Petition — McWilliams v. Texas

Office - Supreme Court, U.S.

82-425 FILED

SEP 18 1982

No.

ALEXANDER L. STEVAS.

CLERK

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1982

EX PARTE STEPHEN A. MCWILLIAMS

ON WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

Robert L. Ketchand

Butler, Binion, Rice, Cook & Knapp

1747 Pennsylvania Ave., N.W.

Suite 900

Washington, D.C.

(202) 466-6900

Counsel of Record for Petitioner

WUESTIONS PRESENTED

I. WHETHER THE FACTS KNOWN TO THE TRIAL

COURT RAISED SUFFICIENT DOUBT AS TO

McWILLIAMS' COMPETENCY TO REQUIRE

THAT THE TRIAL COURT DETERMINE

MCWILLIAMS’ COMPETENCY

BEFORE HE PLED GUILTY.

II. WHETHER THE TEXAS COURT OF CRIMINAL

APPEALS UNEXPECTEDLY ABANDONED

TEXAS' CARVING DOCTRINE AND RETRO-

o ACTIVELY AND AS AN EX POST

FACTO LAW UPHELD McWILLIAMS'

CONVICTION FOR THE OFFENSE

OF AGGRAVATED KIDNAPPING.

PARTIES

Stephen A. McWilliams was petitioner

below. The State of Texas was respon-

dent.

TABLE OF CONTENTS

QUESTIONS PRESENTED......eceeecees

PARTIES .cccccccccccccccccccccccees

OPINIONS BELOW... cee cccccccccces

JURISDICTION... cceeccccccscccccces

CONSTITUTIONAL PROVISIONS.........

STATE STATUTES... .cccccccccccsccces

STATEMENT OF THE CASE........seee.

REASONS FOR GRANTING THE WRIT.....

Ze The Facts Known To The

Trial Court Raised Suf-

ficient Doubt As To

McWilliams’ Competency

To Require That The

Trial Court Determine

McWilliams’ Competency

Before He Pled

Guilty. ccccccccccccccces

II. The Texas Court of Criminal

Appeals Unexpectedly

Abandoned Texas’ Carving

Doctrine and Retroactively

and as an Ex Post Facto

Law upheld McWilliams’

Conviction for the

Offense of Aggravated

Kidnapping.....ceccseees

12

12

23

TABLE OF AUTHORITIES

Cases: Page

Bishop v. United States,

U.S. Desececeoees 13

Bouie v. City of Columbia,

378 U.S. 347 ye 26

; Douthit v. State,

(Tex. Crim. App. 1971)........ 24

Drope v. Missouri

of =e i), | eee CF

Dusky v. United States,

362 U.S. 402 a 13

Foster v. Barbour

462 F. Supp. 582 (W.D.N.C.

1978), aff'd, 613 F.2d........ 26-27

59 (198

Herera v. State,

Tex. Crim. 607,

34 S.W. 943 es 24

¢ Love v. Fitzharris,

F. 2 (9th

. Cir. 1972), vacated,

‘ 409 U.S. 1160 (1973).......... 26

Marks v. United States,

SOS Gebe SED Chet EP ccccccccece BBs

26,

27

Paschal v. State,

Tex. Crim. lll,

90 S.W. 878 See eececcesceses 24

-iii-

Cases: Page

Pate v. Robinson,

i <—e 2 aas ” -

United States v. Goodheim,

657 F.2d 1294 (9th Cir.

1981), reh'g denied,

664 F.2d 754 (Sth Cir.

EDGR Cocesceeeeeeeoeoceseseeeeese 26

Wilson v. State,

. ¢§ — ££ eas =

24

U.S. Constitutional Provisions

U.S. CONST. art I, § 10, cl. 1...-- 1

U.S. CONST. amend. XIV, § Becoceece 1

Texas Statutes

TEX. STAT. ANN. art.

§ 11.07 (Vernon 1977)........-. 9

TEX. SUAT. ANN. CODE OF CRIM. PROC.

art. 46.02 (Vernon 1979)

GB ZA) ccccccececccecccececcccs Ze

G 4a) ccccccccccecccccsecsccces @

TEXAS BILL OF RIGHTS,

art. I, GB BGcccesdvecesecececss 23

-iv-

OPINIONS BELOW

The opinions of the Texas Court of

Criminal Appeals are reported at 634

S.W.2d 815 (Tex. Crim. App. 1982).

