Respondents Brief — Collins v. Youngblood

~ BEST AVAILABLE COP’

i

QUESTION PRESENTED

Whether the retrospective application of a procedural

change in the law which has the effect of depriving an

inmate of the right to a reversal and a new jury trial

amounts to a deprivation of a substantial personal right

thereby violating the Ex Post Facto Clause, Article I, § 10

of the United States Constitution.

ii

TABLE OF CONTENTS

QUESTION PRESENTED. ........0.cccccccccccccccces ~~

TABLE OF CONTENTS ........cccccccccccccccccccces ii

TABLE OF AUTIBORITIBG. ... 22... ccccccccccccccccccccs iii

PPP rrr se 1

GURSEBOUTRNNE «os cos 00cecenecnessaeuuneee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

MOUGRIU cb. oct ccceecssctscecenenee 1

STATEMENT OF THE CASE ...........ccccccccccccces 2

SUMMARY OF ARGUMENT.............0ccccccccccecs 4

ARGUMENT AND AUTHORITIES. .............--eeeece 6

THE RETROSPECTIVE APPLICATION OF ARTICLE

37.10(B) VioLaTes THE Ex Post Facto CLausE

Or Tire CONSTITUTION .....cccccccccccccccces 6

ANALYsIS Or THE STaTE’s ARGUMENT ......... 14

COSCEAIOON. . os 0000000een0"euu anual 22

ili

TABLE OF AUTHORITIES

Cases Page

Beazell v. Ohio, 269 U.S. 167 (1925)....... 11, 12, 14-15, 20

ea State, 661 S.W.2d 957 (Tex. Crim. App.

a 2, 3, 5, 12, 14, 19

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) 6, 7, 15, 17, 18, 20

California v. Ramos, 463 U.S. 992 (1983)............. 19

Dobbert v. Florida, 432 U.S. 282 (1977).... 5, 7, 8, 9, 11, 14

Duncan v. Missouri, 152 U.S. 377 (1894). ............ 8, 10

Evans v. Thom , 881 F.2d 117 (4th Cir. 1989), cert.

Ch cd cdecesccescocecccccccces i)

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

ch oe peee aces beececececssce 3-4, 14, 19

Ex parte Roper, 61 [Tex.] Cr.R. 68, 134 S.W. 334 (1911). 13-14

Fletcher v Peck, 6 Cranch 87 (1810) ..............+--. 7

Hopt v. Utah, 110 U.S. 574 (1884). ...............55- 7, 10

Kring v. Missouri, 107 U.S. 221 (1883)....... 7, 8, 9, 15, 17

Mallett v. North Carolina, 181 U.S. 589 (1901)....... 10-11

Malloy v. South Carolina, 237 U.S. 180 (1915)........ 7, 10

Mapp v. Ohio, 367 U.S. 643 (1961) .............-5505. 18

Miller v. Florida, 482 U.S. 423 (1987)............. passim

Mills v. Rogers, 457 U.S. 291 (1982). ............-555. 19

Olmstead v. United States, 277 U.S. 438 (1928)........ 18

Portley v. Grossman, 444 U.S. 1311 (1980)........... 7, 11

Thompson v. Utah, 170 U.S. 343 (1897)............... 8,9

Weaver v. Graham, 450 U.S. 24 (1981)............. passim

Youngblood v. Lynaugh, 882 F.2d 956 (5th Cir.

Mth cia eeheeeeoegtocccees 1, 4, 14, 15, 16, 18

CONSTITUTIONS, STATUTES AND RULES

MM, Do ccc ccccccccccccccess 2

es ecco cencccccccccsccce 2

Texas Constitution, Art. 1, $16. .........cccccccess 13, 14

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

Ee passim

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth Cir-

cuit, wherein the Respondent was granted relief, is

attached to the petition for 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 sugges-

tion of rehearing en banc is Pet. App. E. The opinion of the

federal district court is Pet. App. C. The opinion of the

Texas Court of Criminal Appeals denying Respondent’s

application for a writ of habeas corpus is Pet. App. B. Ex

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

(en banc). The order of the state district court recom-

mending that habeas corpus relief should be granted is

Pet. App. A.

JURISDICTION

The State has invoked the jurisdiction of this Court

pursuant to 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,

' References to appendices attached to the petition are hereinafter

referred to as “Pet. App.” and followed by the letter associated with

the appendix. The appendices attached to the petition are being used

in lieu of a joint appendix. References to Petitioner's Brief will be

referred to as “Pet. Brief” and followed by the page number. Refer-

ences to the federal record on appeal will be designated as “ROA” and

followed by the appropriate page number.

2

or Law impairing the Obligation of Contracts, or

grant any Title of Nobility.

