Petitioners Brief — Collins v. Youngblood

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No. 89-742

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1989

JAMES A. COLLINS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Petitioner,

Vv.

CARROLL F. YOUNGBLOOD,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITIONER’S BRIEF

JIM MATTOX CHARLES A. PALMER*

Attorney General of Texas Assistant Attorney General

MARY F. KELLER S. MICHAEL BOZARTH

First Assistant Assistant Attorney General

Attorney General

MICHAEL P. HODGE P.O. Box 12548, Capitol Station

Assistant Attorney General Austin, Texas 78711

Chief, Enforcement Division (512) 463-2080

* Counsel of Record

BEST AVAILABLE COPY

;

oO. JR.

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QUESTIONS PRESENTED

Whether the retroactive application of a

law that does not punish as a crime an act

previously committed, which was innocent

when done; that does not make more

burdensome the punishment for a crime,

after its commission, and that does not

deprive one charged with crime of any

defense available according to law at the

time when the act was committed, violates

the Ex Post Facto Clause, Article I, §10 of

the United States Constitution.

Whether the retroactive application of a

purely procedural change in the law--

pursuant to which a state appellate court

is allowed to reform a judgment in a

criminal case to delete an unauthorized

punishment--violates the Ex Post Facto

Clause.

TABLE OF CONTENTS A. Retroactive application of Article

Page 37.10(b) does not violate the Ex Post

Facto Clause because it does not

QUESTIONS PRESENTED ..............2000- i punish as a crime an act previously

committed, which was innocent when

TABLE OF AUTHORITIES... ......ccccccees iv done; does not make more burdensome

the ptnishment for a crime, after its

op ee er 2 commission, and does not deprive one

charged with crime of any defense

Ses 0 00 0 00.08 606nebees eeeee eee 2 | available according to law at the time

| when the act was committed.........

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.............00.: 2 . B. The court of appeals incorrectly

focused on whether Youngblood was

STATEMENT OF THE CASE................. 3 ox deprived of an existing right by the

| retroactive application of Article

A. Course of Proceedings and | 37.10(b) rather than whether it

Diapocition BORO... wc ccc cee ccese 3 | deprived him of notice. ............

B. Seatement of Pets... www ccc ecw ceses 5 C. Because the change wrought by Article

37.10(b) did not deprive Youngblood of

1. Facts Adduced at Trial........ 5 a substantial right, its retroactive

| application does not violate the Ex

2. Facts Giving Rise to EE SO ee

Youngblood’s Claim. ......... 6

i The conclusion of the court

SUMMARY OF ARGUMENT ................. 7 | below is contrary to this

| Court’s precedent...........

Soi | | eee ee 8

2. The conclusion of the court

THE RETROACTIVE APPLICATION OF below is contrary to the great

ARTICLE 37.10(b) DOES NOT VIOLA‘“E weight of authority..........

THE EX PCST FACTO CLAUSE OF THE

UNITED STATES CONSTITUTION.......... 8 | 3. “Substantial rights” should be-

defined as those enumerated

ccc b eee

ee a a hind oe #0 6 4 0 6 wwe

iv

TABLE OF AUTHORITIES

Cases Page

Alabama v. Smith, ___ U.S. ___, 109 S.Ct. 2201

SRE peg ee Say) ee ae 21

Beazell v. Ohio, 269 U.S. 167 (1925).......... 10,17

Bogany v. State, 661 S.W.2d 957 (Tex. Crim.

pO EE ee 4,6

Bonner, In re, 151 U.S. 242 (1894)........... 16,17

Bouie v. City of Columbia, 378 U.S. 347 (1964)... .. 13

Bozza v. United States, 330 U.S. 160 (1947). .... 16,17

Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648

+ + as os oe Wske Ghee wane passim

Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356

NS norton hid ea ee a ie Rae ee ee oe 88 21

Dobbert v. Florida, 432 U.S. 282 (1977). ..... 910,17

Evans v. Thompson, 881 F.2d 117 (4th Cir.

1989), cert. pending, No. 89-516............. 19

Gardner v. Florida, 430 U.S. 349 (1977). ........ 16

Garland, Ex parte, 4 Wall. 333, 18 L.Ed. 366

Ss oe sei gear ee I So kk oe 21

Hickman v. State, 548 S.W.2d 736 (Tex. Crim.

GS of dns aad Gs Ce Giese a 6.6 wb * 8's 6.8 4

Hopt v. Utah, 119 U.S. 574 (1884)............. 10

Johnson, Ex parte, 697 S.W.2d 605 (Tex. Crim.

