# Opposition Brief — Collins v. Youngblood

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 37

## 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 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

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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.

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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.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0690%3A3. Public record. Not legal advice.