Petitioners Brief — Carmell v. Texas

In The

Supreme Court of the United States

S

SCOTT LESLIE CARMELL,

Petitioner,

STATE OF TEXAS,

Respondent.

*

On Writ Of Certiorari To The

Texas Court Of Appeals

°

BRIEF OF PETITIONER

«

RicHarp D. BernsTEIN*

Carter G. Puiuips

KATHERINE L. ADAms

Paut A. HEMMERSBAUGH

BriAN C. Katt

Siptey & AusTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Counsel for Petitioner

"Counsel of Record

September 17, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

Whether the retroactive application of a criminal

statute that repeals a statutory requirement of two

witnesses to convict a criminal defendant violates the Ex

Post Facto Clause in Article I, Section 10 of the

Constitution, because it requires “less . . . testimony, than

the law required at the time of the commission of the

offence, in order to convict the offender,” Calder v. Bull, 3

U.S. (3 Dall.) 386, 390 (1798), and, in addition, because it

eliminates a defense on the merits.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED... ..<ivscesscccceusdeecees i

TABLE OF AUTHORITIES ..........ccccccccvcccces iv

OPINION BELOW .....cssccescteveccseuaauebeseens 1

JURISDICTION ....ccscccvccncudenseentneneeeewanen 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.............22+eeeeeees 1

STATEMENT OF THE CASE........scscoscccsssesss 2

A. The Statutory Change ...............-2-e00-- 2

B. The Alleged Crimes and Trial................ 3

C. The Retroactive Application of the 1993

Statwle .. ccc esncncngedetedhbysenenenee eaen 4

D. The State Appeals Court Decision ........... 7

SUMMARY OF ARGUMENT...............+-00000+ 8

ARGUMENT .....cccsccsivecepenensauemewene<nnene 12

I. RETROACTIVE APPLICATION OF THE 1993

AMENDMENT TO ARTICLE 38.07 VIOLATED

THE EX POST FACTO CLAUSE BY REDUCING

THE AMOUNT OF PROOF NECESSARY TO

SUPPORT A CONVICTION .............20.55. 12

A. Retroactive Application Of The 1993 Amend-

ments Violated The Ex Post Facto Clause By

Reducing The Amount Of Evidence

For Conviction, Contrary To The Fourth Cate-

gory OF Calder v. Ba. .icssccccchccekuwetnn 12

B. The Fourth Category Of Calder v. Bull Is

Essential To Fulfillment Of The Purpose Of

The Ex Post Facto Clause................. 14

TABLE OF CONTENTS - Continued

Page

C. Later Decisions By This Court Explicitly

Reaffirm The Continuing Vitality Of The

Fourth Calder Category ................... 21

Il. RETROACTIVE APPLICATION OF THE 1993

AMENDMENT ALSO VIOLATED THE EX

POST FACTO CLAUSE BY DEPRIVING PETI-

TIONER OF A DEFENSE AVAILABLE UNDER

THE LAW IN EFFECT AT THE TIME OF HIS

imesh bho dswasiasdescs bets ovecess 29

Ill. THE 1993 AMENDMENT CHANGED THE SUB-

STANTIVE CRIMINAL LAW, AND THUS ITS

RETROACTIVE APPLICATION TO PETI-

TIONER VIOLATES THE EX POST FACTO

i nl eedeucés 31

A. Whether Article 38.07 Is Labeled “Pro-

gE EEE ED 31

B. Amended Article 38.07 Affects Substance,

And Not Merely Procedure ............... 32

ES ESI ~ 34

iv

TABLE OF AUTHORITIES

Page

Cases

Aylor v. Texas, 727 S.W.2d 727 (Tex. App. 1987, pet.

g PRENE SED YA Bene wp very” CARIES dP AE rth yo 22

Beazell v. Ohio, 269 U.S. 167 (1925).............. passim

Blair v. Manhattan Life Ins. Co., 692 F.2d 296 (3d

GOD BEE bbsccsadceynsededldslvensencteeesast wean 34

Bowen v. Arkansas, 911 S.W.2d 555 (Ark. 1995)....... 21

Bowers v. Texas, 914 S.W.2d 213 (Tex. App. 1996,

GE, COTES vc kscnces iu asverstecsecéanevetséeades 6, 31

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........ passim

Carmell vy. Texas, 963 S.W.2d 833 (Tex. App.-Fort

Worth 1998, pet. ref’d), cert. granted, 119 S. Ct.

BEER: CHOSEN ccdtn vd pbvensewigeesienteedecsnss passim

Carmell v. Texas, No. 837-98 (Tex. Crim. App. Sept.

GE COU Abb eden todekecedytebucepdvusbotssawanecba 8

Carmell v. Texas, 119 S. Ct. 2336 (1999) ............... 8

Cities Serv. Oil Co. v. Dunlap, 308 U.S. 208 (1939) .... 33

City of Richmond vy. ].A. Croson Co., 488 U.S. 469

GUO atc ckancaeconssvdesdthipncéugadtedaboannebece 15

Collins v. Youngblood, 497 U.S. 37 (1990)......... passim

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866) .... 23

Delaware v. Moyer, 387 A.2d 194 (Del. 1978)......... 21

Dick v. New York Life Ins. Co., 359 U.S. 437 (1959) .... 34

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)......... 33

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) ........ 14

v

TABLE OF AUTHORITIES - Continued

Page

Friedel v. Texas, 832 S.W.2d 420 (Tex. App. 1992, no

DODD. 0:54 cede sen tpecbsunsrncveesscevncviqadesedeed 6, 30

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866)........ 23

Goode v. Florida, 39 So. 461 (Fla. 1905)............... 22

Hart v. Alabama, 40 Ala. 32 (Ala. 1866).............. 22

Heckathorne v. Texas, 697 S.W.2d 8 (Tex. App. 1985,

Ek 05 8 4 esa hape dk abached byaVilpvenanssedake 6

ee Th Be SBD onc cdccudccavives 22

Hopt v. Utah, 110 U.S. 574 (1884)................4... 24

Idaho v. Byers, 627 P.2d 788 (Idaho 1981) ............ 21

James v. United States, 366 U.S. 213 (1961)........... 17

Jones v. Texas, 789 S.W.2d 330 (Tex. App. 1990, pet.

SUE dicécien Leb ehsehadawedel ddabacersaeteaostives 30

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494

ee CEE fh deed wavosncnceudbevereaehserneas 14

Landgraf v. USI Film Prods., 511 U.S. 244 (1994)...14, 17

Lynce v. Mathis, 519 U.S. 433 (1997) ..............4.. 23

Maryland v. Craig, 497 U.S. 836 (1990)............... 20

Mattox v. United States, 156 U.S. 237 (1895).......... 16

Ex parte Merrill, 201 S.W.2d 232 (Tex. Crim. App.

Se Pacbc ur chanced dahechtenedeets ckucetssscasace 25, 30

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

Minnesota v. Niska, 514 N.W.2d 260 (Minn. 1994) .... 21

New York v. Caifa, 299 N.Y.S. 838 (N.Y. App. Div.

Pe von coviecoccqdesesiecvesssccesesucduscsusess 22

vi

TABLE OF AUTHORITIES —- Continued

Ogden v. Blackledge, 6 U.S. (2 Cranch) 272 (1804) ....

Palmer v. Hoffman, 318 U.S. 109 (1943)...........

Pennsylvania v. Hoetzel, 426 A.2d 669 (Pa. Super.

CA PED on ctccssdencsacd (étueetrecedecs cues

Scoggan v. Texas, 799 S.W.2d 679 (Tex. Crim. App.

SOs hh vs baceuscncneonencouuéapechendtaretvess

Shelby v. Texas, 800 S.W.2d 584 (Tex. App. 1990),

rev'd on other grounds, 819 S.W.2d 544 (Tex.

Cale. GO, TIGR sc ncn dicanvstsedecciscscces.

Thompson v. Missouri, 171 U.S. 380 (1898)........