JURISDICTION

The original decision of the Texas

* Court of Criminal Appeals granting in

part petitioner's Writ of Habeas Corpus

was delivered October 15, 1980. (App. I)

The Court's decision concerning the

motion for rehearing by respondent was

delivered May 12, 1982. (App. II) The

Court's denial of petitioner's second

motion for rehearing occurred on July 14,

1982. (App. IV) This Court has juris-

diction to review the judgment by Writ of

Certiorari under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS

U.S. CONST. art. I, § 10, cl. l.

No State shall .. . pass any

* « « @X post facto law....

U.S. CONST. amend. XIV, § l.

All persons born or naturalized in

the United States and subject to the

jurisdiction thereof, are citizens

of the United States and of the

ole

OOo

State wherein they reside. No State

shall make or enforce any law which

shall abridge the privileges or

immunities of citizens of the United

States; nor shall any state deprive

any person of life, liberty or

property, without due process of the

law; nor deny to any person within

its jurisdiction the equal protec-

a tion of the laws.

STATE STATUTES

TEX. STAT. AMN. Code of Crim. Proc. art.

46.02 (Vernon 1979).

Sec. 2. (a) The issue of

defendant's incompetency to stand

trial shall be determined in advance

of the trial on the merits if the

court determines there is evidence

to support a finding of incompetency

to stand trial on its own motion or

on written motion by the defendant

or his counsel filed prior to the

date set for trial on the merits

asserting that the defendant is

incompetent to stand trial.

Sec. 4. (a) If the court

determines that there is evidence to

support a finding of incompetency to

stand trial, a jury shall be im-

: paneled to determine the defendant's

competency to stand trial. This

determination shall be made by a

jury that has not been selected to

determine the guilt or innocence of

the defendant. If the defendant is

found incompetent to stand trial, a

further hearing may be held to

determine whether or not the defen-

dant is mentally ill and requires

observation and/or treatment or

hospitalization in a mental hospital

for his own welfare and protection

or the protection of others or

-2-

eee

whether he is a mentally retarded

person as defined in The Mentally

Retarded Persons Act (Article 3871b,

Vernon's Texas Civil Statutes), and

requires commitment to a mental

retardation facility.

STATEMENT OF THE CASE

Alleged Crime

The State of Texas alleged that

on March 21, 1975, Stephen McWilliams

entered and robbed a convenience store,

forced the cashier into her car, drove

into the country and there compelled the

cashier to engage in various sexual acts

(DX 1). 1/

Record at Guilty Pleas

On July 24, 1975, McWilliams pled

guilty to the offenses of aggravated

robbery (Cause No. 10,169), aggravated

ne

it

Ht

He

al

Texas. "TR" refers to the transcript the

habeas corpus proceedings. DX 1 contains

the Statement of Facts and State's Exhibits

from McWilliams’ trial at which he entered

his guilty pleas.

rape (Cause No. 10,170) and aggravated

kidnapping (Cause No. 10,171) in the

23rd Judicial District Court of Fort Bend

County, Texas (DX 1, p. 3). During the

course of receiving his guilty pleas, the

Court was informed by McWilliams that he

. had been in two mental institutions in

1972 and had escaped from one (DX l,

pp. 6-11). On further inquiry, the

Court was told that neither McWilliams

nor his counsel knew the diagnoses of

the psychiatrists while he was in the

mental institutions (DX 1, p. 8).

The Court was thereafter presented

with a two page report of a psychiatric

examination by Dr. Benjamin Sher which

the Court read (DX 1, pp. 13-14).

Dr. Sher examined McWilliams on May 24,

1975, in the Fort Bend County Jail at

the request of the District Attorney and

concluded: "Although Mr. McWilliams was

only selectively cooperative his psychia-

tric picture indicated that he is of

sound mind and competent to understand

-4-

De, 6 er eer ae ee i een ees

the nature of the proceedings against him

and to properly assist in his owr de-

fense" (DX 1, SX 9).

