# Petitioners Brief — Collins v. Youngblood

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0690%3A4

## Record

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

## Text

1

= ’ © same { ’ U. :
\" sspears 7" i

$) JAN 95 1990

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.

neni

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0690%3A4. Public record. Not legal advice.