Tyrone v. Texas, 854 S.W.2d 153 (Tex. App. 1993,

OG, IPED oo vnk hcke peccnncvaccivsocccivevcepas

GOs cp ccccccecveberesascovénvadeendectetéucee

SEs Wiki cocedabed « dduddis SuGetanbhadd vee ot

United States v. Hise, 52 C.M.R. 195 (C.M.A. 1970) ....

United States v. Williams, 475 F.2d 355 (D.C. Cir.

Deiadihncedhbatessudials takekaarcerones rete

Utah v. Foust, 588 P.2d 170 (Utah 1978)..........

Virgin Islands v. Civil, 591 F.2d 255 (3rd Cir. 1979)

Weaver v. Graham, 450 U.S. 24 (1981)......... 15,

CONSTITUTION AND STATE STATUTES

a CORE OG. BR GD Sidescccsicuseccccvses

sanw Oe

17, 31

vii

TABLE OF AUTHORITIES - Continued

Page

Tex. Code Crim. Proc. art. 38.07 (1983)....1, 2, 5, 6, 30

art. 38.07 (1993), Acts 1993, 73rd Leg., ch. 900,

SP 0454 bed vae ees achoehss deataekedadornes 1, 3,7

Se See SE IE A ikek ta bbs ce keccuntddnives 1,2

CU ib nees cd pesssicncsedhus b0ush bine duveuad 1,2

GE Sek viddes Vink péskees semebSbuweietetrnusnke 1,2

Lecistative History

House Research Org., Bill Analysis (Mar. 15, 1993) .... 18

FOREIGN STATUTE

An Act to Attaint Sir John Fenwick Baronet of

High Treason, 8 Will. 3, ch. 4 (1696) (Eng.) ....... 16

SCHOLARLY AUTHORITY

Note, Corroborating Charges of Rape, 67 Colum. L.

Rs CEOF GOWN E kad Sivupoeepveuacasivgebatsesvcces 25

OrHeR AUTHORITIES

The Federalist No. 44 (James Madison) (Clinton

I Id: a da tee 14

John Hart Ely, Democracy and Distrust (1980) ........ 16

James Iredell (“Marcus”), Answers to Mr. Mason's

Objections to the New Constitution (1788),

reprinted in Pamphlets on the Constitution of the

United States, Published rR | Its Discussion by

the People, 1787-1788 (Paul L. Ford ed., De Capo

PU GED MEE ob Abe cues sasndes bes ececeadsunses 15

vill

TABLE OF AUTHORITIES - Continued

age

Joseph Story, Commentaries on the Constitution of

the United States (1833) ...........00ee 0 eee 16, 19, 21

7 John Henry Wigmore, Evidence (James H. Chad-

meet CEU BOGE) cicccccccvecsccsvedvoveeuseeseces 25

OPINION BELOW

The decision of the court of appeals affirming Peti-

tioner’s conviction is reported at Carmell v. Texas, 963

S.W.2d 833 (Tex. App.-Fort Worth 1998, pet. ref’d).

e

JURISDICTION

The judgment of the Texas Court of Appeals was

entered on February 12, 1998. The Texas Court of Crimi-

nal Appeals denied review on September 16, 1998. The

pro se Petition for Writ of Certiorari was filed on Decem-

ber 14, 1998, and granted on June 14, 1999. This Court

appointed counsel for Petitioner on July 21, 1999. This

Court has jurisdiction under 28 U.S.C. § 1257.

e

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Ex Post Facto Clause of the United

States Constitution, Article I, Section 10,

provides in pertinent part: “No State shall

... pass any .. . ex post facto law.”

2. Texas Code of Crim. Proc. article 38.07

(1983); Texas Code of Crim. Proc. Article

38.07 (1993); and Texas Penal Code Sections

21.11, 22.011, and 22.021.

S

STATEMENT OF THE CASE

A. The Statutory Change

In 1983, the Texas Legislature enacted a law govern-

ing certain types of sexual offense prosecutions. That law

provided, in pertinent part:

A conviction under Chapter 21, Section 22.011,

or Section 22.021, Penal Code, is supportable on

the uncorroborated testimony of the victim of

the sexual offense if the victim informed any

person, other than the defendant, of the alleged

offense within six months after the date on

which the offense is alleged to have occurred.

The requirement that the victim inform another

person of an alleged offense does not apply if

the victim was younger than i4 years of age at

the time of the alleged offense.

Tex. Code Crim. Proc. art. 38.07 (1983).!

Effective September 1, 1993, the Texas Legislature

amended Article 38.07 of the Texas Code of Criminal

Procedure to read, in pertinent part:

A conviction under Chapter 21, Section 22.011,

or Section 22.021, Penal Code, is supportable on

the uncorroborated testimony of the victim of

the sexual offense if the victim informed any

person, other than the defendant, of the alleged

offense within one year after the date on which

the offense is alleged to have occurred. The

! Texas Penal Code Chapter 21 covers sexual offenses,

including indecency with a child (section 21.11). Texas Penal

Code Chapter 22 covers “ Assaultive Offenses,” including sexual

assault (section 22.011) and aggravated sexual assault (section

22.021).

requirement that the victim inform another per-

son of an alleged offense does not apply if the

victim was younger than 18 years of age at the

time of the alleged offense.

Tex. Code Crim. Proc. art. 38.07 (1993), Acts 1993, 73rd

Leg., ch. 900, § 12.01.

B. The Alleged Crimes and Trial

Although Petitioner contests the facts as found by the

Texas Court of Appeals, the factual recitation herein is

based upon the opinion of the Texas Court of Appeals in

Carmell v. Texas, 963 S.W.2d 833 (Tex. App.-Fort Worth

1998, pet. ref’d), cert. granted, 119 S. Ct. 2336 (1999).

Petitioner Scott Leslie Carmell married Eleanor in 1988,

and became the stepfather of “KM,” a daughter born to

Eleanor and her previous husband on March 24, 1978.2

Carmell gave back rubs to KM every night before she

went to bed. Some time in the Spring of 1991, Carmell

touched KM on her pubic hair during one of the back

rubs. Later that Spring, Petitioner touched KM’s breast.

On two occasions in the summer of 1991, Petitioner

caused his penis to touch KM’s genital area.

Approximately one year later, in June 1992 (when

KM was 14), Petitioner’s penis touched KM’s genital area.

Id. at 835. In March 1993, Petitioner touched KM’s breast.

On or about June 1, 1993 and July 1, 1993, Petitioner

caused KM to touch his genitals.

2 To protect the identity of the complaining witness, this

brief follows the Court of Appeals’ practice of referring to her as

“KM,” and by not identifying her mother’s surname.

In September 1993, when KM was fifteen, she and

Petitioner had sexual intercourse for the first time. KM

and Petitioner had sexual intercourse on several subse-

quent occasions, ending in March 1995. KM did not tell

her mother or anyone else about her sexual contact with

Petitioner until March 1995. KM reported Petitioner's

alleged conduct to the police in March 1995.

Petitioner was indicted in Texas district court on

eight counts of indecency with a child, five counts of

sexual assault, and two counts of aggravated sexual

assault on December 19, 1996. Petitioner pleaded not

guilty to each count of the indictment. Petitioner’s trial

on the indictment commenced on January 6, 1997. There

was no testimony offered at trial to corroborate KM’s

account of the sexual contact between KM and Petitioner.

On January 9, 1997, the jury returned a verdict of guilty

on all counts. On January 10, 1997, the jury returned a

sentencing verdict imposing the maximum prison sen-

tence allowed by law on each count, which resulted in

two life sentences and several 20 year sentences, to be

served concurrently.*

C. The Retroactive Application of the 1993 Statute

All of the conduct alleged in Counts 7 - 10 of the

indictment occurred before the effective date of amended

3 Petitioner was sentenced to life imprisonment on Counts

3 and 4, and 20 years in prison for each of the other counts. The

trial court judgment shows the prison sentences are to be served

concurrently. J.A. 22-104.

