# Respondents Brief — Carmell v. Texas

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## Record

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

## Text

7s $e
No. 98-7450

IN THE

Supreme Court of the United Grates |

ScoTT LESLIE CARMELL,

a Petitioner,

STATE OF TEXAS,
Respondent.

On Writ of Certiorari to the
Texas Court of Appeals

RESPONDENT'S BRIEF ON THE MERITS

JOHN CORNYN
Attorney General of Texas
Counsel of Record
ANDY TAYLOR
First Assistant Attorney
General
LINDA S. EADs
Deputy Attorney General
for Litigation
GREGORY S. COLEMAN
Solicitor General
PHILIP A. LIONBERGER
Assistant Solicitor General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
(512) 936-1700
Counsel for Respondent

WILSON-Eres Printinc Co., Inc. - (202) 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Ex Post Facto Clause of article I, § 10,
of the United States Constitution precluded the application
of Texas’s amended “outcry statute,” codified in article
38.07 of the Texas Code of Criminal Procedure, to Peti-
tioner’s prosecution for various sex-related offenses com-
mitted against his minor stepdaughter.

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES 2.22.02... -.2.cccccccccccececesseseees

SUMMARY OF THE ARGUMENT |.

ARGUMENT .

I.

Il.

SEE ORE ET EEE RRR EEE EHO

HISTORY AND DEVELOPMENT OF TEX-
AS’S OUTCRY STATUTE epjustinpatioes

APPLICATION OF THE 1993 AMEND-
MENTS TO CARMELL’S TRIAL DID NOT
VIOLATE THE EX POST FACTO CLAUSE
BECAUSE THEY DID NOT RETROAC-
TIVELY ALTER THE DEFINITION OF THE
CRIMES OR INCREASE THE PUNISHMENT
FOR THE CRIMES. ..................c.cco-s-0e0-

APPLICATION OF THE 1993 AMEND-
MENTS TO CARMELL’S TRIAL DID NOT
VIOLATE THE EX POST FACTO CLAUSE
BECAUSE CALDER’S FOURTH CATEGORY
DOES NOT HAVE MEANING INDEPEND-
ENT OF THE COLLINS FORMULATION........

A. Article 38.07’s Corroboration Requirement
Does Not Affect the Quantity or Degree of
a ee
Two-Witness Rule

ie Senn Miiilaiin Seteenctation of Cate
gory Four Was Rejected in Hopt, and the
Court Has Consistently Recognized Hopt’s
Clarification of the Calder Categories ...........

(iii)

18

17

18

iv
TABLE OF CONTENTS—Continued

C. Collins Specifically Rejects Carmell’s Asser-
tion that Evidentiary or Procedural Changes
that Disadvantage a Defendant Violate the
Ex Post Facto Clause ......

D. Collins Also Rejects Carmell’s Assertion
that the 1993 Amendments Deprived Him
of a Defense _...

IV. THE CORE CONCERNS OF THE EX POST
FACTO CLAUSE WERE NOT IMPLICATED
BY THE APPLICATION OF THE 1993
AMENDMENTS TO CARMELL’S TRIAL

i EN RL ESOS ET TTT

31

=

we

v

TABLE OF AUTHORITIES

CasEs Page
Bass v. State, 468 S.W 1 465 (Tex. Crim. App.
Ra ES 19
Beazell v. Ohio, 269 U.S. 167 (1925) —......... 14, 23, 32, 33
Bowers v. State, 914 S.W.2d 213 (Tex. App.—El
fl ee 12
Bowyer v. United States, 422 A.2d 973 (D.C.
1980) ....... een See 6
Burks v. State, “876. $.W.2d 877 (Tex. Crim. App.
SRE Aa a EPC aE AS ESE RELY Erne ee 19

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) —...... passim
California Dep’t of Corrections v. Morales, 514
U.S. 499 (1995) ............ 15
Carmell v. State, 963 S.W.2d 833 (Tex. ier
Worth 1998, pet. ref’d) (per curiam), cert.

granted, 119 S.Ct. 2336 (1999) ........................... 2,5, 12
Collins v. Youngblood, 497 U.S. 37 (1990) —......... passim
Cummings v. Missouri, 71 U.S. (4 Wall.) 277

I ck lienien iaiecnlinhi ls ilchaahiattctaeineatenentiisitemeatiagnid .23, 24, 25, 37
Davis v. State, 100 Tex. Crim. 617, 272 S.W. 480

Se ee 8
DeVeau v. Braisted, 363 U.S. 144 (1960) .. ese = S
Dobbert v. Florida, 432 U.S. 282 (1977) ................ 40
Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866)... 37
Ex parte Merrill, 150 Tex. Crim. 365, 201 S.W.2d

232 (1947) GS PO 26

Fletcher v. Peck, 10 US. (6 Cranch) 87 (1810)... . 80, 37
Friedel v. State, 832 S.W.2d 420 (Tex. App.—

Austin 199°, no pet ). 1l
Gonzalez v. State, 32 Tex. Crim. 611, 25 S.W. 781
(1894) 8,19
Graves v. State, 994 S.W.2d 238 (Tex. App.—
Corpus Christi 1999, pet. ref'd) —.................... 5, 12
Gray v. State, 130 Tex. Crim. 289, 93 S.W.2d 1146
(1936) 8
Hawker v. New York, 170 U.S. 189 (1898) . |, Ff

Heckathorne v. State, 697 S.W.2d 8 (Tex. App.—
Houston [14th Dist.] 1985, pet. ref’d) —.......... 20

vi

TABLE OF AUTHORITIES—Continued

Page
Hernandez v. State, 651 S.W.2d 746 (Tex. Crim.

EE, TED sccccrmsnritteceniahubneitaiemaaiene 4, 9,10, 18
Hindman v. State, 152 Tex. Crim. 75, 211 S.W.2d

RRS IED SEE Pe APE: I RES | lee 8, 26
Hopt v. Utah, 110 U.S. 574 (1884) —.000 passim
In re Winship, 397 U.S. 358 (1970) ......00............. 30
Jackson v. Virginia, 443 U.S. 307 (1979) ................ 30
James v. United States, 366 U.S. 213 (1961).......... 38
Johnson v. State, 449 S.W.2d 65 (Tex. Crim. App.

RE RO ee AiG ale RL STEN AL ee Be 19
Jones v. State, 789 S.W.2d 330 (Tex. App.—Hous-

ton [14th Dist.] 1990, pet. ref’d) 11
Kring v. Missouri, 107 U.S. 221 (1883) —....... 23, 31, 32, 33
Lacy v. State, 412 S.W.2d 56 (Tex. Crim. App.

1967) ...... cncenipinaitinaindialicaniainiiinaiidingatctieisiintnin iia tieinatidahia) 19
Lindquist v. State, 922 S.W.2d 223 (Tex. App.—

PT a eae en 6,12
Lynce v. Mathis, 519 U.S. 483 (1997) 00. 14
Matchett v. State, 941 S.W.2d 922 (Tex. Crim.

App. 1996) (en banc) .......................... kithanlaeabdhsie 10
Miller v. Florida, 482 U.S. 423 (1987) —.....0............ 40, 41
Murphy v. Commonwealth, 652 S.W.2d 69 (Ky.

