Opposition Brief — Collins v. Youngblood
Supreme Court brief1990
Ask Donna
What actually matters in this document.
Text
K.
ORIGINAL *
NOV IS Bey
> PAH F SPANK
NO. 89-742 —
IN THE
UNITED STATES SUPREME COURT
OCTOBER TERM, 1989
JAMES A. LYNAUGH,
Petitioner
Vv.
CARROLL F. YOUNGBLOOD,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF IN OPPOSITION
Jon R. Randy“ Farrar
Administrator, Inmate Legal Services
Staff Counsel for Inmates
Texas Department of Criminal Justice
Institutional Division
p. O. Box 99
Huntsville, Texas 77342-0099
(409) 294-2363
1 *
ef- - ii-
QUESTION PRESENTED TABLE OF CONTENTS
Whether the retrospective application of à procedural change in the law, ; PAGE
which alters an accused's “substantial personal rights,” violates the Ex Post QUESTION PRESENTED... ...... en 1
Facto Clause, Article I, §10 of the United States Constitution. r ᷑ e. K „ eb ww te 11
EO ] ̃¶⅛ KK ˙‚—. Se
D TTT. 5 1
, bee Ewe ek 64 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... ......-.. 2
r ̃ ? 1lhjhjljñlhh. 60 6 0 6 Oh 2
, ̃ 4. a ae ges eee ĩ e ow be 4
r ̃ r ˙ re 4
g
- 111
TABLE OF AUTHORITIES
CASES
Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)... .
Bogany v. State, 661 S. M. 20 957 (Tex. Crim. App. 19883)
Calder v. Bull, 3 U.S. (3 Dall.) 366 (1798)... .. 0.2 eee eee
Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L. Ed. 2 344 (1977)
Ex parte Johnson, 697 S. U. 20 605 (Tex. Crim. App. 1985) .......
Ex parte Roper, 61 [Tex.] Cr.R. 68, 134 S.W. 334 (19117
Ex parte Youngblood, 698 8. u. 20 671 (Tex. Crim. App. 1985)(en banc). .
Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1684)
Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 l. Ed. 20 351 (1987)
Portiey ¥. Grossaen, 444 U.S. 1311, 100 S.Ct. 714, 62 L. Ed. 20 723
Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1897) . .
Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) . .
Youngblood v. Lynaugh, 882 F.2d 956 (Sth Cir. 1889 0))
CONSTITUTIONS, STATUTES AND RULES
a „„
5e Bn .
Texas Constitution, Art. I, §16 ..... 4 6 &e.0 6 © 6 OW 6 Be
Tex. Code Crim. Proc. Ann. art. 37.10(b)(Vernon Supp. 1985) ....
Tex. Penal Code §12.42(c)(Vernon Supp. 1979) ůoĩi1
2,3,6,7
2
NO. 89-742
IN THE
UNITED STATES SUPREME COURT
OCTOBER TERM, 1989
JAMES A. LYNAUGH,
Petitioner
* CARROLL F. YOUNGBLOOD,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF IN OPPUSITION
TO THE HONORABLE JUSTICES OF THE SUPREME COURT:
NOK COMES Carrol] F. Youngblood, Respondent, by and through his attorney,
Jon R. “Randy” Farrar, and files this Brief in Opposition to James A.
Lynaugh's Petition for Writ of Certiorari.
OPINIONS BELOW
The opinion of the Court of Appeals for the Fifth Circuit, wherein te
Respondent was granted relief, is attached es Appendix A. Youngblood X.
Lynaugh, 882 F.2d 956 (5th Cir. 1989). The order of the court of appeals
denying the state's suggestion of rehearing en banc is attached as Appendix B.
The opinion of the federal district court is attached as Appendix C. The
opinion of the Texas Court of Crimine) Appeals denying Respondent's
application for a writ of habeas corpus is attached as Appendix D. Ex parte
Youngblood, 698 S. u. 20 671 (Tex. Crim. App. 1985)(en banc).
JURISDICTION
The judgment of the Court of Appeals was entered on September 8 1989.
Petitioner's suggestion for rehearing en banc was denied on October 19, 1989.
of <
The petition for writ of certiorari was timely filed invoking the jurisdiction
of this Court under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
U. S. Const. Art. I., §10, cl. 1 provides as follows:
No State shall enter into any Treaty, Alliance, or Confederation;
rant Letters of Marque and Reprisal; coin Money; emit Bills of
redit; make any Thing but ld and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex post facto Law,
or Law impairing the Obligation of Contracts, or grant any Title
of Nobility.
Tex. Code Crim. Proc. Ann. art. 37.10(b)(Vernon Supp. 1985) provides as
fol lows:
If the jury assesses punishment in a case and in the verdict.
assesses both punishment that is authorized by law for the offense
and that is not authorized by law for the offense, the court shall
reform the verdict to show the punishment authorized by law and to
omit the punishment not authorized by law. If the trial court is
required to reform a verdict under this subsection and fails to do
30, the appellate court shall reform the verdict as provided by
this subsection.
STATEMENT OF THE CASE
On March 17, 1982, Respondent was convicted of Aggravated Sexual Abuse, a
first degree felony. During the punishment phase of the trial, the jury found
that Respondent had been previously convicted of a felony; consequently,
Respondent's punishment was enhanced and he was sentenced to life in prison
and a fine of $10,000. The Twelfth Supreme Judicial District Court of
Appeals, in Tyler, Texas, affirmed the conviction on August 13, 1984.
Respondent did not appeal the conviction further. Note that the conviction
became final before the effective date of Tex. Code Crim. Proc. Ann. art.
37.10(b), which was on June 11, 1985.
On September 19, 1984, Respondent filed an application for a writ of
habeas corpus pursuant to a decision by the Texas Court of Criminal Appeals in
Bogany v. State, 661 S. u. 20 957 (Tex. Crim. App. 1983). The Court in Bogany
held that the enhancement provision of Tex. Penal Code §12.42(c)(Vernon Supp.
1979) does not authorize the punishment to include a fine in addition to e
prison sentence. The Court concluded that the jury's verdict, therefore, was
“void at its inception” and the judgment was reversed. In light of Bogany,
Respondent had legal precedence for a meritorious writ of habeas corpus and @
reasonable expectation that his conviction would be reversed. The trial
court, in its recommendation tc the Court of Criminal Appeals, concluded that
relief should be granted (ROA 45).
