Petition for Writ of Certiorari — Collins v. Youngblood

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1989

JAMES A. LYNAUGH,

Petitioner,

V.

CARROLL F. YOUNGBLOOD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

First Assistant

Attorney General

LOU McCREARY

Executive Assistant

Attorney General

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

CHARLES A. PALMER*

Assistant Attorney General

S. MICHAEL BOZARTH

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080

* Counsel of Record

r

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 punish-

ment 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.

i-

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.............0..000-: i

yy) Ff) „„ IG “eee iv

J hn wns awe ein bib ae 0 a 1

J eee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................. 2

STATEMENT OF THE CASE... gz. 3

A. Course of Proceedings and Disposition

een ee ere °° 6 3

A he ce eves tsuebews 5

SUMMARY OF ARGUMENT................. 5

REASONS FOR GRANTING THE WRIT......... 6

I. THERE ARE SPECIAL AND IMPORTANT

REASONS TO GRANT THE WRIT......... 6

A. Certiorari should be granted to resolve

an irreconcilable conflict of authority

on an important, recurring issue of

RENE 5 6

. Certiorari should be granted to correct

an ill reasoned and clearly erroneous

interpretation of federal constitutional

35... „„ „„ vec Cea eentie ses 7

r

-iii-

II. THE RETROACTIVE APPLICATION OF

ARTICLE 37. 1000 DOES NOT VIOLATE

THE EX POST FACTO CLAUSE OF THE

UNITED STATES CONSTITUTION ........ 9

A. Retroactive application of Article

37.10(6) does not violate the Ex Post

Facto Clause because it does not punish

as a crime an act previously committed,

which was innocent when done; does not

make more burdensome the punishment

for a crime, after its commission, and

does not deprive one charged with crime

of any defense available according to

law at the time when the act was

B. Because the change wrought by Article

37.10(b) was purely procedural and did

not deprive Youngblood of any

substantial ight, its retroactive

application does not violate the Ex Post

ES 12

C. 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

CONCLUSION

than whether it deprived him of a lack

C—O a ee

-iv-

TABLE OF AUTHORITIES

Cases Page

Beazell uv. Ohio, 269 U.S. 167 (19250) 10,11,13

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

/ deb ccdcckedcencccc. ff

Bouie v. City of Columbia, 378 U.S. 347 (1964) 15

Dobbert v. Floride, 432 U.S. 282 (1977)... ... 11,12,14

Evans v. Thompson, 881 F. ad 117 (4th Cir. 1989). . .5,7

Hopt v. Utah, 110 U.S. 574 (1884). ............ 12

Insurance Corp. v. Compagnie Des Bauxites, 456

Or te ee See 6

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

r ̃ eh POUPE Ch ccc. 9,10

Lakeside v. Oregon, 435 U.S. 333 (1978). ......... 6

Marks v. United States, 430 U.S. 188 (1977)...... 15

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

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

denied, _U.S.__, 108 S.Ct. 262 (1987). ...... 5,7

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

denied, 466 U.S. 942 (1984). ............... 6,7

United States v. Crabtree, 754 F.2d 1200 (5th

SG els cc accreted .... 12

-V-

Constitutions, Statutes and Rules

ne 2

, ⁰ 2

Tex. Code Crim. Proc. Ann. art. 37. 100b) (Vernon

e passim

, ̃ TT!!! IR 6

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1989

JAMES A. LYNAUGH,

V.

CARROLL F. YOUNGBLOOD,

Respondent.

Petitioner,

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

NOW COMES James A. Lynaugh, by and

through his attorney, the Attorney General of Texas,

and files this Petition for Writ of Certiorari.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit reversing the district court’s denial of habeas

relief is attached hereto as Appendix D. Youngblood v.

Lynaugh, __ F. 2d No. 88-2888 (5th Cir. Sept. 8,

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.

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

Respondent as “Youngblood.”

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 judgment of the Court of Appeals was

entered on September 8, 1989. A timely filed sug-

gestion of rehearing en banc was denied on October 19,

1989. This petition for writ of certiorari is filed within

30 days after final judgment in the court below. 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 Contracts, or grant any Title of Nobility.

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

Supp. 1989) provides as follows:

3

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 and valid 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 convicted 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

enhancement of punishment (SF II 299),2 and the court

instructed the jury that the 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 found that Youngblood had been previously

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

number; SF refers to the statement of facts of Youngblood’s trial,

and Tr.“ refers to the transcript.

-4-

convicted of a felony and assessed punishment at life

imprisonment and a fine of $10,000.00.

Youngblood’s conviction was affirmed in an

unpublished opinion delivered by the Twelfth District

Court of Appeals of Texas on August 13, 1984.

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

an application for state writ of habeas corpus chal-

lenging his conviction and sentence. The state con-

victing 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 (Appendix, hereinafter App., A). On October

16, 1985, the Texas Court of Criminal Appeals deliv-

ered 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 Procedure,

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 appli-

cation for writ of habeas corpus in federal district court

alleging that the retroactive application of Article

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

withdrew its previous order and set a hearing to hear

arguments on the issues raised by Youngblood (ROA

28). After the hearing the state filed a motion to

dismiss for failure 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

5-

application of Article 37.10(b) does not violate the

federal constitutional prohibition 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 suggestion of rehearing en

banc (App. E).

B. Statement of Facts

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. 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.

Upon returning to the victim’s home, she and

Youngblood were seen by the victim’s husband and

brother, who gave chase. The chase ended with the

victim’s car crashing head-first into a police car,

breaking her jaw and knocking out four of her teeth.

Youngblood did not testify or present any evidence.