Article 38.07, but after KM turned 14.4 The corroboration

statute in effect at the time of the conduct alleged in

Counts 7 — 10 of the indictment provided, in pertinent

part:

A conviction under Chapter 21, Section 22.011,

or Section 22.021, Penal Code [viz. for a sexual

offense], is supportable on the uncorroborated testi-

mony of the victim of the sexual offense if the victim

informed any person, other than the defendant, of the

alleged offense within six months after the date on

which the offense is alleged to have occurred. The

requirement that the victim inform another per-

son of an alleged offense does not apply if the

victim was younger than 14 years of age at the time

of the alleged offense.

Tex. Code Crim. Proc. art. 38.07 (1983) (emphases added).

Thus, the pre-amendment statute required eyewitness

corroboration to support a conviction except in cases in

which the alleged victim either (1) informed another per-

son within six months of the alleged offense; or (2) was

younger than age 14. Neither exception applies to the

counts of conviction challenged here. See Carmell, 963

* Count 7 alleged sexual assault on or about June 1, 1992.

Counts 8 — 10 alleged indecency with a child, occurring on or

about March 1, 1993, June 1, 1993, and July 1, 1993, respectively.

J.A. 16-18. )

*° Respondent did not attempt at trial to satisfy the

corroboration requirement contained in the pre-amendment

version of Article 38.07. There was no eyewitness testimony, or

any other contemporaneous evidence, introduced at trial to

support KM’s testimony regarding Petitioner’s alleged conduct.

The corroborating testimony required by Article 38.07 is

testimony by an eyewitness to the alleged conduct. E.g., Shelby

S.W.2d at 836; see generally Resp’t’s Br. in Opp. to Cert.

at 5-7. Accordingly, under the terms of the statute in

effect at the time of the alleged conduct, as a matter of

law, Petitioner could not have been convicted of the

crimes alleged in Counts 7 — 10, because KM’s testimony

was uncorroborated. See Tex. Code Crim. Proc. Art. 38.07

(1983).

Effective September 1, 1993, the Texas Legislature

amended the statute to eliminate the corroboration

requirement for alleged victims under the age of 18:

A conviction under Chapter 21, Section 22.011,

or Section 22.021, Penal Code, is supportable on

the uncorroborated testimony of the victim of

the sexual offense if the victim informed any

person, other than the defendant, of the alleged

offense within one year after the date on which

v. Texas, 800 S.W.2d 584, 586 (Tex. App. 1990) (for purposes of

corroboration statute, “ ‘[u]ncorroborated testimony’ means

absence of any eye-witness other than the victim”), rev'd on other

grounds, 819 S.W.2d 544 (Tex. Crim. App. 1991); Heckathorne v.

Texas, 697 S.W.2d 8, 12 (Tex. App. 1985, pet. ref’d) (“We believe

art. 38.07 speaks to cases . . . wherein the State seeks a conviction

in the absence of any eyewitness . . . other than the young victim.

‘The lack of any other eyewitness’ is what is meant in Article

38.07 by ‘uncorroborated testimony.’ ”); see Bowers v. Texas, 914

S.W.2d 213, 215 (Tex. App. 1996, pet. ref’d) (holding that

retroactive application of amended Article 38.07 would be ex

post facto violation, finding “[the victim] was the only witness to

testify about the assault. Her testimony was uncorroborated.”);

Friedel v. Texas, 832 S.W.2d 420, 421-22 (Tex. App. 1992, no pet.)

(applying pre-amendment version of Article 38.07 to hold lack

of outcry within six months and lack of evidence to corroborate

victim’s account compelled acquittal; court suggested this was

harsh result, but found result was compelled by clear language

of statute and intent of legislature).

7

the offense is alleged to have occurred. The

requirement that the victim inform another person of

an alleged offense does not apply if the victim was

younger than 18 years of age at the time of the

alleged offense.

Tex. Code Crim. Proc. art. 38.07 (1993), Acts 1993, 73rd

Leg., ch. 900, § 12.01 (emphasis added). Because it is

undisputed that KM did not inform anyone of the alleged

conduct until well over a year after the last offense at

issue in this Petition (Count 10 of the indictment), the

1993 statutory change in the outcry period from six

months to one year is irrelevant here. Rather, Petitioner's

conviction on Counts 7 — 10 was possible solely because

of the retroactive application of the 1993 substantive

amendment to Texas criminal law that eliminated the

requirement for conviction of a second witness to corrob-

orate the account of the complaining witness.

D. The State Appeals Court Decision

On appeal, Petitioner raised several challenges,

including a challenge to the prosecution’s admitted fail-

ure to disclose impeachment evidence; the sufficiency of

testimony that Petitioner touched KM’s “genital area” to

prove the type and level of sexual contact required to

prove sexual assault; and a challenge to the retroactive

application of the 1993 amendment to Article 38.07 to

Petitioner’s pre-amendment conduct as an unconstitu-

tional ex post facto law. See Carmell, 963 S.W.2d 833.° The

© Carmell’s ex post facto appeal directly applied only to the

charges in Counts 7 - 10. J.A. 16-18. Similarly, the ex post facto

Texas Court of Appeals rejected Petitioner’s challenges

and affirmed his conviction. Id. at 838. Petitioner sought

and was denied discretionary review in the Texas Court

of Criminal Appeals. Carmell v. Texas, No. 837-98 (Tex.

Crim. App. Sept. 16, 1998).

Carmell filed a Petition for Writ of Certiorari with

this Court. The Court granted the Petition, confining its

consideration to the ex post facto and due process issues

set forth in the Petition’s first question. Carmell v. Texas,

119 S. Ct. 2336 (1999).7

SUMMARY OF ARGUMENT

Straightforward and longstanding ex post facto princi-

ples demonstrate that Texas’ conviction of Petitioner on

the testimony of one witness, when the law in effect at

the time of his conduct required the testimony of two

witnesses, violates the Constitution. The retroactive

application of the amendment to Article 38.07 of the

Texas Code of Criminal Procedure falls squarely within a

category of prohibited retroactive criminal laws set forth

in this Court’s landmark ex post facto decision, Calder v.

Bull, 3 U.S. (3 Dall.) 386 (1798). That decision, written by

issues raised in this Petition ask this Court to reverse Carmell’s

conviction on those four counts only; Petitioner’s remaining

convictions are not directly at issue.

7 Because the Ex Post Facto Clause in Article I, Section 10

directly applies to the states and the precedent under that

Clause expressly addresses the question presented, this brief

does not address any additional due process limitations on

retroactivity.

Justice Chase shortly after ratification of the Constitution,

enumerated four types of laws repugnant to the Ex Post

Facto Clause, among them: “4th. Every law that alters the

legal rules of evidence, and receives less, or different,

testimony, that the law required at the time of the com-

mission of the offence, in order to convict the offender.”

Id. at 390. Justice Chase’s inclusion of this fourth category

stemmed directly from ex post facto acts passed by the

British Parliament, particularly one involving the case of

Sir John Fenwick. In that case, Parliament “violated the

rules of evidence (to supply a deficiency of legal proof)

by admitting one witness, when the existing law required

two” (id. at 389) to convict Fenwick of treason and to

sentence him to death. So too here. Texas convicted Peti-

tioner of a crime on the testimony of one witness when

the law in effect at the time of his conduct required the

testimony of two witnesses. This is a clear violation of the

Ex Post Facto Clause because it allowed the conviction of

Petitioner on less evidence than required by the law in

effect when the underlying conduct occurred.

The Framers believed the purpose of the Ex Post

Facto Clause - to prevent politically responsive legisla-

tures from retroactively changing criminal laws in order

to convict a class of unpopular defendants - was vital to

the protection of individual liberty. This protection was

considered so important that the state Ex Post Facto

Clause was among very few express limits on state power

in the original Constitution. The fourth category of Calder

v. Bull reflects the original understanding of the scope of

this fundamental protection.