— —
“ *
— 3 *
However, after Bogany was decided and after the Court of Crinſne! Appeals
reversed several other convictions with fact situations similar to Bogany, the
Texas Legislature passed Tex. Code Crim. Proc. Ann. art. 37.10(b): |
If the jury assesses punishment in a case and the verdict assesses
both punishment that is authorized by law for the offense and
punishment that is not authorized by law for the offense, the
court shall reform the verdict to show the punishment authorized
by law and to omit the punishment not authorized by law. If the
trial court is required to reform a verdict under this subsection
and fails to do so, the appellate court shall reform the verdict
as provided by this subsection.
Again the statute went into effect on June 11, 1985. On October 8, 1985, the
Texas Court of Criminal Appeals announced its decision in Ex parte Johnson,
697 S.W.2d 605 (Tex. Crim. App. 1985), which held that the new statute was
merely procedure] in nature and could be applied retrospectively. In dissent,
Judge Onion expressed the opinion that the retroactive application of the
Statute had a substantive effect and violated the Ex Post Facto Clause. One
week later, on October 16, 1985, the Court of Criminal Appeals denied
Respondent's application for writ of habeas corpus, basing its decision on Ex
parte Johnson. As in Johnson, the Court applied the new statute to
Respondent's conviction even though his conviction had become fina) prior to
the enactment of the new statute. Ex parte Youngblood, 698 S.W.2d 671 (Tex.
Crim. App. 1985) (App. D). Consequently, the Respondent filed his pro se
petition for a writ of habeas corpus with the United States District Court in
Tyler, basing his petition on the dissent presented by Judge Onion.
The United States District Court initially issued an order summarily
dismissing the application (ROA 51). Respondent consequently sought and
received assistance from Staff Counsel] for Inmates. Counsel filed a Motion to
Reconsider (ROA 36), and, in the alternative, Notice of Appeal (ROA 29). In
response, the Court withdrew its earlier order and ordered a hearing on the
merits (ROA 28). The District Court issued its decision on September 13,
1988, denying Respondent's allegation that the retrospective application’ of
"ex. Code Crim. Proc. Ann. art. 37.10(b), by the Texas Court of Crimina)
Appeals, violates the Ex Post Facto Clause of the Constitution (ROA 8) (App.
D). Respondent again filed notice of appea) (ROA 7) and requested a
certificate of probable cause (ROA 6). In response, Judge Parker issued a
certificate of probable cause to the Court of Appeals (ROA 1).
o@«
The Court of Appeals for the Fifth Circuit considered the appeal and
granted relief on September 8, 1989. Youngblood X. Lynaugh, 882 f. 20 956 (Sth
Cir. 1989) (App. A). On October 19, 1989, the Court of Appeals denied the
Petitioner's suggestion for rehearing en banc (App. B).
SUMMARY OF ARGUMENT
There are no specie] and important reasons for granting the writ. The
decision by the Court of Appeals for the Fifth Circuit simply applied the
holdings heretofore announced by the Supreme Court to the facts in this case.
The State of Texas has misrepresented the law in alleging that the
retrospective application of procedural laws cannot violate the Ex Post Facto
Clause. This Court has a long history holding to the contrary. As recently
2s 1987, the Court held that a change in a procedural] law can fal) within the
ex post facto prohibition if it alters "substantial personal rights." Miller
v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L. Ed. 20 351 (1987).
See also Weaver X. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L. Kd. 20 17
(1981); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L. Ed. 20 344
(1977); Thompson v. Utah, 170 U.S. 343, 352, 18 S. ct. 620, 623, 42 L.Ed. 1061
(1897).
Furthermore, the State has ignore the standard of review heretofore
announced and presently employed by this Court. Two critical elements must be
present for a law to fall within the ex post facto prohibition. First, it
“'must be retrospective, that is, it must apply to the events occurring before
its enactment’; and second, it must disadvantage the offender affected by
it.“ Miller, 482 U.S. at 430, 107 S.Ct. at 2451, quoting Weaver, 450 U.S.,
at 29, 101 S. ct., at 964. Utilizing this standard, the Court of Appeals
appropriately concluded that the retrospective application of Tex. Code Crim.
Pro. Ann. art. 37.10(b) violates the Ex Post Facto Clause.
ARGUMENT AND AUTHORITIES
There are no special and important reasons for granting the writ. In
presenting its case, the State of Texas has misrepresented the law on this
issue. It hes limited and focused its discussion to only one part of the
Court's past decisions, as seen in the Petitioner's emphasis on the following
excerpt from Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925):
It is settled, by decisions of this Court so well known that their
citation may be dispensed with, that any statute which punishes as
s crime an ect previously committed, which was innocent when done;
* 5 —
which makes more burdensome the punishment for a crime, after its
commission, or which deprives one charged with crime of any
defense available according to law at the time when the act was
committed, is prohibited es ex post facto.
Id. at 169-70, quoted in Dobbert v. Florida, 432 U.S. 282, 292 (1977).
Petitioner implies that if a case does not fall within the parameters of this
provision, an accused is not entitled to relief.
Petitioner has, however, ignored the bulk of the holdings of the Court on
this issue. For example, in Beazell, the Court went on to sey that “there may
be procedural changes which operate to deny to the accused a defense available
under the laws in force at the time of the commission of his offense, or which
otherwise affect him in such a harsh and arbitrary manner as to fall within
the constitutional prohibition.” 269 U.S., at 170. The Court of Appeals
characterized the State's approach as presenting case law to “erroneously
suggest that a statute must fit neatly within the confines of one of these
enumerated holes or else may not rightly be said to violate the Ex Post Facto
clause.” 882 F.2d, at 959. The State basically is misrepresenting the law to
unduly limit the value of the Ex Post Facto Clauses.
The Supreme Court's past decisions on this issue clearly indicate that
the value of the Ex Post Facto Clause is broad, rather than narrow. Or, as
Judge Gee concluded, the possibility that a retrospective application of a
procedural change in the law will violate the Ex Post Facto Clause
“constitutes more of a bright spectrum than a bright line." Youngblood, 882
F.2d, at 960.
The Supreme Court first considered the prohibition against ex post facto
laws in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). In an oft-quoted
opinion, Justice Chise listed exemplary kinds of laws barred by the
constitutional provision, including:
Every law that alters the legal rules of evidence, and requires
less, or different, testimony, than the law required at the time
of the commission of the offense, in order to convict the
offender. (3 U.S. 390)
The next sentence in Justice Chase's opinion is not quoted as often, but he
adds that the prohibition includes al) other similar kinds of laws: “All
these, and similar laws, are manifestly unjust and oppressive.”