Dr. Sher's report did not explain

the reasons for the 1972 hospitalization,

nor did Dr. Sher indicate that he

had reviewed any medical records of

McWilliams. Dr. Sher's report noted that

McWilliams “stated that he was sent to

the hospital by the court” (DX 1, SX 9).

The report further stated that McWilliams

"told me that he cut his wrist" (DX l,

SX 9). Finally, McWilliams "gave a long

history of delinquent behavior" including

receiving an Undersirable Discharge from

the service. At no time did the Court

inquire about the judicial commitment

Dr. Sher reported, nor any suicide

attempt, nor did the Court inquire into

McWilliams’ history of aberrant behavior.

McWilliam's guilty pleas were accepted

and three concurrent sentences of thirty

years were imposed for aggravated

robbery, aggravated rape and aggravated

kidnapping.

Record at Writ of Habeas Corpus Hearing

As the record in the subsequent Writ

of Habeas Corpus proceedings now indi-

cates, McWilliams attempted suicide on

May 2, 1969 (DX 4) and on May 30, 1969

(DX 5). On January 10, 1972, McWilliams,

for a third time, again attempted suicide

in the jail of Schenectady, New York,

while awaiting trial for robbery, lar-

ceny, attempted rape and escape (DX 6).

When he attempted suicide in the New York

jail, McWilliams heard voices telling him

he was no good (DX 7). As a result of

that incident, on January 18, i972, the

County Court of the County of Schenectady,

State of New York, found that McWilliams

"as a result of mental disease or defect

lacks capacity to understand the pro-

ceedings against him or to assist in his

own defense” and entered an “Order of

Commitment" to the custody of the

Commissioner of Mental Hygiene of the

State of New York for one year (DX 2).

On January 19, 1972, McWilliams was

admitted to the Mattewan State Hospital

in New York (DX 7). The official diag-

nosis of the Mattewan State Hospital

staff was "Psychotic Depressive Reaction;

Personality Disorder, Paranoid Type; Drug

Dependence, Cannabis Sativa" (DX 7).

McWilliams remained in the Mattewan State

Hospital until September 27, 1972, when

he was transferred to the Utica State

Hospital (DX 7). On October 9, 1972,

McWilliams escaped from Utica (DX 7}.

McWilliems' final official mental diag-

nosis on January 22, 1973 was "Psychotic

Depressive Reaction; Personality Dis-

order, Paranoid; Drug Dependence, Mari-

juana"; he was further diagnosed “Not

Competent. Not Employable. Unimproved"

(DX 7).

On March 22, 1975, McWilliams was

arrested in Fort Bend County, Texas, and

charged with aggravated robbery, aggra-

vated rape and aggravated kidnapping (DX

1, SX 4). On April 21, 1975, McWilliams

slashed his wrists while in the Fort Bend

County Jail after hearing voices telling

him to kill himself (DX 8). McWilliams

was treated at Ben Taub Hospital in

Harris County, Texas, where the initial

intake medical report described him as

"chronic schizophrenic” (DX 8).

On November 18, 1979, Dr. Lucian T.

Jones, a clinical psychologist, examined

McWilliams in the Fort Bend County Jail.

After the interview and his review of

McWilliams’ medical records, Dr. Jones

stated that "Stephen A. McWilliams, white

male, age 34, has and is experiencing a

thought disorder and can be considered

to have been chronically psychotic for

a number of years." Dr. Jones further

indicated that McWilliams was not

competent at the time he entered his

guilty plea on July 24, 1975 (DX 3).

Court Action on AcWilliams'

Writ of Habeas Corpus

In his Petition for Writ of Habeas

Corpus, his First Supplemental Petition

and his Second Supplemental Petition,

McWilliams alleged, (a) that he was

incompetent at the time of his pleas,

(b) that the trial court should have

conducted a competency hearing before

accepting his pleas, and (c) that two of

his three convictions violated the Texas

carving doctrine. 2/ Pursuant to Texas

law, 3/ McWilliams’ claims first came

before the District Court of Fort Bend

County, Texas, for a hearing and findings

of fact. The District Court agreed that

two of the charges against McWilliams

violated the carving doctrine and should

be dismissed (SF 28). The District

Attorney concurred (SF 28).

