Opposition Brief — Collins v. Youngblood

ORIGINAL

2

NO. 89-742

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1989

JAMES A. LYNAUGH,

Petitioner

Vv.

CARROLL F. YOUNGBLOOD,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

Jon R. “Randy” Farrar

Administrator, Inmate Legal Services

Staff Counse! for Inmates

Texas Department of Criminal) Justice

Institutional Division

P. 0. Box 99

Huntsville, Texas 77342-0099

(409) 294-2363

Supreme Count. US.

FILED

NOV 1S Bey

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QUESTION PRESENTED TABLE OF CONTENTS

Whether the retrospective application of a procedural change in the law, y PAGE

which alters an accused's “substantia] personal rights,” violates the Ex Post oe ee ee ee ee i

Facto Clause, Article I, §10 of the United States Constitution. De 2h ie 6 Sb Gee Ceeetoeeecoeese ecb vee ii

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. .......... 2

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NO. 89-742

TABLE OF AUTHORITIES

CASES PAGE

Beazel] v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)... . 4,5 —

Bogany v. State, 661 S.W.2¢ 957 (Tex. Crim. App. 1983)........ 2,3,7

Calder v. Bull, 3 U.S. (3 Dall.) 366 (1798)... . 2.0.00 500004 Sy?

Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) 4,5,6

Ex parte Johnson, 697 S.W.2d 605 (Tex. Crim. App. 1985) ....... 3,7

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

Ex parte Youngblood, 698 $.W.2d 671 (Tex. Crim. Apr. 1985)(en banc). . 1,3

UNITED STATES SUPREME COURT

OCTOBER TERM, 1989

JAMES A. LYNAUGH,

Petitioner

Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) ..... 6

Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) 4,6,7 7

ates cece 444 U.S. 1311, 100 S.Ct. 714, 62 L.Ed.2¢ 723 ‘ = CARROLL F. YOUNGBLOOD,

Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1897) . . 4,6 Respondent

Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) . . 4,6

Youngblood v. Lynaugh, 882 F.2d 956 (Sth Cir. 1969) ........2. 1,4,5 | PETITION FOR WRIT OF CERTIORAR!

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPUSITION

CONSTITUTIONS, STATUTES AND RULES

TICES OF THE SUPREME COURT:

ce 4 ee OD eee TO THE WONORABLE JUSTICE

11 F. Youngblood, Respondent, by and through his attorney,

2 O04, CNG 3. 6 Cox's (ems Deb hee kei eee WOK COMES Carro ng pon y

Jon R. “Randy” Farrar, and files this Brief in Opposition to James A.

vemns Gouseseneces, Gre. 1, HB i con 600 wee 6 6 6 WCW SG DS 6

/ ° tiorari.

Tex. Code Crim. Proc. Ann. art. 37.10(b)(Vernon Supp. 1985) .... 2,3,6,7 ignanghs Pesttten Ser Erie of Cortterer

OPIN LOW

Tex. Penal Code §12.42(c)(Vernon Supp. 1979) .......4.26+e-eee-8 2

The opinion of the Court of Appeals for the Fifth Circuit, wherein the

Respondent was granted relief, is attached as Appendix A. Youngblood vy.

Lynaugh, 882 F.2d 956 (Sth Cir. 1989). The order of the court of appeals

denying the state's suggestion of rehearing en banc is attached as Appendix B.

The opinion of the federal district court is attached as Appendix C. The

opinion of the Texas Court of Crimine) Appeals denying Respondent's

application for a writ of habeas corpus is attached as Appendix D. Ex parte

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

JUPISDICTION

The judgment of the Court of Appeals was entered on September 8, 1989.

Petitioner's suggestion for rehearing en banc was denied on October 19, 1989.

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The petition for writ of certiorari was timely filed invoking the jurisdiction

of this Court under 28 U.S.C. §1254(1).

TIT , AND STA

U. S. Const. Art. I., §20, cl. 1 provides as follows:

No State shal] enter into any Treaty, Alliance, or Confederation;

rant Letters of Marque and Reprisal; coin Money; emit Bills of

redit; make any Thing but gold and silver Coin a Tender in

Payment of Debts; pess any Bil] 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. 1985) provides as

fol lows:

lf 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 shal!

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

On March 17, 1982, Respondent was convicted of Aggravated Sexual Abuse, a

first degree felony. During the punishment phase of tne trial, the jury found

that Respondent had been previously convicted of a felony; consequently,

Respondent's punishment was enhanced and he was sentenced to life in prison

and a fine of $10,000. The Twelfth Supreme Judicia) District Court of

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

Respondent did not appeal the conviction further. Note 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 application for a writ of

habeas corpus pursuant to a decision by the Texas Court of Criminal Appeals in

Bogeny v. State, 661 S.W.2¢ 957 (Tex. Crim. App. 1983). The Court in Bogany

held that the enhancement provision of Tex. Penal Code §12.42(c)(Vernon Supp.