SUMMARY OF ARGUMENT

There are special and important reasons to grant

the writ. The court of appeals erred in finding that

Youngblood suffered an ex post facto violation, and its

decision is in irreconcilable conflict with the decisions

of the Court of Appeals for the Fourth Circuit in Evans

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

Arkansas Supreme Court in Pickens v. State, 730

S.W.2d 230, 235 (Ark.), cert. denied, __U.S. __, 108

S.Ct. 269 (1987), and the Utah Supreme Court in State

.

v. Norton, 675 P. 2d 577, 585-87 (Utah 1983), cert.

denied, 466 U.S. 942 (1984).

Further, the decision of the court below is simply

an incorrect interpretation of prior decisions of this

Court. The retroactive application of Article 37. 100b)

did not violate any of the established tests for resolving

ex post facto claims. The change in law wrought by the

statute was purely procedural, and its application to

Youngblood’s case did not deprive him of any

substantial right. 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.

REASONS FOR GRANTING THE WRIT

L

THERE ARE SPECIAL AND IMPOR-

TANT REASONS TO GRANT THE

WRIT.

A. Certiorari should be granted to re-

solve an irreconcilable conflict of

authority on an important, recurring

issue of constitutional law.

Rule 17 of the rules of this Court provides that a

review on writ of certiorari is not a matter of right, but

of judicial discretion, and will be granted only when

there are special and important reasons therefor." An

irreconcilable conflict between decisions of two courts of

appeals is a well established ground for granting

certiorari, Insurance Corp. v. Compagnie Des Bauxites,

456 U.S. 694, 700 (1982), as is a conflict between a

court of appeals and the highest court of a state.

Lakeside v. Oregon, 435 U.S. 333, 336 & n.3 (1978).

Here, both circumstances are present, as the Fifth

7.

Circuit has decided an important point of federal

constitutional law directly in conflict with decisions of

the Court of Appeals for the Fourth Circuit, the

Arkansas Supreme Court and the Utah Supreme

Court.

On at least three occasions courts have rejected

ex post facto challenges to the retrospective application

of procedural law changes which are indistinguishable

in principle from that involved in the case at bar.

Evans v. Thompson, 881 F.2d 117, 120-21 (4th Cir.

1989); Pickens v. State, 730 S.W.2d 230, 235 (Ark.),

cert. denied. U.S. ___, 108 S.Ct. 262 (1987); State v.

Norton, 675 P.2d 577, 585-87 (Utah 1983), cert. denied,

466 U.S. 942 (1984). Thus, the decision of the court

below, if allowed to stand, will have a deleterious

impact on the administration of justice far greater than

the Texas cases which it directly affects.

B. Certiorari should be granted to

correct an ill reasoned and clearly

erroneous interpretation of federal

constitutional law.

There are two ways to view the opinion of the

court below, either of which constitutes a compelling

reason why the Court should exercise its certiorari

jurisdiction. As discussed in Part II, infra, the state is

convinced that the opinion of the court below is in

irreconcilable conflict with numerous prior decisions of

this Court construing the Ex Post Facto Clause. Simply

put, the court of appeals erred in finding an ex post

facto violation because the change in law which was

retroactively applied to Youngblood’s case was purely

procedural in nature and did not punish previously

innocent conduct, increase the punishment for an act

previously committed or deprive Youngblood of an

existing defense. Under the state’s view of the case, the

8.

Court should grant certiorari to correct a glaring error

of federal constitutional law.

Two of the three judges on the panel of the court

below did not join the opinion but instead filed

concurring opinions. Both concurring opinions were of

the view that this Court's ex post facto decisions are 80

unclear as to provide no guidance for inferior courts. As

Judge Jones stated in her concurrence:

If 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 decisions offer

little guidance for distinguishing among

such procedural cases. In the absence of

such guidance, I can see no overriding

principle from which to disagree with the

majority's conclusion that this procedural

change so substantially affected the

defendant’s rights as to violate the ex post

facto clause.

(App. D 12). Judge Gee, also concurring, agreed with

Judge Jones that prior precedent of this Court

“constitutes more of a bright spectrum than a bright

line.” (App. D 10). Thus, under the view of two of the

three judges who decided this case in the court below,

certiorari should be granted to assist the courts of

appeals and state courts of last resort in dealing with

similar issues.

II.

THE RETROACTIVE APPLICATION

OF ARTICLE 37.10(b) DOES NOT

VIOLATE THE EX POST FACTO

CLAUSE OF THE UNITED STATES

CONSTITUTION.

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 incarceration. The Johnson court rejected

the petitioner's ex post facto claim, reasoning as

follows:

Since the amendment does not

constitute substantive law defining crim-

inal acts or providing for penalties, it is

procedural in nature. Thus, in the absence

-10-

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

-11-

which makes more burdensome the punish-

ment for a crime, after its commission, or

which deprives one charged with crime of

any defense available according to law at

the time when the act was committed, is

prohibited as ex post facto.

[14th] 1982). We must therefore follow the Id. at 169-70, quoted in Dobbert v. Florida, 432 U.S.

Legislature’s mandate and reform that 282, 292 (1977).

portion of the verdict unauthorized by law.

The opinion of the court below did not find, nor

Id. at 607-08. The Court of Criminal Appeals, relying could it, that Article 37.10(b) is constitutionally infirm

on Johnson, similarly reformed the judgment in under the above test. Instead, the court below applied a

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

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

A. Retroactive application of Article

37.10(6) does not violate the Ex Post

when the act was committed.

The time-honored standard for judging whether

retroactive application of a law is unconstitutionally ex

post facto is set out in Beazell v. Ohio, 269 U.S. 167

(1925):

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 de-

fense 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 retro-

_ spectively, the salient issue becomes

whether the law operated to disadvantage

the accused in the exercise of a substantial

right or protection that he previously

enjoyed, not whether the circumstances of

its application conform to a paradigmatic or

illustrative category of harms.