The Court has, of course, specified limits on the concept. The
Prohibition against ex post facto laws does not extend to every change of law
thet may work to the disadvantage of a defendant.” It is intended instead to
ee ee ee ee <r a
a
secure “substential perscnal rights” from retroactive deprivation. ley v.
Grossman, 444 U.S. 1311, 1312, 100 S.Ct. 714, 62 L. Ed. 20 723 (1980); Dobbert
v. Florida, 432 U.S., at 293, 97 S. ct., at 2298 (1977). No ex post facto
violation occurs if the change is merely procedural. Hopt v. Utah, 110 U.S.
574, 4 8. ct. 202, 28 L. Ed. 262 (1884). .
On the other hand, a law that alters a substantia) personal right can be
ex post facto “even if the statute takes a seemingly procedural form."
Weaver, 101 S. ct., at 964; Miller, 107 S.Ct., at 2453. A procedural change in
the law will come within the prohibition if the change materially
disadvantages an individual. In Thompson v. Utah, supra, the gurt held that
a defendant cannot be retried under @ new statute requiring only eight jurors,
since the alleged offense was committed and first tried when applicabie law
guaranteed a trial by @ jury of twelve.
In Weaver, supra, the Court held a Florida statute altering the
availability of “gain time for good conduct” unconstitutional as an ex post
facto law as applied to the petitioner whose crime was committed before the
statute was enacted. The Court held once again that 2 law will be ex post
facto if the lew is retrospective and disadvantages the offender affected by
it. 101 S.Ct., at 964. In this case, as in Weaver, “the provision attache[d]
legal consequences to a crime before the law took effect." 101 S. ct., at 965.
Moreover, the situation of the accused has been materially altered to his
disadvantage. In Weaver, the statute reduced the number of gain-time credits
available to the Petitioner. In this case, the retrospective application of
the art. 37.10(b) operates to deny Respondent the relief to which he was
entitled, in other words, * new trial, by validating an otherwise void
conviction.
The law in Texas, by comparison, also prohibits the retrospective
application of procedural changes that deprives a defendant of substantial
protection. In the Interpretive Commentary to the applicable Texas provision
prohibiting ex post facto laws, Article I, Section 16, of the Texas
Constitution (Vol. I, pp. 371, 372, Vernon's Constitution of the State of
Texas, Annotated) it is written:
Although ordinarily lers changing procedure are not within the
inhibition, still if e procedural change is retroactive and
results in depriving the accusec of substantia) protections, it is
1— Ex parte Roper, 61 [Tex] cr. H. 68, 134 S.W. 334
117.
.
In his dissenting opinion in Ex parte Johnson, 697 S.W., at 609, Judge Onion,
then presiding judge of the Texas Court of Criminal Appeals, stated that Art.
37.10(b) was an “overreaction” to Bogany. Judge Onion concluded that art.
37.10(b), when applied retroactively, clearly violated the prohibition against
ex post facto legislation.
The underlying reason that “the Ex Post Facto Clauses were included in
the Constitution was to assure that federal] and state legislatures were
restrained from enacting arbitrary and vindictive legislation.” Miller, 107
S. Ct., at 2451, quoting Calder x. Bull, 3 Mall., at 389, 1 L.Ed. 648 (1798).
It is clear that the purpose for the enactment cf art. 37.10(b) was to
arbitrarily prevent additional inmates, such as the Respondent, from obtaining
@ reversal, new trial and possible acquittal. The State has attempted to
downplay the significance of the detrimental] impact of the statute on inmates.
For a convict, however, what greater substantial] personal right exists than to
have his conviction reversed? The purpose of the Ex Post Facto Clauses was
precisely to stop the type of activity going on here and stop legislatures
from changing the law and retrospectively imposing the new law on mombers of
society to their detriment.
The Court of Appeals appropristely granted relief because the Respondent
wes able to show that (1) the crinine! law was applied retrospectively, and
(2) that he was disadvantaged by the retrospective application of the new law.
Respondent was able to satisfy both prongs of the requirements set forth in
Weaver and Miller, and the Court of Appeals sco found. Whereas previousiy the
Respondent, and all others similarly situated, were entitled to a reverse! and
retrial, the retrospective application of the new statute resulted in s mere |
modification of his judgment and sentence. The change in procedure material ly
disadvantaged Respondent by eliminating his right to a reversal and retrial
and replacing it with an affirmance of his conviction. Respondent lost the
substantial personal right that comes with any retrial and possible acquitta).
The constitutional prohibitior against ex post facto laws clearly applies in
this case. The decision of the Court of Appeals accurately applies the
Supreme Court's past holdings to the facts in this case. The petition for
writ of certiorari should not be granted.
For these
certiorari to the United States Court of Appeals for the Fifth Circuit be
denied.
Respondent prays that the petition for writ of
Respectfully submitted,
CARROLL F. YOUNGBLOOD
Respondent
“4
By:
Jon F. arrar
Attorney spondent
Staff Counsel for Inmates
TDCJ-1D
P.0. Box 99
Huntsville, Texas 77342-0099
(409) 294-2363
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
6
TABLE OF TO AP
Youngblood X. Lynaugh, 66< F. 20 956 (Sth Cir. 1989)
Order denying State's suggestion of rehearing en banc
Opinion of Federal District Court
Ex parte Youngblood, 698 S. u. 20 671 (Tex. Crim. App. 1985)
‘° =
r
APPENDIX A
r —— Dr —
8 5 TA REPORTER. cc » Li. 1
Ceverminesor., , necessary, Wi. no: Affec:
the lability of Loca! 250, since i: remaics
joinzly and severally liable for the full
amount of the judgment as a successor or
disguised continuance; a. master’s factual]
Carroll F. YOUNGBLOOD,
Petitioner-Appellant.
v.
James A. LYNAUGH, Director, Texas
Department of Corrections,
Respondent-Appeliee.
No. 88-2888.
United States Court of Appeals,
Fifth Circuit.
Prisoner applied for writ of habeas cor
pus. contending that the ex pos: facto
clause of the Federa! Constitution was vio
lated by application agairat him of a :
ute which allows an appeiate coum te re-
R e led.”
Gee, Circuit Judge, issued s concurring
opinion.