During the ensuing two hundred years, this Court

has consistently reaffirmed that the Calder categories are

10

the foundation of ex post facto jurisprudence. Indeed, the

Court recently re-emphasized that the “prohibition which

may not be evaded is the one defined by the Calder

categories.” Collins v. Youngblood, 497 U.S. 37, 46 (1990).

Applying the Ex Post Facto Clause here will result in

limited but vital protection of individual rights without

restricting the states’ ability to implement routine

changes to rules of evidence or other criminal pro-

cedures. Although the fourth category of Calder v. Bull

provides an essential protection against overreaching leg-

islative acts, properly construed it is not applicable to

most retroactive evidentiary changes. It applies only to

those changes that allow conviction based on “less, or

different, testimony, than the law required at the time of

the commission of the offence, in order to convict the

offender.” Calder, 3 U.S. at 390. Thus, changes to neutral

rules of general application (for example, changes to the

Federal Rules of Evidence governing hearsay and similar

matters) which may help the prosecution in one case and

help a defendant in another, are not within the Calder

prohibitions and do not run afoul of the Ex Post Facto

Clause.

Retroactive application of the 1993 amendment to

Petitioner's pre-amendment conduct also violated the Ex

Post Facto Clause because it deprived him of an absolute

defense available at the time of his conduct. Laws proh.b-

ited by the Ex Post Facto Clause include “any stat-

ute ... which deprives one charged with [a] crime of any

defense available at the time when the act was commit-

ted.” Beazell v. Ohio, 269 U.S. 167, 169 (1925). Under the

law in effect at the time of Petitioner’s conduct, he had an

absolute defense on the merits to Counts 7 - 10, because

11

the prosecution produced no testimony to corroborate the

account of the complaining witness. This defense goes to

“guilt or innocence,” id. at 170, as a two-witness rule is

designed to prevent erroneous convictions. cike Calder,

the Beazell formulation of the reach of the Ex Post Facto

Clause has been recently and unequivocally endorsed by

this Court. Collins, 497 U.S. at 43.

The assertion of the Texas Court of Appeals that the

amendment to Article 38.07 was procedural is both irrele-

vant and incorrect. Collins reaffirms that the ex post facto

prohibition is not avoided merely because a law is labeled

“procedural.” Collins, 497 U.S. at 46. The touchstone for

ex post facto purposes is whether the change affects sub-

stantive rights. The 1993 amendment to Article 38.07

indubitably affected Petitioner’s substantive rights,

because it permitted his conviction on the testimony of

one, rather than two, witnesses, and eliminated a defense

on the merits. In any event, the amendment at issue has a

clear substantive purpose: making it easier to obtain con-

victions of those charged with sex offenses against teen-

agers. And, regardless of the characterization employed

by the State, as a matter of federal law (which governs

here, in interpreting the Ex Post Facto Clause), burden of

proof issues are matters of substance, not procedure.

Petitioner’s conviction on Counts 7 — 10 should be

reversed.

12

ARGUMENT

I. RETROACTIVE APPLICATION OF THE 1993

AMENDMENT TO ARTICLE 38.07 VIOLATED THE

EX POST FACTO CLAUSE BY REDUCING THE

AMOUNT OF PROOF NECESSARY TO SUPPORT

A CONVICTION.

A. Retroactive Application Of The 1993

Amendments Violated The Ex Post Facto Clause

By Reducing The Amount Of Evidence

Necessary For Conviction, Contrary To The

Fourth Category Of Calder v. Bull.

“Our understanding of what is meant by ex post facto

largely derives from the case of Calder v. Bull, 3 Dall. 386

(1798).” Miller v. Florida, 482 U.S. 423, 429 (1987). Barely a

decade after the ratification of the Constitution, Justice

Chase enumerated four types of laws “within the words

and intent of the prohibition” against ex post facto laws:

Ist. Every law that makes an action, done before

the passing of the law, and which was innocent

when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or

makes it greater than it was, when committed.

3rd. Every law that changes the punishment,

and inflicts a greater punishment, than the law

annexed to the crime, when committed. 4th.

Every law that alters the legal rules of evidence, and

receives less, or different, testimony, than the law

required at the time of the commission of the offence,

in order to convict the offender.

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (emphasis

added). In the lead opinion for a Court whose members

included Framers of the Constitution, Justice Chase

detailed the abuses of the British Parliament prior to the

13

American Revolution that led the Framers to prohibit the

states, as well as the federal government, from enacting

ex post facto laws. The abuses Justice Chase described

included retroactive acts of Parliament that “violated. the

rules of evidence (to supply a deficiency of legal proof)

by admitting one witness, when the existing law required

two.” Id. at 389. At the end of his survey of legislative

abuses, Chase concluded, “[t]o prevent such, and similar,

acts of violence and injustice . . . the Federal and State

Legislatures, were prohibited from passing any bill of

attainder; or any ex post facto law.” Id.

Under the clear language of Calder and the history it

summarizes, this is not a difficult case. The action of the

State of Texas in this case — convicting Petitioner of a crime

on the testimony of one witness when the law in effect at the

time of the person’s conduct required at least two witnesses

- is a violation of the Ex Post Facto Clause, because Texas

allowed “less . . . testimony” to support convictions on

Counts 7 —- 10 “than the law required at the time of” Peti-

tioner’s alleged conduct. Id. at 390.

Under the law in effect at the time of the conduct,

Petitioner simply could not have been convicted of

Counts 7 — 10. The absence of testimony corroborating the

account of complaining witness KM would have operated

as an absolute bar to conviction on those counts. Peti-

tioner’s conviction on those counts was made possible

solely by the September 1993 retroactive legislative

removal of the corroboration requirement for those

offenses. See supra pp. 4-7, infra pp. 25 n.14, 29-30. This

retroactive reduction of the amount of proof required for

conviction is proscribed by the Ex Post Facto Clause as

explicated by the fourth category of Calder v. Bull.

14

B. The Fourth Category Of Calder v. Bull Is Essential

To Fulfillment Of The Purpose Of The Ex Post

Facto Clause.

The fourth category of Calder v. Bull should be reaf-

firmed by this Court because it falls squarely within a

fundamental purpose of the Ex Post Facto Clause: to

prevent legislatures inclined to respond to an emotionally

charged electorate from changing criminal laws after the

fact in order to convict a class of unpopular defendants.

A “solid foundation of American law” is “the ‘principle

that the legal effect of conduct should ordinarily be

assessed under the law that existed when the conduct

took place . . . [This principle] has timeless and universal

human appeal.’ ” Landgraf v. USI Film Prods., 511 U.S. 244,

265 (1994); Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494

U.S. 827, 855 (1990) (Scalia, J., concurring). The dual Ex

Post Facto Clause in the Constitution® embodies this solid

foundation.

The Framers rightly considered the Clause a vital

protection of individual liberty, one of the few deemed

worthy of inclusion in the original Constitution, prior

even to the adoption of the Bill of Rights. Even more

significant, the ban on state ex post facto laws was one of

the very few limits on state powers embodied in the

original Constitution. See, e.g., Fletcher v. Peck, 10 U.S. (6

Cranch) 87, 138 (1810) (Chief Justice Marshall described

art. I, § 10, cl. 1, as “a bill of rights for the people of each

state”); The Federalist No. 44, at 282 (James Madison)

* U.S. Const. art. I, § 9, cl. 3 (barring federal ex post facto

laws); id. § 10, cl. 1 (barring state ex post facto laws).

15

(Clinton Rossiter ed., 1961); James Iredell (“Marcus”),

Answers to Mr. Mason's Objections to the New Constitution

(1788), reprinted in Pamphlets on the Constitution of the

United States, Published During Its Discussion by the People,

1787-1788, at 368 (Paul L. Ford ed., De Capo Press 1968)

(1888) (referring to Ex Post Facto Clause as “one of the

most valuable parts of the new constitution,” and stating

that “[t}his very clause, I think, is worth ten thousand

declarations of rights, if this, the most essential right of

all, was omitted in them”). Indeed, the bans on ex post

facto laws, bills of attainder, and impairment of contracts

were essentially the only express limits on the States’

actions affecting individual liberty in the pre-amendment

Constitution. See generally U.S. Const. art. I, § 10. The

few other limitations on the States set forth in the pre-

amendment Constitution were primarily concerned with

the relationship of the States to the federal government in

a federal system. See id. (prohibiting states from, inter

alia, entering treaties, coining money, and imposing

duties on imports and exports).