—

2/ See; Appendices VI, VII and VIII, for the

exact language of McWilliams’ Petitions.

3/ ‘TEX. STAT. ANN. art. 11.07 (Vernon 1977).

The Court of Criminal Appeals in an

8-1 en banc decision dismissed McWilliams’

aggravated kidnapping and rape convic-

tions while upholding his sentence for

aggravated robbery. Ex Parte Stephen

McWilliams, 634 S.W.2d 815 (Tex. Crim.

App. 1982). 4/ The aggravated rape

charge was dismissed for reasons no

longer relevant. The aggravated kic>-

napping charge was dismissed because it

violated the Texas carving doctrine.

However, the Court found that the

evidence before the Trial Court at the

time McWilliams' pled guilty to robbery

failed to raise "a bona fide doubt" as to

his mental competence and therefore did

not require a hearing.

Thereafter McWilliams filed with the

Court of Criminal Appeals a motion for

rehearing, reasserting his incompetence

at the time of his guilty pleas and the

4/ See Appendix I for the Court of Appeals’

opinion.

Trial Court's failure to order a com-

pentency hearing. The State of Texas

also sought a rehearing, arguing, inter

alia, that the carving doctrine should be

abandoned. In its Opinion on State's

Motion for Rehearing, the Court of

Criminal Appeals abandoned the carving

doctrine and McWilliams’ conviction for

aggravated kidnapping was reinstated. Ex

Parte McWilliams, 634 S.W.2d 815. 5/

McWilliams filed a second motion for

rehearing, raising again the competency

issues and also alleging that the Court's

retroactive application of its decision

to abandon the carving doctrine con-

stituted an ex post facto law. This

second motion was also denied. 6/

REASONS FOR GRANTING THE WRIT

I. THE FACTS KNOWN TO THE TRIAL COURT

RAISED sSUFFICTENT DOUBT AS TO

McWILLIAMS' COMPETENCY TO REQUIRE

THAT THE TRIAL COURT DETERMINE

MCWILLIAMS’ COMPETENCY BEFORE HE

PLED GUILTY.

Befure accepting McWilliams’ guilty

pleas, the Trial Court was made aware

that McWilliams had been confined in two

mental institutions a few years earlier,

that his commitment to the first insti-

tution was pursuant to a judicial order,

that his stay at the second institution

was cut short by his escape and that

McWilliams had attempted suicide.

Despite this overwhelming evidence of

possible incompetency, no competency

hearing was instituted. 7/ Indeed, the

Trial Court failed even to conduct a

7/ Article 46.02 of the Texas Code of Criminal

Procedure, which was in effect at the time

that

of McWilliams’ guilty plea, indicates

McWilliams was entitled to a

campetency

hearing. In pertinent part Article 46.02

says:

Footnote continued on next page.

reasonably thorough interrogation of

McWilliams about these indicia of in-

competence.

Conviction of a person while he is

legally incompetent violates the Due

Process Clause of the Fourteenth Amend-

ment of the United States Constitution.

Dusky v. United States, 362 U.S. 402

(1960); Bishop v. United States, 350 U.S.

961 (1956). Pursuant to this principle,

this Court has declared that failure to

conduct a competency hearing when a judge

is aware of facts which raise reasonable

doubt as to a defendant's competence is

likewise a violation of the Due Process

Clause. Pate v. Robinson, 383 U.S. 375

(1966); Drope v. Missouri, 420 U.S. 162

(1975). In Drope v. Missouri, this Court

described its landmark Pate decision as

follows:

In Pate v. Robinson ... we

held that the failure to observe

rocedures adequate to protect a

ema ri he not to be

tried or convicted while incom-

petent to stand trial deprives

him of his due process right to

a fair trial.

Id. at 172 (emphasis added).

Pate and Drope are the only two

Supreme Court cases which discuss the

circumstances under which a trial court

must on its own motion thoroughly in-

vestigate a defendant's competency to

stand trial. In both those cases the

Court found that further investigation

should have occurred. A comparison

of the facts in those cases with the

facts in the present case compels the

conclusion that McWilliams also was

entitled to further investigation of

his competence by the Trial Court.