Edith H. Jones, Circuit Judge, issued a
concurring opinion. —
rized by law, as it would have been futile to
require petitioner to pursue issue further
in statecourt proceedings; prisoner's ex
post facto argument had been presented t
and rejected by, Texas Court of Criminal
Appeals. US CA. Const Art 1, §§ 9, el
3. 10, el. 1. Vernon t Ann Texas CC. art
N. 1000. ae 4
2. Constitutional Law 2s
_ For purposes of ex post facto clause;
once it is determined tha: law in question
was applied retrospectively. salient issue
becomes whether law operated to disadvan-
tage accused in exercise of substantia!
right or protection that be previously er-
joyed, not whether circumstances of appl.
cation conformed to paradigmatic or illus-
trative category of harms. U.S.CA. Const
Art 1, §§ 9. el 3, 10, el 1.
3. Constitutional Law 199
Criminal Law 13.2
As to defendant who was sentenced
under procedure that was not suthorized
by Texas law at time of commission of
offense, retroactive appheauon ef siatute
which allowed appeliate court to reform
BEST AVAILABLE COPY
IIe reizen rler fei
tes oP eee So , 4 1 4 = 7 — .
* e r co — ee
YOUNGELOOD +. LYNAUGH t 957
Cue ee M: * ed 1
. a N. Of. 20 Nerz. W. 78 neee: &:
remanding for remma! siverec defend:
right to rewial—s substantial right—to his
material disadvantage; thus, applicaton of
statute against defendant violated ex post
facto clause of Federal Constitution. US.
C Const Art 1, §§ 9, el. 3, 10, cl. 2;
Vernon's Ann Texas CC. art 37.10(b).
S. Michael Bozarth, Asst. Atty. Gen., and
Jim Mattox, Atty. Gen., Austin, Tex., for
respondent-appeliee.
Appeal from the United States District
Court for the Eastern District of Texas.
Before GEE, GARZA and JONES.
Circuit Judges.
GARZA, Circuit Judge:
This case presents a novel question in tee
Fifth Circuit under the Ez Post Facts
clause of the United States Constitation.
We are convinced that article $7.10(b) of
the Tex Code Crim.Proc., as applied to pet
tioner Youngblood under the circumstances
of this case, violates the Ez Post Facto
claus - We therefore REVERSE the dis-
trict court’s decision denying appellant's
writ of habeas corpus and REMAND the
case for a new trial.
BACKGROUND
Texas Court of Criminal Appeals, relying
upon Bogany . State, 661 S. W. 2d 957
crex Crim. App 1882) (en banc). In Bogan
the Texas Court of Criminal Appeals held
that the sentence enhancement provision,
section 12.42(¢) Tex. Pena! Code, does not
authorize punishment to include a fine in
addition to a prison sentence. The Bogeny
court concludeé that the jury’s vercict was
v. b: 2 . . . : ot PRVETIC. St 2
pete
g
7
1
5
i
f
li
i
ii
The Texas Court of Criminal Appeals
decided Ex parte Johnson in October of
1985. In that case, the court concluded
that art. N. 1000 was purely procedural
and might properly be applied to reſo m an
BEST ‘AVAILABLE COPY
z=
ES SST 2S —— 5
y r Sr are ror Lae
* * E ee, aa eS
15
i
5
g
b
L
R
E
178
fi
+t
eu
i
Fre i
ALA
present for a law to fall within the ex post
facto prohibition. First, it must be retro
spective, that is, it must apply to events
occurring before its enactment’; and sec.
ond, ‘it must disadvantage the offender
affected by. Miller v. Florida, 482
U.S. 423, 430, 107 Scr 2446, 2451, 96
L.Bé4.2¢ $5) (1987) (quoting Weaver v. Gra.
ham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67
LEd.2d 17 (1981)). The Court also noted
that a law which merely changes “modes of
procedure” wil] not violate the Ex Pos:
Facto clause unless it also alters “substan
tis) persona! gu ef the accusec. Wi“
ler. 482 US. at 430 07 8 Cr at 2481
EE
"Ti = D Pere ae —
N
—
*
—
25
4
i
i:
3
51
0
Bf.
lr
=!
RTT
11
i
111
Pedy
t
it
11
iy
1
|
i
un
ciel
li
it
Hit
:
4
11
nass KLE sender Bs
if
a
ght
1H
i
|
0
a
f *
B
2
aAneaae awe &
7
i
E
Bg
5
**
3
5
7
ef
5
:
lished by a later state statute is more oner
ous than, or worsens the conditens im-
posed by, its predecessor, is 8 umquely
federa) question which wil! be devermnec
by the federal courts themselves. Weaver
r Grokem. 430 US. 24, 33, 101 8 C 960,
966 67 Led 17 (2981), Lindsey ©
a
FE a ae ee oe
.
cus oe BS Pe 9M Car. 198°
Weshingter, 80. US. 287. 400. 87 S. CT
797, 788, 8: LEG. 2252 (3987)
The state court's analysis of art. 37.10(b),
larly situated, is faulty to the extent that it
:
:
|
crime.” “Id, citing Duncan 2. Missouri,
152 U.S. 377, $82, 14 8. CT 570, 572, 38
_ The government argues that the retrosc-
tive application of art. *. 10000 cannot or.
fend the Ex Post Facto clause because it
punishment of a crime after its commission
or deprive the defendant of s defense avai
1. We recognize that, in Williams ¥. Florida, 399
US. 76, 90 S$.Ci 1893, 26 LE 2 446 (1970), the
Supreme Cour s! aside the requirement im.
phcitly esuablishec in Thompson v. Utah that
écliberanon by @ wee member jury u 8 con,
Auen prerequisne to 8 finding of guil:
Thus revision of one of the issues in Thompson
tion may occur in the absence of an increase in
punishment. or 8 change in the burden of proof
er an chm tn of 8 previously available de-
ente
BEST AVAILABLE COPY
* < 7 > ao 8 ’
i?
u At the time of Youngblood’s eonvie-
tion, it was the law of Texas that u verdict
considered
provoke the Texas legislature to enact art
27.10(b), authorizing an appellate court to
reform the verdict and thereby deprive the
defendant of the right to retrial. In any
event, whether or not the Texas legislature
perceived the Bogany right to be substan:
tial, we conclude that it was.