ES Py ls PASE Eee Ye 5
Murphy v. Kentucky, 465 U.S. 1072 (1984)

SRR a a Sie TRE Ha IE ee 6

Murphy v. Sowders, 801 F.2d 205 (CA6(1986) .... 5, 27-30
Nemecek v. State, 621 S.W.2d 404 (Tex. Crim.
App. 1980), overruled in part on other grounds,
Hernandez v. State, 651 S.W.2d 746 (Tex. Crim.

ty 4,18
People v. Hudy, 73 N.Y.2d 40, 535 N.E.2d 250

CITED <sctétecentiihsichcnisettebibiinaanatncabbitibiteleltdtl 5, 20, 30, 36, 37, 42
Price v. State, 36 Tex. Crim. 143, 35 S.W. 988

CD deichiersrentcnthetiininseretinaendeiittitednean tana. 8
Purifoy v. State, 163 Tex. Crim. 488, 293 S.W.2d

ae Ie aecnrietscncterininiasettabincininaadaiiadiiading 19
Scoggan v. State, 799 S.W.2d 679 (Tex. Crim.

App. 1990) ....9, 11, 18

vii
TABLE OF AUTHORITIES—Continued

Page
Selective Serv. Sys. v. Minnesota Pub. Interest
Research Group, 468 U.S. 841 (1984) —............ 37
Shelby v. State, 800 S.W.2d 584 (Tex. App.—
Houston [14th Dist.]), rev'd on other grounds,
819 S.W.2d 478 (Tex. Crim. App. 1990) —........... 20
State ex rel. Smith v. Blackwell, 500 S.W.2d 97
(Tex. Crim. App. 1973) 10
State v. Byers, 627 P.2d 788 (Idaho 1981) ............. 6

State v. Schreuder, 726 P.2d 1215 (Utah 1986)... 6
Thompson v. Missouri, 171 U.S. 380 (1989) ..21, 22, 34, 42

Thompson v. Utah, 170 U.S. 343 (1898) -.......... 81, 32, 33

Topolanck v. State, 40 Tex. 160, 1874 WL 7921
(1874) 26

Trop v. Dulles, 356 U.S. 86 (1958) .......................... 388

United States v. Hall, 26 F. Cas. 84 (D. Pa. 1809).. 31, 32
Villareal v. State, 511 S.W.2d 500 (Tex. Crim.

App. 1974) 26
Virgin Islands v. Civil, 591 F.2d 255 (CA3 1979).. 6
Waldrop v. State, 662 S.W.2d 612 (Tex. App.—

Houston [14th Dist.] 1983, pet. ref’d) —............. 10
Weaver v. Graham, 450 U.S. 24 (1981) —................. 40
Zule v. State, 802 S.W.2d 28 (Tex. App.—Corpus

BG ae 19

CONSTITUTIONAL PROVISIONS, STATUTES,
AND LEGISLATIVE HISTORY

Act of 22nd Leg., R.S., ch. 33, 1891 Tex. Gen. Laws
34, reprinted in H.P.N. GAMMEL, LAWS OF TEXAS

86 (1898), repealed by Act of May 24, 1973,

63rd Leg., ch. 399, 1973 Tex. Gen. Laws 883_....... 9
Act of May 8, 1975, 64th Leg., R.S., ch. 208, 1975

Tex. Gen. Laws 476 10
Act of May 26, 1983, 68th Leg., R.S., ch. 382, 1983

Ts I i eteneiaeenienes 8,10, 11
Act of May 10, 1993, 73rd Leg., R.S., ch. 200, 1993

A I ee tile 8, 10,11
Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1993

Tex. Gen. Laws 3765 ; ...8, 10, 11
House RESEARCH OrG., BILL ANALYsIs, Tex. HB.

261, 73rd Leg., R.S. (1993) 89

viii
TABLE OF AUTHORITIES—Continued

Page

Tex. Cope Crim. Proc. ANN. art. 38.15 (Vernon
SEITE -iiveictisiebasttinkechetibdathiinmislbnictdedbite diene OR TT Toate 21

Tex. Cope Crim. Proc. ANN. art. 38.18(a) (Ver-
ESA RET Ray ee OL eS ES 21

Tex. Cope Crim. Proc. ANN. art. 38.07 (Vernon
TD ctchetitnicniitttlieccctitctintinintiieatiatiad th Medes os 8,11, 12
TEX. PEN. CopE ANN. § 12.33 (Vernon 1994) .......... 16
TEX. PEN. Cope ANN. § 2.03 (Vernon 1994) ............ 34
TEX. PEN. Cope ANN. § 2.04 (Vernon 1994) ............ 34
Tex. PEN. Cope ANN. § 21.11 (Vernon 1994) ......... 15, 34
TEx. PEN. Cope ANN. § 22.011 (Vernon 1994) ....... passim
TEx. PEN. CopE ANN. § 22.021 (Vernon 1994) ......... 3
te, Ge IIL, Be, Tb UP crccsncecittchteccneitnesisielicndiatseintinice 13

OTHER AUTHORITIES

1 McCoRMICK ON EVIDENCE (John William Strong
OIE NUNS RON ee mes Mee keer 25

2 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT
COMMON LAW (James H. Chadbourn rev. 1979)... 25, 26

2 MAX FARRAND, THE RECORDS OF THE FEDERAL
CONVENTION OF 1787 (1937) ............cccccccceececceeeee 35

3 JACK B. WEINSTEIN, MARGARET A. BERGER, &

JosEPH M. MCLAUGHLIN, WEINSTEIN’s EvI-
I ee critic iaacinie natiadhchiienincehetinatinritihtt eh tintin 25

42 GeorcE E. Dix & Ropert O. DAWSON, CRIMINAL

PRACTICE AND PROCEDURE (1995) (Texas Prac-
EEE MCT ea) SF MT tw WIPO 26

7 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT
CoMMON LAW (James H. Chadbourn rev. 1978) .. 18, 25,
26

9 W.S. HoLpswortxH, A History or ENGLISH LAW
RRR LR Ree ee eee 20

Breck P. McAllister, Ex Post Facto Laws in the

Supreme Court of the United States, 15 CAL. L.
B,D EL Me NY her 36

Cassia C. Spohn, The Rape Reform Movement:

The Traditional Common Law and Rape Re-
forms, 39 JuRIMeETRics J. 119 (1999) ..00000000000.. 9

ix
TABLE OF AUTHORITIES—Continued

Christopher Bopst, Rape Shield Laws and Prior
False Accusations of Rape: The Need for Mean-

ingful Legislative Reform, 24 J. Leais. 125
RRR RNS IES PK NERS Se RAR EP ee ee
Elmer E. Smead, The Rule Against Retroactive
Legislation: A Basie Principle of Jurispru-
dence, 20 MINN. L. REv. 775 (1936) ....................
Derek J.T. Adler, Note, Ex Post Facto Limitations
on Changes in Evidentiary Law: Repeal of Ac-
complice Corroboration Requirements, 55
FORDHAM L. REv. 1191 (1987) .........................
Irving Younger, The Requirement of Corrobora-
tion in Prosecutions for Sex Offenses in New

York, 40 FoRDHAM L. REv. 263 (1971) ........... 20,

Irwin R. Miller, Note, Constitutional Problems
Inherent in the Admissibility of Prior Record
Conviction Evidence for the Purpose of Im-
peaching the Credibility of the Defendant Wit-
ness, 37 U. CIN. L. REV. 168 (1968) .....................

John H. Wigmore, Required Numbers of Wit-
nesses: A Brief History of the Numerical Sys-
tem in England, 15 Harv. L. Rev. 83 (1901)......

Note, Ex Post Facto Limitations on Legislative
Power, 73 Micu. L. REv. 1491 (1975) ..................