1979) des "not authorize the punishment to include a fine in addition to @

prison sentence. The Court concluded that the jury's verdict, therefore, wes

“void at its inception” and the judgment was reversed. In light of Bogany,

Respondent had legal precedence for a meritorious writ of habeas corpus and @

reasonable expectation that his conviction would be reversed. The trial

court, in its recommendation to the Court of Criminal Appeals, concluded that

relief should be granted (ROA 45).

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However, after Bogany was decided and after the Court of Crimine) Appeals

reversed severe] other convictions with fact situations similar to Bogany, the

Texas Legislature passed Tex. Code Crim. Proc. Ann. art. 37.10(b):

If the jury assesses punishment in a case and the verdict assesses

both punishment that is authorized by law for the offense and

Sart cs fen we wrtet ‘ot puts te

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 shal] reform the verdict

as provided by this subsection.

Again the statute went into effect on June 11, 1985. On October &, 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 the new statute was

merely procedure] in nature and could be applied retrospectively. In dissent,

Judge Onion expressed the opinion that the retroactive application of the

statute had a substantive effect 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 Johnson. As in Johnson, the Court applied the new statute to

Respondent's conviction even though his conviction had become final prior to

the enactment of the new statute. Ex parte Youngblood, 696 S.W.2d 671 (Tex.

Crim. App. 1985) (App. D). Consequently, the Respondent filed his 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 consequently sought and

received assistance from Staff Counse! for Inmates. Counsel filed a Motion to

Reconsider (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 retrospective application of

"ex. Code Crim. Proc. Ann. art. 37.10(b), by the Texas Court of Crimina)

Appeals, violates the Ex Post Facto Clause of the Constitution (ROA 8) (App.

D). 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).

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The Court of Appeals for the Fifth Circuit considered the appeal and

granted relief on September &, 1989. Youngblood v. Lynaugh, 882 F.2¢ 956 (Sth

Cir. 1989) (App. A). On October 19, 1969, the Court of Appeals denied the

Petitioner's suggestion for rehearing en banc (App. B).

SUMMARY OF ARGUMENT

There are no specie) and important reasons for granting the writ. The

decision by the Court of Appeals for the Fifth Circuit simply applied the

holdings heretofore announced by the Supreme Court to the facts in this case.

The State of Texas has misrepresented the law in alleging that the

retrospective application of procedural laws cannot violate the Ex Post Facto

Clause. This Court has a long history holding to the contrary. As recently

as 1987, the Court held that a change in a procedure) law can fall within the

ex post facto prohibition if it alters “substantial personal rights.” Miller

v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2¢ 351 (1987).

See also Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.E¢.2¢ 17

(1981); Dobbert v. Florida, 432 U.S. 2862, 97 S.Ct. 2290, 53 L.Ed.2¢ 344

(1977); Thompson v. Utah, 170 U.S. 343, 352, 18 S.Ct. 620, 623, 42 L.Ed. 1061

(1897).

Furthermore, the State has ignore the standard of review heretofore

announced and presently employed by this Court. Two critical elements must be

present for a law to fall within the ex post facto prohibition. First, it

*'must be retrospective, thet is, it must apply to the events occurring before

its enactment’; and second, ‘it must disadventage the offender affected by

it.'" Miller, 482 U.S. at 430, 107 S.Ct. at 2451, quoting Weaver, 450 U.S.,

at 29, 101 S.Ct., at 964. Utilizing this standard, the Court of Appeals

appropriately concluded that the retrospective application of Tex. Code Crim.

Pro. Ann. art. 37.10(b) violates the Ex Post Facto Clause.

ARGUMENT AND_AUTHORITIES

There are no special and important reasons for granting the writ. In

presenting its case, the State of Texas has misrepresented the law on this

issue. It hes limited end focused its discussion to only one part of the

Court's past decisions, as seen in the Petitioner's emphasis on the following

excerpt from Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925):

It is settled, by decisions of this Court so wel) known that their

citetion may be dispensed with, thet any statute which punishes és

@ crime an ect previously committed, which was innocent when done;

o§-

which mekes more burdensome the punishment for a crime, after its

commission, or which deprives one charged with crime of any

defense available according to law et the time when the act was

committed, is prohibited es ex post facto.

Id. at 169-70, quoted in Dobbert v. Florida, 432 U.S. 282, 292 (1977).

Petitioner implies that if @ cease does not fall within the parameters of this

provision, an accused is not entitled to relief.