Prior Texas law made it impossible to
deprive defendants such as Youngblood of
weir liberty without affording them a new
trial. Whether or not it is a wise policy &
provide that level of protection against un-
authorized verdicts, it cannot be gainsaic.
in our opinion, that the subsequent elimina-
tion of that right worked to appellant's
disadvantage’ Delineation of the bound-
ary between “substantial” mghts and those
considered not substantial, like the distine-
tion between fundamental and non-funda-
mental rights, is an inquiry iry not suscepuble
of examination by scientific formulae or
comprehensive enumeration. However,
post facto jurisprudence to such concepts
as “material disadvantage” and substanta!
ion,” we are confident that the
right to have one’s guilt retried before a
different jury—with its attendant possibib-
ty that the outcome might be different the
second time around—is comfortably encom-
2 We find understandable the Texas legislature 5
distaste for a rule of law tha: affords convicted
criminal defendants a “second bite at the apple ~
Giver. the vicissitudes of a crimina! tna! before
a jury, such a second chance besiows a consid
erable benef upon a defencani a: the same
ume that u imposes an unnecessary eden
83 ere
. ster ls
RRR
* :
— 2
— 82 —
a =
passes wiht, Ue tn OF Mego com
sidered “substanual.”
1 concur with the majority opinion be
cause, for ex post facto purposes, I cannot
perceive 2 i } distinction between
jurors “was regarded, at the time of the
adoption of the Constitution, as vital for
the protection of life and liberty,” and was
enjoyed by the defendant at the time he
committed the offense charge. 170 U.S. st
352, 18 S.Ct at 623. Consequently, Utah's
change to permit crimina] w.
als before eight jurors was held to operate
e post facto wo deprive the defendant of
this substantia: right ;
I suggest, however, that the distincbon
between “mere modes of procedure and
upon the state. In that regard, arucie V. 100
may well effect wise public policy. However
we may not allow consideravons of public pol
cy to interfere with the central inquiry defore
us whether the retroactive applicauon of am
37.)Q(b) worked to the Gisadvaniage of Young
blood in the exercise of a sudsianua! provecuon
- wee
setae te Pager!
i 4
„ „ „„
35
Cour:
seems
change
facto c
21. 2
(chang
pleas.
don fo
retro
A nun
er po
eedur:
432 U
(1977)
death
a
in
oa ERERRES 4 SRECHSEEREEESTES
re g*.
ARE REY
PHAR AB ROKER. :
„„ „„
substantial or Wu. procecers. provecu0ss
u 4 wobbly one under curren: Supreme
Court jurisprudence. One other eariy case
seems squarely to hold that # procedural
change in state law violated the ex post
clause. Kring v Missoun, 107 US.
432 U.S. 282, 97 S.Ct. 2290, 53 LEd.2d 844
(1977) (change in role of Florida juries in
death penalty cases); Beazell v. Ohio, 269
U.S. 167, 46 S.Ct 68, 70 LEd. 216 (1925)
(defendant forced to undergo joint rather
than separate trial for crime); Mallet: +.
North Carolina, 181 U.S. 589, 21 S. CT 730,
45 L.Ed. 1015 (1901) (state allowed to ap
peal from intermediate court's award of
new trial to defendant); Thompson * Mis-
our 171 US. 380, 18 S.Ct 922, 43 L.Ed.
204 (1898) (prior to second trial, law was
changed to make circumstantial evidence
admissible against defendant and he was
convicted), Gibson v Mississippi 162 U.S.
565, 16 S.Ct 904, 40 LEA. 1075 (1896)
(change in juror qualifications); Hopt 1
Utah, 110 US. 574, 4 S.Ct 202, 28 L.Ed.
262 (1884) (change to allow convicted felon
to testify as a witness against defendant).
There is little doubt that the defendant in
several of these later cases was materially
disadvantaged by the changes in criminal
which occurred after the com-
mission of his offense. ‘Consider the signif-
jcance to a defendant of the right to 3
mony of a convicted felon (Hopt) or ei-
cumstantial evidence (Thompson ) against
a defendant, to say nothing of prohibitung
the state's appeal from the grant of a new
1. In Beazell „ Ohio, 26¢ US. 167, 169-70, 46
Sci 68. 68, 70 LEE 236 (1925). Mr. Justice
Stone summarized the characierisucs of an ex
post fecto law
“lt is settled, by decisions of this Cour so wel.
known that their c:tati0n “say de dispensed
with, that any siatule which punishes as @
Nr „ f be:
% Gs :vP°
tra. wo ue oefencant (MC. cr Tne Goer
emphasizec, however, in Doober:, tna:
Ever. though it may work to the Cisac-
vantage of s defendant, 2 procedura
change is not ex post facto. 1
482 US. st 294, 97 S.Ct at 2296.
If we are to continue to hold that “proce
dural” changes that do not affect the tradi-
or available defenses —never-
theless run afoul of the clause, I fear that
the Supreme Court's decisions offer little
UNITED STATES of America, Plaintiff,
V.
HIBERNIA NATIONAL BANK, Defen-
dant-Third Party Plaintiff-Appellant-
Cross Appellee,
v.
Joseph M. RAULT, Jr., Third Party
Defendant-Appe 7
Appellant.
No. 88-3406.
United States Court of Appeals,
Fifth Circuit.
Sept. 8, 1989.
The United States brough: action
against bank and corporation which owned
its commission, or which deprives one
charged with crime of any oefense available
according to law at the ume when the ac: .
committed is prohubuec as < post facto
BEST AVAILABLE COPY
APPENDIX B
e
* * W
2 rer: -i rt covet cpa: Gace
U.S. COurr *
No. ss-esesé FILED
OCT iS be
CARROLL F. YOUNGBLOOD, GILBERT E GaNucHeay
Petitioner-Appellant, CLERK
versus
JAMES A. LYNAUGH, Director
Texas Departmen tof Corrections,
Respondent -Appellee.
Appeal from the Unitec States District Court for the
Eastern District of Texas
ON SUGGESTION FOR REHEARING EN BANC
(Opinion_SEPTEMBER § Cr. 1989, F.2¢ )
( OCTOBER 19, 1989 )
Before GEE, GARZA ané JONES, Circuit Judges.
PER CURIAM:
(„) Treating the suggestion for rehearing en banc as 2 petition
for panel rehearing, it is ordereé that the petition for panel
rehearing is DENIED. No member of the panel nor Judge in regular
active service of this Court having requested that the Court be
polled on rehearing en banc (Federal Rules of Appellate Procedure
and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.
( ) Treating the suggestion for rehearing en banc as a petition
for panel rehearing, the petition for panel rehearing is DENIED.