Sarah Weddington, Rape Law in Texas: H.B. 284
and the Road to Reform, 4 Am. J. Crim. L. 1
te Sy RE I ES ee en

THE FEDERALIST No. 44 (James Madison) (Clinton
i

THE FEDERALIST No. 84 (Alexander Hamilton)
(Clinton Rossiter ed., 1961) ..............0000000000cc

Vitauts M. Gulbis, Annotation, Modern Status of
Rule Regarding Necessity for Corroboration of
Victim’s Testimony in Prosecution for Sexual
Offense, 31 A.L.R.4th 120 (1984) 000...

— A. Logan, The Ex Post Facto Clause and

the Jurisprudence of Punishment, 35 Am.
CORRIE, Tn, TRU. TBE CIGBB) cececccecccccecercccsccccessesceses

William Winslow Crosskey, The True Meaning of
the Constitutional Prohibition of Ex-Post-Facto
Laws, 14 U. Cui. L. Rev. 539 (1947)

36-37

26, 27

eects eat Me

In THE

Supreme Court of the United States

No. 98-7450

ScoTT LESLIE CARMELL,

7 Petitioner,

STATE OF TEXAS,
Respondent.

On Wric of Certiorari to the
Texas Court of Appeals

RESPONDENT'S BRIEF ON THE MERITS

At issue in this case is whether an amended statute
that repeals an evidentiary corroboration requirement may,
consistent with the Ex Post Facto Clause, be applied in
the trial of a defendant whose criminal acts were com-
mitted prior to the amendment.

Petitioner urges an interpretation of the Ex Post Facto
Clause that is nearly as cynical as the life he has led.
Carmell—a counselor for incest victims who began an
intimate relationship with one of his patients, married
her, and then initiated an incestuous and sexually abusive
relationship with her minor daughter that lasted four years
—asserts an interpretation of the Ex Post Facto Clause
that has nothng to do with whether his actions were
innocent when taken, whether the State attempted to retro-

2

actively apply a redefined crime, or whether the State
attempted to retroactively increase the punishment that
could be imposed on him. In short, Carmell’s interpre-
tation has nothing to do with the Clause’s traditional role
of allowing individuals to rely on existing law to structure
their actions to avoid committing crimes. Instead, Car-
mell asserts an interpretaton that would permit him and
other criminals to rely on evidentiary loopholes to struc-
ture their crimes to avoid conviction and punishment.
The Court has previously rejected similar arguments and
should do so again in this case.

STATEMENT OF THE CASE

Scott Carmell repeatedly sexually abused his step-
daughter, KM, begnning in the spring of 1991 and end-
ing in early 1995.1 When the sexual abuse began, KM
was 13 years old. The sexual abuse ended only after KM
finally confided the facts of the abuse to her mother,
and KM’s mother reported Carmell to the police. Prior
to confiding in her mother, KM did not tell anyone of
the sexual a‘yuse Carmell had committed upon her.

Carmell was indicted on eight counts of indecency
with a child, two counts of aggravated sexual assault, and
five counts of sexual assault. J.A. at 22-104. The con-
victions at issue here concern counts seven through ten
of the indictment, which alleged that the offenses occurred
between June 1, 1992, and July 1, 1993, when KM was
either 14 or 15 years old. J.A. at 55, 60-62, 66-67, 72-73.
At the time that Carmell committed these offenses, Texas's
“outcry statute” provided in relevant part:

1 Respondent’s “Statement of the Case” is based primarily upon
the opinion of the court of appeals found in the parties’ Joint Ap-
pendix beginning at page 3 and reported as Carmell v. State, 963
S.W.2d 833 (Tex. App.—Fort Worth 1998, pet. ref’d) (per curiam),
cert. granted, 119 S.Ct. 2336 (1999).

. 9

“A conviction under Chapter 21, 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 require-
ment that the victim inform another person of an
alleged offense does not apply if the victim was
younger than 14 years of age at the time of the al-
leged offense.” Act of May 26, 1983, 68th Leg.,
R.S., ch. 382, $1, 1983 Tex. Gen. Laws 2090,
2090-91, amended by Act of May 10, 1993, 73rd
Leg., R.S., ch. 200, § 1, 1993 Tex. Gen. Laws 387,
387-88, and Act of May 29, 1993, 73rd Leg., R.S.,
ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765, 3765-
66 (current version at TEx. Cope Crim. Proc. ANN.
art. 38.07 (Vernon Supp. 1999) ).

Carmell was tried for these offenses in January of 1997.
J.A. at 1-2. Between the time that the last of the offenses
at issue occurred and the time of Carmell!’s trial, the
Texas Legislature amended the outcry statute, effective
September 1, 1993, as follows:

“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 scxual
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 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.” Act of May 10,
1993, 73rd Leg., R.S., ch. 200, § 1, 1993 Tex. Gen.
Laws 387, 387-88; Act of May 29, 1993, 73rd Leg.,
R.S., ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765,
3765-66 (codified as amended at Tex. Cope Crim.
Proc. ANN. art. 38.07 (Vernon Supp. 1999)).

4

At trial, KM testified about the offenses Carmell
committed upon her.? The jury found Carmell guilty of
all 15 counts of the indictment, and assessed punishment
at two concurrent life sentences on the aggravated sexual
assault counts and concurrent 20-year sentences on each
of the remaining counts. J.A. at 22-104. The 1993 ver-
sion of the outcry statute was applied in convicting Car-
mell of the offenses.

Carmell appealed his convictions and asserted nu-
merous points of error. Carmell argued that he should
be acquitted of the charges because KM did not tell her
mother about the abuse until 1995 and her testimony

2 KM’s testimony was not the only evidence of Carmell’s crimes.
The prosecuticn presented other testimony and evidence corrobo-
reting KM’s testimony and tending to connect Carmel] to the
charged offenses. Several other witnesses testified to the inappro-
priate and unusual relationship that existed between Carmell and
KM. See Statement of Facts, vols. 9 & 10. Indeed, in closing
argument, the prosecution reminded the jury that “[t]he other
testimony that we introduced was pretty much just what we refer
to as corroborative testimony, testimony from other people saying
that they saw the actions and the interaction between [KM] and
[Carmell] and thought it was unusual. They acted more like lovers
than they did like father and stepdaughter.” S/F, vol. 11, at 383
(emphasis added). Other corroborative evidence was also admitted,
including, but not limited to, cards and letters exchanged between
Carmell and KM, State’s Exhibits nos. 8-19; the horseshoe-nail
“wedding” ring Carmell gave to KM at a “ceremony” Carmell
staged, S/F, vol. 9, at 136-39, State’s Exhibit 4; a photograph of
the hand-held massage vibrator Carmel] used on KM in connection
with the offenses alleged in counts 9 and 10 of the indictment, S/F,
vol. 9, at 118-23, State’s Exhibit 2; and various herbs, teas, and
other concoctions that Carmell insisted KM take in order to regulate
her menstrual cycle, S/F, vol. 9, at 142-45; State’s Exhibits nos.
5-7. All of this evidence tended to connect Carmell to the alleged
offenses. See Nemecek v. State, 621 S.W.2d 404, 406-07 (Tex.
Crim. App. 1980) (holding that corroborative evidence under ar-
ticle 38.07 is sufficient if it tends to connect defendant with the
offense charged), overruled in part on other grounds, Hernandez v.
State, 651 S.W.2d 746, 754 (Tex. Crim. App. 1983) (per curiam).