Petitioner has, however, ignored the bulk of the holdings of the Court on

this issue. For example, in Beazel], the Court went on to sey that “there may

be procedural changes which operate to deny to the accused a defense available

under the laws in force at the time of the commission of his offense, or which

otherwise affect him in such @ harsh and arbitrary manner as to fall within

the constitutional prohibition.” 269 U.S., at 170. 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 holes or else may not rightly be said to violate the Ex Post Facto

clause.” 882 F.2d, et 959. The Stete basically is misrepresenting the law to

unduly limit the value of the Ex Post Facto Clauses.

The Supreme Court's past decisions on this issue clearly indicate that

the value of the Ex Post Facto Clause is broad, rather than narrow. Or, as

Judge Gee concluded, the possibility thet a retrospective application of a

procedure! change in the lew will violate the Ex Post Facto Clause

“constitutes more of a bright spectrum than a bright line.” Youngblood, 882

F.2d, at 960.

The Supreme Court first considered the prohibition ageinst ex post facto

laws im Calder v. Bull, 3 U.S. (3 Dall.) 366 (1798). In an oft-quoted

opinion, Justice Chase listed exemplary kinds of laws barred by the

constitutional provision, including:

Every law thet alters the legal rules of evidence, and requires

less, or different, testimony, than the law required at the time

a Ts ey the offense, in order to convict the

The next sentence in Justice Chase's opinion is not quoted as often, but he

adds thet the prohibition includes a1] other similar kinds of Jews: “All

these, and similar laws, are manifestly unjust and oppressive.”

The Court has, of course, specified limits on the concept. The

prohibition against ex post facto laws does not extend to every change of law

thet “may work to the disadvantage of @ defendant.” It is intended instead to

—

secure “substential persone) rights” from retroactive deprivation. Portley v.

Grossman, 444 U.S. 1311, 1312, 100 S.Ct. 714, 62 L.Ed.26 723 (1980); Dobbert

v. Florida, 432 U.S., at 293, 97 S.Ct., at 2298 (1977). Wo ex post facto

violation occurs if the change is merely procedural. Hopt v. Utah, 110 U.S.

574, 4 S.Ct. 202, 28 L.£d.262 (1884).

On the other hand, a lew that alters a substantial persona) right can be

ex post facto “even if the statute takes @ seemingly procedural form."

Weaver, 101 S.Ct., at 964; Miller, 107 S.Ct., at 2453. A procedural change in

the law will come within the prohibition if the change materially

disadvantages an individual. In Thompson v. Utah, supra, the Court held that

@ defendant cannot be retried under a new statute requiring only eight jurors,

since the alleged offense wes committed and first tried when applicable lew

guaranteed a trial by @ jury of twelve.

In Weaver, supra, the Court held a Florida statute altering the

availability of “gain time for good conduct” unconstitutional as an ex post

facto lew as applied to the petitioner whose crime was committed before the

statute was enacted. The Court held once again that @ law will be ex post

facto if the lew is retrospective and disadvantages the offender affected by

it. 101 S.Ct., at 964. In this case, as in Weaver, “the provision attache(d)

lege] consequences to a crime before the lew took effect.” 101 S.Ct., at 965.

Moreover, the situation of the accused has been materially altered to his

disadvantage. In Weaver, the statute reduced the number of gein-time credits

available to the Petitioner. In this case, the retrospective application of

the art. 37.10(b) operates to deny Respondent the relief to which he was

entitled, in other words, e new trial, by vwalidating an otherwise void

conviction.

The lew in Texas, by comparison, also prohibits the retrospective

application of procedural changes that deprives @ defendant of substantial

protection. In the Interpretive Commentary to the applicable Texas provision

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 written:

Although ordinarily lews changing procedure are not within the

inhibition, still if @ procedura) change is retroactive and

results in depriving the accusec of substantial protections, it is

7 /—i—eeae - parte Roper, 61 [Tex] Cr.R. 68, 134 S.W. 334

ll).

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In his dissenting opinion in Ex parte Johnson, 697 S.W., at 609, Judge Onion,

then presiding judge of the Texes Court of Criminal Appeals, stated thet Art.

37.10(b) was an “overreaction” to Bogany. Judge Onion concluded that art.

37.10(b), when applied retroactively, clearly violated the prohibition against

ex post facto legislation.

The underlying reason that “the Ex Post Facto Clauses were included in

the Constitution was to assure that federal and state legislatures were

restrained from enacting arbitrary and vindictive legislation.” Miller, 107

S.Ct., at 2451, quoting Calder v. Bull, 3 Dall., at 389, 1 L.Ed. 648 (1798).

It is clear that the purpose for the enactment of art. 37.10(b) wes to

arbitrarily prevent additional inmates, such as the Respondent, from obtaining

@ reversal, new trial and possible acquittal. The State has attempted to

downplay the significance of the detrimenta) impact of the statute on inmates.