The Ex Post Facto Clause embodies the principle that

politically responsive legislatures should create penal

policy solely on a prospective basis, while the impartial

judiciary is charged with the application of those policies

to specific actors and conduct. See, e.g., Miller, 482 U.S. at

430; Weaver v. Graham, 450 U.S. 24, 29 n.10 (1981); City of

Richmond vy. J.A. Croson Co., 488 U.S. 469, 513 (1989)

(Stevens, J., concurring) (“Legislatures are primarily poli-

cymaking bodies that promulgate rules to govern future

conduct. The constitutional prohibitions against the

enactment of ex post facto laws and bills of attainder

reflect a valid concern about the use of the political

16

process to punish or characterize past conduct of private

citizens.”); Ogden v. Blackledge, 6 U.S. (2 Cranch) 272, 277

(1804); see also Joseph Story, Commentaries on the Constitu-

tion of the United States § 1338 n.28 (1833); John Hart Ely,

Democracy and Distrust 90 (1980). Cf. Calder, 3 U.S. at 389

(Chase, J.) (British ex post facto laws were “legislative

judgments” and thus “an exercise of judicial power”).

The Ex Post Facto Clause was enacted in response to

the Framers’ fear — based on contemporary examples in

Great Britain — that a legislature could use ex post facto

laws to single out unpopular groups or individuals for

retroactive application of new criminal laws. One signifi-

cant example of such vindictive legislation that was

familiar to the Framers’ generation is the 1696 case of Sir

John Fenwick. See generally An Act to Attaint Sir John

Fenwick Baronet of High Treason, 8 Will. 3, ch. 4 (1696)

(Eng.). Fenwick was indicted for high treason, a charge

that required at least two witnesses, but Fenwick had

secured the absence of the second witness. See Mattox v.

United States, 156 U.S. 237, 240 (1895). Parliament allowed

Fenwick to be convicted and sentenced to death anyway,

on the testimony of the remaining witness. In Calder,

Justice Chase cited Fenwick’s case as a paradigmatic

improper ex post facto law, noting that Parliament had

“violated the rules of evidence (to supply a deficiency of

legal proof) by admitting one witness, when the existing

law required two.” Calder, 3 U.S. at 389 (Chase, J.). Peti-

tioner’s challenged convictions here also rest on the retro-

active repeal of a two-witness rule.

As Justice Harlan once noted, the Ex Post Facto

Clause:

17

rest on the apprehension that the legislature, in

imposing penalties on past conduct, even

though the conduct could properly have been

made criminal and even though the defendant

who engaged in that conduct in the past

believed he was doing wrong . . . may be acting

with a purpose not to prevent dangerous con-

duct generally but to impose by legislation a

penalty against specific persons or classes of per-

sons.

James v. United States, 366 U.S. 213, 247 n.3 (1961) (Harlan,

]., separate opinion) (emphasis added). The Ex Post Facto

Clause thus provides critical safeguards of individual

liberty, protecting unpopular groups or individuals from

the potentially arbitrary, capricious, and vindictive

actions of a powerful State. See Miller, 482 U.S. at 429;

Weaver, 450 U.S. at 29; see also Landgraf, 511 U.S. at 266

(noting that popularly elected legislatures, in response to

political pressures, “may be tempted to use retroactive

legislation as a means of retribution against unpopular

groups or individuals.”).°

Plainly, the legislative purpose here was to exact

retribution against a paradigmatically unpopular group —

alleged sex offenders. In an analysis of the 1993 bill that

amended Article 38.07 done for the Texas House of Rep-

resentatives, supporters of the bill stated that the

“[cJurrent [outcry or corroboration requirement] creates

* This is not the only purpose served by the Ex Post Facto

Clause. As Miller explained, the Clause is additionally “aimed

at a second concern, namely, that legislative enactments ‘give

fair warning of their effect and permit individuals to rely on

their meaning until explicitly changed.’” 482 U.S. at 430

(quoting Weaver, 450 U.S. at 28-29)).

18

an absurd obstacle for prosecuting [sexual assault]

cases. .. . The outcry [or corroboration] requirement is an

especially difficult obstacle to overcome in sexual assault

and other sexual offense cases.” House Research Org., Bill

Analysis 14 (Mar. 15, 1993) (analyzing HB 261) (a copy of

this document has been lodged with the Clerk of Court).

As societal views of a particular crime change, a

legislature may become more willing to find a given class

of defendants guilty based on less evidence. A law speci-

fying the minimum amount of proof necessary for convic-

tion is inextricably intertwined with the question of the

defendant's guilt. See infra pp. 25-28, 32-34. The prosecu-

tion’s failure to produce the minimum amount of proof

requires a judgment of not guilty. It is, of course, entirely

proper for a legislature to reduce the minimum amount of

proof necessary for conviction, provided that change in

the criminal law is accomplished prospectively.

It is not surprising, however, that Texas singled out

those accused of sexual misconduct for a retroactive

change in the minimum amount of proof necessary for

conviction. History tells us that these kinds of legislative

attempts to guarantee convictions for past conduct by

reducing the legally required amount of proof are

reserved for those accused of the most heinous crimes,

such as treason, murder, or sexual offenses, supra pp. 8-9,

16-17; infra p. 21 n.11.

Convicting sex offenders is a laudable and important

purpose of the criminal law. But the Ex Post Facto Clause

requires that expansions of the criminal law be pursued

prospectively. Prospective application of new criminal

19

laws fully vindicates society’s interest in general deter-

rence, because a new criminal law cannot deter conduct

that already has occurred. And, society's interest in retri-

bution for, or specific deterrence of, an individual defen-

dant does not provide a legitimate basis for exceptions to

the Ex Post Facto Clause as, virtually by definition, such

exceptions would swallow the rule. As Justice Story

stated:

If the laws in being do not punish an offender,

let him go unpunished; let the legislature,

admonished of the defect of the laws, provide

against the commission or future crimes of the

same sort. The escape of one delinquent can

never produce so much harm to the community,

as may rise from the infraction of a rule, upon

which the purity of public justice, and the exis-

tence of civil liberty, essentially depend.

Joseph Story, Commentaries on the Constitution of the United

States § 1338 n.28.

Because the legitimate goals of the amended Article

38.07 can be met fully by prospective application of the

new rule, there is no reason to depart from the original

understanding of the Ex Post Facto Clause set forth in

Calder v. Bull. Indeed, this Court has noted that “ ‘ex post

facto law’ was a term of art with an established meaning

at the time of the framing of the Constitution,” and that

Calder reflects that meaning. Collins v. Youngblood, 497

U.S. 37, 41-42 (1990). Collins thus rightly emphasized the

20

continuing importance of “the original understanding of

the Ex Post Facto Clause.” Collins, 497 U.S. at 43.10

Finally, it is important to note that the fourth cate-

gory of Calder does not cover all retroactive changes in

the rules of evidence. It applies only if the change permits

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

of the commission of the offence, in order to convict the

offender.” Calder, 3 U.S. at 390 (emphases added). For

example, routine changes in the Federal Rules of Evi-

dence governing relevance, hearsay, leading questions

and the like would not fall within the fourth category. See

Collins, 497 U.S. at 43 n.3. Indeed, no rule in the Federal

Rules of Evidence specifies the minimum amount of evi-

dence required for conviction. Rather, the Federal Rules

of Evidence are neutral rules of general application; in

one case a given rule may help the prosecutor and in

another case the same rule may help the defendant.