In Pate the evidence consisted of

witnesses who recounted episodes of

irrational behavior by defendant, a

previous conviction of defendant for

. killing his son and a previous commitment

of defendant by his family to a psychia-

tric nospital. But the hospital had

declared defendant "recovered," Pate v.

Robinson, 383 U.S. at 380, and a state

psychiatrist had determined that defen-

dant “knew the nature of the charges

against him and was able to cooperate

with counsel when he examined him two

ox three months before trial," Id. at

383, and during trial defendant had been

alert and able to conduct intelligent

conversations with the judge. Id. at

385. On these facts the Supreme Court

held defendant entitled to a competency

hearing. In a later case, the Court

characterized its Pate hoiding as

follows:

Le

(T)he Court did . . . indicate that

a history of irrational behavior is

a relevant factor which, on the

record before it, was sufficient

to require further inquiry notwith-

standing Robinson's [normal] de-

meanor at trial and the stipulated

opinion of a psychiatrist that

[defendant] knew the nature of

4 the charges against him and could

cooperate with counsel when the

: psychiatrist examined him two or

. three months before.

Drope v. Missouri, 420 U.S. at 172, n. 9.

In Drope the evidence included a

psychiatric report stating that defen-

dant, “although cooperative in the ex-

amination, ‘had difficulty in preparing

well,’ ‘had a difficult time relating,'

and ... ‘was markedly circumstantial and

irrelevant in his speech.'" The report

concluded that defendant had a “border-

line mental deficiency” and “chronic

anxiety reaction with depression." Id.

at 175-176. The court was also informed

of various episodic irrational acts of

defendant, and during trial defendant

attempted suicide. On the other hand,

the psychiatric report stated that

defendant did not have "'any delusions,

-16-

illusions, [or] hallucinations. . .,'

‘was well oriented in all spheres,' and

‘was able, without trouble, to answer

questions testing judgment.'" Id. at

175. Further, defendants’ demeanor

during trial was normal. On these facts

¥ the Court again held that the trial court

on its own motion should have conducted a

competency hearing.

Although the Trial Court in this

case faced a set of facts strikingly

similar to those in Pate and Drope, it

failed to order a competency hearing or

even to conduct a reasonably thorough in-

terrogation of McWilliams. It did not

ask McWilliams a single question about

slashing his wrists. Had it pursted the

matter, it might have discovered several

suicide attempts, including a recent

attempt in the Texas Fort Bend County

Jail while McWilliams awaited trial

for the very offenses for which he

was attempting to plead guilty. Ques-

tioning by the Court about the most

-l7-

_EOOO EE?

recent suicide attempt would have re-

vealed that McWilliams had heard voices

telling him to kill himself and that

after the slashing of his wrists he was

taken to Ben Taub Hospital in Harris

County, Texas where an initial intake

. report described McWilliams as “chrenic

schizophrenic” (DX-8).

Besides the suicide attempts, th

Court also failed to question McWilliams

about a prior judicial commitment to a

mental institution. An adequate inves-

tigation would have shown that McWilliams’

commitment was due to a determination of

incompetence to stand trial in New York

under circumstances almost identical to

those which reoccurred in Texas. The few

questions the Court did ask concerned

McWilliams’ treatment and ¢’agnoses at

the mental institutions where he had

stayed. McWilliams reported that he had

received medication and psychiatric

consultation, but did not know the

doctors’ diagnoses (DX 1, pp. 8-9).

-18-

_———— ns

Finally, the Court asked no

questions about the various incidents of

aberrant and irrational behavior brought

to the Court's attention in Dr. Sher's

report.

. All the above indicia of incompe-

tency were ignored by the Trial Court.

Instead, the Court and McWilliams’

court-appointed counsel chose to rely

entirely on the state-hired psychia-

trist's two-page report, written after a

brief jailhouse interview of McWilliams.

(DX 1, p. 8). The report gave no

explanation of McWilliams’ stays at

mental institutions, no details of the

reported judicial commitment nor did it ,

indicate that any of McWilliams’ medical

records had been reviewed - even those at

nearby Ben Taub Hospital.

In Drope v. Missouri, 420 U.S. at

180, this Court stated:

The import of our decision in Pate

- « « is that evidence of a defen-

dant's irrational behavior, his

demeanor at trial, and any prior

medical opinion on competence to

EO

stand trial are all relevant in

determining whether further inquiry

is required {of a court], but that

even one of these factors standing

alone may, in some circumstances, be

sufficient.