(App. D 8). The court of appeals’ reasoning is at odds

It is settled, by decisions of this with many decisions of this Court and is wholly

Court so well known that their citation may inconsistent with the spirit of the Ex Post Facto Clause,

be dispensed with, that any statute which as discussed below.

punishes as a crime an act previously

committed, which was innocent when done;

mg

12

B. Because the change wrought by

Article 37.10() was purely procedural

and did not deprive Youngblood of

any substantial right, its retroactive

application did not violate the Ex

Post Facto Clause.

Since Hopt v. Utah, 110 U.S. 574 (1884), it has

been settled that the retroactive application of a purely

procedural change in the law does not run afoul of the

Ex Post Facto Clause. This is true even in cases in

which the change in law works to the disadvantage of

the defendant. Dobbert, 432 U.S. at 293; United States

v. Crabtree, 754 F.2d 1200, 1202 (5th Cir. 1985).

While the court below acknowledged the distinc-

tion between procedural and substantive changes, it

reasoned that even procedural changes can be uncon-

stitutionally ex post facto if they “operate to disad-

vantage the accused in the exercise of a substantial

right or protection that he gem enjoyed .

(App. D 8). Thus, under the court of appeals’ view,

Youngblood is entitled to federal habeas relief because

the retroactive application of Article 37.10(b) deprived

him of what it found to be a “substantial right."

The reasoning which led to the court below’s

finding of substantiality is, at best, suspect. The

opinion first expresses the view that the state law right

to an entire new trial must be substantial because

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

Under this rationale, of course, any change in the law

which disadvantages a defendant necessarily will lead

to the conclusion that he has been deprived of a

substantial right. Such circular reasoning cannot

support the conclusion that prior law embraced a

“substantial” right.

-13-

The opinion of the court below did not rest solely

on this ground, however.

[Gliven 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 differ-

ent the second time around--is comfortably

encompassed within the category of rights

considered substantial.

(App. D 9).

Again, the opinion of the court of appeals paints

much too broadly. One need only peruse the list of

cases cited in Judge Jones’ concurrence (App. D 11) to

appreciate how this Court has repeatedly rejected ex

post facto challenges to laws which operated to the

material disadvantage of defendants. That the

retroactive application of a law disadvantages a

defendant cannot be the test as to whether any

deprivation he suffered should be characterized as

“substantial.” See, e.g., Beazell v. Ohio, 269 U.S. at 171

("[S]tatutory changes in the mode of trial or the rules of

evidence, which do not deprive the accused of a defense

and which operate only in a limited and insubstantial

manner to his disadvantage, are not prohibited.).

More fundamentally, however, the state cannot

fathom how a quirk in state law that provides for two

trials--even when the first is error-free, as was

Youngblood’s--can properly be termed substantial.

Texas law prior to the enactment of Article 37.10(b)

represented nothing more than a mere fortuity with no

basis in law or logic. Any harm a defendant suffered

-14-

due to retroactive application of the statute could only

be characterized as “limited and insubstantial.”

Youngblood’s case perfectly illustrates the

hollowness of the proceedings mandated by pre-

37.10(b) law. 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. 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.

C. The court of appeals incorrectly

focused on whether Youngblood was

4 3

application of Article

A rather than whether it

deprived him of a lack of notice.

Finally, the court below attached 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

-15-

governmental restraint when the legisla-

ture increases punishment beyond what

was prescribed when the crime was

consummated.

Weaver v. Graham, 450 U.S. 24, 30 (1981). To the same

Here, Youngblood was put on notice at the time

he decided to violate the sanctity of another citizen's

For these reasons, the state respectfully requests

that the petition for writ of certiorari to the Court of

Appeals for the Fifth Circuit issue.

* Counsel of Record

-16-

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

“MARY F. KELLER

First Assistant

Attorney General

LOU McCREARY

Executive Assistant

Attorney General

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

S. MICHAEL BOZARTH

Assistant Attorney General

CHARLES A. PALMER*

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080

ATTORNEYS FOR PETITIONER

A-

APPENDIX A

CAUSE NO. 7-81-102

EX PARTE )( IN THE 7TH JUDICIAL

YOUNGBLOOD »} DISTRICT COURT OF

x SMITH COUNTY, TEXAS

NATURE AND HISTORY OF THE CASE

This is a pro se application for Writ of Habeas

Corpus, post-conviction, pursuant to Art. 11.07, C.C.P.

Petitioner was tried by a jury and found Guilty of

Aggravated Sexual Abuse under an _ indictment

charging him with that offense, and adding an

enhancement count of a prior felony conviction. In its

assessment of punishment, the jury fixed the

punishment at for life, and in addition,

was assessed a fine of $10,000.00.

Petitioner pursued a direct appeal, and lost. He

now collaterally attacks the judgment and sentence

under which he is confined, raising a single ground for

relief.

PETITIONER’S CONTENTION

Petitioner contends that his judgment and

sentence is void, since no fine is authorized by Sec.

12.42, V.T.C.A. Penal Code. He relies on Bogany v.

State, 661 S.W. /2/957. See also Ex Parte Spaulding,

No. 69,371.

A-2

FINDINGS OF FACT AND CONCLUSIONS OF

LAW

1. Petitioner’s application and the record brings

him squarely within the holdings of the Court of

Criminal Appeals in both referenced cases.

2. Being bound to follow the law as enunciated

by a majority of the Court of Criminal Appeals, this

Court must reluctantly recommend that the writ be

granted, the judgment and sentence be set aside, and

Petitioner remanded to this Court for re-trial.

ORDERS OF THE COURT

The Court orders that a copy of this order be

certified to the Court of Criminal Appeals for

disposition and a copy forwarded to Petitioner, Carroll

Frank Youngblood #288242, P.O. Box 32, Huntsville

Unit, Huntsville, Texas 77348.

Dated April 2, 1985.