5

was otherwise uncorroborated. J.A. at 7. The court
of appeals rejected Carmell’s ex post facto argument,
holding that “the law in effect at the time of [Carmell’s]
trial in 1997 applies, which is the [1993 version of the
outcry statute].” J.A. at 8. In so holding, the court rea-
soned that the 1993 version of the outcry statute did
“not increase the punishment nor change the elements
of the offense that the State must prove[,] . . . [it] merely
‘remove[d] existing restrictions upon the competency of
certain classes of persons as witnesses’ and ...is...a
rule of procedure.” Jd. The court further reasoned that
there was no showing that “the legislature intended [the
1993 version of the outcry statute] not to be a rule of
procedure and apply as of the date of the offense.” I/d.
Accordingly, the court held that “because KM was younger
than 18 at the time of the offense, the one-year time limit
on her outcry [did] not apply.” /d.* Carmell’s petition for
discretionary review was refused by the Texas Court of
Criminal Appeals.

Courts have split on whether the application of a
statute abrogating a corroboration requirement that
existed at the time the crime was committed violates the
Ex Post Facto Clause. Compare Murphy v. Sowders, 801
F.2d 205, 209 (CA6 1986), People v. Hudy, 73 N.Y.2d
40, 51-54, 535 N.E.2d 250, 256-58 (1988), Murphy v.
Commonwealth, 652 S.W.2d 69, 73 (Ky. 1983), Graves
v. State, 994 §.W.2d 238, 242 (Tex. App.—Corpus
Christi 1999, pet. ref'd), Carmell v. State, 963 S.W.2d
833, 836 (Tex. App.—Fort Worth 1998, pet. ref’d) (per

3 The court of appeals’s opinion did not mention the corrobora-
tive testimony and evidence supporting KM’s testimony. See supra
note 2. Because the court held that application of the 1993 amend-
ments to article 38.07 did not violate the Ex Post Facto Clause, it
was not necessary for the court to determine whether the record
contained corroborative evidence.

6

curiam), and Lindquist v. State, 922 S.W.2d 223, 228
(Tex. App.—Forth Worth 1996, pet. ref'd), with Virgin
Islands v. Civil, 591 F.2d 255, 259 (CA3 1979), State
v. Schreuder, 726 P.2d 1215, 1218 (Utah 1986), State
v. Byers, 627 P.2d 788, 795-96 (Idaho 1981), and
Bowyer v. United States, 422 A.2d 973, 981 (D.C.
1980). The Court granted Carmell’s petition for writ
of certiorari on Carmell’s ex post facto challenge.

SUMMARY OF THE ARGUMENT

The 1993 version of Texas’s outcry statute was properly
applied in Carmell’s 1997 trial to convict him of four of
the fifteen counts against him that occurred between June
1, 1992, and July 1, 1993, prior to the effective date of
the act, September 1, 1993. The application of the 1993
outcry statute to convict Carmell of those four counts—
one count of sexual assault and three counts of indecency
with a child—did not violate the Ex Post Facto Clause
contained in article I, § 10, of the United States Con-
stitution. Under the Court’s most recent formulation of
. the test to be applied in determining whether an ex post
facto violation occurred, a law offends the Ex Post Facto
Clause if it “alter{s] the definition of crimes or increase[s]
the punishment for criminal acts.” Collins v. Youngblood,
497 U.S. 37, 43 (1990). The 1993 amendment of the
outcry statute neither altered the definition of the crimes
of sexual assault and indecency with a child nor increased
the punishment for those crimes. Consequently, the trial
court’s use of the 1993 version of article 38.07 in Car-
mell’s trial was not an ex post facto violation.

4 Fifteen years ago, in a dissent from a denial of a petition for
writ of certiorari, Justice White, joined by Justices Brennan and
Powell, recognized “the evident confusion among lower courts con-
cerning the application of the Ex Post Facto Clause to changes in
rules of evidence and procedure.’ Murphy v. Kentucky, 465 U.S.
1072, 1073 (1984) (mem.) (White, J., dissenting).

7

The 1993 amendments to the outcry statute do not
bring this case within the fourth category of prohibited
ex post facto laws set forth in Justice Chase’s opinion in
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). The 1993
statute neither alters the definition of the crimes for
which Carmell was convicted nor increases the punish-
ment for those offenses. The amended statute’s abroga-
tion of the outcry or corroboration requirements did not
diminish the prosecution's burden to prove all of the
substantive elements of the offenses charged beyond a
reasonable doubt. The same essential facts were re-
quired to be established by the evidence at Carmell’s
trial as were required prior to the abrogation of the
corroboration requirement. Nor did the abrogation of
the outcry and corroboration requirements deprive Car-
mell of an “absolute defense.” His suggestion that the
corroboration requirement constituted a defense ignores
this Court’s holding in Collins that the term “defense” is
linked to the Ex Post Facto Clause’s prohibition on al-
terations in the legal definition of the offense or the nature
or amount of the punishment imposed for a conviction.

Application of the 1993 outcry statute to convict Car-
mell did not implicate the core concerns of the Ex Post
Facto Ciause: vindictive lawmaking, lack of fair warning,
and reliance on existing law. There was nothing vindic-
tive about the 1993 amendments; they were intended
solely to level the playing field and make some alleged
sex offenders subject to the same rules that apply to other
criminal defendants. Carmell had fair warning that the
heinous acts he perpetrated on KM were punishable under
the law and the extent to which those acts could be pun-
ished, and he did not and could not have legitimately
relied on a procedural rule that affected neither his culp-

ability nor his expected punishment.

ARGUMENT

I. HISTORY AND DEVELOPMENT OF TEXAS’S OUT-
CRY STATUTE

The requirement of corroborai:«:. for the complainant's
testimony in sex offense cases did not exist at common
law and came about through “either express statutory
inventions or plan judicial creations.” Vitauts M. Gulbis,
Annotation, Modern Status of Rule Regarding Necessity
for Corroboration of Victim's Testimony in Prosecution for
Sexual Offense, 31 A.L.R.4th 120, 124 (1984). Texas
originally followed the common-law rule not requiring cor-
roboration of a rape complainant. See Gonzalez v. State,
32 Tex. Crim. 611, 620, 25 S.W. 781, 781-82 (1894)
(holding that it was not error for the trial court to refuse
to instruct the jury that in the absence of direct evidence
corroborating the prosecutrix, they should acquit the de-
fendant of rape). However, late in the 1800s and early
this century, Texas courts moved away from ‘he common-
law rule and began requiring corroboration of a victim's
testimony in rape cases in which the victim had the op-
portunity to complain of the rape to someone but remained
silent without cogent reasons explaining her silence. E.g.,
Gray v. State, 130 Tex. Crim. 289, 293, 93 S.W.2d 1146,
1148 (1936); Davis v. State, 100 Tex. Crim. 617, 624,
272 S.W. 480, 483 (1925); Price v. State, 36 Tex. Crim.
143, 145, 35 S.W. 988, 988 (1896). The outcry and
corroboration requirements, however, applied only to rape
cases in which consent was an issue. Hindman v. State,
152 Tex. Crim. 75, 80, 211 S.W.2d 182, 185 (1948).
In cases of statutory rape, consent was not an issue, and
the victim’s testimony did not need to be corroborated
even though the victim did not make an immediate out-
cry when there was a reasonable opportunity to do so.