Unlike the amended Article 38.07, the Federal Rules of

Evidence do not single out a specific class of unpopular

defendants for retroactive application of a new rule

designed to increase substantially their likelihood of con-

viction.

10 The Ex Post Facto Clause is different from other

constitutional provisions that apply to criminal trials, such as

the Confrontation Clause, in that a ruling that a state law is

unconstitutional under other provisions prevents both

retrospective and prospective application of that law. In light of

that prospective effect, it is understandable that changing

societal understandings of what is required for general

deterrence have played a role in this Court's interpretations of

other constitutional provisions. See, e.g., Maryland v. Craig, 497

U.S. 836, 853-55 (1990).

21

C. Later Decisions By This Court Explicitly Reaffirm

The Continuing Vitality Of The Fourth Calder

Category.

As Justice Story recognized, by 1833 it was well

settled that the Ex Post Facto Clause barred retroactive

changes in the criminal law “whereby different, or less

evidence, is required to convict an offender, than was

required, when the act was committed.” Story, Commen-

taries on the Constitution of the United States § 1339. Indeed,

for the past two centuries, lower courts have enforced

Calder’s fourth category against laws attempting to

change retroactively the minimum amount of proof

required for conviction of a variety of crimes.'! Over the

11 See, e.g., Bowen v. Arkansas, 911 S.W.2d 555, 562-64 (Ark.

1995) (retroactive application of aggravating factor in felony

murder case violates Ex Post Facto Clause); Minnesota v. Niska,

514 N.W.2d 260, 265 (Minn. 1994) (retroactive application of

statute shifting burden of proving affirmative defense of

justification from prosecution to defendant held

unconstitutional ex post facto law); United States v. Alexander, 805

F.2d 1458, 1461 n.2 (11th Cir. 1986) (retroactive application of

heightened burden of proof of insanity violated Ex Post Facto

Clause); Pennsylvania v. Hoetzel, 426 A.2d 669, 672 (Pa. Super. Ct.

1981) (retroactive change in burden of proving amount of

controlled substance violated Ex Post Facto Clause); Idaho v.

Byers, 627 P.2d 788, 795-96 (Idaho 1981) (court abolished

corroboration requirement for sexual assault, but refused to

apply retroactively because to do so would violate ex post facto

prohibition); Virgin Islands v. Civil, 591 F.2d 255, 259-60 (3rd Cir.

1979) (retroactive application of repeal of corroboration

requirement for criminal conviction was an unconstitutional ex

post facto law); Delaware v. Moyer, 387 A.2d 194, 197 (Del. 1978)

(in capital murder case, retroactive application of statute

placing burden on defendant to prove mitigating factor would

violate Ex Post Facto Clause by allowing punishment on “ ‘less

22

same period, all four of the Calder categories have

remained the foundation of ex post facto precedent in this

Court, and this Court has never undertaken to restrict the

core applications of any of Calder’s categories.'?

or different testimony’ ”); United States v. Williams, 475 F.2d 355,

356-57 (D.C. Cir. 1973) (retroactive application of statute

shifting burden to prove insanity to defendant violated Ex Post

Facto Clause); United States v. Bell, 371 F. Supp. 220, 221-22 (E.D.

Tex. 1973) (retroactive application of statutory change to

eliminate requirement of two witnesses for perjury conviction

violates Ex Post Facto Clause by allowing the government to

rely upon “less onerous proof”); United States v. Hise, 42 C.M.R.

195, 196-97 (C.M.A. 1970) (overturning sodomy conviction of

naval officer, even though he confessed, because trial court

retroactively applied reduced corroborating evidence

standard); New York v. Caifa, 299 N.Y.S. 838, 839 (N.Y. App. Div.

1937) (retroactive change in proof required to prove perjury

violates Ex Post Facto Clause); Goode v. Florida, 39 So. 461, 461-62

(Fla. 1905) (applying law requiring two witnesses for conviction

of illegal alcohol sales, even though law had been repealed — to

apply new law retroactively would violate Ex Post Facto

Clause); Hart v. Alabama, 40 Ala. 32, 34-35 (Ala. 1866) (court

refused to apply law eliminating requirement of corroborating

testimony for gambling conviction to conduct occurring before

change in the law, lack of corroborating witness compelled

acquittal).

12 Prior to the decision below, Texas courts had also applied

Calder’s fourth category. See, e.g., Aylor v. Texas, 727 S.W.2d 727,

729 (Tex. App. 1987, pet. ref’d) (finding retroactive application

of change in law would constitute impermissible ex post facto

law by allowing conviction on “less or different evidence,” but

holding defendant waived this objection by failing to raise it at

trial); see also Holt v. Texas, 2 Tex. 363, 364 (Tex. 1847) (using

Calder categories to apply Ex Post Facto Clause of Texas

Constitution).

oe

23

Earlier this decade, the Court confirmed the continu-

ing vitality of Calder and the four categories it describes,

holding that the constitutional ex post facto “prohibition

which may not be evaded is the one defined by the Calder

categories.” Collins, 497 U.S. at 46; see Lynce v. Mathis, 519

U.S. 433, 441 n.13 (1997) (quoting the four categories of ex

post facto laws proscribed by Calder). On numerous occa-

sions, the Court has left intact the core prohibition enun-

ciated in Calder’s fourth category: Laws that retroactively

change the amount of proof essential for conviction of a

crime are unconstitutional.

In Cummings v. Missouri, the Court struck down as an

unconstitutional ex post facto law a provision of the Mis-

souri constitution applied retroactively to punish a per-

son for conduct occurring prior to the adoption of the

state constitution. 71 U.S. (4 Wall.) 277 (1866). The Court

defined “an ex post facto law” to include “one which

. changes the rules of evidence by which less or

different testimony is sufficient to convict than was then

required.” Id. at 325-26."

Later cases that have upheld the retroactive applica-

tion of new procedural laws have been careful to distin-

guish them from Calder’s fourth category. Eighteen years

13 Although the dissent in Cummings would have held that

the law in question was civil, and thus not subject to the ex post

facto prohibition, it agreed that the four Calder categories were

definitive, noting that Calder’s “exposition of the nature of ex

post facto laws has never been denied.” Ex parte Garland, 71 U.S.

(4 Wall.) 333, 391 (1866) (Miller, J., Chase, C.J., Swayne and

Davis, J]., combined dissent for Cummings and Garland).

24

after Cummings, the Court upheld the retrospective appli-

cation of a procedural change to state law whose effect

was to make convicted felons competent to testify at trial.

Hopt v. Utah, 110 U.S. 574 (1884). Under Utah law in effect

at the time of the defendant's conduct, felons were not

allowed to testify in criminal trials. After the date of the

defendant's conduct, but before trial, Utah changed its

law and allowed felons to testify. Id. at 587-88. This Court

held that the expansion of persons eligible to testify was

merely a procedural change that did mot change the

“quantity or the degree of proof necessary” to convict the

defendant, explaining that “[s]tatutes which simply

enlarge the class of persons who may be competent to

testify in criminal cases are not ex post facto in their

application to prosecutions for crimes committed prior to

their passage, for they do not . . . lessen the amount or

measure, of the proof which was made necessary to con-

viction when the crime was committed.” Id. at 589 (sec-

ond emphasis added).

This case would be within the class of changes

allowed by Hopt if Texas had retained the corroboration

requirement, but retroactively changed Texas law to

allow felons to provide the corroborating testimony. What

Texas did here, however, was to reduce the amownt of

evidence and number of witnesses required for convic-

tion, not merely change who was allowed to be a witness.

Nor can the two Texas statutes at issue in this case be

viewed as witness competency rules based on the youth

of the wifnesses. To the contrary, under either statute, a

defendamt could be convicted based on the uncorrobo-

rated testimony of a 13-year-old, or a 5-year old. Rather,

the statutes reflect a policy judgment about the risk of

25

convictions based on uncorroborated, and thus poten-

tially false, allegations." The legislature changed its judg-

ment on this question in 1993, and the 1993 amendment

to Article 38.07 was designed to make conviction mark-

edly easier. See supra pp. 17-18. Stated differently, the

1993 legislature was willing to accept the greater risk of

an erroneous conviction inherent in making a reduced

amount of proof sufficient for conviction. Under Calder v.