/S/

DISTRICT JUDGE PRESIDING

if

\

B-1

APPENDIX B

EX PARTE CARROLL Habeas Corpus

FRANK YOUNGBLOOD Application

NO. 69,471 from SMITH County

OPINION

This is a post-conviction writ of habeas corpus

brought pursuant to Art. 11.07, V.A.C.C.P. Applicant

was indicted for the offense of aggravated sexual abuse,

with a prior felony conviction alleged for enhancement.

The jury found applicant guilty of aggravated sexual

abuse and he pled “True” to the enhancement

paragraph. Punishment was assessed by the jury at

confinement for life in the Texas Department of

Corrections and a $10,000 fine.

In his application for writ of habeas corpus,

applicant contends that the jury's assessment of a

$10,000 fine is unauthorized by V.T.C.A. Penal Code, §

12.24(c) and requests that the judgment and sentence

be set aside and a new trial ordered, citing Bogany v.

State, 661 S.W.2d 957 (Tex Cr. App. 1983).

Section 12.42(c), supra, provides:

If it be shown on the trial of a first-degree

felony that the defendant has been once

before convicted of any felony, on conviction

he shall be punished by confinement in the

Texas Department of Corrections for life, or

for any term of not more than 99 years or

less than 15 years.”

No provision is made for assessment of a fine in

addition to a term of imprisonment. Thus, the fine

imposed in the case at bar was unauthorized by law.

B-2

Applicant relies on Bogany v. State, 661 S.W.2d

957 (Tex. Cr. App. 1983) wherein we held that a

judgment containing a punishment unauthorized by

law was void since the court was without authority to

correct the infirmity. On June 11, 1985, however,

Senate Bill 1349, Acts 69th Leg., became effective. In

Ex parte Johnson, S.W.2d __ (Tex Cr. App. No.

69,480, delivered October 9, 1985), we interpreted this

amendment to provide a vehicle by which an improper

verdict could be reformed, thus correcting the infirmity

present in Bogany, supra. We also held that the

amendment applies to pending and future actions. Ex

parte Johnson, slip op. at 5.

In applying Ex parte Johnson, supra, to the case

at bar, the assessment of $10,000.00 fine was

unauthorized. Thus, we need not remand the case for a

new trial; rather, we may reform the verdict and

judgment and delete the improper fine.

Applicant’s request for relief is therefore denied.

The judgment in Cause No. 7-81-102 of the 7th Judicial

District Court of Smith County is reformed to delete

the $10,000.00 fine. The Clerk of this Court shall mail

a copy of this Order to the Texas Department of

Corrections.

It is so ordered.

Miller, Judge

Delivered October 16, 1985

En Banc

Publish

Tom G. Davis, J., not participating.

B-3

EX PARTE CARROLL Habeas Corpus

FRANK YOUNGBLOOD Application

NO. 69,471 from SMITH County

DISSENTING OPINION

Valid reasons why Ex parte Johnson, S. W. 2d

(Tex Cr. App., No.69,480, delivered October 9,

1985), was wrongly decided are set forth in the several

dissenting opinions therein, and to reprise them here

would be redundant. Nevertheless, this proceeding

presents an occasion for the Court to determine

whether Article 37.10(b) may be gratuitously invoked

and applied by this Court in a post conviction habeas

proceeding in which a final judgment of conviction

imposes a sentence based upon a verdict of a jury

assessing punishment not authorized by law. The

majority fails to address that question, so I will.

First of all, even if valid, on the face of it Article

37.10(b), V.A.C.C.P. has no application. Obviously

focusing on Bogany v. State, 661 S.W.2d 957 (Tex. Cr.

App. 1983), the amendment directs "the appellate

court” to reform a jury verdict. The only occasion for an

“appellate court“ to have jurisdiction to do so is on

direct appeal from a judgment of conviction.

In a postconviction habeas corpus proceeding

this Court may hear a cause as though originally

presented to lit] or as an appeal, Article 11.07, § 3,

V.A.C.C.P. Still, as has been often pointed out by the

Court, a habeas corpus proceeding may not be used as

a substitute for an appeal. Ex parte Powell, 558 S.W.2d

480, 481 (Tex. Cr. App. 1977). A postconviction habeas

application will not lie to correct errors qua errors

committed in the trial court. The Court does not decide

a habeas cause in its capacity as an "appellate court."

B-4

Secondly, approaching Article 37.10, supra, from

another direction, one notes that Article 11.07,

i

18

588

aE

11

Applicant is entitled to relief in this habeas

corpus proceeding. Because the majority denies it, |

dissent.

CLINTON, Judge

(Delivered October 16, 1985)

EN BANC

PUBLISH

Onion, P.J. & Teague, J., join

C-1

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CARROLL F.

YOUNGBLOOD

VS.

JAMES LYNAUGH,

CIVIL ACTION NO.

TY-86-211-CA

— ee ee ee ee —ę— — —

:

:

On March 17, 1982, the petitioner Carroll F.

Youngblood was convicted of aggravated sexual abuse

(Tr. 25). The jury assessed punishment of life

imprisonment and a fine of $10,000.00 (Tr. 30, 34-35).

His conviction was affirmed on appeal on August 13,

1984. Subsequently, Youngblood filed an application for

a writ of habeas corpus with the Texas Court of

Criminal Appeals. Youngblood relied upon Bogany v.

State, 661 S.W.2d 957 (Tex. Crim. App. 1983), in which

the Texas Court of Criminal Appeals held that the

enhancement provision, Section 12.42(c), Tex. Penal

Code (West 1974), does not authorize the punishment

to include a fine in addition to a prison sentence. The

court in Bogany concluded that the jury’s verdict was

void at its inception, and reversed the judgment.

Bogany v. State, 661 S.W.2d, at 959.

After Bogany was decided, the Texas Legislature

enacted Article 37.10(b), Tex. Code Crim. Proc. (West

Sur p. 1988), which provides:

If the jury assesses punishment in a case

and the verdict assesses both punishment

C-2

that is authorized by law for the offense,

and punishment that is rot 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.