In other words, the substantial presence

of just one of the three elements listed

here by the Court requires a judge to

conduct further reasonable inquiry. The

Trial Court had abundant evidence of past

medical determinations of mental illness

and of irrational behavior but failed to

discharge its duty of further inquiry.

When the issue of McWilliams’

incompetency was presented to the Texas

Court of Criminal Appeals in connection

with this Writ of Habeas Corpus, the

Court of Criminal Appeals failed to

consider even the full range of informa-

tion actually known to Trial Court which

received McWilliams’ guilty pleas. The

Court of Criminal Appeals erroneously

stated:

In the instant case, the

only matters which could have

raised the question of compe-

tency at the time of trial was

-20-

———— ee fo

information concerning peti-

tioner's two prior commitments

at mental institutions.

Ex Parte McWilliams, Id. at 820. As is

demonstrated above the psychiatrist's

report, read by the Trial Court, refers

to suicide attempts, a judicial commit-

ment, and a history of aberrant behavior.

This evidence “raised the question of

competency." Id.

Furthermore, the Court of Criminal

Appeals dismissed the evidence of

McWilliams’ incompetency presented in

connection with the Writ of Habeas Corpus

with the observation that there was "no

showing that any of the evidence from the

evidentiary hearing was before the trial

court at the time petitioner pled guilty."

Id. at 821. The answer to this off-hand

treatment of the case has previously been

given by this Court:

Rather, the dispute concerns

the inferences that were to

be drawn from «he undisputed

evidence and whether, in light

of what was then known, the

failure to make further inguiry

————

into petitioner's competence to

stand trial, denied him a fair

trial.

Drope at 174-175 (emphasis added). In

short, thy evidence developed in

connection with the writ of habeas

corpus established what could have

: been known had there been adequate

inguiry.

Rather than a full inquiry into

the known facts suggesting mental

incompetency, the trial court merely went

through the form of an inquiry. The

attitude is indicated by the following

colloquy at the time of McWilliams’

guilty plea:

The Court: Ali right,

what was the diagnosis by the

psychiatrist or the doctor

which examined you; did they

. tell you?

The Defendant: Various

things, I don't know.

Mr. Schwartz [McWilliams'

counsel]: We don't really know

what they said. We had him

examined here, the State had

him examined and said he was

all right.

The Court: Well, I've got

to get these questions in the

record. (DX 1, p. 8)

This case thus squarely presents

this Court the opportunity to define what

constitutes “adequate” procedure and

sufficient “inquiry” by a trial court

. upon the suggestion of mental incom-

petency. Clearly McWilliams was not

accorded "adequate" procedure or "further

inguiry" into his competence; had the

Court merely scratched the surface of the

matters pres nted, McWilliams incom-

petency wouia have been manifest.

II. THE TEXAS COURT OF CRIMINAL

APPEALS UNEXPECTEDLY ABANDONED

TEXAS' CARVING DOCTRINE AND

RETROACTIVELY AND AS AN

EX POST FACTO LAW UPHELD

MCWILLIAM'S CONVICTION

FOR THE OFFENSE OF

: AGGRAVATED KIDNAPPING

Prior to this case, for one hundred

and five years the courts of Texas |

consistently construed the double jeopar-

dy provision of the Texas Bill of Rights,

art. I, § 14, as mandating the carving

doctrine. See e.g., Wilson v. State, 45

-23-

SN ——————————————— eee ——e—r—(_it—‘—t

Tex. 76 (1876); Herera v. State, 35 Tex.

Crim. 607, 34 S.W. 943 (1896); Paschal

v. State, 49 Tex. Crim. 111; 90 S.W. 878

(1905); Douthit v. State, 482 S.W.2d 155

(Tex. Crim. App. 1971). The carving

doctrine prohibits prosecution for more

° than one offense when several offenses

occur in one continuous criminal episode.

See, Wilson v. State, 45 Tex. 76. As of

the time of McWilliams’ alleged crimes,

the carving doctrine was the law of

Texas.