For @ convict, however, what greater substantial personal right exists than to

have his conviction reversed? The purpose of the Ex Post Facto Clauses wes

precisely to stop the type of activity going on here and stop legisletures

from changing the law and retrospectively imposing the new law on mombers of

society to their detriment.

The Court of Appeals approprisetely granted relief because the Respondent

wes able to show that (1) the crimine] 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 sco found. Whereas previously the

Respondent, and al] others similarly situated, were entitled to a reverse) and

retrial, the retrospective application of the new statute resulted in & mere |

modification of his judgment and sentence. The change in procedure material ly

disadvantaged Respondent by eliminating his right to a reversal and retria)

and replacing it with an affirmance of his conviction. Respondent lost the

substantial personal right thet comes with any retrial and possible ecquitte).

The constitutional prohibitior egainst ex post facto laws clearly applies in

this case. ihe decision of the Court of Appeals accurately applies the

Supreme Court's past holdings to the facts in this case. The petition for

writ of certiorari should not be granted.

For these reesons, Respondent prays that the petition for writ of

certiorari to the United States Court of Appeals for the Fifth Circuit be

denied.

Respectfully submitted,

CARROLL F. YOUNGBLOOD

Respondent

“4

zi arrar

Attorney spondent

Staff Counsel for Inmates

TOCJ-1D

P.0. Box 99

Huntsville, Texas 77342-0099

(409) 294-2363

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

2

TABLE OF CONTENTS TO APPENDICES

Youngblood v. Lynaugh, 882 F.2¢ 956 (Sth Cir. 1989)

Order denying State's suggestion of rehearing en banc

Opinion of Federal District Court

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

— eS eee

APPENDIX A

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The Board’s petition in civil contempt is

GRANTED to the extent noted above.

:

Carroll F. YOUNGBLOOD,

' Petitioner-Appeliant,

v.

James A. LYNAUGH, Director, Texas

_ » Department of Corrections,

mig Respondent-Appeliece.

No. 88-2888.

United States Court of Appeals,

Fifth Circuit.

Sept '§, 1989.

Prisoner applied for writ of habeas cor-

pus. contending that the ex pos: facto

clause of the Federa! Constitution was vio

latec by application agairst him of a sca:

ute which allows an appeilate cour. w re

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rized by law, as it would have been futile to

require petitioner to pursue issue further

im statecourt proceedings; prisoner's ex

post facto argument had been presented w.

and rejected by, Texas Court of Crimina!

Appeals. US.C.A. Const Art 1, §§ 9, el

3, 10, cl. 1;. Vernon's Ann. Texas C.C_P. art

37.10%). . ms SS

2. Constitutiona! Law © 199 —

_ For purposes of ex post facto clause;

once it is determined that law in questior

was applied retrospectively, salient issue

becomes whether law operated to disadvan-

tage accused in exercise of substantia)

right or protection that he previously en-

joyed, not whether circumstances of appl

cation conformed to parsdigmatic or illus-

trative category of harms. U.S.CA. Const

Art 1, §§ 9. el 3, 10, el 21.

3. Constitutional Law 199

Criminal Law 13.2

As tw defendant who was sentenced

under procedure that was not suthonzed

by Texas law at time of commission of

offense, retroactive appheauor ef szatute

which siuiowed appellate cour: to reform

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remanding for remma! aiverec defendan::

mght to retnal—s substantia! right—to his

materia! disadvantage; thus, applicaton of

Statute against defendant violated ex post

facto clause of Federal Constitution. U.S.

C.A. Const Art 1, §§ 9, cl. 3, 10, el. 2;

Vernon's Ann.Texas C.C.P. art 37.10(b).

John R. “Randy” Farrar, Staff Counsel

for Inmates, TDC, Huntsville, Tex., for pe

tittonerappellant =

S. Michael Bozarth, Asst Atty. Gen., and

Jim Mattox, Atty. Gen., Austin, Tex., for

respondent-appeliee.

Appeal from the United States District

Court for the Eastern District of Texas.

Before GEZ, GARZA and JONES, -

Circuit Judges.

GARZA, Circuit Judge:

This case presents a nove! question in tie

Fifth Circuit under ‘the Ex Post Facts

clause of the United States Constitution.

We are convinced that article 87.10(b) of

the Tex.Code Crim.Proc., as applied to peti-

toner Youngblood unde: the circumstances

of this case, violates the Ez Post Facto

claus. We therefore REVERSE the dis-

trict court’s decision denying appellant's

writ of habeas corpus and REMAND the

case for a new trial.

BACKGROUND a.