TEC TET TT eee TEE Tee 6,7

Kring v. Missouri, 107 U.S. 221

a ee ee ee) ee eee 14,21 ,22,23

Lindsey v. Washington, 301 U.S. 397 (1937). ...... 20

Marks v. United States, 430 U.S. 188 (1977). ..... 13

Medley, In re, 134 U.S. 160 (1890)............. 20

Miller v. California, 413 U.S. 15 (1973).......... 13

Miller v. Florida, 482 U.S. 423

ee TO TTT eee 9,10,13,16,20

Murphy v. Massachusetts, 177 U.S. 155 (1900)... .. 16

Ohio v. Johnson, 467 U.S. 493 (1984). .......... 22

Pickens v. State, 730 S.W.2d 230 (Ark. 1987),

cert. denied, 484 U.S. 917 (1988). ............ 19

Poland v. Arizona, 476 U.S. 147 (1986). ......... 22

Rooney v. North Dakota, 196 U.S. 319 (1905). ...... 9

State v. Norton, 675 P.2d 577 (Utah 1983), cert.

denied, 466 U.S. 942 (1984)............ 14,18,19

Thompson v. Utah, 170 U.S. 343 (1898). .... 21 ,22,23

Weaver v. Graham, 450 U.S. 24 (1981). . .9,10,13,14,20

Williams v. Florida, 399 U.S. 78 (1970).......... 23

Constitutions, Statutes and Rules

eR be eee YS ree 2,8

ee Coes oa eee oko 2

Tex. Code Crim. Proc. Ann. art. 37.10(b) (Vernon

SS Dy ot i, eters hg passim

Tex. Penal Code Ann. §12.32(a) (Vernon Supp.

Wi I hl gk a ine eed eee Tend Bag sa ow 6-0-4 13

Tex. Penal Code Ann. §12.42(c) (Vernon

re NR as A Tet a re 13

Tex. Penal Code Ann. §21.05 (Vernon

EGER Met ESO RDLISI | tenement a a 13

Tex. Penal Code Ann. §22.021 (Vernon Supp.

Ce ae ee a. oa as Cae ean ie ole 6G ae ss 13

Miscellaneous

Black’s Law Dictionary 520 (5th ed. 1979)......... 8

No. 89-742

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1989

JAMES A. COLLINS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Petitioner,

* Vv.

CARROLL F. YOUNGBLOOD,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITIONER’S BRIEF

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

NOW COMES James A. Collins, Petitioner, by

and through his attorney, the Attorney General of

Texas, and files this brief.1

1For clarity, the Petitioner is referred to as “the state,” and

Respondent as “Youngblood.” The original petitioner in this case,

James A. Lynaugh, has been succeeded in office and, hence, his

successor, James A. Collins, is substituted pursuant to Rule 35.3

of this Court.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit reversing the district court’s denial of habeas

relief is attached to the petition for writ of certiorari as

Appendix D. Youngblood v. 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 E. The opinion of the federal district court

denying habeas relief is attached as Appendix C.

Youngblood v. Lynaugh, No. TY-86-211-CA (E.D. Tex.

Sept. 13, 1988). The opinion of the Texas Court of

Criminal Appeals denying Youngblood’s state habeas

application is attached as Appendix B. Ex parte

Youngblood, 698 S.W.2d 671 (Tex. Crim. App. 1985) (en

banc). The order of the state convicting court recom-

mending that habeas relief be granted is attached as

Appendix A. Ex parte Youngblood, No. 7-81-102.

JURISDICTION

The jurisdiction of this Court is invoked 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; grant

Letters of Marque and Reprisal; coin

Money; emit Bills of Credit; make any

Thing but gold and silver Coin a

Tender in Payment of Debts; pass any

Bill of Attainder, ex post facto Law, or

Law impairing the Obligation of Con-

tracts, or grant any Title of Nobility.

Tex. Code Crim. Proc. Ann. art. 37.10(b) (Vernon

Supp. 1989) provides as follows:

If the jury assessed punishment in a

case and in 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.

STATEMENT OF THE CASE

A. Course of Proceedings and

Disposition Below

The state has lawful custody of Youngblood

pursuant to a judgment and sentence of the 7th

District Court of Smith County, Texas, in Cause No. 7-

81-102-A, styled The State of Texas v. Carroll F.

Youngblood. On March 17, 1982, Youngblood was con-

victed on his plea of “not guilty” of the first-degree

felony offense of aggravated sexual abuse. Youngblood

pled “true” to a prior conviction alleged for enhance-

ment of punishment (SF II 299),2 and the court in-

2“R.” refers to the federal record on appeal by page

number; no joint appendix was prepared in this case, and the

appendices attached to the petition are referred to as “App.” A, B,

etc.; “SF” refers to the statement of facts of Youngblood’s trial, and

“Tr.” refers to the transcript.

structed the jury that tne proper punishment was

“confinement in the Texas Department of Corrections

for life or for any term of years not less than fifteen (15)

nor more than ninety-nine (99). In addition, you may

assess a fine not to exceed $10,000.00.” (Tr. 27). The

jury assessed punishment at life imprisonment and a

fine of $10,000.00.