9g

Id.; see also Hernandez v. State, 651 S.W.2d 746, 752-53
(Tex. Crim. App. 1983) (Clinton, J., concurring) .5

The 1960s and 1970s saw dramatic increases in reported
rapes and increased public awareness of the plight of rape
victims across the United States, and a movement emerged
to reform states’ rape laws. See Cassia C. Spohn, The Rape
Reform Movement: The Traditional Common Law and
Rape Reforms, 39 Jurimetrics J. 119, 120-21 (1999);
Christopher Bopst, Rape Shield Laws and Prior False Ac-
cusations of Rape: The Need for Meaningful Legislative
Reform, 24 J. Lecis. 125, 128 (1998); Sarah Weddington,
Rape Law in Texas: H.B. 284 and the Road to Reform, 4
Am. J. Crim. L. I, 1-3 (Wint. 1975-76). In 1975, Texas
State representatives Kay Bailey of Houston and Sarah
Weddington of Austin co-sponsored a bill in the Texas
Legislature that sought to reform Texas’s rape laws by
focusing on the aspects of the law that they believed to be
“the source of the greatest injustice—those that tended
to put the victim on trial.” Weddington, Texas Rape Law,
at 4, 6. One of the proposed changes in the Bailey-
Weddington bill concerned the abolition of the judicially
created outcry or corroboration requirements in rape
cases. Id., at 5, 10.

The full legislature, however, felt that the bill went too
far, see Scoggan v. State, 799 S.W.2d 679, 682 (Tex.
Crim. App. 1990), and the final version of the bill did

5 From the latter part of the 1800s up until the early 1970s,
Texas’s only statutory corroboration requirement for sex offienses
concerned the crime of “seduction” of a female, which was re-
pealed in 1974, leaving only the judicially created outcry or corrob-
rag ay gg yt meg boleg + 0 gah mr trey Ane

24, 1973, 63rd Leg., ch. 399, § 8(b), 1978 Tex. Gen. Laws 883, 991,
995; Hernandez, 651 S.W.2d, at 752.

10

not abolish the common-law requirement of an immediate
outcry but, rather, only eased the outcry or corroboration
requirements by sustaining convictions based upon the un-
corroborated testimony of the victim if the victim con-
fided in anyone else besides the defendant within six
months of the offense. Act of May 8, 1975, 64th Leg.,
R.S., ch. 203, §6, 1975 Tex. Gen. Laws 476, 479,
amended by Act of May 26, 1983, 68th Leg., R.S., ch.
382, § 1, 1983 Tex. Gen. Laws 2090, 2090-91, and Act
of May 10, 1993, 73rd Leg., R.S., ch. 200, § 1, 1993
Tex. Gen. Laws 387, 387-88, and Act of May 29, 1993,
73rd Leg., R.S., ch. 900, § 12.01, 1993 Tex. Gen. Laws
3765, 3765-66 (current version codified at Tex. Cope
Crim. Proc. ANN. art. 38.07 (Vernon Supp. 1999)).
Consistent with the common law, the original statute did
not create any outcry or corroboration requirement in
cases involving minor victims of sex crimes. Id. A con-
viction for statutory rape could still be sustained in Texas
on the uncorroborated testimony of the minor victim,
even if the victim did not make a timely outcry. See, e.g.,
Hernandez v. State, 651 S.W.2d 746, 754 (Tex. Crim.
App. 1983) (per curiam); Waldrop v. State, 662 S.W.2d
612, 614 (Tex. App.—Houston [14th Dist.] 1983, pet.
ref’d).

6In Texas, as in other states, only the legislature has authority
to define crimes or set punishments. See Matchett v. State, 941
S.W.2d 922, 982 (Tex. Crim. App. 1996) (en banc) (“The legisla-
ture is vested with the lawmaking power of the people in that it
alone ‘may define crimes and prescribe penalties.’” (quoting State
ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App.
1973))). The fact that Texas’s corroboration requirements orig-
inally arose as part of a common-law development is strong evi-
dence that the legislature’s codification and subsequent modification
of the corroboration requirements did not involve the definition of
a crime or its punishment—as required by Collins—and, conse-
quently, could not have implicated the Ex Post Facto Clause.

11

In 1983, the legislature amended article 38.07 of the
Texas Code of Criminal Procedure and changed the out-
cry or corroboration requirements for minor victims of
sexual assault. See Act of May 26, 1983, 68th Leg.,
R.S., ch. 382, § 1, 1983 Tex. Gen. Laws 2090, 2090-91
(amended 1993). The 1983 amendment to article 38.07
shielded sexual assault victims under the age of 14 from
the normal outcry or corroboration requirements but not
victims 14 or older. Id.; see Scoggan v. State, 799 S.W.2d
679, 683 (Tex. Crim. App. 1990); Friedel v. State, 832
S.W.2d 420, 422 (Tex. App.—Austin 1992, no pet.);
Jones v. State, 789 S.W.2d 330, 333 (Tex. App.—
Houston [14th Dist.] 1990, pet. ref'd). The 1983 amend-
ment applied only to prosecutions commencing on or
after the effective date of the act, and prosecutions com-
mencing before that time were to be covered by the law
in effect at the time the prosecution was commenced.
Act of May 26, 1983, 68th Leg., R.S., ch. 382, § 2, 1983
Tex. Gen. Laws 2090, 2091 (amended 1993).

The 1983 version of the outcry statute was sharply
criticized for drawing a “bewildering and inappropriate”
distinction between victims under the age of 14 and those
over that age, and courts decried the distinction as being
“arbitrary and purposeless.” Jones, 789 S.W.2d, at 333:
accord Friedel, 832 S.W.2d, at 422. Notwithstanding that
criticism, the 1983 version of the outcry statute remained
in place until 1993 when it was finally amended. Act of
May 10, 1993, 73rd Leg., R.S., ch. 200, § 1, 1993 Tex.
Gen. Laws 387, 387-88; Act of May 29, 1993, 73rd
Leg., R.S., ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765,
3765-66 (codified as amended at Tex. Cope Crim. Proc.
ANN. art. 38.07 (Vernon Supp. 1999)). The 1993 ver-
sion of the outcry statute lengthened the outcry period
from six months to one year and abolished the outcry
requirements for persons under the age of 18. Tex. Cope

12

CriM. Proc. ANN. art. 38.07 (Vernon Supp. 1999).
Conspicuously absent from the 1993 version of the out-
cry statute was a provision, like the one in the 1983 ver-
sion, providing that it would apply only to prosecutions
commencing after the statute’s effective date. The legis-
lature’s omission of that language in the 1993 statute
evidenced its intent that the amended statute be applied
in all pending prosecutions tried after the effective date.
See Lindquist v. State, 922 S.W.2d 223, 227 n.4 (Tex.
App.—Austin 1996, pet. ref'd) (noting that the legis-
lature purposefully intended to omit such language) .7

Carmell claims that application of the amended statute
to convict him of one count of sexual assault and three
counts of indecency with a child, all of which occurred
prior to September 1, 1993 (the effective date of the
amended enactment), violated the Ex Post Facto Clause
applicable to the states. For the reasons that follow, the
Court should reject Carmell’s interpretation of the Ex
Post Facto Clause and affirm Carmell’s conviction.

7The Texas courts of appeals split, three-to-one, over whether
the 1993 version of the outcry statute could be applied to prosecu-
tions commencing after the effective date of the act for offenses
that occurred before the effective date of the act. Compare Graves
v. State, 994 S.W.2d 238, 241 (Tex. App.—Corpus Christi 1999,
pet. ref’d) (holding that application of 1993 outcry statute in a
trial occurring after 1993 for offenses occurring before the effec-
tive date of the act was proper and did not constitute a violation
of the Ex Post Facto Clause), Carmell v. State, 963 S.W.2d 833,
836 (Tex. App.—Fort Worth 1998, pet. ref’d) (per curiam) (same),
and Lindquist, 922 S.W.2d, at 223 (same), with Bowers v. State,
914 S.W.2d 213, 216-17 (Tex. App.—El Paso 1996, pet. ref’d)
(holding that application of 1993 outcry statute in a trial occurring
after 1993 for offenses occurring before the effective date of the
act constituted a violation of the Ex Post Facto Clause).