On March 17, 1982, appellant Carroll

Youngblood was convicted by a Texas jury

of aggravated sexual abuse. He was sen-

tenced to life imprisonment and a fine of

$10,000. His conviction was affirmed on

appeal Subsequently, he filed an applica-

tion for a writ of habeas corpus with the

Texas Court of Crimina) Appeals, relying

upon Bogany v. State, 661 S.W.2d 957

(Tex.Crim.App.1982) (en banc). In Bogony

the Texas Court of Crimiina) Appeals held

that the sentence enhancement provision,

section 12.42(c) Tex.Pena) Code, does not

authorize punishment to include a fine in

addition to a prison sentence. The Bopany

court concludec that the jury's verdict was

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The district court dismissed Youngblood’s

petition. He now appeals from that dismis-

Exhaustion of State Remedies.

[1] The government argues that Young-

blood’s petition should be denied because

he has never presented his federa) ex post

The Texas Court of Crimina) Appeals

decided Ez parte Johnson in October of

1985. In that case, the court concluded

that art. 37.10(>) was purely procedura!

and might properly be applied to reform an

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§ 9, cl Sand Art 1, § 10, cl. 1. In Calder e

Bull 3 Dall. 386, 1 LEd 648 (1798), the

Court concluded that an e post fecto law

is any provision that renders crimina! “an

action done before the passing of the law

and which was innocent when done,” or

that “makes s crime greater than i was,

when committed,” or that “inflicts a great-

er punishment, than the law annexed to the

crime, when committed,” or that “alters

A tear sheer da. 3 Dall. at

More recently, the Supreme Court has

Stated that two critical elements must be

present for a law to fall within the ex post

Sacto prohibition. First, it “ ‘must be retro

spective, that is, it must apply to events

occurring before its enactment’; and sec-

ond, ‘it must disadvantage the offender

affected by it'” Miller v Florida, 482

US. 423, 430, 107 S.C 2446, 2451, 96

L.E4.2¢ 35} (1987) (quoting Weaver v. Gre-

ham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67

L.Ed.2d 17 (2981). The Court also noted

that a law which merely changes “modes of

procedure” wil) not violate the Er Pos:

Facto clause unless it also alters “substan-

tal persona! mghts” of the accused Wil.

der, 462 US. at 430. 307 S.Cz at 2632

-

(exng Lobiert +. Florida, 422 US. 2°7. 97

S.C. 2290. 83 LEd2d 84s (1977). ic is

wncontroverted that the Texas Cour: of

Criminal Appeals, and the district court

below, approved the application of art. 27-

10(>) to events that occurred im Young-

blood’s case before the enactment of the

statute. The decision in this case turns

upon whether the application of 37.10)

See oe eee t Oe ete

At the tme Youngblood was convicted,

the jury rendered a verdict that was unav-

thorized by law; it assessed « term of

years imprisonment im addition to a $10,000

fine. Also at the time of conviction, assess-

verdict void ad initio under Texas law and

entitled the defendant to a new trial Sub

constitute substantive law defining erimi-

nal 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 substan-

tve changes in the law when the highest

state court yet to consider the question has

declared it purely procedural However,

the government misapprehends the author-

ty of this Court to decide whether the

retrospective applicaton of a state crimma!

Statute violates the Er Post Facto clause.

Whether the standard of punishment estab

hshed by a later state statute is more oner-

ous than, or worsens the conditions im-

posed by, its predecessor, is a uniquely

federa! question which wil) be determined

by the federal courts themselves. Weaver

tr. Grekem. 450 US. 24, 33. 102 S.Cu 960,

966. 67 LEd 2d 17 (2981); Lindsey ¢

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797, 798, & L.Ed. 1162 (2987)

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

L.Ed. 485 (1894). - : iie.«

‘Thus, we may accept the state court's

characterization of 37.10(b) as procedural

and stil] disagree with its conclusion in Ez

Parte Johnson that the statute’s applica-

tion in these circumstances suffers from no

ez post facto infirmity. The question is

whether Youngblood’s right to retrial, to

which he was entitled before the passage

of ar. $7.10(>), was a “substantial protec-

tion” within the meaning of the Supreme

Court's ex post fecto jurisprudence.

_The government argues that the retroac-

tive application of art. 37.10(b) cannot o!-

fend the Ez 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 avai-

able at the time the act was committed.