Youngblood’s conviction was affirmed in an un-

published opinion delivered by the Twelfth District

Court of Appeals of Texas on August 13, 1984.

Youngblood v. State, No. 12-82-0050-CR. He then filed

an application for state writ of habeas corpus challeng-

ing his conviction and sentence. The state convicting

court, relying on Bogany v. State, 661 S.W.2d 957 (Tex.

Crim. App. 1983) (en banc), found that Youngblood was

entitled to a new trial because the judgment contained

a fine which was unauthorized by state law (App. A).3

On October 16, 1985, the Texas Court of Criminal

Appeals delivered an opinion in which it found that the

fine was not authorized by law, and--acting pursuant to

Article 37.10(b) of the Texas Code of Criminal Pro-

cedure, which became effective June 11, 1985--

reformed the judgment to delete the fine. Ex parte

Youngblood, 698 S.W.2d 671, 672 (Tex. Crim. App.

1985) (en banc) (App. B).

On June 23, 1986, Youngblood filed an applica-

tion for writ of habeas corpus in federal district court

alleging that the retroactive application of Article

3Texas law at the time of Bogany allowed the appellate

court to reform a sentence where punishment had been assessed

by the court but not, as in Youngblood’s case, where the jury had

assessed punishment. Hickman v. State, 548 S.W.2d 736, 737

(Tex.Crim.App. 1977).

5

37.10(b) to his case violated the Ex Post Facto Clause

(R. 52-69). Without requiring a response from the state,

the district court summarily dismissed Youngblood’s

federal writ (R. 51). On November 5, 1986, Youngblood

filed a motion to reconsider, and the district court with-

drew its previous order and set a hearing to hear argu-

ments on the issues raised by Youngblood (R. 28). After

the hearing the state filed a motion to dismiss for fail-

ure to exhaust state remedies and an answer (R. 15-

25). On September 13, 1988, the district court denied

the state’s exhaustion motion and also denied habeas

relief, finding that the retroactive application of Article

37.10(b) does not violate the federal constitutional pro-

hibition against ex post facto laws (App. C 5-6).

Youngblood appealed, and on September 8, 1989, the

court of appeals reversed, concluding that there had

been an ex post facto violation (App. D 10). On October

19, 1989, the court of appeals denied the state’s sugges-

tion of rehearing en banc (App. E). On December 11,

1989, the Court granted the state’s petition for writ of

certiorari.

B. Statement of Facts

1. Facts Adduced at Tria!

The state presented evidence at the guilt-

innocence phase of trial that Youngblood, wielding a

knife, abducted a 20-year-old married woman from her

home (SF II 118-40). He forced his victim to drive to a

secluded spot where they parked for four hours while

he fondled her and performed oral sodomy on her;

Youngblood also forced his victim to perform oral

sodomy on him, and he ejaculated into her mouth (SF

II 144-57).

Upon returning to the victim’s home, she and

Youngblood were seen by the victim’s husband and

brother, who gave chase (SF II 159-61). The chase end-

ed with the victim’s car crashing head-first into a police

car, breaking her jaw and knocking out four of her

teeth (SF II 165-66). Youngblood did not testify or

present any evidence (SF IIT 258-59).

2. Facts Giving Rise _ to

Youngblood’s Claim

On June 11, 1985, Article 37.10(b) of the Texas

Code of Criminal Procedure became effective. That

statute provides that when a jury verdict assesses both

a punishment that is authorized by law and one that is

not, the trial court shall reform the verdict, and if the

trial court fails to do so, “the appellate court shall

reform the verdict as provided by this subsection.”

Prior to the enactment of Article 37.10(b), a verdict

which contained an unauthorized punishment required

reversal of the conviction and an entire new trial on

both guilt-innocence and punishment. Bogany v. State,

661 S.W.2d 957 (Tex. Crim. App. 1983) (en banc). The

Bogany Court had reasoned that an entire new trial

was required because it lacked authority to change the

verdict rendered by the jury. Jd. at 959.

The first case to come before the Court of

Criminal Appeals following the passage of Article

37.10(b) was Ex parte Johnson, 697 S.W.2d 605 (Tex.

Crim. App. 1985), in which the court applied the

statute to reform a verdict and judgment pronounced in

1980 in which an impermissible fine had been imposed

in addition to a term of incarceration. The Johnson

court rejected the petitioner's ex post facto claim,

reasoning as follows:

Since the amendment does not

constitute substantive law defining

criminal acts or providing for penal-

ties, it is procedural in nature. Thus,

. in the absence of express legislative

intent to the contrary, the new law

controls litigation from its effective

date and applies to both pending and

future actions. See Wade v. State, 572

S.W.2d 533 (Tex.Cr.App. 1978), and

cases cited therein at 534. See also

Patterson v. State, 650 S.W.2d 453

(Tex.App. - Houston [14th] 1982). We

must therefore follow the

Legislature’s mandate and reform

that portion of the verdict

unauthorized by law.