The judges in reguiar active service of this Court having been
polled at the request of one of said judges and a majority of said
judges not having voted in favor of it (Federal Rules of Appellate
Procedure ané Local Rule 35), the suggestion for Rehearing En Banc
is DENIED. /
1 N CLERM'S NOTE:
9 THE COURT: €== TRAP AND LOCAL
Ae ee PILES 41 FOR STAY OF THE
( 3 ‘ Un) 0 ré — IANDATE,
Titec States Circuit age REHG-68
REHEARING FLD. 10/6/89
awl
APPENDIX C
1 FIL ED.
U.S der!
CASTERN DiSTRICT OF TEXAS
IN THE UNITED STATES DISTRICT COURT SEP 14 1988
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION MURRAY e HARRIS, CLERK
A 5 —
CARROLL F. YOUNGBLOOD
JAMES LYNAUGH, DIRECTOR,
)
)
vs. ) CIVIL ACTION NO. TY-86-211-CA
)
)
TEXAS DEPARTMENT OF CORRECTIONS )
ORDER
On March 17, 1982, the petitioner Carroll F. Youngblood was
convicted of aggravated sexual abuse (Tr. 25). The jiry assessed
punishment of life imprisonment and a fine of $10,000.00 (Tr. 30,
34-35). His conviction was affirmed on appeal on August 13, 1984.
Subsequently, Youngblood filed an application for a writ of
habeas corpus with the Texas Court of Criminal Appeals.
Youngblood relied upon Bogany v. State, 661 S.W.2d 957 ‘Tex.
Crim. App. 1983), in which the Texas Court of Criminal Appeals
held that the enhancement provision, Section 12.42(c), Tex. Penal
Code (West 1974), does not authorize the punishment to include a
fine in addition to a prison sentence. The court in Bogany
concluded that the jury's verdict was void at its inception, and
reversed the judgment. Bogany v. State, 661 8. M. 2d, at 959.
After Bogany was decided, the Texas Legisature enacted
Article 37.10(b), Tex. Code Crim. Proc. (West Supp. 1988), which
provides:
If the jury assesses punishment in a case and the
verdict assesses both punishment that is authorized
by law for the offense, and punishment that is not
authorized by law for the offense, the court shall
reform the verdict to show the punishment authorized
by law and to omit the punishment not authorized by law.
If the trial court is required to reform a verdict
waved be ~- ovtf
, Ve. fas
.
—
—
under this subsection and fails to do so, the
appellate court shall reform the verdict as
provided by this subsection.
This provision became effective on June 11, 1985. On October 9,
1985. the Texas Court of Criminal Appeals announced its decision
in Ex parte Johnson, 697 8. u. 2d 605 (Tex. Crim. App. 1985), which
held that Article 37.10(b) is procedural in nature and can be
applied retroactively. In a dissent, Presiding Judge Onion
expressed the opinion that the retroactive application of the
provision violated the Ex Post Facto Clause. Ex parte Johnson,
697 S.W.2d, at 610-627. One week later, on October 16, 1985, the
Texas Court of Criminal Appeals denied Youngblood's applicatior
for a writ of habeas corpus, basing its decision on Ex parte
Johnson. As in Johnson, the court applied Article 37.10(b) to
Youngblood's conviction, although his conviction had already
become final. Ex parte Youngblood, 698 S.W.2d 671, 672 (Tex.
Crim. App. 1985).
Youngblood now seeks a writ of habeas corpus pursuant to 28
U.S.C. §2254 from this Court. As grounds for issuance of the
writ, he contends that the retroactive application of article
37.10(b) violated the Ex Post Facto Clause, United States
Constitution, Article I, Section 10, Clause 1. The respondent
contends that Youngblood has failed to exhaust his state remedies
as required by 28 U.S.C. §2254(b) and (c). Specifically, the
respondent argues that Youngblood has not raised his ex post
facto argument before the Texas Court of Criminal Appeals;
therefore, his federal habeas petition is premature.
Alternatively, if the Court so finds that Youngblood has
satisfied the exhaustion requirement, then the respondent argues
that retroactive application of Article 3710 cb) to
Youngblood's case vas merely procedural with no substantive
effect to violate the ex post facto prohibition.
Exhaustion of State Remedies Question
Youngblood argues that Presiding Judge Onion's discussion of
the ex post facto question in Ex parte Johnson obviated the need
to again raise the issue before the Texas Court of Criminal
Appeals. In his dissent, Presiding Judge Onion posed the
question whether Article 37.10(b) could be applied retroactively.
He then quoted Article I, Section 16 of the Texas Constitution
which provides:
No bill of attainder, ex post facto law,
retroactive law, or any law impairing the
obligations of contracts, shall be made.
Next Presiding Judge Onion quoted extensively from an
interpretive commentary of the above-guoted state constitutional
provision. That commentary defines an ex post facto law and
notes that the Texas Constitution goes further than the United
States Constitution for the former is not confined to forbidding
ex post facto laws, but also bans any retroactive law. Ex parte
Johnson, 697 S.W.2d, at 609-610. As stated supra, @ majority of
the Texas Court of Criminal Appeals relied upon Johnson to deny
Youngblood's application for a writ of habeas corpus. Ex parte
Youngblood, 698 S. . 2d, at 672. Judge Clinton, joined by
Presiding Judge Onion and Judge Teague, stated in a dissent that,
for the reasons set forth in tne dissenting opinion in Johnson,
Johnson was wrongly decided. Ex parte Youncblood, 698 S.W.2d, at
672. One of those reasons, of course, included Presiding Judge
Onion's discussion of ex post facto problem encountered when
applying Article 37.10(b) retroactively.
After thoroughly reviewing Youngblood's state application
for a writ of habeas corpus, the Court finds that he did not
specifically raise the ex post facto issue before the Texas Court
of Criminal Appeals. However, his failure to do so does not bar
him from the federal courthouse. Federal habeas petitioners need
not exhaust state remedies where it is plain that to resort to
the state courts would be futile. United States ex rel. Reis v.
Wainwright, 525 F.2d 1269, 1272 (Sth Cir. 1976). Here a majority
of the Texas Court of Criminal Appeals has twice rejected
Presiding Judge Onion's position that retroactive application of
Article 37.10(b) constitutes a prohibited ex post facto law. See
United States ex rel. Reis v. Wainwright, 525 F.2d, at 1272. See
also Gartrell v. Lynaugh, €33 F.24 327, 528-529 (Sth Cir. 1987).
There is nothing in this Court's review of prevailing state law
to indicate that the Texas Court of Criminal Appeals will retreat
from its Johnson and Youncblood decisions by adopting Presiding
Judge Onion's dissent. Having found that Youngblood is excused
from the exhaustion requirement, the Court shall consider the
issue of whether the Texas Court of Criminal Appeals' retroactive
application of Article 37.10(b) violated the federal
constitutional prohibition of ex post facto laws.