This provision became effective on June 11,

1985. On October 9, 1985, the Texas Court of Criminal

Appeals announced its decision in Ex parte Johnson,

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

Article 37.10(b) is procedural in nature and can be

applied retroactively. In a dissent, Presiding Judge

Onion expressed the opinion that the retroactive

application of the provision violated the Ex Post Facto

Clause. Ex parte Johnson, 697 S.W.2d, at 610-612. One

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

Criminal Appeals denied Youngblood’s application for a

writ of habeas corpus, basing its decision on Ex parte

Johnson. As in Johnson, the court applied Article

37.10(b) to Youngblood’s conviction, although his

conviction had already become final. Ex parte

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

1985).

Youngblood now seeks a writ of habeas corpus

pursuant to 28 U.S.C. §2254 from this Court. As

grounds for issuance of the writ, he contends that the

retroactive application of article 37.10(b) violated the

Ex Post Facto Clause, United States Constitution,

Article I, Section 10, Clause 1. The respondent

contends that Youngblood has failed to exhaust his

state remedies as required by 28 U.S.C. §2254(b) and

(c). Specifically, the respondent argues that Youngblood

has not raised his ex post facto argument before the

C-3

Texas Court of Criminal Appeals; therefore, his federal

habeas petition is premature. Alternatively, if the

Court so finds that Youngblood has satisfied the

exhaustion requirement, then the respondent argues

that retroactive application of Article 37.10(b) to

Youngblood’s case was merely procedural with no

substantive effect to violate the ex post facto

prohibition.

Exhaustion of State Remedies Question

Youngblood argues that Presiding Judge Onion’s

discussion of the ex post facto question in ex parte

Johnson obviated the need to again raise the issue

before the Texas Court of Criminal Appeals. In his

dissent, Presiding Judge Onion posed the question

whether Article 37.10(b) could be applied retroactively.

He then quoted Article I, Section 16 @ the Texas

Constitution which provides:

No bill of attainder, ex post facto law,

retroactive law, or any law impairing the

obligations of contracts, shall be made.

Next Presiding Judge Onion quoted extensively from

an interpretive commentary of the above-quoted state

constitutional provision. That commentary defines an

ex post facto law and notes that the Texas Constitution

goes further than the United States Constitution for

the former is not confined to forbidding ex post facto

laws, but also bans any retroactive law. Ex parte

Johnson, 697 S.W.2d, at 609-610. As stated supra, a

majority of the Texas Court of Criminal Appeals relied

upon Johnson to deny Youngblood’s application for a

writ of habeas corpus. Ex parte Youngblood, 698

S.W.2d, at 672. Judge Clinton, joined by Presiding

Judge Onion and Judge Teague, stated in a dissent

that, for the reasons set forth in the dissenting opinion

in Johnson, Johnson was wrongly decided. Ex parte

C-4

Youngblood, 698 S.W.2d, at 672. One of those reasons,

of course, included Presiding Judge Onion’s discussion

of ex post facto problem encountered when applying

Article 37.10(b) retroactively.

After thoroughly reviewing Youngblood’s state

application for a writ of habeas corpus, the Court finds

that he did not specifically raise the ex post facto issue

before the Texas Court of Criminal Appeals. However,

his failure to do so does not bar him from the federal

courthouse. Federal habeas petitioners need not

exhaust state remedies where it is plain that to resort

to the state courts would be futile. United States ex rel.

Reis v. Wainwright, 525 F.2d 1269, 1272 (5th Cir.

1976). Here a majority of the Texas Court of Criminal

Appeals has twice rejected Presiding Judge Onion’s

position that retroactive application of Article 37.10(b)

constitutes a prohibited ex post facto law. See United

States ex rel. Reis v. Wainwright, 525 F.2d, at 1272.

See also Gartrell v. Lynaugh, 833 F.2d 527, 528-529

(5th Cir. 1987). There is nothing in this Court’s review

of prevailing state law to indicate that the Texas Court

of Criminal Appeals will retreat from its Johnson and

Youngblood decisions by adopting Presiding Judge

Onion’s dissent. Having found that Youngblood is

excused from the exhaustion requirement, the Court

shall consider the issue of whether the Texas Court of

Criminal Appeals’ retroactive application of Article

37.10(b) violated the federal constitutional prohibition

of ex post facto laws.

Ex Post Facto Law Question

Article I, Section 10, Clause 1 of the United

States Constitution provides that no State shall pass

any ex post facto law. An ex post facto law (1) makes an

action completed before the passing of the law,

criminal, and punishes such action; (2) aggravates a

crime, or makes it greater than it was, when

C-5

committed; (3) changes the punishment and inflicts a

greater punishment, than the law annexed to the

crime, when committed; or (4) alters the legal rules of

evidence, and receives less, or different testimony, than

the law required at the time of the commission of the

offense, in order to convict the offender. Miller v.

Florida, U.S. 107 S.Ct. 2446, 2450 (1987). For a

criminal law to be ex post facto, it must (1) be

retroactive (i.e., apply to events occurring before its

enactment) and (2) „ „

by it.. Miller uv. Florida, __US., at 107 S. Ct., at

2451. Although a law ———

detriment, no ex post facto violation occurs if the

change in the law is merely procedural and does not

increase the punishment, nor change the ingredients of

the offense or the ultimate facts necessary to establish

guilt. However, a change in the law that alters a

substantive right can be ex post facto even if the statute

takes a seemingly procedural form. Miller v. Florida,

U.S., at 107 S. Ct., at 2452-2453. See Weaver v.

Graham, 450 U.S. 24, 30-31, 101 S.Ct. 960, 965 (1981).

Moreover, an unforeseeable judicial enlargement of a

criminal statute, applied retroactively may operate as

an ex post facto law. Bouie v. City of Columbia, 378 US.