Id. at 607-08. The Court of Criminal Appeals, relying

on Johnson, similarly reformed the judgment in

Youngblood’s case. Ex parte Youngblood, 698 S.W.2d

671, 672 (Tex. Crim. App. 1985) (App. B 2).

SUMMARY OF ARGUMENT

The decision of the court below is an incorrect

interpretation of prior decisions of this Court. The

retroactive application of Article 37.10(b) does not

violate any of the established tests for resolving ex post

facto claims. It does not punish previously innocent

conduct, increase the potential punishment after

commission of the offense or deprive Youngblood of a

defense. Moreover, there was no ex post facto violation

because Youngblood was not deprived of “fair warning”

by the application of the statute to his case.

There is no question that the change in law

wrought by Article 37.10(b) was procedural in nature,

and it cannot be earnestly contended that Youngblood

was deprived of a substantial right by its application to

his case. Where, as here, the defendant receives a fair

trial and the only error present affects solely the

sentence, there is no “right” to a second trial.

By defining “substantial rights” as the types of

harm listed in Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648

(1798), the Court can eliminate confusion as to the

distinction between procedure and substance and as to

which rights are “substantial.” Strict adherence to the

Calder test will provide a readily understood standard

that can be easily applied.

ARGUMENT

THE RETROACTIVE APPLICA-

TION OF ARTICLE 37.10(b)

DOES NOT VIOLATE THE EX

POST FACTO CLAUSE OF THE

UNITED STATES CONSTI-

TUTION.

EX POST FACTO LAW. A law pas-

sed after the occurrence of a fact or

commission of an act, which retro-

spectively changes the legal consequ-

ences or relations of such fact or

deed. By Const. U. S. art. 1, §10, the

states are forbidden to pass “any ex

post facto law.” In this connection the

phrase has a much narrower mean-

ing than its literal translation would

justify ....

Black’s Law Dictionary 520 (5th ed. 1979). The

constitutional proscription against such laws serves

two purposes: to prevent legislative abuses and to

ensure that legislative enactments “give fair warning of

9

their effect and permit individuals to rely on their

meaning until explicitly changed.” Miller v. Florida,

482 U.S. 423, 429-30 (1987), quoting Weaver v.

Graham, 450 U.S. 24, 29 (1981). As is apparent from

the law dictionary definition, two critical elements

must be present for a law to be unconstitutionally ex

post facto: “[I]t must be retrospective, that is, it must

apply to events occurring before its enactment, and it

must disadvantage the offender affected by it.” Weaver,

450 U.S. at 429; see Dobbert v. Florida, 432 U.S. 282,

292 (1977) (“ameliorative” changes in the law do not

offend the Constitution); accord, Rooney v. North

Dakota, 196 U.S. 319, 325 (1905). Whether these two

elements exist is merely the initial inquiry, however,

given the more restrictive meaning of the phrase in the

constitutional sense.

The characteristics of an ex post facto law -- the

sorts of legislative abuses and deprivation of fair

warning against which the clause was designed to

protect -- were first recognized by the Court nearly two

centuries ago in Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648

(1798), and since have been restated many times:

It is settled, by decisions of this

Court so well known that their cita-

tion may be dispensed with, that any

statute which punishes as a crime an

act previously committed, which was

innocent when done; which makes

more burdensome the punishment

for a crime, after its commission, or

which deprives one charged with

crime of any defense available ac-

cording to law at the time when the

act was committed, is prohibited as

ex post facto.

10

Beazell v. Ohio, 269 U.S. 167, 169-70 (1925), quoted in

Dobbert, 432 U.S. at 292; accord, Miller, 482 U.S. at

429. Even if a law operates to a defendant’s dis-

advantage, the clause does not restrict “legislative

control of remedies and modes of procedure which do

not affect matters of substance.” Dobbert, 432 U.S. at

293, quoted in Miller, 482 U.S. at 433; Hopt v. Utah,

119 U.S. 574, 589-90 (1884). It is only when a

“substantial right” is altered that the retrespective

application of a procedural law change may be held ex

post facto. Miller, 482 U.S. at 433, citing Weaver, 450

U.S. at 29 n.12.

While two of the three members of the panel of

the court below that decided this case were unable to

completely reconcile the Court's ex post facto

jurisprudence,‘ it is clear that Youngblood cannot

prevail under any of the Court’s decisions. Moreover,

an analysis of the Court’s precedent on this subject

reveals that -- with two exceptions, which provide no

succor to Youngblood -- the cases can be read in

4If we are to continue to hold that

“procedural” changes that do not affect the

traditional ex post facto concerns--the

definition of a proscribed or criminal act or

its punishment or available defenses--

nevertheless run afoul of the clause, I fear

that the Supreme Court’s decisons offer

little guidance for distinguishing among

such procedural cases.