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

Supp. 1985) provides as follows:

If the jury assesses punishment in a case and in the

verdict assesses both punishment that is authorized

by law for the offense and that is not authorized by

law for the offense, the court shall reform the verdict

to show the punishment authorized by law and to

omit the punishment not authorized by law. If the

trial court is ys 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

On March 17, 1982, Respondent was convicted of

Aggravated Sexual Abuse, a first degree felony. During

the punishment phase of the trial, the jury found that

Respondent had been previously convicted of a felony;

hence Respondent’s punishment was enhanced and he was

sentenced to life in prison and a fine of $10,000. The

Twelfth Supreme Judicial District Court of Appeals, in

Tyler, Texas, affirmed the conviction on August 13, 1984.

Respondent did not appeal the conviction further. It

should be noted that the conviction became final before

the effective date of Tex. Code Crim. Proc. Ann. art.

37.10(b), which was on June 11, 1985.

On September 19, 1984, Respondent filed an applica-

tion for a writ of habeas corpus pursuant to a decision by

the Texas Court of Criminal Appeals in Bogany v. State,

661 S.W.2d 957 (Tex. Crim. App. 1983). The Court in

Bogany held that the enhancement provision of Tex.

Penal Code § 12.42(c) (Vernon Supp. 1979) does not autho-

rize the punishment to include a fine in addition to a prison

sentence. The Court concluded that the jury’s verdict was

3

“void at its inception” (661 S.W.2d at 959) and the judg-

ment was reversed. In light of Bogany, Respondent had a

reasonable expectation that his conviction would likewise

be reversed. On April 2, 1985, the trial court, in its recom-

mendation to the Court of Criminal Appeals, concluded

that relief should be granted. Pet. App. A.

However, after Bogany was decided and after the

Court of Criminal Appeals granted numerous applica-

tions for writs of habeas corpus pursuant to Bogany, the

Texas Legislature passed Tex. Code Crim. Proc. Ann.

art. 37.10(b):

If the j assesses punishment in a case and the

wealakaneme 5 oth putiament 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 autho-

rized by law and to omit the punishment not autho-

rized by law. If the trial court is required to reform a

verdict under this subsection and fails to do so, the

appellate court shall reform the verdict as provided

by this subsection.

Again the statute went into effect on June 11, 1985.

On October 8, 1985, the Texas Court of Criminal

Appeals announced its first decision on the applicability of

the changes in art. 37.10(b) in Ex parte Johnson, 697

S.W.2d 605 (Tex. Crim. App. 1985), which held that the

new statute was merely procedural in nature and could be

applied retrospectively. In dissent, J udge Onion

expressed the opinion that the retroactive application of

the statute deprived Johnson of substantial protection and

violated the Ex Post Facto Clause.

One week later, on October 16, 1985, the Court of

Criminal Appeals denied Respondent’s application for

writ of habeas corpus, basing its decision on Ex parte

4

Johnson. As in Johnson, the Court applied the new stat-

ute to Respondent's conviction even though the offense

had occurred and the conviction had become final prior to

the enactment of the new statute. Pet. App. B-1. Ex parte

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

Respondent therefore filed a pro se petition for a writ of

habeas corpus with the United States District Court in

Tyler, basing his petition on the dissent presented by

Judge Onion.

The United States District Court initially issued an

order summarily dismissing the application (ROA 51).

Respondent then sought and received assistance from

Staff Counsel for Inmates. Counsel filed a Motion to Rec-

onsider (ROA 36), and, in the alternative, Notice of

Appeal (ROA 29). In response, the Court withdrew its

earlier order and ordered a hearing on the merits (ROA

28). The District Court issued its decision on September

13, 1988, denying Respondent’s allegation that the retro-

spective application of Tex. Code Crim. Proc. Ann. art.

37.10(b), by the Texas Court of Criminal Appeals, violates

the Ex Post Facto Clause of the Constitution. Pet. App. C.

Respondent again filed notice of appeal (ROA 7) and

requested a certificate of probable cause (ROA 6). In

response, Judge Parker issued a certificate of probable

cause to the Court of Appeals (ROA 1).

The Court of Appeals for the Fifth Circuit considered

the appeal and granted relief on September 8, 1989. Pet.

App. D. Youngblood v. Lynaugh, 882 F.2d 956 (5th Cir.

1989). On October 19, 1989, the Court of Appeals denied

the Petitioner's suggestion for rehearing en banc. Pet.

App. E. The Supreme Court granted the State’s Petition

for Writ of Certiorari on December 11, 1989.