Bull, however, such a change may only be applied pro-

spectively.

A second important difference between the situation

in Hopt and this case is that the amendment to Article

14 See, e.g., Scoggan v. Texas, 799 S.W.2d 679, 683 (Tex. Crim.

App. 1990) (en banc) (“The [1983] amendment to 38.07 clearly

expresses the legislature's intent to shield sexual assault victims

under 14 from the normal outcry or corroboration requirements,

but to require stricter proof when the sexual assault victim is 14

or older.”); Ex parte Merrill, 201 S.W.2d 232, 233-34 (Tex. Crim.

App. 1947) (“[A sexual assault] conviction will not be sustained

upon the uncorroborated testimony of the prosecutrix who

failed to make prompt outcry or report of the [sexual assault]

when opportunity to do so was reasonably afforded. Such rule

is founded not upon the idea that such failure to make outcry

tends to connect the prosecutrix with the alleged crime and

therefore require that she be corroborated as an accomplice but

because it tends to lessen or diminish the credit to be given to

her testimony.” (citations omitted)); Tyrone v. Texas, 854 S.W.2d

153, 155 (Tex. App. 1993, pet. ref’d); see generally 7 John Henry

Wigmore, Evidence § 2061, at 457 (James H. Chadbourn rev.

1978); Note, Corroborating Charges of Rape, 67 Colum. L. Rev.

1137, 1137 (1967) (“Because of the inordimate danger that

innocent men will be convicted of rape. some states have

adopted the rule that the unsupported testimony of tthe

complaining witness is not sufficient evidence to support a rape

conviction.”).

26

38.07 is not neutral; when it applies, it will always and

invariably work to the disadvantage of the defendant.

Admitting into evidence at trial the testimony of a class

of persons who had previously been barred from testify-

ing is a neutral and generally applicable change that

might help or might hurt a particular defendant, depend-

ing on the nature of the additional testimony. For exam-

ple, the testimony of a convicted felon might provide a

defendant with alibi testimony or other exculpatory evi-

dence. In contrast, the 1993 amendment to Article 38.07

indisputably will always disadvantage defendants in

Petitioner's circumstances, by allowing conviction on

proof that would have been legally inadequate at the time

of the alleged conduct. See Miller, 482 U.S. at 431-32

(retroactive change in law that disadvantages the accused

without any “ameliorative” effect violates prohibition

against ex post facto laws). Elimination of the requirement

of corroborating testimony to establish guilt can only

work to the disadvantage of the defendant.

The relevance of the distinction between facially neu-

tral evidentiary changes and one-sided changes lowering

the minimum amount of evidence for conviction is but-

tressed by Thompson v. Missouri, 171 U.S. 380 (1898). In

Thompson, state common law at the time of the offense

prohibited the use of documents handwritten by the

defendant to demonstrate that the handwriting on

another document was also that of the defendant. After

the alleged offense, Missouri enacted a statute repealing

the common law rule and allowing the introduction into

evidence of documents in the defendant's handwriting

for purposes of comparison with other documents alleged

to be in the defendant's handwriting. Jd. at 381. As

27

Thompson explained, the change in the law to allow the

admission of handwriting samples gave the prosecution

and the defense equal right to “have disputed writings

compared with writings proved . . . to be genuine.” Id. at

387-88. The Court held the retroactive application of the

statute to the defendant did not violate the Ex Post Facto

Clause because the statute merely admitted additional

evidence, and “did not require ‘less proof, in amount or

degree,’ than was required at the time of the commission

of the crime charged upon him.” Id. at 387.

Beazell v. Ohio, 269 U.S. 167 (1925), where the issue

was the retroactive application of a law allowing the joint

trial of co-defendants, contains a similar discussion. At

the time of the defendants’ -onduct, Ohio law provided

that defendants jointly indicted for a felony were entitled

to separate trials. After defendants’ conduct, but before

their indictment, Ohio changed the law to provide the

trial court with discretion to grant or deny a request for

separate trials. Id. at 169. The trial court denied defen-

dants’ motions for separate trials, and defendants were

tried and convicted in a single trial. Id. The Supreme

Court upheld the conviction against an ex post facto chal-

lenge, holding that retrospective application of the statute

allowing joint trials did not substantially disadvantage

the defendants, but rather affected “only the manner in

which the trial of those jointly accused shall be con-

ducted” and did “not deprive the [defendants] of any

defense previously available” to them. Id. at 170. Distin-

guishing the procedural change in Beazell from changes

that would transgress the requirements of the Ex Post

Facto Clause, the Court found that, under the new Ohio

statute, “{t}he quantum and kind of proof required to estublish

28

guilt, and all questions which may be considered by the

court and jury in determining guilt or innocence, remain

the same.” Id. (emphases added).

More recent decisions have also reaffirmed the Calder

categories. In Miller v. Florida, 482 U.S. 423 (1987), the

Court struck as unconstitutional a statute that had the

effect of retroactively disadvantaging a specific class of

convicted felons, sex offenders. Id. In Miller, between the

time of the defendant's sexual offense and the time of his

conviction, the State of Florida changed the presumptive

sentence for that offense from 3'/2 - 4'/2 years in prison to

5'/2 - 7 years in prison. Id. at 427. At the outset of the

opinion, the Court noted that the meaning of the prohibi-

tion against ex post facto laws “largely derives from the

case of Calder v. Bull,” and listed the four categories of

laws that Calder established were prohibited by the Ex

Post Facto Clause. Id. at 429. The Court held that the

retroactive change violated the prohibition against retro-

active increases in punishment established by Calder

(third category) and its progeny. Id. at 435-36 (citing

Weaver v. Graham, 450 U.S. 24, 36 (1981)).

In Collins, the Court upheld a Texas statute that

allowed reformation of a judgment to delete a punish-

ment that could not be combined with another. 497 U.S. at

39-40, 52. The amount of evidence necessary for convic-

tion, however, was unaffected by the new statute. More-

over, the Court reaffirmed that the formulations of the

proscriptions of the Ex Post Facto Clause set forth in

Calder remain good law. Collins v. Youngblood, 497 U.S. 37,

41-42 (citing, inter alia, Cummings v. Missouri dissent’s

statement that Calder’s “exposition of the nature of ex post

facto laws has never been denied”). Collins limited turn-

29

ef-the-century decisions that had suggested the reach of

the Ex Post Facto Clause extended beyond the Calder

categories to prohibit retrospective application of laws

that deprived a defendant of “substantial protections,” or

infringed upon “substantial personal rights.” Id. at 45-46

(discussing Duncan v. Missouri, 152 U.S. 377 (1894) and

Malloy v. South Carolina, 237 U.S. 180 (1915)). Finding that

the amorphous phrases “substantial personal rights,” and

“substantial protections” should not be read to expand

the reach of the Ex Post Facto Clause beyond the explicit

Calder formulation, the Court held “the prohibition which

may not be evaded is the one defined by the Calder categories.”

Id. at 46 (emphasis added).

Il. RETROACTIVE APPLICATION OF THE 1993

AMENDMENT ALSO VIOLATED THE EX POST

FACTO CLAUSE BY DEPRIVING PETITIONER OF

A DEFENSE AVAILABLE UNDER THE LAW IN

EFFECT AT THE TIME OF HIS CONDUCT.

Retroactive application of the 1993 amendment to

Petitioner's pre-amendment conduct also violated the Ex

Post Facto Clause by depriving him of an absolute

defense to Counts 7 - 10 available at the time of that

alleged, conduct. Laws prohibited by the Ex Post Facto

Clause include “any statute . . . which deprives one

charged with [a] crime of any defense available at the

time when the act was committed.” Beazell v. Ohio, 269

U.S. 167, 169 (1925); see Collins v. Youngblood, 497 U.S. 37,

52 (1990). Collins reaffirmed the Beazell formulation, stat-

ing that “[t}he Beazell formulation is faithful to our best

knowledge of the original understanding of the Ex Post

Facto Clause.” 497 U.S. at 43.