Jones, concurring (footnote omitted) (App. D 12).

Concurring entirely in the majority

opinion in this very close case, I also

with Judge Jones’s observations regarding

the Supreme Court’s “modes of procedure”

authorities such as Thompson v. Utah.

Their present state constitutes more of a

bright spectrum than a bright line.

Gee, concurring (App. D 10).

11

harmony to provide a workable test that will obviate

the uncertainty experienced by the court below.

A. Retroactive application of Article

37.10(b) does not violate the Ex

Post Facto Clause because it does

not punish as a crime an act pre-

viously committed, which was

innocent when done; does not

make more burdensome the puni-

shment for a crime, after its

commission, and does not deprive

one charged with crime of any de-

fense available according to law

at the time when the act was

committed.

The opinion of the court below did not find, nor

could it, that Article 37.10(b) is constitutionally infirm

under the time-honored test of Calder v. Bull. Instead,

the court below applied a different analysis:

Clearly then, determination of the

question whether a statute

punishes a previously innocent act,

or makes more burdensome the

standard of proof, or eliminates a

defense that was available at the

time the act was committed cannot

be dispositive of the inquiry

whether such a statute violated the

Ex Post Facto clause. Once it is

determined that the law in question

was applied retrospectively, the

salient issue becomes whether the

law operated to disadvantage the

accused in the exercise of a sub-

stantial right or protection that he

12

previously enjoyed, not whether the

circumstances of its application

conform to a _ paradigmatic or

illustrative category of harms.

(App. D 8). The Fifth Circuit’s approach does not

comport with prior decisions of this Court for two

reasons: first, because it does not consider whether

Youngblood was deprived of fair warning by application

of the statute to his case and, second, because it greatly

enlarges the class of rights that might properly be

characterized as “substantial.”

B. The court of appeals incorrectly

focused on whether Youngblood

was deprived of an existing right

by the retroactive application of

Article 37.10(b) rather than

whether it deprived him of

notice.

The initial flaw in the approach of the court

below is that it attaches entirely too much significance

to whether prior law accorded Youngblood a “right” to

an entire new trial.

The presence or absence of an

affirmative, enforceable right is not

relevant, however, to the ex post facto

prohibition, which forbids the

imposition of punishment more

severe than the punishment assigned

by law when the act to be punished

occurred. Critical to relief under the

Ex Post Facto Clause is not an

individual’s right to less punishment,

but the lack of fair notice and

governmental restraint when the

13

legislature increases punishment

beyond what was prescribed when

the crime was consummated.

Weaver, 450 U.S. at 30; accord, Miller, 482 U.S. at 430.

To the same effect are this Court's decisions

invalidating retrospective judicial decisions, a type of

due process. violation that is analytically

indistinguishable from ex post facto laws. See, e.g.,

Marks v. United States, 430 U.S. 188, 195 (1977)

(retrospective application of pornography standards of

Miller v. California, 413 U.S. 15 (1973), deprived

petitioners of “fair warning”); Bouie v. City of

Columbia, 378 U.S. 347, 353-55 (1964) (petitioners not

given “fair warning” of unforeseen judicial construction

of trespassing statute).

Here, Youngblood was put on notice at the time

he decided to violate the sanctity of another citizen’s

home and person that his actions could render him

criminally liable for the offense of aggravated sexual

abuse, Tex. Penal Code Ann. §21.05 (Vernon 1974),5

which they did. He likewise was put on notice that if he

were found guilty of this offense, he could be sentenced

to a term of imprisonment ranging from five years to 99

years or life. Tex. Penal Code Ann. §12.32(a) (Vernon

Supp. 1979). Finally, he was on notice that because he

previously had been convicted of a felony, he could be

sentenced to a term of imprisonment ranging from 15

years to 99 years or life. Tex. Penal Code Ann. §

12.42(c) (Vernon 1974). |

Although the court below did not consider

whether Youngblood was deprived of “fair warning” by

application of the statute to his case, it cannot seriously

5This offense now is proscribed by Tex. Penal Code Ann.

§22.021 (Vernon Supp. 1989).