— Ee? SSS —— * 5 — — — . e
Ex Post Facto Law Question
Article I, Section 10, Clause 1 of the United States
Constitution provides that no State shall pass any ex post facto
law. An ex post facto law (1) makes an action completed before
the passing of the law, criminal, and punishes such action; (2)
aggravates a crime, or makes it greater than it was, when
committed; (3) changes the punishment and inflicts a greater
punishment, than the law annexed to the crime, when committed; or
(4) 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.
Miller v. Florida, U.S. „ 107 S. ct. 2446, 2450 (1987).
For a criminal law to be ex post facto, it must (1) be
retroactive (i.e., apply to events occurring before its
enactment) and (2) disadvantage the offender affected by it.
Miller v. Florida, U.S., at „ 107 S. ct., at 2451.
Although a law may operate to the offender's detriment, no ex
post facto violation occurs if the change in the law is merely
procedural and does not increase fhe punishment, nor change the
ingredients of the offense or the ultimate facts necessary to
establish guilt. However, a change in the law that alters 4
substantive right can be ex post facto even if the statute takes
— —
a seemingly procedural form. Miller v. Florida, U. S., at
„ 107 s. ct., at 2452-2453. See Weaver v. Graham, 450 U.S. 24,
30-31, 101 S.Ct. 960, 965 (1981). Moreover, an unforeseeable
judicial enlargement of a criminal statute, applied retroactively
may operate as an ex post facto law. Beule v. City of Columbia,
378 U.S. 347, 353-354, 84 S.Ct. 1697, 1702-1703 (1964).
It is readily apparent that the Texas Court of Criminal
Appeals' application of Article 37.10(b) here was retroactive and
disadvantaged Youngblood. Under the law effective at the time
his conviction became final, he would have been entitled to a new
trial because the jury assessed an unauthorized punishment.
However, with the new statute, enacted and applied to his case
after his conviction became final, the unauthorized punishment
was simply stricken. Although the application of Article
37.10(b) to Youngblood's case appears to satisfy the test for an
ex post facto law, the retroactive application, however, does not
criminalize and punish a prior action, aggravate a crime when
committed, inflict a greater punishment, nor alter the legal
rules of evidence. Thus, the retroactive application of Article
37.10(b) does not fall within the classic Gefinition of an ex
post facto law.
Due to a procedural change, Youngblood lost an entitlement
to a new trial. His punishment, however, was not increased (but
actually decreased), and the elements of the offense or the
ultimate facts necessary to establish guilt were not changed.
The Texas Court of Criminal Appeals’ retroactive application of
Article 37.10(b) does not transgress the federal constitutional
prohibition against ex post facto laws. It is therefore
ORDERED that Youngblood's petition for a writ of habeas
corpus be DENIED and his case be DISMISSED.
Hw VWF —
ROBERT M. PARKER
UNITED STATES DISTRICT JUDGE
APPENDIX D
, |
EX PARTE YOUNGBLOO. Tex. 671
Cite as 698 S W. 4d 671 (Tex.CrApp. 1985)
therefore void at its inception. Moya v.
State, 681 S.W.2d 41, 42 (Tex.Cr.App.1984).
(2) This Court is without authority to
reform applicant’s sentence. The proper
procedure is to remand for new sentencing.
Releford v. State, 683 S.W.2d 385 (Tex.Cr.
App.1984); Ex parte Spaulding, 687
S. W. 2d 741 (Tex.Cr.App.1985). Because
punishment was assessed by the court, we
remand for a new punishment hearing
only. Ocker v. State, 477 S.W.2d 288, 291
(Tex. Cr. App.: 972).
The relief prayed for is granted. Appli-
cant’s sentence is hereby vacated and appli-
cant is ordered into the custody of the
Aransas County Sheriff for a sew punish-
ment hearing and sentence. A copy of this
opinion shall be forwarded to the Texas
Department of Corrections.
It is so ordered.
TOM G. DAVIS, J., not participating.
Ex parte Carrol! Frank
YOUNGBLOOD.
No. 69471.
Court of Criminal Appeals of Texas,
En Banc.
Oct. 16, 1985.
Defendant was found guilty in the 7th
Judicial District Court, Smith County, Don-
ald Carroll, J., of aggravated sex nal abuse,
and defendant pled “true” to enhancement
paragraph and was sentenced confinement
for life and $10,000 fine. Defendant ap
plied for writ of habeas corpus, contending
that assessment of fine was unauthorized
and requesting that judgment and sentence
de set aside and new trial ordered. The
Court of Criminal! Appeals. Miller, J.. held
that the fine imposed was unauthorized.
but the verdict and judgment would be
reformed to delete the improper fine.
Order accordingly.
Clinton, J., dissented and filed an opin-
ion in which Onion, PJ., and Teague, J.,
joined.
1. Criminal Law €°1215
Fine of $10,000 imposed upon defend-
ant who was found guilty of aggravated
sexual abuse and pled “true” to enhance-
ment paragraph alleging prior felony con-
viction was unauthorized by law, as Penal
Code § 12.42(c), governing sentence of de-
fendant who was once before convicted of
felony, does not make provision for assess-
ment of fine in addition to term of impris-
onment. V.T.C.A., Penal Code § 12.42(c).
2. Criminal Law © 1184(4)
Even though fine of $10,000, imposed
upon defendant who was found guilty of
aggravated sexual abuse and pled “true”
to enhancement paragraph alleging prior
felony conviction, was unauthorized, judg-
ment was not void; rather, verdict and
judgment would be reformed to delete im-
proper fine.
Carroll Frank Youngblood, pro se.
Robert Huttash, States Atty., Austin,
for the State.
Before the court en banc.
OPINION
MILLER, Judge.
This is a post-conviction writ of habeas
corpus brought pursuant to Art 11.07,
V.A.C.C.P. Applicant was indicted for the
offense of aggravated sexual abuse, with a
prior felony conviction alleged for enhance-
ment. The jury found applicant guilty of
aggravated sexual abuse and he pled
“True” to the enhancement paragraph.
Punishment was assessed by the jury at
confinement for life in the Texas Depart-
ment of Corrections and a 310,000 fine.