SUMMARY OF ARGUMENT

The case law concerning the Ex Post Facto Clauses

developed by the Supreme Court is extensive. The

5

Court's test for determining whether a criminal law is ex

post facto involves two critical elements: “first, the law

‘must be retrospective, that is, it must apply to events

occurring before its enactment’; and second, ‘it must dis-

advantage the offender affected by it.’” Miller v. Florida,

482 U.S. 423, 430 (1987), quoting Weaver v. Graham, 450

U.S. 24, 29 (1981). Additionally, no ex post facto violation

occurs if a change does not alter “substantial personal

rights,” but merely changes “modes of procedure which

do not affect matters of substance.” Miller, 482 U.S. at

430, quoting Dobbert v. Florida, 432 U.S. 282, 293 (1977).

However, the “alteration of a substantial personal right

. . . is not merely procedural, even if the statute takes a

seemingly procedural form.” Weaver, 450 U.S. at 29 n.12;

Miller, 482 U.S. at 433. In the instant case, the Texas

Court of Criminal Appeals decided Bogany, supra, and

numerous inmates were able to utilize the decision to

obtain habeas corpus relief. The Texas legislature

responded by passing Tex. Code Crim. Proc. Ann. art.

37.10(b) to prevent additional inmates, such as Respond-

ent, from obtaining reversals and new jury trials. In

granting relief, the Court of Appeals for the Fifth Circuit

applied the Court’s test to the facts in this case and con-

cluded that the retrospective application of Tex. Code

Crim. Proc. Ann. art. 37.10(b) is ex post facto.

In presenting its case, the State of Texas has ignored

the Court’s test for determining whether a criminal law is

ex post facto. Instead, the State erroneously argues that

the applicability of the Clause has been limited to the four

exemplary categories of cases enumerated by Justice

Chase in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). The

State has rejected the numerous cases by the Court hold-

ing that the retrospective application of procedural

changes in the law can be ex pc 3t facto. Again as recently

as 1987, in Miller v. Florida, the Court held that a change

6

in a procedural law can fall within the ex post facto pro-

hibition if it alters “substantial personal rights.

ARGUMENT AND AUTHORITIES

THE RETROSPECTIVE APPLICATION OF ARTICLE

37.10(b) VIOLATES THE EX POST FACTO CLAUSE OF THE

CONSTITUTION

The Supreme Court has regularly considered the issue

of aaa a criminal law is ex post facto. The Court first

considered the Constitutional prohibition against ex post

facto laws in Calder v. Bill, supra. In an oft-quoted opin-

ion, Justice Chase listed exemplary kinds of laws barred

by the constitutional provision, including:

_ Every law that makes an action done before

the passing of the law, and which was innocent when

done, criminal; and punishes such action. 2d. Every

law that aggravates a crime, or makes it r than

it was, when committed. 3d. Every law changes

the punishment, and inflicts a greater punishment,

than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence,

and requires less, or different, testimony, than the

law required at the time of the commission of the

offense, in order to convict the offender.

3 U.S. at 390. The next sentence in Justice Chase's opinion

is not quoted as often, but he adds that the prohibition

includes all other similar kinds of laws: “All these, and

similar laws, are manifestly unjust and oppressive. He

goes on to say that the precise meaning of the prohibition

is that the States cannot pass any laws to deprive a citizen

of a right given to him by existing laws. 3 U.S. at 394.

There are many reasons why the Ex Post Facto Clauses

were included in the Constitution. A primary reason was

to restrict “governmental power by restraining arbitrary

and potentially vindictive legislation.” Weaver, 450 U.S. at

a ene

7

29. See also Malloy v. South Carolina, 237 U.S. 180, 183

(1915); Kring v. Missouri, 107 U.S. 221, 229 (1883);

Fletcherv. Peck, 6 Cranch 87, 138 (1810); Calder v. Bull, 3

U.S. at 396 (Paterson, J.). The Clauses were likewise

aimed at “preventing legislative abuses.” Miller, 482 U.S.

at 423; Calder v. Bull, 3 U.S. at 396 (Paterson, J.), at

396-400 (Iredell, J.). The Framers of the Constitution also

“sought to assure that legislative Acts give fair warning of

their effect and permit individuals to rely on their mean-

ing until explicitly changed.” Weaver, 450 U.S. at 28-29;

Dobbert v. Florida, 432 U.S. 282, 298 (1977); Kring, 107

U.S. at 229; Calder v. Bull, 3 U.S. at 387.