14

be argued that he was. The penal statutes in effect at

the time of the offense were sufficient to apprise him of

the criminal sanctions to which he exposed himself by

virtue of his felonious actions, and it would be nothing

more than baseless speculation for him to assert that

he would have acted differently had he known that an

unauthorized punishment might have been assessed

and that he then would have received a new trial. An

asserted lack of fair warning cannot, as a matter of

simple logic, be premised on such a contingency. See

Kring v. Missouri, 107 U.S. 221, 239 (1883) (Matthews,

J., dissenting, (“{I]t does not follow that such a

contingency would have happened.”); State v. Norton,

675 P.2d 577, 586 (Utah 1983), cert. denied, 466 U.S.

942 (1984) (“the ex post facto clause does not prevent

the State from depriving a criminal defendant of an

expectation as to a defense or procedure that has not

yet accrued to his benefit.”). Youngblood’s case stands

in stark contrast to Weaver and Miller, where the

petitioners’ punishments were effectively increased

subsequent to the commission of their crimes, thereby

denying them fair warning.é

6In addition to failing to consider whether Youngblood was

deprived of fair warning, the court below also considered it

unimportant whether the statute in question constitutes a

“legislative abuse,” which it clearly does not.

We find understandable the Texas legisla-

ture’s distaste for a rule of law that affords

convicted criminal defendants a “second

bite at the apple.” Given the vicissitudes of

a criminal trial before a jury, such a second

chance bestows a considerable benefit upon

a defendant at the same time that it

imposes an unnecessary burden upon the

state. In that regard, article 37.10(b) may

well effect wise public policy. However, we

may not allow consideration of public

policy to interfere with the central inquiry

(Footnote continued on next page)

15

CG Because the change wrought by

Article 37.10(b) did not deprive

Youngblood of a_ substantial

right, its retroactive application

does not violate the Ex Post Facto

Clause.

Because the procedural nature of Article 37.10(b)

is unquestioned, even by the court below (App. D 6),

and because its retroactive application did not run

afoul of the test of Calder v. Bull or deprive Youngblood

of fair warning, the only issue that the Court must

resolve in order to decide this case is whether

Youngblood was deprived of a “substantial right.” In

answering this question in the affirmative, the court

below concluded that the prior state law right must

have been substantial for two reasons: because Article

37.10(b) was enacted to abolish it (App. D 8-9) and

because “given the universal references in the ex post

facto jurisprudence to such concepts as ‘material

disadvantage’ and substantial ‘protection, we are

confident that the right to have one’s guilt retried

before a different jury--with its attendant possibility

that the outcome might be different the second time

around--is comfortably encompassed within the

category of rights considered ‘substantial.” (App. D 9).

The Fifth Circuit’s analysis is wholly

unpersuasive. Under the first rationale for its finding

of substantiality, any change in the law that

(Footnote continued from previous page)

before us: whether the retroactive

application of art. 37.10(b) worked to the

disadvantage of Youngblood in the exercise

of a substantial protection.

(App. D 9 n.2).

16

disadvantages a defendant necessarily will lead to the

conclusion that the right of which he has been deprived

should be classified as “substantial.” A presumptively

valid state court criminal conviction should not be

overturned on the basis of such circular reasoning.

1. The conclusion of the court

below is contrary to this

Court’s precedent.

The second rationale of the court below is pure

ipse dixit and at odds with both the record in this case

and the basis for the state law rule that obtained prior

to the enactment of Article 37.10(b). “Although the

distinction between substance and procedure might

sometimes prove elusive,” Miller, 482 U.S. at 433, the

Court’s decisions do shed some light on this question. It

long has been recognized that an unauthorized

punishment does not entitle a defendant to outright

release on -habeas corpus or an entire new trial;

instead, the proper remedy is correction of the

sentence. Bozza v. United States, 330 U.S. 160, 166

(1947); In re Bonner, 151 U.S. 242, 259-60 (1894).

In this case it was on account

of error in the sentence as originally

imposed that that sentence was set

aside. All the proceedings prior

thereto stood unimpugned, and the

Superior Court merely rendered the

judgment which should have been

rendered before.

Murphy v. Massachusetts, 177 U.S. 155, 157 (1900). See

also Gardner v. Florida, 430 U.S. 349, 362 (1977)

(“Petitioner’s conviction, of course, is not tainted by the

error in the sentencing procedure.”).

17

Youngblood’s case is no different. Here, as in

Bonner, Murphy and Bozza, the guilt-innocence phase

of trial was error-free. The court below found the right

to a whole new trial to be substantial because “the

outcome might be different the second time around

....” (App. D 8). Whatever validity that view might

have in some other context, it has none in this case.

The evidence against Youngblood was not just

overwhelming--it was conclusive as to his guilt. The

defense offered no evidence, and the record is devoid of

any basis on which another jury might have reached a

different result than did Youngblood’s first jury.

No constitutional objective is served by requiring

the states to grant criminal defendants not one, but

two, fair trials. Texas caselaw before the enactment of

Article 37.10(b) was based on nothing more than the

state appellate court’s recognition of its lack of

authority to reform a jury verdict and had no

foundation in the Constitution or traditional notions of

equity and fairness. Further, as discussed, supra, at 4

n.3, the rule applied only in cases where a jury had

assessed punishment. Moreover, it is far from clear

that prior Texas law necessarily was beneficial to

defendants such as Youngblood. For instance, had

Youngblood received e@ 15-year sentence and an

unauthorized fine and been granted a new trial, he

could have been sentenced to life imprisonment upon

retrial. Thus, the “right” of which he was deprived can

only be characterized as “limited and insubstantial.”