672 Tex. sss s n WESTERN REPORTER, 24 SE FS
{1} In his application for writ of habeas»
corpus. applicant contends that the jury's
assessment of a $10,000 fine is unautho-
rized by V.T.C.A. Penal Code, § 12.42(c)
and requests that the judgment and sen-
tence be set aside and a new trial ordered,
citing Bogany v State, 661 S. W. 2d. 957
(Tex.Cr.App.1983).
Section 12.42(c), supra, provides:
“If it be shown on the trial of a first de-
gree felony that the defendant has been
once before convicted of any felony, on
conviction he shall be punished by con-
finement in the Texas Department of
Corrections for life, or for any term of
not more than 99 years or less than 15
years.”
No provision is made for assessment of a
fine in addition to a term of imprisonment.
Thus, the fine imposed in the case at bar
was unauthcrized by law.
Applicant relies on Bogany v. State, 661
S. W. 2d 957 (Tex.Cr.App.1983) wherein we
held that a judgment containing a punish-
ment unauthorized by law was void since
the court was without authority to correct
the infirmity. On June 11, 1985, however,
Senate Bill 1349, Acts 69th Leg., became
effective. In Ex parte Johnson, 697
S. W. 2d 605 (Tex.Cr.App.1985), we interpret
ed this amendment to provide a vehicle by
which an improper verdict could be re-
formed, thus correcting the infirmity
present in Bogany, supra. We also held
that the amendment applies to pending and
future actions. Ez parte Johnson, at 607-
608.
121 In applying Ex parte Johnson, zu-
pra, to the case at bar, the assessment of
$10,000.00 fine was unauthorized. Thus,
we need not remand the case for a new
trial; rather, we may reform the verdict
and judgment and delete the improper fine.
Applicant's request for relief is therefore
denied. The judgment in Cause No. 7-8) -
102 of the 7th Judicial District Court of
Smith County is reformed to delete the
$10,000.00 fine. The Clerk of this Court
shall mail a copy of this Order to the Texas
Department of Corrections.
It is so ordered.
TOM G. DAVIS, J., not participating.
CLINTON, Judge, dissenting.
Valid reasons why Ez parte Johnson,
697 S.W.2d 605 (Tex.Cr.App.1985), was
wrongly decided are set forth in the several
dissenting opinions therein, and to reprise
them here would be redundant. Neverthe
less, this proceeding presents an occasion
for the Court to determine whether Article
N. 1000 may be gratuitously invoked and
applied by this Court in a post conviction
habeas proceeding in which a final judg-
ment of conviction imposes sentence
based upon a verdict of a jury assessing
punishment not authorized by law. The
majority fails to address that question, so |
will.
First of all, even if valid, on the face of it
Article 37.10(b), V.A.C.C.P. has no applica-
tion. Obviously focusing on Bogany v.
State, 661 S. W.2d 957 (Tex.Cr.App.1983),
the amendment directs “the appellate
court” to reform a jury verdict. The only
occasion for an “appellate court” to have
jurisdiction to do so is on direct appeal
from a judgment of conviction.
In a postconviction habeas corpus pro-
ceeding this Court may hear a cause “as
though originally presented to lit] or as an
appeal,” Article 11.07, § 3, V.AC.C.P.
Still, as has been often pointed out by the
Court, a habeas corpus proceeding may not
be used as a substitute for an appeal. Ex
parte Powell, 558 S.W.2d 480, 481 (Tex.Cr.
App.1977). A postconviction habeas appli-
cation will not lie to correct errors qua
errors committed in the trial court. The
Court does not decide a habeas cause in its
capacity as an “appellate court.”
Secondly, approaching Article 37.10, gu-
pra, from another direction, one notes that
Article 11.07, V.A.C.C.P., provides that the
procedure it outlines “shall be exclusive
„id, § 3. Thus, even if Article 37.10
is retrospective in the sense erroneously
imputed to it in Ex parte Johnson, supra.
U
Me
ty Uhl Oe
|
|
|
!
|
|
4
|
{
|
TURNER „ STATE’ ' Tex. 673
cue as 698 S 2d 673 (Tex.Cr.App. 1985)
the procedure it purports to authorize is
excluded from a habeas corpus proceeding.
Thirdly, relief available in a habeas cor-
pus proceeding to resolve problems of the
nature presented here and in Ex parte Her-
nandez, 698 S.W.2d 670 (Tex.Cr.App., this
day decided), has been explicated by this
Ccart in, eg. Ex porte Hunter, 616
applicant is entitled to any relief from pur
ishment previously
ordered depends upon whether it had been
assessed by judge or by jury. When as-
sessed by a judge, the cause is remanded to
the trial court for a hearing on punishment,
eg, Ex parte Hunter, 616 S.W.2d 626
(Tex.Cr.App.1981); when assessed by 2
jury, the cause is either dismissed if appli-
cant has served requisite time or remanded
to the trial court for a new trial, Ex parte
Brown, supra. .
Applicant is entitled to relief in this habe
as corpus proceeding. Because the majori-
ty denies it, 1 dissent.
ONION, PJ. and TEAGUE, J., join.
Joseph Paul TURNER, Appellant,
V.
The STATE of Texas, Appellee.
No. 69221.
Court of Criminal Appeals of Texas,
En Banc.
Oct. 30, 1985.
Following remand, 635 S.W.2d 734, de-
fendant was convicted in the 1718t Judicial
District Court. El Paso County, Edwin F.
Berliner, J., of capital murder, punishment
war assessed dt death, and defendant ap
testimony, and (2) evidence was sufficient
to support finding that defendant constitut-
ed a continuing threat to society.
Affirmed.
Clinton and Teague, II., dissented.
1. Homicide 2354
Extraneous offenses offered into evi-
dence at punishment stage of capita] mur-
der trial do not have to involve crimes of
violence to be relevant to whether defend-
ant is a continuing threat to society. Ver-
non's Ann. Texas C.C.P. art. N. O7 10.
non’s Ann. Texas C.C.P. art. 37.071(a).
3. Homicide 354
It is not necessary that extraneous of-
fenses occur prior to time of commission of
Vernon’s Ann. Texas C. CP. art. 27.0710)
4. Homicide 2354 —
vernon's Ann. Texas C.C.P. art. 37.071 in
determining what is relevant and admissi-
deciding what extraneous offenses are rele-
vant
5. Homicide 354
Tria) court’s discretion to decide what
extraneous offenses are relevant at punish-
ment stage of capital murder trial extends
to question of relevance of facts sought to
be proved and offered into evidence. Ver-
non’s Ann.Texas C.C.P. art. 37.071.
1.
f
41
4)
+!
d
1
i
a. -
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.