transfer violated the

provisions of ex post facto, as did the appellate court’s

approval of a retroactive application of the jurisdictional expansion. Miller v. Florida, 482 U.S. 423 (1987).

8

REASONS FOR GRANTING THE PETITION

1. The Texas appellate courts failed to realize

that the retroactive expansion of jurisdiction over a

previously exempt juvenile for capital murder violated

his ex post facto rights under the United States

Constitution.

2. The Texas appellate court approved this saying

that the expansion of jurisdiction was merely procedural and did not implicate the ex post facto clause.

The Texas Court of Criminal Appeals refused review.

PROSPECTIVE V. RETROSPECTIVE STATUTES

Under Texas law, an amendment to a statute is

presumed not to apply retrospectively. Russell v. Board

of Trustees of Fireman, Policemen and Fire Alarm

Operators’ Pension Fund of Dallas Tex., 968 F.2d

489, rehearing denied, certiorari denied 507 U.S. 914

(1999).

A Texas statute is presumed to be prospective in

its operation unless expressly made retrospective.

V.T.C.A., Government Code § 311.022; State v.

Arellano, 801 S.W.2d 128, 131 (Tex.App.–San Antonio

1990; no pet.).

Laws are deemed retrospective and within the

constitutional prohibition, which by retrospective

operation, destroy or impair, vested rights. Decordova

v. City of Galveston, 4 Tex. 470, 479 (1849).

The State’s position regarding the application of

the 1999 Family Code Amendments to Petitioner’s case

was that the Legislature made the 1999 amendments

9

to the discretionary statute apply to any motion seeking

a transfer if the motion was filed after September 1999.

Act of May 27, 1999, 76th Leg., R.S. ch. 1477, Section

39(d) Section 39(d) of the 1999 amendments provides

as follows:

Section 39(d). The change in law made by

Section 8 of this Act applies to discretionary

transfer proceedings in which the discretionary transfer petition or motion was filed on or

after the effective date of this Act.

The County filed the transfer motion in question

on September 16, 2013. The Texas 9th Court of Appeals

held that the enabling language in the 1999 amended

discretionary transfer statute authorized the juvenile

court to transfer Petitioner’s case for trial.

The 1999 Amendments to Texas Family Code

Section 54.02(j) contain no affirmative statement by

the Legislature that the Amendments were to apply

retrospectively. Consequently, the intent of the Legislature is controlling concerning the application of the

1999 Amendments to Petitioner’s case. State v. Arellano,

801 S.W.2d at 131.

Petitioner says the 1999 Texas Legislature manifested its intent that the 1999 Amendments to Texas

Family Code Section 54.02(j), effective September 1,

1999, were not to be applied retrospectively to his case

by including Section 39(a) in the 1999 amendments.

Section 39(a) provides as follows:

Section 39(a). Except as provided otherwise by

this section, the change in law made by this

Act applies only to conduct that occurs on or

after the effective date of this Act. Conduct

violating a penal law of the state occurs on

10

or after the effective date of this Act if every

element of the violation occurs on or after

that date. Conduct that occurs before the

effective date of this Act is covered occurred,

and by the law in effect at the time the

conduct the former law is continued in effect

for that purpose.

An examination of the elements of Petitioner’s

charge from the Clerk’s record reveals that every

element of Petitioner’s charge occurred in 1998, save

and except the death of Middleton. Consequently the

1999 Amendments to the 1998 Texas Family Code

were erroneously applied to Petitioner’ s case in

violation of the ex post facto provisions of the United

States Constitution. Pursuant to Supreme Court

Rule 10 this matter could potentially affect thousands

of juveniles across the country because, if allowed to

stand, it permits any mistake made during youth to

be brought back to criminal life for transfer to the

criminal adult courts. It is in clear conflict with federal law as interpreted by the Fourth Circuit. See

United States v. Juvenile Male, 819 F.2d 468 (4th

Cir. 1987). It is in clear conflict with other states. See

Commonwealth v. Jaimie Fuller, 421 Mass. 400 (1995).

It is also a mistake by the Texas courts to begin

their analysis by looking at the date of the transfer

order, which the 9th Court of Appeals did (see Opinion,

App.3a). It has been well-settled law for nearly two

hundred years that the relevant date for ex post facto

analysis is the date of the offense, not the date of

prosecution. Calder v. Bull, 3 U.S. (3 Dall.) 386, 39091 (1798); Weaver v. Graham, 450 U.S. 24, 30-31, 101

S.Ct. 960, 965, 67 L.Ed.2d 17 (1986).

11

CONCLUSION

The Petitioner respectfully prays that writ of

certiorari should be granted by the Court.

Respectfully submitted,

JERALD D. CROW

COUNSEL OF RECORD

ATTORNEY AT LAW

414 W. PHILLIPS STREET

SUITE 101

CONROE, TX 77301

(936) 672-1219

JERALD.CROW@GMAIL.COM

E. TAY BOND

ATTORNEY AT LAW

200 WEST DAVIS STREET

CONROE, TX 77301

(936) 539-1007

ETAYBOND@GMAIL.COM

COUNSEL FOR PETITIONER

MAY 10, 2021