With these principles and purposes in mind, the Court

has established its test for determining whether a crimi-

nal law is ex post facto. Two critical elements must be

present: “it must be retrospective, that is, it must apply to

events occurring before its enactment, and it must disad-

vantage the offender affected by it.” Weaver, 450 U.S. at

29; Miller, 482 U.S. at430. The Court has added, however,

that the prohibition against ex post facto laws does not

extend to every change of law that “may work to the

disadvantage of a defendant.” It is intended instead to

secure “substantial personal rights” from retrospective

deprivation. Miller, 482 U.S. at 430; Portley v. Grossman,

444 U.S. 1311, 1312 (1980); Dobbert, 432 U.S. at 293.

The issue herein focuses on the extent to which the

retrospective application of procedural changes in the law

may be ex post facto. The Court has held that ex post facto

violations do occur if the retrospective application of pro-

cedural changes in the law alters “substantial personal

rights,” but do not occur when the law merely changes

“modes of procedure which do not affect matters of sub-

stance.” Miller, 482 U.S. at 430; Dobbert, 432 U.S. at 293;

Hopt v. Utah, 110 U.S. 574 (1884). Stated differently, to

8

be ex post facto, the totality of the procedural changes

must be more onerous than the prior law. Dobbert, 432

U.S. at 296-297. Furthermore, the “alteration of a sub-

stantial personal right . . . is not merely procedural, even

if the statute takes a seemingly procedural form.” Weaver,

450 U.S. at 29 n.12; Miller, 482 U.S. at 433; Thompson v.

Utah, 170 U.S. 348, 354-355 (1898). Procedural statutes

must “leave untouched all the substantial protections

with which existing law surrounds the person accused of

crime.” Duncan v. Missouri, 152 U.S. 377, 382 (1894).

Overall, the Court has consistently held that the retro-

spective application of procedural changes in the law can

in fact be ex post facto. The determining factor in these

cases is whether an individual is deprived of substantial

personal rights.

The Court has issued several opinions that illustrate

these principles. In Kring v. Missouri, 107 U.S. 221

(1888), the defendant had originally been charged with

first degree murder but was permitted to plead guilty to

second degree murder, which was accepted by both the

prosecuting attorney and the court. He subsequently

appealed alleging he had been promised a 10 year sen-

tence, rather than a 25 year sentence. The conviction was

reversed, and the State responded by seeking and obtain-

ing a conviction for first degree murder. The defendant

again appealed claiming that the law in effect at the time

of the offense prevented the State from seeking a convic-

tion for first degree murder after having agreed to second

degree murder. The State countered by saying that the

change in the law was merely procedural and hence the

new law controlled. The Court was of the opinion that the

new law improperly penalized the defendant for appealing

his conviction and proving that his sentence was

erroneous. It had the effect of altering the situation of the

< a a ee |

9 =

defendant to his disadvantage. The Court concluded that

the new law, although procedural in nat

facto. 107 U.S. at 235.2 ere

In Thompson v. Utah, 170 U.S. 343 (1898

held that a defendant cannot be aia ane - i

statute requiring only eight jurors, since the alleged

offense was committed and first tried when applicable law

guaranteed a trial by a jury of twelve. The Court indicated

that statutes regulating procedure will violate the Ex Post

Pe pts re wo ane : defendant of a “substantial

n y the law in force at ich hi

guilt relates.” 170 U.S. at 352. ee

In Weaver, supra, the Court once again stated that a

law will be ex post facto if the law is retrospective and

disadvantages the offender affected by it. 450 U.S. at 29.

The statute in question changed the formula to reduce the

amount of monthly gain-time available to an inmate who

complied with prison rules and performed assigned tasks.

The petitioner's situation was materially altered and dis-

advantaged by the reduced opportunity to shorten his

sentence through good conduct. In applying the Court's

_ test to the facts, the Court held that the Florida statute

was unconstitutional as an ex post facto law as applied to

the petitioner since his crime was committed

statute was enacted. —

In Miller, supra, the Court held that the application of

revised sentencing guidelines to a defendant, whose

crime occurred before the effective date of the new

2 It should be noted that the district court in Evans v. Thomps

now pending before the Court, No. 89-516, was of the nies that

Kring was overruled or modified by Dobbert v. Florida, 432 U.S. 282

(1977). However, the Court cited Kring with approval in a case four’

years after Dobbert in Weaver v. Graham, 450 U.S. 24, 29 n.12 (1981).

10

guidelines, was ex post facto. The changes in sentencing

guidelines were not merely procedural since the applica-

tion of the new guidelines produced a more onerous sen-

tence than the law in effect at the time of the offense in the

defendant's case.

Each of these cases illustrates the basic principles that

led to the Court’s test as announced in Weaver and fol-

lowed in Miller. In each case, a procedural change in the

law was anplied retrospectively, and the individual

affected by the change in the law suffered a deprivation of

a substantial personal right given to him by the law in

effect at the time of the offense.

