# Opposition Brief — Collins v. Youngblood

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0691%3A3

## Record

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

## Text

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

Loe

Or F SPan co.

(>*

: .
-i- °- ff -
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

EE ed a ee ae
ET’ oes hve aus Slee 6 6 006 0s 2 66 6 1
DEE in ads-< Sb bis. be 6 6.6 0 0 0h 00s 680s 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. .......... 2
I Se a's Ud Bes 6 6's 9 600 06 0 6 Bt 2
ETL eas 4s S~ > os oso eRe eae ee es 4
ERS Es oe ear 4
See os ike sy a alah a 4 0 68-868 OOM g

- ili-
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.

ey

“Ze
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).

= re

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).

e6«

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).

Pe

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

c
=?
»

or, Wi. no: effec:
it remains

E
f
es

1
|
:

Hu
ag
ne
a

:
|

la
ald
i
te il

if
|
#3

). affidavits regarding hours spen:
this court for iy fee determination

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

BEST AVAILABLE

oo5 *) (ELAS BEPC. 3: SERGE? '

une , }
joinzly and severally liable for the full

a

T
:

uy

ct
:

i
‘
i

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

COP

¢ HARESEESERoe Pe fe die fis fFEEEGEE

YOUNGELOOD +. LYNAUGH : 957

Cure es RES Pe OM Fu he Nee

SLaces.OF Bes “t?s5.5. BWia.ce. BOCSESY E>
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

Vee BL TS ive eh ean ot PRVEPROE. Se lose

ment anc ordered & new tra.

agit
i
if
Hi
i

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

BEST AVAILABLE COPY

Epheape
Mt
i piss
“teeil
preys
Lt ef

ti
g3
FP
it

i
i
E
Prt
1

5

R
i
A
Es

I
i
i

g

§ 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 ¢

weve,

oe +

Te ee

PHO AESOP R RARER EE 2s

Anon aan we a.

7

ee ee!

“

~~ ws. 2

a STear, 4 er:

Cueasmes oc 9% Ce. 1M

Weshingter, $0: US. 297, 400, &° $.Cz
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.

ense

BEST AVAILABLE COPY

--.

as
we seelt Sue becomes wrhewer we aw
_ pemetec Wo disacvanwage une accused ir une
exercise Of a substanua! mgh: or provecton
that he previously enjoyed, not whether the
circumstances of its appheaton conform to

a paradigmatic or lustranve category of
harms.

[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
second ume around—is comfortably encom-
2 We find understandable the Texas legularure
discasie for a rule of law tha: affords —
criminal defendants a “second bite a! the apple ~
Giver the wensmtudes of a ermuina! tna! before
® jury. such @ second chance bestows 8 consid
eradie benef: upon a defencant a: the same
ume that i imposes an unnecessary burcen

-
—_——- ‘ ce * +e.
a - : -_ ;
. - & «ee se

passes Wis wet cavegory of menu con
sicerec “substantial.”

bets
1H
HH
i

HES
f
i
:
2
gF

Thompson v. Utah, 170 US. 343, 18 S.Co

ws whether the retroacuve applicauon of am
37.10Q(D) worked to the disadvaniage of Young
Dioed in Ue exercise of a sudsianua provecuon

top eb 4 ;

sete Ge Pg v.et

eo.

¢ ©7970

se
ef
~~ =

EGRR* TC EEPESEEES

a

GEESERYES , SREGESEERELES TER:

vow” Fo

‘PENDIX B

| wa ith ipeqiaee + ee oa ee Ea Ae hay oe and =
| S , A | re i atte
aL AE i Hf Hf qu ft pile
| Aoeiiitel @ 0 ies | Wel
| meer i Pep aPeee ps Hitt =
Bata HIE 3 : ‘is ; a ill eS
art G 3 = z 5S | —
7 qT EL od ee
tiled agate feeeat i
Hal ul i ; 24 35 4k é fl 3% —=*
Gt i Fite sagacgees* Ht ay ae pi io _
uf at eit EA YH |
eee ced an El!
28 dale asisiilsutlallivida: Gets:

» oat ‘Scum’.

:
S bet sAe Gagan 44% sanz

'OROASPER OR ase e as QW AeA Y eu

° ee 3

¢°¢< ere eceey ~ orem

-? osm + Oe oe Vee wee
°

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

~-

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

—=

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0691%3A3. Public record. Not legal advice.