347, 353-354, 84 S.Ct. 1697, 1702-1703 (1964).

It is readily apparent that the Texas Court of

Criminal Appeals’ application of Article 37.10(b) here

was retroactive and disadvantaged Youngblood. Under

the law effective at the time his conviction became

final, he would have been entitled to a new trial

because the jury assessed an unauthorized

punishment. However, with the new statute, enacted

and applied to his case after his conviction became

final, the unauthorized punishment was simply

stricken. Although the application of Article 37.10(b) to

Youngblood’s case appears to satisfy the test for an ex

post facto law, the retroactive application, however,

—— — 222 aihees

does not fall within the classic definition of an ex post

facto law.

Due to a procedural change, Youngblood lost an

entitlement to a new trial. His punishment, however,

was not increased (but actually decreased), and the

elements of the offense or the ultimate facts necessary

to establish guilt were not changed. The Texas Court

of Criminal Appeals’ retroactive application of Article

37.10(b) does not transgress the federal constitutional

prohibition against ex post facto laws. It is therefore

ORDERED that Youngblood’s petition for a writ of

habeas corpus be DENIED and his case be

DISMISSED.

SIGNED this 13th day of September, 1988.

/s/

BERT M. R

UNITED STATES DISTRICT JUDGE

D-1

APPENDIX D

CARROLL F. YOUNGBLOOD

Petitioner - Appellant

V.

— A. LYNAUG of Corre —

exas Department

Respondent - Appellee

No. 88-2888

United States Fifth Court of Appeals,

Fifth Circuit

Sept. 8, 1989

Prisoner applied for writ of habeas corpus,

contending that the ex post facto clause of the Federal

Constitution was violated by application against him of

a statute which allows an appellate court to reform an

unauthorized verdict without the necessity of re-

for retrial. The United States District Court

for the Eastern District of Texas, Robert M. Parker, J.,

denied this writ, and prisoner appealed. The Court of

Appeals, Garza, Circuit Judge, held that: (1) prisoner

was not required to pursue the issue further in state-

court proceedings, and (2) as applied against prisoner,

the statute was ex post facto.

Reversed and remanded.

Gee, Circuit Judge, issued a concurring opinion.

Edith H. Jones, Circuit Judge, issued a con-

curring opinion.

D-2

Before GEE, GARZA, AND JONES, Circuit

Judges.

GARZA, Circuit Judge:

This case presents a novel question in the Fifth

Circuit under the Ex Post Facto clause of the United

States Constitution. We are convinced that article

37.10(b) of the Tex. Code Crim. Proc., as applied to

petitioner Youngblood under the circumstances of this

case, violates the Ex Post Facto clause. We therefore

REVERSE the district court’s decision denying

appellant’s writ of habeas corpus and REMAND the

case for a new trial.

BACKGROUND

On March 17, 1982, appellant Carroll

Youngblood was convicted by a Texas jury of

aggravated sexual abuse. He was sentenced to life

imprisonment and a fine of $10,000. His conviction was

affirmed on appeal. Subsequently, he filed an

application for a writ of habeas corpus with the Texas

Court of Criminal Appeals, relying Bogany v.

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

In Bogany, the Texas Court of Criminal Appeals held

that the sentence enhancement provision, section

12.42(c) Tex. Penal Code, does not authorize

punishment to include a fine in addition to a prison

sentence. The Bogany court concluded that the jury’s

verdict was void at its inception. It reversed the

judgment and ordered a new trial.

In response to the Bogany decision, the Texas

Legislature enacted article 37.10(b), Tex. Code Crim.

Proc., which permits reformation of a verdict to omit

any punishment not authorized by law. Article 37.10(b)

eliminates the need to retry a convicted defendant.

This provision went into effect on June 11, 1985. On

October 9, 1985, the Texas Court of Criminal Appeals

argued that the retroactive application of article

37.10(b) violated the Ex Post Facto clausc. One week

later, on June 16, 1985, the Texas Court of Criminal

Appeals denied Youngblood’s application for writ of

habeas corpus and, relying upon Johnson, applied

article 37.10(b) to Youngblood’s conviction, thereby

deleting the unauthorized fine assessed by the jury.

Youngblood then filed a writ of habeas corpus

petition in federal district court contending that the

retroactive application of article 37.10(b) violated the

Ex Post Facto clause of the United States Constitution.

The district court dismissed Youngblood’s petition. He

now appeals from that dismissal.

DISCUSSION

Exhaustion of State Remedies.

(1) The government argues that Youngblood’s

petition should be denied because he has never

presented his federal ex post facto claim before a state

tribunal in post-conviction proceedings. The district

court concluded that forcing appellant to resort to post-

conviction proceedings before the Texas Court of

Criminal Appeals would be futile. We agree.

The Texas Court of Criminal Appeals decided Ex

parte Johnson in October of 1985. In that case, the

court concluded that art. 37.10(b) was purely

procedural and might properly be applied to reform an

D-4

unauthorized verdict in cases that were pending at the

time of the statute’s passage. Also in that case,

presiding Judge Onion argued in dissent that

retroactive application of art. 37.10(b) violates the Ex

Post Facto clause. One week after the decision in

Johnson, the Texas Court of Criminal Appeals relied

upon the same reasoning to deny Youngblood’s state

habeas petition. Ex parte Youngblood, 698 S.W.2d 671

(Tex. Crim. App. 1985). Thus, it is clear that the ex post

facto argument urged by Youngblood has been

presented to, and rejected by, the Texas Court of

Criminal Appeals. The district court was correct to

conclude that it would be futile to require Youngblood

to pursue this issue in state-court proceedings.

The Ex Post Facto Clause.

Nine years after the adoption of the United

States Constitution, the Supreme Court had occasion to

consider the meaning of the words ex post facto as used

in Art. I, $9, cl. 3 and Art. I, §10, el. 1. In Calder v.