13

II. APPLICATION OF THE 19983 AMENDMENTS TO
CARMELL’S TRIAL DID NOT VIOLATE THE EX
POST FACTO CLAUSE BECAUSE THEY DID NOT
RETROACTIVELY ALTER THE DEFINITION OF
THE CRIMES OR INCREASE THE PUNISHMENT
FOR THE CRIMES.

The Constitution prohibits state legislatures from enact-
ing ex post facto laws. See U.S. Const. art. I, § 10 (“No
state shall .. . pass any . . . ex post facto law). Literally,
any law can be ex post facto if it is passed “after the fact,
or thing done, or action committed.” See Calder v. Bull,
3 U.S. (3 Dall.) 386, 390 (1798) (Chase, J.): see also
William Winslow Crosskey, The True Meaning of the
Constitutional Prohibition of Ex-Post-Facto Laws, 14 U.
Cui. L. Rev. 539, 539 (1947) (a law ex post facto is
simply “a law made after the doing of the thing to which
it relates, and retroacting upon it”). In the seminal case
of Calder v. Bull, the Court narrowed the meaning of the
clause by holding that it applied only to retroactive penal
legislation, and not to civil statutes. 3 U.S. (3 Dall.), at
390-92 (Chase, J.); id., at 396-97 (Paterson, J.); id., at
399-400 (Iredell, J.). In Calder, Justice Chase categor-
ized various laws that he considered to be prohibited by
the clause:

“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. 2d. Every
law that aggravates a crime, or makes it greater than
it was when committed. 3d. 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 offense,
in order to convict the offender.” IJd., at 390.

14

Carmell argues that the 1993 outcry statute as applied
to him constituted an ex post facto violation as described
by Justice Chase in Calder v. Bull, 3 U.S. (3 Dall.) 386
(1798), and subsequent cases of this Court interpreting
Calder. See Pet. Br. 14-34. Specifically, Carmell asserts
that his case fits within Justice Chase’s fourth category of
ex post facto laws. Calder, 3 U.S. (3 Dall.), at 390.

Although Carmell would have the Court believe that it
is writing on a clean slate in interpreting Justice Chase’s
fourth category of ex post facto laws, the Court has taken
the opportunity on more than one previous occasion to
translate Justice Chase’s list of illustrative violations into
a comprehensive and generally applicable statement of ex
post facto doctrine. For instance, nearly three-quarters of
a century ago, the Court summarized Justice Chase’s cate-
gories as follows:

“[Alny statute which punishes as a crime an act pre-
viously committed, which was innocent when done;
which makes more burdensome the punishment for
a crime, after its commission, or which deprives one
charged with crime of any defense available accord-
ing to law at the time when the act was committed,
is prohibited as ex post facto.” Beazell v. Ohio, 269
U.S. 167, 169-70 (1925).

More recently, the Court succinctly restated the Beazell
formulation as a concise two-part test: “Legislatures may
not retroactively alter the definition of crimes or increase
the punishment for criminal acts.” Collins, 497 U.S., at
43. In other-words, an individual should not be punished
for conduct that was innocent when done or punished
more severely than would have been permissible at the
time of the crime. The Collins two-part formulation for
ex post facto violations has been reaffirmed on at least
two occasions since it was decided. See Lynce v. Mathis,

15

519 U.S. 433, 441 (1997); California Dep’t of Correc-
tions v. Morales, 514 U.S. 499, 505-06 (1995).

Under the Collins formulation, this is a straightforward
case. Carmell’s sexual abuse of KM was criminal under
the Texas Penal Code at the time of the abuse. His acts
constituted sexual assault and indecency with a child ir-
respective of the 1993 amendments, and the partial abro-
gation of the corroboration requirement did not change
the fact that Carmell’s conduct constituted an indictable
offense. Carmell was not convicted of acts that were in-
nocent when he committed them and that were only made
criminal after the fact. They were criminal when he com-
mitted them.

The 1993 outcry statute did not alter the definition of
the crimes for which Carmell was convicted. Both before
and after the 1993 amendments to the outcry statute, the
Texas Penal Code defined sexual assault as follows:

“A person commits an offense if the person .. . in-
tentionally or knowingly . . . causes the penetration
of the anus or female sexual organ of a child by any
means; . . . causes the penetration of the mouth of
a child by the sexual organ of the actor; . . . causes
the sexual organ of a child to contact or penetrate
the mouth, anus, or sexual organ of another person,
including the actor; or . . . causes the anus of a child
to contact the mouth, anus, or sexual organ of an-
other person, including the actor. ... ‘Child’ means
a person younger than 17 years of age who is not
the spouse of the acior.” Tex. PEN. Cope ANN.
$ 22.011(a)(2)(A)-(D), (c)(1) (Vernon 1994).

Similarly, the crime of indecency with a child was defined
as follows:

“A person commits an offense if, with a child
younger than 17 years and not his spouse, whether

16

the child is of the same or opposite sex, he . . . en-
gages in sexual contact with the child... .” Id.
§ 21.11(a).

The 1993 amendments’ abrogation of the corroboration
requirement for victims between 14 and 18 years of age
did not alter the definition of sexual assault or indecency
with a child or change any of the substantive elements of
those crimes. At trial, the prosecution was still required
to prove every element of both crimes beyond a reason-
able doubt. See Tr. at 75-77.*

The 1993 outcry statute did not increase the punish-
ment for sexual assault and indecency with a child. These
crimes were both second-degree felonies at the time Car-
mell committed them. Tex. PEN. Cope ANN. §§ 21.11
(c), 22.011(f). Second-degree felonies carried a punish-
ment of imprisonment for a term of not more than 20
years nor less than two years and a fine not to exceed
$10,000. Id. § 12.33. The punishment for second-degree
felonies was unaltered by the 1993 outcry statute. The
severity of Carmell’s punishment was the same after enact-
ment of the 1993 outcry statute as it was before the stat-
ute’s enactment.

Because Carmell’s sexual abuse of KM was not inno-
cent when committed, and because the 1993 outcry statute
neither changed the definition of the crimes for which
Carmell was being tried nor increased the punishment
applicable to those crimes, application of the 1993 outcry
statute to Carmell’s criminal trial did not violate the Ex
Post Facto Clause.

8 The trial court properly instructed the jury on the elements of
both offenses. Tr. at 68, 69, 70.

ty

17

Ill. APPLICATION OF THE 1993 AMENDMENTS TO
CARMELL’S TRIAL DID NOT VIOLATE THE EX
POST FACTO CLAUSE BECAUSE CALDER’S
FOURTH CATEGORY DOES NOT HAVE MEAN-
ING INDEPENDENT OF THE COLLINS FORMU-
LATION.

Carmell does not, and cannot, argue that there was
anything innocent about his four-year incestuous molesta-
tion of his stepdaughter. Instead, he argues the existence
of an evidentiary loophole at the time he was sexually
abusing KM that would have permitted him to escape con-
viction on counts seven through ten of the indictment.
He argues that since there was no corroborating evidence,
thus making KM’s testimony insufficient under article
38.07 to convict him, the Ex Post Facto Clause gave
him an enforceable reliance interest in the application of
that evidentiary loophole to any conduct that occurred
while the loophole existed. In other words, Carmell ar-
gues that the Ex Post Facto Clause protects a criminal’s
ability to canvas existing evidentiary law in order to struc-
ture his criminal activities so as to minimize the risk of
conviction and that it guarantees that the legislature can-
not later interfere with the criminal’s evidentiary advantage.