The Court has similarly decided numerous cases involv-

ing the retrospective application of procedural changes in

the law that were not ex post facto since the individual

affected had not been deprived of a substantial personal

right. A statute which merely enlarges the class of per-

sons who may be competent to testify is not ex post facto.

Hopt v. Utah, 110 U.S. 574 (1884). The abc'ition of courts

and the creation of new ones, while leaving tuntouched all

the substantive protections which existed at the time of

the offense, oes not fall within the Constitutional pro-

hibition agains: ex post facto laws. Duncan v. Missouri,

152 U.S 377 (1894). The defendant therein was not in any

way materially disadvantaged by the change in the law. A

change in the form of execution from hanging to electrocu-

tion is not prohibited. If anything, the change in the law

was ameliorative, providing a less painful method of

execution. Malloy v. South Carolina, supra. Authorizing

the State to appeal a case from an intermediate appellate

court to the State Supreme Court did not “dispense with

any of those substantial protections with which the exist-

ing law surrounds the persons accused of crime.” Mallett

ll

v. North Carolina, 181 U.S. 589, 597 (1901).3 A statute

which provided that co-defendants shall be tried jointly,

instead of individually, does not deprive the defendants of

any defenses or substantive guarantees provided pre-

viously nor change the legal definition of the criminal act,

nor the proof required to establish guilt; consequently,

the change in law was not ex post facto—the defendants

were not deprived of any substantial personal rights.

Beazell v. Ohio, 269 U.S. 167 (1925). In Dobbert, supra,

the Court found that a Florida statute which changes the

relative roles of the jury and judge in death penalty cases

was not ex post facto because the defendant could not

show that he was deprived of any substantial personal

rights. Finally, changes in parole revocation guidelines

are not ex post facto when they neither deprive a parolee

of any preexisting rights nor enhance the punishment

imposed. Portley v. Grossman, 444 U.S. 1311 (1980). In

all of these cases, the individuals affected by the changes

in the law were not so affected as to suffer a deprivation of

substantial personal rights. In some of the cases the indi-

viduals speculated that they possibly could suffer harm,

but the individuals affected had to unequivocally show

— ae would be materially harmed in order to obtain

relie

The fundamental question involved in all of these cases

focuses on the point at which a change in a procedural law

will he sufficient to transgress the constitutional prohibi-

’ The United States government relies on Mallett for the proposi-

tion that the procedural law involved herein is not ex post facto. The

fact situations, however, are not comparable. The statute in Mallett

broadened the scope of due process, albeit for the State. The situation

herein is just the opposite. The statute eliminated the Respondent's

right to due process as it existed at the time of the offense, denying

him his right to a reversal and new jury trial.

12

tion. Justice Stone indicated that the point at which a law

will become ex post facto “cannot be embraced within a

formula or stated in a general proposition. The distinction

is one of degree.” Beazell, 269 U.S. at 171. The determin-

ing factor is the point at which an individual is deprived of

substantial personal rights.

Keeping these principles in mind, we come to the issue

of whether the procedural change in the law here is ex post

facto. The State concedes that the first prong of the test

has been satisfied—the change in art. 37.10(b) has been

applied retrospectively. The sole issue then is whether the

Respondent has been disadvantaged by the retrospective

application of art. 37.10(b). Stated differently, the issue is

whether Respondent has been deprived of a substantial

personal right. In the instant case, numerous inmates

obtained habeas corpus relief pursuant to Bogany, supra.

Their cases were reversed and remanded for a new jury

trial. Respondent had a reasonable expectation that his

case would likewise be reversed and that he would have

the opportunity for a new jury trial. The trial court

agreed that, pursuant to Bogany, relief should be

granted. Pet. App. A. However, while Respondent's

application for writ of habeas corpus was pending in the

Court of Criminal Appeals, the Texas legislature changed

the law to eliminate the possibility that additional

inmates, such as Respondent, could obtain relief. The

Court of Criminal Appeals thereafter utilized the new law

to deny Respondent's application for a writ of habeas

corpus. Instead of obtaining a reversal and new jury trial,

Respondent's conviction was affirmed and his sentence

modified. For an inmate, the right to a reversal is of

paramount importance. Respondent has been apprecia-

bly disadvantaged by the retrospective application of the

new law.

13

Regarding the question of whether the deprivation

herein was substantial, the Court of Appeals said the

following: _

Delineation of the boundary between “substantial”

rights and those considered not substantial, like the

distinction between fundamental and non-fundamen-

tal rights, is an inquiry not susceptible of examina-

tion by scientific formulae or comprehensive enumer-

pee However, given meg hye gee ca tepenag in ex

urisprudence concepts as “mate-

rial di : tage” 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 encom within the cat-

egory of rights considered “su tial.”