Likewise, the authorities appended to the

government's brief erroneously suggest

that s 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 Ez Post Facto clause. ~

1. We recognize that, in Willies v. Florida, 399

US. 76, 90 S.Ct 1893, 26 LEd.2d 446 (1970), the

Supreme Court set aside the requirement im-

plicitly esuablished in Trompson v. Utah that

éeliberauion by a twelve-member jury is 8 con-,

siitunona! prerequisite to a finding of guil:

This revision of one of the issues in Thompson

‘Tnese authorities fail te consider the it

por: of Thompson +. Utah, supre, wherein

the Supreme Court held that s law which

authorized a jury of only eight persons,

instead of twelve, to pass upon the guilt of

of past crimes, in order to con-

stitute an e post focto law. In Cum-

mings v. The State of Missouri, 4 Wall.

cannot be dispositive of the inquiry wheth-

er such a statute violates the Ex Post Fac-

to clause. Once it is determined that the

law in question was applied retrospectively,

v. Utah, however, leh intact the proposition for

which we cite that case: an ex pos! facto viola

tion may occur in the absence of an increase in

punishment. or a change in the burden of proof

er an elim:nation of a previously available de.

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[3) At the time of Youngblood’s convie-

tion, it was the law of Texas that a verdict

nght to have one’s guilt retried before a

different jury—with its attendant possibib-

ty that the outcome might be different the

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U.S. COURT oF APPLE:

No. 86-26EE FILED

OCT iS ize

CARROLL F. YOUNGBLOOD, GILBERT £ Gan

versus

JAMES A. LYNAUGH, Darector

Texas Departmen tof Corrections,

Respondent -Appellee.

Appeal from the United States District Court for the

Eastern District of Texes

(Opinion_sEepTEMBss & 5 Cit-- 198 9, F.2¢ )

( OCTOBER 19, 1989 )

Before GEE, GARZA ané JONES, Circuit Juéges.

or rehearing en banc as & petition

gene) reheoriog Oyen

this Court having been

EE FRAP AND LOCAL

PULES 41 FOR STAY OF THE

IL: ANDATE.

REHG-@

REHEARING FLD. 10/6/89

APPENUIX C

G-/s-2i FILED

GASTEAN

IN THE UNITED STATES DISTRICT COURT SEP 1 4 1988

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

ny .

CARROLL F. YOUNGBLOOD )

)

vs. ) CIVIL ACTION NO. TY-86-211-CA

)

)

)

JAMES LYNAUGH, DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS

ORDER

On March 17, 19862, the petitioner Carroll F. Youngblood was

convicted of aggravated sexual abuse (Tr. 25). The jivy assessed

punishment of life imprisoumenc 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 &.W.24, at 959.

After Bogany was decided, the Texas Legisature enacted

Article 37.10(b), Tex. Code Crim. Proc. (West Supp. 1988), which

provides:

If the jury assesses punishment in a case ané 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

wavse 0. . |

, YoledZZ rare 3g

?

L.& Distmict COURT As

MURRAY &. HARRIS, CLERK

.

——

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,

1965. the Texas Court of Criminal Appeals announced its decision

in Ex parte Johnson, 697 S.W.24 605 (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.24, at 610-617. 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.24 671, 672 (Tex.

Crim. App. 1985).

Youngblood now seeks a writ of habeas corpus pursuant to 28

U.S.C. §2254 from this Court. As grounds for issuance of the

writ, he contends that the retroactive application of article

37.10(b) violated the Ex Post Facto Clause, United States

Constitution, Article I, Section 10, Clause 1. The respondent

contends that Youngblood has failed to exhaust his state remedies

as required by 28 U.S.C. §2254(b) and (c). Specifically, the

respondent argues that Youngblood has not raised his ex post

facto argument before the Texas Court of Criminal Appeals;

therefore, his federal habeas petition is premature.

Alternatively, if the Court so finds that Youngblood has

satisfied the exhaustion requirement, then the respondent argues

that retroactive application of Article 37410(b) to

Youngblood's case was merely procedural with no substantive

effect to violate the ex post facto prohibition.

Exhaustion of State Remedies tion

Youngblood argues that Presiding Judge Onion's discussion of

the ex post facto question in Ex parte Johnson obviated the need

to again raise the issue before the Texas Court of Criminal

Appeals. In his dissent, Presiding Judge Onion posed the

question whether Article 37.10(b) could be applied retroactively.

He then quoted Article I, Section 16 of the Texas Constitution

which provides:

No bill of attainder, ex post facto law,

retroactive law, or any law impairing the

obligations of contracts, shall be made.

Next Presiding Judge Onion quoted extensively from an

interpretive commentary of the above-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 tne dissenting opinion in Johnson,

Johnson was wrongly decided. Ex parte Youngblood, 698 S.W.2d, at

672. One of those reasons, of course, included Presiding Judge

Onion's @iscussion 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.2¢ 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.

Welawright, 525 F.2d, at 1272. See

also Gartrell v. Lynaugh, €33 F.24 $27, 528-529 (Sth Cir. 1987).