When McWilliams alleged in his

Writ of Habeas Corpus that his tripartite

conviction of robbery, kidnapping and

rape violated the carving doctrine, both

the District Attorney of Fort Bend

County, Texas (S.F. 28) and District

Court agreed (S.F. 28). On appeal in an

en banc 8-1 decision the Texas Court of

Criminal Appeals likewise held that the

carving doctrine had been violated. Ex

Parte McWilliams, 634 S.W.2d 815, 817.

Then, as an afterthought, the State

-24-

ees

decided to attempt to persuade the

Court of Criminal Appeals to abandon

the carving doctrine. Its motion for

rehearing was granted and the court

bluntly declared,

[T]he conviction for aggravated

kidnapping was vacated and the

indictment was ordered dismissed

because the conviction. . .violated

the carving doctrine. We have now

re-examined the doctrine of carving

and have concluded that it should be

abandoned.

Id. at 822. McWilliams thereafter filed

a second motion for rehearing objecting

to retroactive application of the Court's

decision to abandon carving. That motion

was denied.

Article I, Section 10, of the

Constitution of the United States forbids

the enactment of ex post facto laws by

the states. In Marks v. United States,

430 U.S. 188, 191 (1977), this Court

stated that the principle underlying the

Ex Post Facto Clause is “the notion that

persons have a right to fair warning of

that conduct which will give rise to

criminal penalties." So basic is that

principle that this Court has found it

also to inhere in the concept of due

process; the right not to be subjected to

a law retroactively enhancing the punish-

ment for a crime is one of the components

. of the due process guarantees of the

Fifth and Fourteenth Amendments. Bouie

v. City of Columbia, 378 U.S. 347 (1964);

Marks v. United States, 430 U.S. 188.

The due process guarantee against ex post

facto laws applies to judicial, as well

as legislative, decisions. Bouie, Id.;

Marks, Id. A judicial decision which un-

foreseeably alters past judicial construc-

tion of a law in a manner which expands .

the scope of potential criminal liability

. may not be retroactively applied. Bouie,

Id.; Marks, Id.; United States v. Goodheim,

651 F.2d 1294 (9th Cir. 1981), reh'g

denied, 664 F.2d 754 (9th Cir. 1981);

Love v. Fitzharris, 460 F.2d 382 (9th

Cir. 1972), vacated, 409 U.S. 1100

(1973); Foster v. Barbour, 462 F. Supp.

iD 86

Wy:

582 (W.D.N.C. 1978), aff'd, 613 F.2d 59

(1980).

The Texas Court's decision con-

stituted an unforeseen alteration of past

judicial construction of the Texas

Constitution in a manner which expanded

the scope of McWilliams‘ potential

criminal liability. See, Bouie v. City

of Columbia, 378 U.S. 347; Marks v.

United States, 430 U.S. 188.

At the time McWilliams allegedly

committed the crimes, the carving

doctrine permitted conviction for only

one offense in connection with a con-

tinuous assualt. He could thus have been

convicted of robbery or kidnapping - not

both. This was admitted by the State of

Texas at every level until the Court of

Criminal Appeals abandoned the carving

doctrine in this case. Thereafter, the

conviction for kidnapping was upheld. It

is difficult to conceive of a clearer

instance of retroactive change of a law

to sustain an otherwise impermissible

criminal conviction.

CONCLUSION

For the reasons set forth above, it

is respectfully submitted that the

petition for Writ of Certiorari should be

granted.

Respectfully submitted,

ROBERT L. KETCHAND

Counsel of Record az

Petitioner

B1.13

CERTIFICATE OF SERVICE

I, Robert L. Ketchand, the attorney

for the Petitioner, herein, and a member

of the Bar of the Supreme Court of the

Unites, States, hereby certify that, on the

123— day of September, 1982, served

three copies of the foregoing Petition for

Writ of Certiorari to Mr. Robert Huttash,

State Prosecuting Attorney P.O. Box 12405,

Austin, Texas 78711 and to Mr. William

Meitzen, District Attorney, Fort Bend

County Courthouse, Richmond, Texas 77469

by first class United States mail, cer-

tified and postage prepaid in accordance

with Rule 28.3 of the Rules of the Supreme

Court.

te L. KETCHAND ~

Counsel of Record for

Petitioner