Pet. App. D-9. The question of whether the deprivation

herein was substantial cannot seriously be challenged. As

the Court of Appeals correctly concluded, the right

herein was “comfortably” encompassed within the cate-

gory of rights considered substantial. The second prong of

the Court's test is satisfied, and the Court of Appeals

appropriately granted Respondent's petition for writ of

corpus.

The law in Texas, by comparison, also prohibits the

retrospective application of procedural changes that

deprives a defendant of substantial protection. In the

Interpretive Commentary of the applicable Texas provi-

sion prohibiting ex post facto laws, Article I, Section 16, of

the Texas Constitution (Vol. I, pp. 371, 372, Vernon's

Constitution of the State of Texas, Annotated) it is writ-

ten:

Although ordinarily laws changing procedure are not

within the inhibition, still if a procedural change is

retroactive and results in depriving the accused of

14

tantial protections, it is unconstitutional. Ex

— Roper, 61 [Tex] Cr.R. 68, 184 S. W. 334 (1911).

In his dissenting opinion in Ex parte Johnson, 697 S.W.2d

at 609, Judge Onion, then presiding judge of the Texas

Court of Criminal Appeals, stated that Art. 37. 10(b) was

an “overreaction” to Bogany. He added that the provision

violates a defendant's basic right to have the jury assess

the punishment as part of the verdict. 697 S.W.2d at 612

n.3. Judge Onion concluded that art. 37.10(b), when

applied retroactively, undoubtedly violates the prohibi-

tion against ex post facto legislation.

ANALYSIS OF THE STATE’S ARGUMENT

The State's approach has been to isolate its argument to

only one aspect of the Court’s decisions, as seen in the

Petitioner’s emphasis on the following excerpt from

Beazell:

It is settled, by decisions of this Court so well known

that their citation may be dispensed with, that any

statute which punishes as a crime an act previous!

committed, which was innocent when done; whic

makes more burdensome the punishment for a crime,

after its commission, or which eens one

with crime of any defense available according to law

at the time when the act was committed, it prohibited

as ex post facto. |

269 U.S. at 169-70, quoted in Dobbert v. Florida, 432 U.S.

282, 292 (1977). Pet. Brief 9. The State of Texas argues

that a criminal law is not ex post facto unless it falls within

the parameters of this provision.

The Supreme Court has not, however, limited the

applicability of the Ex Post Facto Clauses to these areas.

Even in Beazell, the Court went on to say that “there may

be procedural changes which operate to deny to the

15

accused a defense available under the laws in force 2t the

time of the commission of his offense, or which otherwise

affect him in such a harsh and arbitrary manner as to fall

within the constitutional prohibition.” 269 U.S. at 170. As

discussed earlier, the Court has decided numerous cases

which illustrate Justice Stone’s statement and contradict

the State’s argument.

The State goes on to refer to the four exemplary catego-

ries enumerated by Justice Chase in Calder v. Bull as the

“time-honored test” in determining whether a law is ex

post facto. Pet. Brief 11. The State does not acknowledge

the existence of the Court’s test as presented in Weaver

and followed in Miller. Perhaps the State is implying that

_ the Court’s test is immaterial, or at least incorrect.

In an effort to convince the Court that the standard to

be employed is the “time-honored test” of Calder v. Bull,

the State reevaluates past decisions by “pigeon holing”

them into one of the four exemplary categories enumer-

ated by Justice Chase. Even then, the State acknowl-

edges that some of the Court's past decisions cannot be

harmonized with its theory. Pet. App. 10. The Court of

Appeals characterized the State's approach as presenting

case law to “erroneously suggest that a statute must fit

neatly within the confines of one of these enumerated

pigeon holes or else may not rightly be said to violate the

Ex Post Facto clause.” Pet. App. D-7. The State’s

approach improperly misrepresents the law to unduly

limit the value of the Ex Post Facto Clauses.

The Supreme Court has regularly been presented with

the type of argument presented by the State. It is essen-

tially a variation of the old theme that procedural changes

in the law can never be ez post facto. In Kring, supra, the

Court provided a response to the State’s argument:

16

Can the law with regard to bail, to indictments, to

d juries, to the trial jury, all be changed by state

footaldiion after the offense committed, to the disad-

van of the prisoner, and not held to be ex post

facto, it relates to procedure, . . . can any

substantial right which the law gaye the defendant at

the time to which his guilt relates be taken away from

him by ex post facto legislation, because, in the use of

a modern phrase, it is called a law of procedure? We

think it cannot.