30

Under the law in effect at the time of Petitioner's

conduct, he had an absolute and insuperable defense to

Counts 7 — 10 of the indictment, because the prosecution

produced no corroborating testimony to support the testi-

mony of the complaining witness, nor was there evidence

that the complaining witness made a timely “outcry.”

E.g., Scoggan v. Texas, 799 S.W.2d 679, 683 (Tex Crim.

App. 1990) (applying 1983 version of Article 38.07, hold-

ing that absence of corroboration or timely outcry com-

pelled acquittal on sexual assault charge); Friedel v. Texas,

832 S.W.2d 420, 421 (Tex. App. 1992, no pet.) (same); Jones

v. Texas, 789 S.W.2d 330, 331 (Tex. App. 1990, pet. ref’d)

(same); see Tex. Code Crim. Proc. art. 38.07 (1983). This is

the kind of defense that cannot be repealed retroactively,

because it is a defense on the merits. That is, a two-

witness requirement provides a defense “considered by

the court .. . in determining guilt or innocence.” Beazell,

269 U.S. at 170. In particular, a two-witness rule is

designed to reduce the risk of erroneous convictions, i.e.,

convictions that are wrong on the merits. See, e.g., Scog-

gan, 799 S.W.2d at 682; Ex parte Merrill, 201 S.W.2d 232,

233-34 (Tex. Crim. App. 1947); see also Utah v. Foust, 588

P.2d 170, 173 (Utah 1978) (“The real purpose behind the

law requiring corroboration . . . is to afford protection to

one falsely accused.”). Application of the amended 1993

corroboration statute to Petitioner’s pre-amendment con-

duct stripped him of this absolute defense on the merits

to Counts 7 — 10.

31

Ill. THE 1993 AMENDMENT CHANGED THE

SUBSTANTIVE CRIMINAL LAW, AND THUS

ITS RETROACTIVE APPLICATION TO PETI-

TIONER VIOLATES THE EX POST FACTO

CLAUSE.

The retroactive application of the amended Article

38.07 was a change in the substantive criminal law of

Texas. That change allowed Petitioner’s conviction on

less proof than would have been allowed under the law

in effect at the time of his conduct, and deprived him of a

defense on the merits requiring acquittal. The Texas

Court of Appeals stated, without analysis, that the

amendment to Article 38.07 was a procedural change that

did not offend the prohibition against ex post facto laws.

See Carmell v. Texas, 963 S.W.2d 833, 836 (Tex. App. 1998).

Another Texas Court of Appeals, however, has held that

“the amended article 38.07 is not merely a procedural

change.” Bowers v. Texas, 914 S.W.2d 213, 217 (Tex. App.

1996, pet. ref’d). In any event, the “procedural” label is

both irrelevant and wrong.

A. Whether Article 38.07 Is Labeled “Procedural”

Is Irrelevant.

Collins reaffirmed that the key to analyzing whether a

law offends the Ex Post Facto Clause is not whether it is

labeled “substantive” or “procedural,” but whether it

violates one of the Calder categories or Beazell. Collins v.

Youngblood, 497 U.S. 37, 46 (1990); Weaver v. Gratam, 450

U.S. 24, 29 n.12 (1981) (retroactive change in law can

violate Ex Post Facto Clause “even if the statute takes a

seemingly procedural form”). As Collins explained,

32

[Simply labeling a law “procedural,” . . . does

not... immunize it from scrutiny under the Ex

Post Facto Clause. Subtle ex post facto violations

are no more permissible than overt ones.

Collins, 497 U.S. at 46 (citation omitted).

B. Amended Article 38.07 Affects Substance,

And Not Merely Procedure.

In any event, for purposes of interpreting the Ex Post

Facto Clause, whether a state law affects substantive mat-

ters or merely procedure is a question of federal constitu-

tional law, not state law. See, e.g., Collins, 497 U.S. at 45.

Amended Article 38.07 clearly affects substantive matters

for purposes of the Ex Post Facto Clause because, as

demonstrated above, it falls squarely within the fourth

category of Calder v. Bull, and eliminates a defense on the

merits.

Moreover, unlike (for example) a provision of the

Federal Rules of Evidence, the 1993 amendment to Article

38.07 is not a neutral rule that will sometimes help defen-

dants and sometimes help prosecutors. Nor was it an

attempt to produce more efficient courtroom proceedings.

Rather, the 1993 amendment was consciously designed to

make it easier to convict those accused of sexual offenses

against teenagers. See supra pp. 17-18, 29-30. Stopping

sexual misconduct against teenagers is a vital public pur-

pose — but it is a substantive purpose, not a mere matter

of procedure.

A comparison to Miller v. Florida, 482 U.S. 423 (1987),

is instructive. Miller rejected Florida’s argument that a

change in sentencing range was merely a procedural

33

change, finding that “the sole reason for the increase [in

the presumptive sentencing range] was to punish sex

offenders more heavily; the amendment was intended to,

and did, increase the ‘quantum of punishment’ for [sex]

crimes.” Id. at 433-34. Similarly, in the present case, the

reason for Texas’ elimination of the requirement of cor-

roboration was to make it easier to convict persons

accused of sex crimes involving teenagers. Supra pp.

17-18, 29-30. The 1993 amendment to Article 38.07 was

intended to, and did, reduce the State’s required quantum

of proof by reducing the amount of evidence necessary

for a conviction. Just as in Miller, the 1993 amendment

worked entirely and unambiguously to Petitioner’s dis-

advantage, and had no feature that in any way “could be

considered ameliorative” with respect to Petitioner's

interests. 482 U.S. at 431-32.

Furthermore, what is substantive for purposes of

criminal cases, where the defendant's liberty is at stake,

ought to be at least as expansive as what is substantive in

a civil tort action in federal court. If a plaintiff had sued a

defendant for a tort, and Texas had a statute requiring a

corroborating witness for proof of that tort, or some other

specified minimum amount of proof, it would be crystal

clear that such a rule is substantive, and must be applied

in federal court in a diversity or ancillary jurisdiction

case under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

Indeed, since Cities Service Oil Co. v. Dunlap, 308 U.S. 208

(1939), the Court has held that burden of proof issues are

substantive under Erie. Id. at 212; see Palmer v. Hoffman,

318 U.S. 109, 117 (1943) (“The question of the burden of

establishing contributory negligence is a question of local

law which federal courts in diversity of citizenship cases

34

must apply.”) (internal citation omitted); Dick v. New York

Life Ins. Co., 359 U.S. 437, 446 (1959) (“[u]nder the Erie

rule, presumptions (and their effects) and burden of proof

are ‘substantive’ ”) (footnote omitted); see also Blair v.

Manhattan Life Ins. Co., 692 F.2d 296, 302 (3d Cir. 1982)

(diversity action applying Pennsylvania law to question

of whether “testimony from two witnesses or from one

witness and corroborating circumstances” was required).

At a minimum, it would be anomalous to hold that a

Texas two-witness rule must be applied by a federal court

to avoid “forum-shopping” against a civil defendant, but

the same kind of rule can be jettisoned retroactively in a

criminal case, and thereby deprive a criminal defendant

of an absolute defense on the merits.

°

CONCLUSION

Petitioner’s convictions on Counts 7 - 10 should be

reversed, and the remainder of the case remanded for

further proceedings consistent with this Court’s opinion.

Respectfully Submitted,

RicHarp D. BernsTeIN*

Carter G. PHILuips

KATHERINE L. ADAMS

Pau A. HEMMERSBAUGH

Brian C. Katt

Siptey & AUSTIN

1722 I Street, N.W.

Washington, D.C. 20006

September 17, 1999

* Counsel of Record