Beazell v. Ohio, 269 U.S. at 171. To find an ex post facto

violation in this case “mocks the substance of the Ex

Post Facto Clause.” Dobbert, 432 U.S. at 297.

18

2. The conclusion of the court

below is contrary to the great

weight of authority.

The Fifth Circuit’s finding of a constitutional

violation on the facts of this case stands alone in ex post

facto jurisprudence. In at least three capital cases

courts have rejected ex post facto challenges to the

retroactive application of statutes that are

indistinguishable in principle and, in fact, more

onerous than that involved in the case at bar. In State

v. Norton, 675 P.2d 577 (Utah 1983), cert. denied, 466

U.S. 942 (1984), the defendant obtained a reversal of

his death sentence due to error in the sentencing

phase. Utah law at the time of the offense provided for

a mandatory life sentence in the event of such error.

While Norton’s appeal was pending, the legislature

repealed that statute and enacted a new one that

provided for a new sentencing proceeding with the

potential for a new death sentence. The Utah Supreme

Court held that application of the new statute to

Norton’s case was not ex post facto because it was

merely procedural and, at the time it was passed, no

“right” to a life sentence had accrued to Norton. Id. at

586. The Norton court found analogous the federal

cases upholding extended statutes of limitations:

While the defendants in the fore-

going cases had an expectancy that

the periods of limitation in effect

when they committed their crimes

would apply, the ex post facto clause

did not preclude legislative

extension of those periods where

the expectancy had not accrued into

a perfected defense before the

amendment took effect. Thus, the

defendants were not deprived of a

19

right or a defense; they were merely

deprived of an expectancy.

Id. (original emphasis). To the same effect are Evans v.

Thompson, 881 F.2d 117, 120-21 (4th Cir. 1989), cert.

pending, No. 89-516, and Pickens v. State, 730 S.W.2d

230, 235 (Ark. 1987), cert. denied, 484 U.S. 917 (1988),

where the retroactive applications of similar statutes

allowing the state to seek the death penalty on retrial

were upheld as not ex post facto.

Youngblood’s case differs only in that the

application of Article 37.10(b) actually inured to his

benefit in that the jury verdict was reformed to delete

an unauthorized punishment. Unlike the defendants in

Norton, Evans and Pickens, Youngblood was not put in

the position of facing a potential death sentence on

retrial. If those defendants’ “right” to a life sentence

upon reversal was not deemed substantial, a fortiori,

Youngblood’s “right” to an unwarranted and un-

necessary retrial likewise cannot be so characterized.

3. “Substantial rights” should

be defined as those enu-

merated in Calder v. Bull.

The elusive distinction between substance and

procedure need not be drawn in order to determine

whether the retroactive application of a particular law

violates the Ex Post Facto Clause. A much more

workable test is simply to inquire whether any of the

concerns listed in Calder v. Bull are implicated. By

applying such a test, courts could confidently rely on a

bright-line rule that would obviate the uncertainty

experienced by the court below as to what should be

classified as a substantial right. In addition, such a test

is, for the most part, entirely consistent with the

Court’s decisions.

20

In the majority of cases in which the Court has

found an ex post facto violation, it would have done so

under the Calder standard. Thus, in Jn re Medley, 134

U.S. 160 (1890), it was held ex post facto to

retroactively apply a statute calling for solitary

confinement prior to execution of a death sentence,

when prior law did not. Addition of the condition of

solitary confinement increased the punishment beyond

that in effect at the time of the offense.

Similarly, in Lindsey v. Washington, 301 U.S.

397 (1937), the retroactive application of a statute that

provided for a mandatory sentence of fifteen years was

struck down because it deprived defendants of the

benefit of prior law, which provided for a range of

punishment. Although the Lindsey Court was of the

opinion that it “need not inquire whether this is

technically an increase in the punishment annexed to

the crime,” id. at 401, it is clear that the statute did in

fact effectively increase the potential punishment by

eliminating the possibility of a sentence less than the

maximum. Medley and Lindsey fit neatly within the

framework of Calder v. Bull.

More recently, in both Weaver v. Graham and

Miller v. Florida, the Court found a constitutional

defect in the retroactive application of changes in the

law that increased the amount of time prisoners must

serve before achieving eligibility for parole. In both

cases, the Court recognized that the change in law

effectively added to ‘the punishment that was

prescribed at the time when the crime was

consummated. Miller, 482 U.S. at 433-34; Weaver, 450

U.S. at 33. Again, the results reached are in harmony

with Calder.