Bull, 3 Dall. 386, 1 L. Ed. 648 (1798), the Court

concluded that an ex post facto law is any provision

that renders criminal "an action done before the

passing of the law and which vas innocent when done,

or that makes a crime grvater than it was, when

committed," or that “inflicts a greater punishment,

than the law annexed to the crime, when committed,”

or that alters the legal rules of evidence.“ Id., 3 Dall.

at 390.

More recently, the Supreme Court has stated

that two critical elements must be present for a law to

fall within the ex post facto prohibition. First, it " ‘must

be retrospective, that is, it must apply to events

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

disadvantage the offender affected by it.“ Miller v.

Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96

D-5

L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450

U.S. 24, 29, 101 S. Ct. 960, 964, 67 L.Ed.2d 17 (1981)).

The Court also noted that a law which merely changes

“modes of procedure” will not violate the Ex Post Facto

clause unless it also alters “substantial personal rights"

of the accused. Miller, 482 U.S. at 430, 107 S.Ct. at

2451 (citing Dobbert v. Florida, 432 U.S. 282, 97 S. Ct.

2290, 53 L.Ed.2d 344 (1977)). It is uncontroverted that

the Texas Court of Criminal Appeals, and the district

court below, approved the application of art. 37.10(b) to

events that occurred in Youngblood’s case before the

enactment of the statute. The decision in this case

turns upon whether the application of 37.10(b) worked

to the disadvantage of the defendant.

At the time Youngblood was convicted, the jury

rendered a verdict that was unauthorized by law; it

assessed a term of years imprisonment in addition to a

$10,000 fine. Also at the time of conviction, assessment

of an unauthorized fine rendered the verdict void ab

initio under Texas law and entitled the defendant to a

new trial. Subsequent to Youngbloood’s conviction, the

Texas legislature passed art. 37.10(b), which allowed

an appellate court to reform an unauthorized verdict of

the type assessed against Youngblood without the

necessity of remanding for retrial. The Texas Court of

Criminal Appeals then declared, in Ex parte Johnson,

697 S.W.2d 605, 607 (Tex.Cr.App. 1985)(en banc) that

art. 37.10(b) could be applied retroactively, to

previously void verdicts. The majority concluded that,

since the statute "does not constitute substantive law

defining criminal acts or providing for penalties, it is

procedural in nature." Thus, according to the court, the

statute may be applied to pending as well as future

cases.

The government urges that "it cannot be argued"

that art. 37.10(b) effects substantive changes in the law

D-6

when the highest state court yet to consider the

question has declared it purely procedural. However,

the government misapprehends the authority of this

Court to decide whether the retrospective application of

a state criminal statute violates the Ex Post Facto

clause. Whether the standard of punishment

established by a later state statute is more onerous

than, or worsens the conditions imposed by, its

predecessor, is a uniquely federal question which will

be determined by the federal courts themselves. Weaver

v. Graham, 450 U.S. 24, 33, 101 S.Ct. 960, 966, 67

L.Ed.2d 17 (1981); Lindsey v. Washington, 301 U.S.

397, 400, 57 S.Ct. 797, 798, 81 L.Ed. 1182 (1937).

The state court’s analysis of art. 37.10(b), as

applied to Youngblood and others similarly situated, is

faulty to the extent that it terminates one step short of

a complete examination. In precedents dating back

more than a century, the Supreme Court has held that

statutes regulating procedure will violate the Ex Post

Facto clause if they deprive the defendant of a

substantial right given to him by the law in force at

the time to which his guilt relates." Thompson v. Utah,

170 U.S. 343, 352, 18 S. Ct. 620, 623, 42 L.Ed. 1061

(1897). Procedural statutes must "leave untouched all

the substantial protections with which existing law

surrounds the person accused of crime.“ Id., citing

Duncan v. Missouri, 152 U.S. 377, 382, 14 S.Ct. 570,

572, 38 L. Ed.485 (1894).

Thus, we may accept the state court’s

characterization of 37.10(b) as procedural and still

disagree with its conclusion in Ex Parte Johnson that

the statute’s application in these circumstances suffers

from no ex post facto infirmity. The question is whether

Youngblood’s right to retrial, to which he was entitled

before the passage of art. 37.10(b), was a "substantial

D-7

- protection” within the meaning of the Supreme Court’s

ex post facto jurisprudence.

Tue government argues that the retroactive

application of art. 37.10(b) cannot offend the Ex Post

Facto clause because it does not punish as a crime a

previously innocent act, or make more burdensome the

punishment of a crime after its commission or deprive

the defendant of a defense available at the time the act

was committed. Likewise, the authorities appended to

the government's brief erroneously suggest that a

statute must fit neatly within the confines of one of

these enumerated pigeon holes or else it may not

rightly be said to violate the Ex Post Facto clause.

These authorities fail to consider the import of

Thompson v. Utah, supra, wherein the Supreme Court

held that a law which authorized a jury of only eight

persons, instead of twelve, to pass upon the guilt of the

defendant, when applied retroactively, violated the Ex

Post Facto clause. In that case, there was no

punishment of a previously innocent act, there was no

change in the burden of proof required to establish

guilt and there was no elimination of a previously

available defense. The focus in Thompson v. Utah was

upon whether retrospective deprivation of the right to

trial before a jury composed of twelve persons rather

than eight materially altered the position of the

defendant to his disadvantage.!

IWe recognize that, in Williams v. Florida, 399 U.S. 78, 90

S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court set aside

the requirement implicitly established in Thompson v. Utah that

deliberation by a twelve-member jury is a constitutional

prerequisite to a finding of guilt. This revision of one of the issues

in Thompson v. Utah, however, left intact the proposition for

which we cite that case: an ex post facto violation may occur in the

absence of an increase in punishment, or a change in the burden of

proof or an elimination of a previously available defense.