107 U.S. at 232. Justice Miller's comments are consistent

with the Court’s numerous decisions holding procedural

changes in the law can be ex post facto. It is too late in the

day for the State’s argument to be credible.

The Supreme Court’s past decisions on this issue

clearly indicate that the value of the Ex Post Facto

Clauses is broad, rather than narrow. Or, as Judge Gee

concluded, the possibility that a retrospective application

of a procedural change in the law will be ex post facto

“constitutes more of a bright spectrum than a bright line.”

Pet. App. D-10. In other words, the Court has granted

relief in a wide array of circumstances involving pro-

cedural changes in the law. The State’s approach, joined

by the federal government, is understandable. Govern-

ments by and large do not want limits on their authority;

consequently, it is understandable why both the State of

Texas and the United States have encouraged the Court

to redefine and limit the Ex Post Facto Clauses. The

decisions of the Court, however, do not support their

position. The applicability of the Ex Post Facto Clauses

regarding procedural changes in the law is somewhat

broad.

The State criticizes the Court of Appeals for its failure

to consider whether Youngblood was deprived of fair

warning by the application of the statute in this case.

17

Respondent can only speculate as to why the Court of

Appeals did not see a need to perform such an analysis.

Respondent will, nonetheless, offer one possible explana-

tion. In Weaver, the Court announced its test to be used in

determining whether a criminal law is ex post facto, and

the Court stated that the test is derived from the princi-

ples that individuals must be given fair warning and that

governmental power must be restricted by restraining

arbitrary and vindictive legislation. 450 U.S. at 28-29.

The Court of Appeals appropriately employed the Court’s

test. The Court of Appeals neither had a reason nor a

right to second guess the validity of the test. There was no

reason to examine the facts herein utilizing the principles

underlying the test.

Even though the Court of Appeals did not feel com-

pelled to discuss the principles underlying the test,

Respondent desires to do so. Respondent particularly

wants to examine the fundamental principle that “the Ex

Post Facto Clauses were included in the Constitution to

assure that federal and state legislatures were restrained

from enacting arbitrary and vindictive legislation.” Mil-

ler, 482 U.S. at 423, quoting Calder v. Bull, 3 U.S. at 389.

It is clear that the purpose for the enactment of art.

37.10(b) was to arbitrarily prevent additional inmates,

such as the Respondent, from obtaining a reversal, new

jury trial and possible acquittal. As in Kring, 107 U.S. at

- 235, the State is attempting to penalize Respondent, and

all other inmates similarly situated, for proving they have

an unauthorized sentence. The State has attempted to

downplay the significance of the detrimental impact of the

statute on inmates. There are, however, few rights more

important to an inmate than the right to a reversal. Fur-

thermore, the action of the legislature seriously under-

mines the integrity of the judicial and appellate processes.

18

The State’s argument basically stands for the proposition

that a legislature may eliminate the effects of unpopular

decisions by the appellate courts by enacting new legisla-

tion that will eliminate the possibility that additional indi-

viduals will obtain relief, label the new legislation as a

procedural change in the law, and apply the change retro-

spectively. The purpose of the Ex Post Facto Clauses was

precisely to stop the type of activity going on here—to

restrain legislatures from enacting arbitrary and vindic-

tive legislation to the detriment of the citizens of the

American society.

Judge Garza noted (Pet. App. —_ he oe gs nang

why the legislature thought it distas give con-

vieted pit. defendants a second trial. He indicated

that the act of the legislature may be wise public policy;

however, wise public policy cannot justify the adoption of

ex post facto laws. Justice Chase noted that the British

government attempted to justify its habit of enacting ex

post facto laws by saying it was necessary for the safety of

the kingdom.” 3 U.S. at 389. The Framers of the Constitu-

tion did not accept the argument. They believed it was

necessary to outlaw this type of legislative activity as a

violation of the “vital principles of our free Republican

governments.” 3 U.S. at 388. Maintaining the provisions

found in the Constitution is more important than depriv-

ing a few convicted criminals a retrial. The government

cannot be allowed to enact laws which are ex post facto for

the sole reason of changing the outcome in a court’s opin-

ion.

4 The Court has emphasized that the Law must be followed, even if

a criminal goes free in the process. See, e.g., Mapp v. Ohio, 367 U.S.

643, 659 (1961); Olmstead v. United States, 277 U.S. 438, 485 (1928)

(dissenting opinion by Justice Brandeis).

19

The State likewise attacks the conclusion of the Court of

Appeals that the Respondent was deprived of a substan-

tial right. The fundamental issue here is whether the

right to a new jury trial, after an appellate court has ruled

that a reversible error was committed during the initial

trial, is a substantial personal right. The crux of the

State’s argument is that this Court has never held that a

defendant is entitled to an entire new jury trial if the

punishment assessed by the jury is unauthorized by law.