The court below was of the opinion that

21

Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356

(1867) and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366

(1867), support its conclusion that Youngblood’s case

should be decided under a standard other than Calder

(App. D 8). In fact, those cases stand for the opposite

proposition. Both Cummings and Garland involved

loyalty oaths following the War Between the States,

with the exclusion from certain professions the penalty

for failing to take the oaths. In finding that requiring

the oaths violated the Constitution, the Court held that

exclusion from one’s chosen vocation constitutes

“punishment” within the meaning of the Ex Post Facto

Clause. Cummings, id. at 318, 18 L.Ed. at 361;

Garland, id. at 377, 18 L.Ed. at 370. Thus, the holdings

in those cases are fully consistent with the test of

Calder.

The only decisions of this Court that cannot be

reconciled with Calder are Kring v. Missouri, 107 U.S.

221 (1883) and Thompson v. Utah, 170 U.S. 343 (1898).

In Kring, the law at the time of the offense and trial

provided that a conviction of second-degree murder act-

ed as an acquittal of the greater offense of first-degree

murder. Kring initially pled guilty to second-degree

murder and was sentenced to twenty-five years im-

prisonment, but succeeded in having the conviction re-

versed on appeal. By the time he was tried again,

Missouri law had been changed to allow the state to

seek a conviction for first-degree murder and a sen-

tence of death. The Court held that retroactive appli-

cation of the new law to Kring’s case was ex post facto

because it deprived the defendant of a valid defense

and effectively increased his punishment. Jd. at 229.

The validity of Kring is questionab]2 in light of

subsequent decisions of this Court. See, eg., Alabama

v. Smith, ___. U.S. __, __, 109 S.Ct. 2201, 2206 (1989)

(no constitutional impediment to imposing greater

sentence on retrial than first sentence imposed in

connection with guilty plea); Poland v. Arizona, 476

U.S. 147, 152 (1986) (where conviction is reversed,

slate is wiped clean, and defendant may be sentenced

to any lawful punishment); Ohio v. Johnson, 467 U.S.

493, 501-02 (1984) (acceptance of guilty plea to lesser

included offense does not constitute an “acquittal” of

greater offense for double jeopardy purposes). Given

the current state of the law, it would seem that Kring

had no right -- much less a “substantial” right -- to an

implied acquittal.

Even if Kring remains good law, however, it

avails Youngblood nothing. The decisive distinction

between Kring and the case at bar is that the

defendant in that case entered into a plea agreement

pursuant to which he would receive an acquittal of a

capital offense. Thus, at least at the time of his plea, if

not the commission of his offense, he relied on Missouri

law as then in force. Youngh'ood is unable to

demonstrate similar reliance to his detriment. The

determinative event in the legal proceedings against

Youngblood is that his jury imposed a punishment that

it was without authority to assess. This fortuity was

wholly outside Youngblood’s control and entirely

unforeseeable. Thus, neither at the time of the offense

nor at trial could Texas law as it then existed have

entered into Youngblood’s thinkirg process. There was

no lack of fair warning, no detrimental reliance and,

hence, no ex post facto violation.

Thompson v. Utah is of even more questionable

precedential value. There, state law was changed

between the defendant’s first and second trials to

provide for eight-member juries rather than the

traditional twelve persons. The Thompson Court held

that retroactive application of the eight-member jury

rule was ex post facto because “the jury referred to in

23

the original constitution and in the sixth amendment is

a jury constituted, as it was at common law, of twelve

persons, neither more nor less.” Thompson, 170 U.S. at

349. In Williams v. Florida, 399 U.S. 78 (1970), the

Court rejected the notion that the constitutional right

to a jury embraces the numerical requirement of twelve

jurors. Although the Fifth Circuit was of the opinion

that Thompson v. Utah remains viable in light of

Williams (App. D 7 n.1), the state is unable to

understand how that could be. In any event, Thompson

offers Youngblood no support. The constitutional right

to trial by jury never has been interpreted to embrace a

right to two fair trials.

This case provides an opportunity for the Court

to clarify its prior ex post facto decisions. Strict

adherence to the venerable test of Calder v. Bull will

provide a standard that can be readily applied and

easily understood. Reliance on such a rule will obviate

grappling with such slippery questions as substance as

opposed to procedure and which rights are

“substantial.” Finally -- with the possible exceptions of

Kring and Thompson v. Utah -- the Calder test does not

mandate a different result than under any other

approach that the Court has employed.

CONCLUSION

For the above reasons, the state respectfully

requests that the judgment of the Court of Appeals for

the Fifth Circuit be reversed.

24

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

First Assistant

Attorney General

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

S. MICHAEL BOZARTH

a Assistant Attorney General

CHARLES A. PALMER*

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080

ATTORNEYS FOR RESPONDENT

* Counsel of Record