D-8

21 In two other early cases, the Supreme Court

instructed that a statute need not relate to a crime, or

inflict a punishment, in the judicial sense, for the

commission of past crimes, in order to constitute an ex

post facto law. In Cummings v. The State of Missouri, 4

Wail. 377, 18 L.Ed. 356 (1866), the Court held that the

exclusion of a minister from the exercise of his clerical

function unless he agreed to take an oath that he had

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 substantial right or protection that he

— — not whether the circumstances of

its application conform to a paradigmatic or illustrati

category of harms. — ae

[3] At the time of Youngblood’s conviction, it was

the law of Texas that a verdict of the type rendered in

this case was void ab initio and its imposition entitled

the accused to a new trial. That right, with its

attendant possibility that a second jury just might

acquit the defendant, was apparently considered

sufficiently “substantial” to provoke the Texas

legislature to enact art. 13.10(b), authorizing an

appellate court to reform the verdict and thereby

deprive the defendant of the right to retrial. In any

D-9

event, whether or not the Texas legislature perceived

the Bogany right to be substantial, we conclude that it

was.

Prior Texas law made it impossible to deprive

defendants such as Youngblood of their liberty without

affording them a new trial. Whether or not it is a wise

policy to provide that level of protection against

unauthorized verdicts, it cannot be gainsaid, in our

opinion, that the subsequent elimination of that right

worked to appellant’s disadvantage.2 Delineation of the

boundary between substantial rights and those

considered not substantial, like the distinction between

fundamental and non-fundamental rights, is an inquiry

not susceptible of examination by scientific formulae or

comprehensive enumeration. However, 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 comfortebly

encompassed within the category of rights considered

substantial.“

Appellant was sentenced under a procedure that

was not authorized by Texas law at the time of the

2We find understandable the Texas legislature'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 before us:

whether the retroactive application of art. 37.10(b) worked to the

disadvantage of Youngblood in the exercise of a substantial

protection.

— k ·.¶ ͤ——ᷣ—

D-10

commission of his offense. The retroactive application

of art. 37.10(b) altered his right to retrial--a substantial

right--to his material disadvantage. As applied to

Youngblood, therefore, art. 37.10(b) is ex post facto. For

the reasons set out above, we REVERSE the district

court’s decision denying appellant’s writ of habeas

corpus and REMAND this case for a new trial.

GEE, concurring:

Concurring entirely in the majority opinion in

this very close case, I also agree 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.

EDITH H. JONES, concurring.

— with — majority opinion because, for ex

pos purposes, I cannot perceive a meaningful

distinction between Thompson v. Utah, 170 U.S. 343,

18 S.Ct. 620, 42L.Ed. 1061 (1897), and this case.

Thompson acknowledged that mere modes of

procedure" are not within the ken of the ex post facto

clause, but it proceeded to hold that the right to be

tried by twelve jurors "was regarded, at the time of the

adoption of the Constitution, as vital for the protection

of life and liberty," and was enjoyed by the defendant at

the time he committed the offense charge. 170 U.S. at

352, 18 S.Ct. at 623. Consequently, Utah’s “procedural”

change to permit criminal trials before eight jurors was

held to operate ex post facto to deprive the defendant of

this substantial right.

N I suggest, however, that the distinction between

mere modes of procedure" and substantial or vital

procedural protections is a wobbly one under current

D-11

Supreme Court jurisprudence. One other early case

seems squarely to hold that a procedural change in

state law violated the ex post facto clause. Kring v.

Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882)

(change in the law applicable to guilty pleas, which

exposed defendant to conviction for a more serious

crime, and operated retroactively, violated ex post facto

clause). A number of other decisions have found no ex

post facto violation in retroactive "procedural" changes.

See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53

L.Ed.2d 344 (1977) (change in role of Florida juries in

death penalty cases); Beazell v. Ohio, 269 U.S. 167, 46

S.Ct. 68, 70 L.Ed. 216 (1925) (defendant forced to

undergo joint rather than separate trial for crime);

Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730,

45 L.Ed. 1015 (1901) (state allowed to appeal from

intermediate court’s award of new trial to defendant);

Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43

L.Ed. 204 (1898) (prior to second trial, law was changed

to make circumstantial evidence admissible against the

defendant and he was convicted); Gibson v. Mississippi,

162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896)

(change in juror qualifications); Hopt v. Utah, 110 U.S.

574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (change to allow

convicted felon to testify as a witness against

defendant).

There is little doubt that the defendant in

several of these later cases was materially

disadvantaged by the changes in criminal procedure

which occurred after the commission of his offense.

Consider the significance to a defendant of the right to

a separate rather than joint trial with co-defendants,

(Beazell) or of prohibiting testimony of a convicted felon

(Hopt) or circumstantial evidence (Thompson) against a

defendant, to say nothing of prohibiting the state’s

appeal from the grant of a new trial to the defendant

D-12

— The Court emphasized however, in Dobbert,

t:

432 U.S. at 294, 97 S.Ct. at 2298.

If 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

decisions offer little guidance for distinguishing among

such procedural cases. In the absence of such guidance

I can see no

lin Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68,

70 L.Ed. 216 (1925), Mr. Justice Stone summarized the

E-1

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-2888

CARROLL F. YOUNGBLOOD,

Petitioner-Appellant,

JAMES A. LYNAUGH, Director

Texas Department of Corrections,

Respondent-Appellee.

Appeal from the United States District Court for

the Eastern District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(Opinion September 8, 5 Cir., 1989, F. 2d.)

(October 19, 1989)

Before GEE, GARZA and JONES, Circuit Judges.

PER CURIAM:

Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the

petition for panel rehearing is DENIED. No member of

the panel nor Judge in regular active service of this

Court having requested that the Court be polled on

rehearing en banc (Federal Rules of Appellate

United States Circuit Judge