# Petitioners Brief — Carmell v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 513

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0295%3A06. Public record. Not legal advice.