Pet. Brief 16.

The State’s argument, however, begs the question. The

Texas Court of Criminal Appeals in Bogany, supra, con-

cluded that under the laws of the State of Texas uhe

defendant therein was entitled to a new jury trial. The

right to a new jury trial exists under the laws of the State

of Texas.5 The Respondent has the same rights and is

likewise entitled to a new jury trial.

The States are not obligated to curtail the rights of

people to conform to the minimum rights provided by

federal law: “It is elementary that States are free to

provide greater protections in their criminal justice sys-

tem than the Federal Constitution requires.” California

v. Ramos, 463 U.S. 992, 1014 (1983), When a State creates

rights greater than those protected directly by the Fed-

eral Constitution, the State created rights are entitled to

protection by the federal courts. Mills v. Rogers, 457 U.S.

291, 300 (1982). It does not matter what rights might have

® The right to a jury trial is of paramount importance in the criminal

trial process in Texas. The assessment of the sentence is within the

exclusive province of the jury, and the trial judge cannot change the

verdict nor refuse to abide by it. See Judge Onion’s review of the role

of the jury in Texas in Ex parte Johnson, 697 S. W.2d 605, 612 n.3 (Tex.

Crim. App. 1985).

20

existed under the law of any other jurisdiction. Respond-

- ent is entitled to have his State created rights protected

by the federal courts. According to the law in Texas

applicable to offenses committed before the change in art.

37.10(b), Respondent has a right to a reversal and a new

jury trial. He is entitled to have these rights protected.

We therefore return to the question whether Respond-

ent was deprived of a substantial personal right. The

State once again focuses on the categories enumerated in

Calder v. Bull. The State argues that the Court should

find that the concept of substantial personal rights is

limited to the categories in Calder. The State admits,

however, that its proposed test is not entirely consistent

with the Court’s decisions. Pet. Brief 19. The State goes

on to say that the proposal should be adopted because it is

“easily understood.” Pet. Brief 23. In other words, the

Court should abandon its prior decisions in order to have

an “easily understood” standard. J ustice Stone long ago

explained there is no simple scheme to artificially deter-

mine when the deprivation of an individual's rights is

substantial: “{it] cannot be embraced within a formula or

stated in a general proposition. The distinction is one of

degree.” Beazell, 269 U.S. at 171. The State’s desire to

limit the concept of substantial personal rights to the

categories found in Calder is both simplistic and unre-

alistic. In this case, depriving Respondent of a reversal

and the right to a new jury trial and, instead, affirming his

conviction has clearly deprived Respondent of a substan-

tial personal right.

The State criticizes the Court of Appeals for reasoning

that the legislature must have thought that the right to a

new trial was substantial since the legislature enacted the

change in art. 37.10(b) to stop the onslaught of reversals.

The State characterized the statement as circular reason-

21

ing. Pet. Brief 15-16. The observation of the Court of

Appeals nonetheless was apropos. The legislature wanted

a different outcome. The legislators thought it was impor-

tant. It was significant to them. It is likewise significant to

Respondent and all other inmates similarly situated. The

State is being disingenuous in arguing that Respondent

has not been deprived of a substantial right.

The Court of Appeals appropriately granted relief

because the Respondent was able to show that (1) the

criminal law was applied retrospectively, and (2) that he

was disadvantaged by the retrospective application of the

new law. Respondent was able to satisfy both prongs of

the requirements set forth in Weaver and Miller, and the

Court of Appeals so found. The Respondent was sen-

tenced under a procedure that was not authorized at the

time of the commission of the offense. Whereas previously

the Respondent, and all others similarly situated, were

entitled to a reversal and retrial, the retrospective

application of the new statute resulted in a mere modifica-

tion of his judgment and sentence. The change in pro-

cedure materially disadvantaged Respondent by elim-

inating his right to be sentenced according to the law in

existence when the offense was committed. It resulted in

eliminating his right to a reversal and retrial by jury and

replacing it with an affirmance of his conviction. Respond-

ent lost the substantial personal rights that comes with

any retrial and possible acquittal. The retrospective

application of art. 37.10(b) is clearly an onerous applica-

tion of an ex post facto change in the law. The constitu-

tional prohibition against ex post facto laws undoubtedly

applies in this case. The decision of the Court of Appeals

ree reve 4 — oo Court’s past holdings to

e in case. The decision of t

sy aye er he Court of Appeals

-22

CONCLUSION

For these reasons, Respondent respectfully requests

that the judgment of the Court of Appeals for the Fifth

Circuit be affirmed.

Respectfully submitted,

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