There is nothing in this Court's review of prevailing state law

to indicate that the Texas Court of Criminal Appeals will retreat

from its Johnson and Youncblood decisions by adopting Presiding

Judge Onion's dissent. Having found that Youngblood is excused

from the exhaustion requirement, the Court shall consider the

issue of whether the Texas Court of Criminal Appeals' retroactive

application of Article 37.10(b) violated the federal

constitutional prohibition of ex post facto laws.

.

Ex Post Facto Law Question

Article I, Section 10, Clause 1 of the United States

Constitution provides that no State shall pass any ex post facto

law. An ex post facto law (1) makes an action completed before

the passing of the law, criminal, and punishes such action; (2)

aggravates a crime, or makes it greater than it was, when

committed; (3) changes the punishment and inflicts a greater

punishment, than the law annexed to the crime, when committed; or

(4) alters the legal rules of evidence, and receives less, or

@ifferent 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 §.Ct. 2446, 2450 (1987).

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

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

enactment) and (2) disadvantage the offender affected by it.

Miller v. Florida, _ U-S-, at ___s 107 S.Ct., at 2451.

Although a law may operate to the offender's detri, ent, no ex

post facto violation occurs if the change in the law is merely

procedural and does not increase fhe punishment, nor change the

ingredients of the offense or the ultimate facts necessary to

establish guilt. However, a change in the law that alters 4

substantive right can be ex post facto even if the statute takes

a seemingly procedural form. Miller v. Florida, U.S., at

_, 107 S.Ct., at 2452-2453. See Weaver Vv. 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 U.S. 347, 353-354, 84 S.Ct. 1697, 1702-1703 (1964).

It is readily apparent that the Texas Court of Criminal

Appeals' application of Article 37.10(b) here was retroactive and

disadvantaged Youngblood. Under the law effective at the time

his conviction became final, he would have been entitled to a new

trial because the jury assessed an unauthorized punishment.

However, with the new statute, enacted and applied to his case

after his conviction became final, the unauthorized punishment

was simply stricken. Although the application of Article

37.10(b) to Youngblood's case appears to satisfy the test for an

ex post facto law, the retroactive application, however, does not

criminalize and punish a prior action, aggravate a crime when

committed, inflict a greater punishment, nor alter the legal

rules of evidence. Thus, the retroactive application of Article

37.10(b) does not fall within the classic 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 (Sev dey of ,_, 1988.

LK —

———

ROBERT M. PARKER

UNITED STATES DISTRICT JUDGE

APPENDIX D

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me ee ee ee es ee = ee

. , os

EX PARTE YOUNGBLOO. Tex. 671

Cite as 698 S.W.2d 671 (Tex.CrApp. 1985)

therefore void at its inception. Moya v.

State, 681 S.W.2d 41, 42 (Tex.Cr.App.1984).

(2) This Court is without authority to

reform applicant's sentence. The proper

procedure is to remand for new sentencing.

Releford v. State, 683 S.W.2d 385 (Tex.Cr.

App.1984); Ex parte Spaulding, 687

S.W.2d 741 (Tex.Cr.App.1985). Because

punishment was assessed by the court, we

remand for a new punishment hearing

only. Ocker v. State, 477 S.W.2d 288, 291

(Tex.Cr.App.? 972).

The relief prayed for is granted. Appli-

cant’s sentence is hereby vacated and appli-

cant is ordered into the custody of the

Aransas County Sheriff for a wew punish-

ment hearing and sentence. A copy of this

opinion shall be forwarded to the Texas

Department of Corrections.

It is so ordered.

TOM G. DAVIS, J., not participating.

Ex parte Carrol! Frank

YOUNGBLOOD.

No. 69471.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 16, 1985.

Defendant was found guilty in the 7th

Judicial District Court, Smith County, Don-

ald Carroll, J., of aggravated sexual abuse,

and defendant pled “true” to enhancement

paragraph and was sentenced confinement

for life and $10,000 fine. Defendant ap

plied for writ of habeas corpus, contending

that assessment of fine was unauthorized

and requesting that judgment and sentence

be set aside and new trial ordered. The

Court of Criminal Appeais, Miller, J.. held

that the fine imposed was unauthorized.

but the verdict and judgment would be

reformed to delete the improper fine.

Order accordingly.

Clinton, J., dissented and filed an opin-

ion in which Onion, PJ., and Teague, J.,

joined.

1. Criminal Law ©1215

Fine of $10,000 imposed upon defend-

ant who was found guilty of aggravated

sexual abuse and pled “true” to enhance-

ment paragraph alleging prior felony con-

viction was unauthorized by law, as Penal

Code § 12.42(c), governing sentence of de-

fendant who was once before convicted of

felony, does not make provision for assess-

ment of fine in addition t) term of impris-

onment. V.T.C.A., Penal Code § 12.42(c).