This Court’s holdings in recent (and not-so-recent) ex
post facto cases do not support Carmell’s contentions.
In the face of his inability to satisfy the Collins standard,
Carmell has searched the fringes of ex post facto doctrine
for support for his contention that the 1993 elimination
of the corroboration requirement improperly “reduce[d]
the amount of evidence and number of witnesses required
for conviction,” Pet. Br. 24, “work[ed] to . . . [his]

8 Again, Texas believes there was sufficient corroborating evi-
dence to support the conviction. See supra note 2.

18

disadvantage,” id., at 26, and changed the amount and
kind of proof required to establish his guilt, id., at 27.

A. Article 38.07’s Corroboration Requirement Does Not

Affect the Quantity or Degree of Proof Necessary
to Convict and Is Not a Two-Witness Rule.

As a preliminary matter, Carmell repeatedly attempts
to bolster his case somehow by mistakenly asserting that
the 1983 outcry statute imposed a two-witness rule re-
quiring the testimony of a second eyewitness to the offense
in order to sustain a conviction, even though the language
of the statute makes no mention of a two-witness rule and
speaks in terms of corroboration only. See Pet. Br. 5-6 &
n.5, 7, 16, 30, 34. Surprisingly, Carmell seems to take
the indefensible position that he could never be convicted
of sexual assault or indecency with a child unless the
prosecution was able to produce a third-party eyewitness
to his acts of improper intimacy with KM.

Rules requiring corroboration are generally concerned
with the sufficiency of evidence—that is, whether the testi-
mony of a single witness is sufficiently credible to support
a conviction and, if not, what other evidence will support
the witness’s testimony. 7 JoHN HENRY WIGMORE, EvI-
DENCE IN TRIALS AT COMMON LAW § 2030, at 324
(James H. Chadbourn rev. 1978). Contrary to Carmell’s
assertions, the corroborative evidence required by article
38.07 could be any evidence that tended to connect him
to the crime. Nemecek v. State, 621 S.W.2d 404, 406
(Tex. Crim. App. 1980), overruled in part on other
grounds, Hernandez v. State, 651 S.W.2d 746, 754 (Tex.
Crim. App. 1983) (per curiam); see also Scoggan v. State,
799 S$.W.2d 679, 681 n.5 (Tex. Crim. App. 1990) (not-
ing that Nemecek states the standard for corroboration

19

under article 38.07).2° Corroborating evidence need not
be more or different from the victim’s testimony; it may
be entirely cumulative of the victim’s testimony or it may
be physical evidence that supports the victim’s testimony.
Corroborating evidence may be entirely circumstantial,
Zule v. State, 802 S.W.2d 28, 32 (Tex. App.—Corpus
Christi 1990, pet. ref'd), may consist of “suspicious cir-
cumstances,” Burks v. State, 876 S.W.2d 877, 888 (Tex.
Crim. App. 1994), and need not independently establish
any of the elements of the crime. The corroboration re-
quirement is not intended to provide independent proof
necessary to convict an individual of a crime; rather, it is
intended merely to force the prosecution to provide evi-
dence corroborating the victim’s version of events and,
as a result, bolstering the testifying victim’s credibility.
In short, eyewitness testimony is not required to satisfy
the statute’s corroberation requirement. Zule 802 S.W.2d,
at 32.

10 Cases occurring before enactment of the outcry statute in
1975 also did not require eyewitness testimony from persons other
than the victim or the accused in order to sustain a conviction of
rape or statutory rape. See, e.g., Bass v. State, 468 S.W.2d 465,
466-67 (Tex. Crim. App. 1971) (mother’s testimony as to victim’s
appearance and testimony of examining physician held to be “suffi-
cient corroboration of prosecutrix’ testimony” and sufficient to sus-
tain a conviction for statutory rape) ; Johnson v. State, 449 S.W.2d
65, 68 (Tex. Crim. App. 1970) (victim’s testimony and testimony
of police officer as to witness’s appearance and condition shortly
after the offense was held to be sufficient evidence to support con-
viction for statutory rape); Lacy v. State, 412 S.W.2d 56, 56-57
(Tex. Crim. App. 1967) (victim’s testimony and medical records
held to be sufficient evidence to show victim had only one act of
sexual intercourse and to support conviction of statutory rape);
Purifoy v. State, 163 Tex. Crim. 488, 491, 293 S.W.2d 663, 664-65
(1956) (medical testimony and witness’s testimony of overhearing
accused threatening victim held to be sufficient evidence to support
conviction of statutory rape); Gonzales v. State, 32 Tex. Crim. 611,
620, 25 S.W. 781, 782 (1894) (medical testimony held to be suffi-
cient evidence to sustain conviction for rape).

20

The cases Carmell cites in support of his two-witness
rule argument—Shelby v. State, 800 S.W.2d 584, 586
(Tex. App.—Houston [14th Dist.]), rev'd on other
grounds, 819 S.W.2d 478 (Tex. Crim. App. 1990); and
Heckathorne v. State, 697 S.W.2d 8, 12 (Tex. App.—
Houston [14th Dist.] 1985, pet. ref’d)—are distinguish-
able. First, Heckathorne does not hold that eyewitness
testimony is necessary to corroborate a victim’s testimony;
rather, in Heckathorne, the defendant argued that Texas’s
outcry statute did not apply to his case (because the vic-
tim was younger than 14) and that, therefore, the statute
could not be used to authorize the admission of the vic-
tim’s outcry statements against the defendant. The court
rejected the defendant’s argument and held that the out-
cry statements were admissible because there had been no
eyewitness to the offense. 697 S.W.2d, at 12. The court
did not hold that third-party eyewitness testimony was
necessary to corroborate a victim’s testimony. Id. Shelby
merely cites to and relies on Heckathorne.

In addition, the two-witness rule derives from an un-
related legal phenomenon—the “rule of number”—that
has its origins in Roman law and the medieval ecclesias-
tical notion that the mere recitation of an oath, by itself,
rendered one’s testimony effective, regardless of the wit-
ness’s personal credibility, and that the probative value of
testimony would be increased if others testifying to the
same facts swore an oath, too. People v. Hudy, 73 N.Y.
2d 40, 53 & n.8, 535 N.E.2d 250, 257 & n.8 (1988);
see also 9 W.S. HoL_pswortu, A History OF ENGLISH
Law 203 (3d ed. 1944); Irving Younger, The Require-
ment of Corroboration in Prosecutions for Sex Offenses in
New York, 40 ForDHAM L. Rev. 263, 263-64 (1971);
John H. Wigmore, Required Numbers of Witnesses: A
Brief History of the Numerical System in England, 15

21.

Harv. L. Rev. 83, 85 (1901). Treason and perjury are
two offenses that derive from the rule of number and that
often require two witnesses. Wigmore, Required Numbers
of Witnesses, at 99. Texas has a two-witness rule for both
those offenses. Tex. Cope Crim. Proc. ANN. art 38.15
(Vernon 1979) (“No person can be convicted of treason
except upon the testimony of at least two witnesses to the
same overt act, or upon his own confession in open
court.”); see also art. 38.18(a) (“No person may be
convicted of perjury or aggravated perjury if proof that
his statement is false rests solely upon the testimony of
one witness other than the defendant.”). The outcry stat-
ute in article 38.07 is not a two-witness rule because it
did not derive from the rule of number, and if the Texas
Legislature had wanted to impose a two-witness rule in
the outcry statute it would have expressly done so.

B. Carmell’s Expansive Interpretation of Category
Four Was Rejected in Hopt, and the Court Has
Consistently Recognized Hopt’s Clarification of the

Calder Categories.