2. Criminal Law ©°1184(4)

Even though fine of $10,000, imposed

upon defendant who was found guilty of

aggravated sexual abuse and pled “true”

to enhancement paragraph alleging prior

felony conviction, was unauthorized, judg-

ment was not void; rather, verdict and

judgment would be reformed to delete im-

proper fine.

Carroll Frank Youngblood, pro se.

Robert Huttash, State’s Atty., Austin,

for the State.

-

Before the court en banc.

OPINION

MILLER, Judge.

This is a post-conviction writ of habeas

corpus brought pursuant to Art. 11.07,

V.A.C.C.P. Applicant was indicted for the

offense of aggravated sexual abuse, with a

prior felony conviction alleged for enhance-

ment. The jury found applicant guilty of

aggravated sexual abuse and he pled

“True” to the enhancement paragraph.

Punishment was assessed by the jury at

confinement for life in the Texas Depart

ment of Corrections and u $10,000 fine.

er - -

672 Tex 698 S °“H WESTERN REPORTER, 24 SE FS

{1} In his application for writ of habeas

corpus applicant contends that the jury's

assessment of a $10,000 fine is unautho

rized by V.T.C.A. Penal Code, § 12.42(c)

and requests that the judgment and sen-

tence be set aside and a new trial ordered,

Applicant relies on Bogany v. State, 661

S.W.2d 957 (Tex.Cr.App.1983) wherein we

held that a judgment containing a punish-

ment unauthorized by law was void since

the court was without authority to correct

the infirmity. On June 11, 1985, however,

Senate Bil! 1349, Acts 69th Leg., became

effective. In Ex parte Johnson, 697

S.W.2d 605 (Tex.Cr.App.1985), we interpret-

ed this amendment to provide a vehicle by

future actions. Ez parte Johnson, at 607-

608.

{2) In applying Ex parte Johnson, su-

pra, to the case at bar, the assessment of

$10,000.00 fine was unauthorized. Thus,

we need not remand the case for a new

trial; rather, we may reform the verdict

and judgment and delete the improper fine.

Applicant's request for relief is therefore

denied. The judgment in Cause No. 7-81-

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.

TOM G. DAVIS, J., not participating.

CLINTON, Judge, dissenting.

Valid reasons why Ez parte Johnson,

697 S.W.2d 605 (Tex.Cr.App.1985), was

wrongly decided are set forth in the several

dissenting opinions therein, and to reprise

37.10(>) may be gratuitously invoked and

applied by this Court in @ post conviction

habeas proceeding in which a final judg-

ment of conviction imposes s sentence

based upon a verdict of a jury assessing

punishment not authorized by law. The

majority fails to address that question, so |

will.

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

Article 37.10(b), V.A.C.C.P. has no applica-

tion. Obviously focusing on Bogany ».

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

Still, as has been often pointed out by the

Court, s habeas corpus proceeding may not

be used as a substitute for an appeal. Ex

parte Powell, 558 S.W.2d 480, 481 (Tex.Cr.

App.1977). A postconviction habeas appli-

cation will not lie to correct errors que

errors committed in the trial court. The

Court does not decide a habeas cause in its

capacity as an “appellate court.”

Secondly, approaching Article 37.10, su-

pra, from another direction, one notes that

Article 11.07, V.A.C.C.P., provides that the

it outlines “shall be exclusive

a” id, § 3. Thus, even if Article 37.10

is retrospective in the sense erroneously

imputed to it in Ex parte Johnson, supra.

ee

. Sti weghee + os ty De

’

—

‘

lh le Nl, lS LL

TURNER v. STATE

Cire as 098 §.¥ 2d 673 (Tex.CrApp. 1985)

MUTE

Hallity

Hie

LE

vested reads

ONION, PJ. and TEAGUE, J., join.

Joseph Pau! TURNER, Appellant,

v.

The STATE of Texas, Appellee.

No. 69221.

Court of Criminal Appeals of Texas,

En Banc.

. Oct. 30, 1985.

Following remand, 635 S.W.2d 734, de

fendant was convicted in the 17ist Judicial

District Court, E) Paso County, Edwin F.

Berliner, J., of capita! murder, punishment

i)

war assessed xt death, and defendant ap

ant is a continuing threat to society. Ver-

non’s Ann.Texas C.CP. art. 37.071).

ishment stage of

non’s Ann.Texas C.C.P. art 37.07 1(a).

n stage of capital murder trial.

Vernon’s Ann.Texas C.C.P. art. 37.071(a).

be proved and offered into evidence. Ver-

non’s Ann. Texas C.C.P. art. $7.07.

_* ts

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