In Collins, the Court declared that Justice Chase’s
fourth category in Calder “was not intended to prohibit
the application of new evidentiary rules in trials for
crimes committed before the changes.” /d., at 43 n.3
(citing Thompson v. Missouri, 171 U.S. 380 (1898);
Hopt v. Utah, 110 U.S. 574 (1884)).™ Collins expressly
recognizes that the Court rejected Carmell’s expansive
interpretation of Calder’s fourth category more than a
century ago. /d. In Hopt, a law prohibiting testimony
from convicted felons was changed, and the defendant
was convicted of murder after a felon testified against

11 Carmel] fails to acknowledge, much less explain, the Court’s
broad statement in Collins that Calder does not bar the application
of new evidentiary rules.

quantity or the degree of proof necessary to establish his
guilt, all remained unaffected by the subsequent statute.”
110 US., at 589-90. The Court further stated that “[a]ny
statutory alteration of the legal rules of evidence which
petency of certain classes of witnesses, relate to modes
of procedure only” and “are not ex post facto in their
application to prosecution for crimes committed prior to
their passage.” Id., at 590.

The Court reiterated its concern about retroactive re-
ductions in the required quantum of proof that was
first expressed in Justice Chase’s fourth category in Cal-
der: “Any statutory alteration of the legal rules of evi-
dence which would authorize conviction upon less proof,
in amount or degree, than was required when the offense
was committed, might, in respect of that offence, be ob-
noxious to the constitutional inhibition upon ex post facto
laws.” Jd. Although the Court has acknowledged that
language in rejecting an ex post facto challenge to an
evidentiary rule change, see, e.g., Thompson v. Missouri,
171 U.S. 380 (1898),™ the Court has never applied that
language in Hopt to invalidate the application of a change
in an evidentiary rule. In any event, the Court in Hopt

12In Thompson, the Missouri Supreme Court reversed Thomp-
son’s conviction of murder because of the inadmissibility of certain
evidence. Letters written by the defendant to his wife were sub-
mitted for handwriting comparison, which was prohibited by the
rules of evidence. Prior to the second trial, the law was changed
to make this objectionable evidence admissible and the defendant
was convicted. The Court rejected the argument that this change
violated the Ex Post Facto Clause and held that the change was
procedural. 171 U.S., at 293.

23

clarified that its reference to the “quantity or degree of
proof” referred not to evidentiary issues of proof at trial,
but rather to “proof” in the sense of how the crime is
defined and how the constitutional burden of proving the
crime is allocated. Hopt, 110 U.S., at 590 (“{Alltera-
tions which do not increase the punishment, nor change
the ingredients of the offense or the ultimate facts neces-
sary to establish guilt . . . relate to modes of procedure
only, in which no one can be said to have a vested right,
and which the state, upon grounds of public policy, may
regulate at pleasure.” ).

Beazell and Collins marked a retreat from certain ear-
lier decisions that attempted to broaden the categories of
impermissible ex post facto laws enunciated in Calder.
The Court clarified that its scrutiny of laws alleged to
violate the Ex Post Facto Clause is limited to determining
whether legislatures have “retroactively alter[ed] the defi-
nition of crimes or increase[d] the punishment for crim-
inal acts.” The Court folded the fourth category in Jus-
tice Chase’s list into the Collins two-part formulation and
implicitly declared that only those changes in evidentiary
rules that alter the definition of the crime or increase the
punishment for criminal acts will violate the Ex Post
Facto Clause. In other words, although Carmell asserts
that “later decisions by this Court explicitly reaffirm the
continuing vitality of the fourth Calder category,” Pet. Br.
21, Collins makes clear that the fourth category, or what
is left of it, cannot bear the burden that Carmel! attempts
to force it to carry.

The Court has only twice invalidated an evidentiary
change under the ex post facto prohibition—<Kring v.
Missouri, 107 U.S. 221 (1883), and Cummings v. Mis-
souri, 71 U.S. (4 Wall.) 277 (1866). The Court over-
ruled Kring in Collins. See infra Part I11.C. In Cummings

24

v. Missouri, the Court invalidated a provision of the
Missouri constitution declaring persons incapable of hold-
ing offices of public trust unless they first swore an
oath that they had never “been in armed hostility to the
United States,” and that they had never expressed sym-
pathy for the enemies of the United States. 71 U.S. (4
Wall.), at 316-17. Justice Field, writing for the Court,
noted that Missouri's test oath

“subvert(ed] the presumptions of innocence, and
alterfed] the rules of evidence, which heretofore,
under the universally recognized principles of the
common law, have been supposed to be fundamental
and unchangeable. They assume that the parties are
guilty; they call upon the parties to establish their
innocence; and they declare that such innocence can
be shown only in one way—by an inquisition, in the
form of an expurgatory oath, into the conscience of
the parties.” Jd., at 328.

Cummings reflected the Court's understanding that altering
“the rules of evidence” meant to place the burden of
proof on the accused and to force him to show his inno-
cence by taking an oath. In others words, the law chal-
lenged in Cummings violated the Ex Post Facto Clause
not because it changed evidentiary rules, but because it
shifted the constitutional burden of proof and infringed
on the presumption of innocence:

“The Clauses in the Missouri constitution, which are
the subject of consideration, do not, in terms, define
any crimes, or declare that any punishment shall be
inflicted, but they produce the same result upon the
parties, against whom they are directed, as though
the crimes were defined and the punishment was de-
clared. They assume that there are persons in Mis-
souri who are guilty of some of the acts designated.
They would have no meaning in the constitution
were not such the fact.” Jd., at 327.

25

The test oath violated the Ex Post Facto Clause because,
consistent with Collins, it in effect retroactively defined a
crime and declared a punishment against individuals who
could not make the oath. The test oath in Cummings is
notably different from the corroboration requirement in
this case because the 1993 amendments did not shift the
constitutional burden or modify any element of the crimes
that Carmell committed.

Carmell’s attempt to distinguish Hopt on the basis that
article 38.07’s corroboration requirement is not a “witness
competency rule[],” Pet. Br. 24-25, fails because, al-
though the statutes took a different form, the same policy
animated both. The law in Hopt declaring convicted
felons to be incompetent to testify in criminal proceedings
derived from a common-law rule originating in England
in the 1600s that proclaimed a person who had been con-
victed of an infamous crime—that is, a crime involving
treason, a felony, dishonesty, or false statement (crimen
falsi)—to be incompetent as a witness. 1 MCCORMICK
ON Evipence § 42 (John William Strong ed., 4th ed.
1992); 3 Jack B. WEINSTEIN, MARGARET A. BERGER, &
JosepH M. McLAUGHLIN, WEINSTEIN’s EvIDENCE € 609
[02], at 609-27 (1996); 2 JouN HENRY WiGMore, Evt-
DENCE IN TRIALS AT COMMON LAw § 519, at 725-27
(James H. Chadbourn rev. 1979); Irwin R. Miller, Note,
Constitutional Problems Inherent in the Admissibility of
Prior Record Conviction Evidence for the Purpose of Im-
peaching the Credibility of the Defendant Witness, 37 U.
Cin. L. Rev. 168, 169 (1968). The underlying premise
of this rule was that a person who committed such infa-
mous crimes was “unworthy of belief” and “could not be
trusted.” McCorMICK ON EvIDENCE § 42; WEINSTEIN’S
Evipence © 609[02], at 609-27; see also Wicmore § 519,
at 726 (“The thought underlying this exclusion is plain

26

enough nowadays; the man who has been guilty of a
heinous crime cannot be trusted in any respect, therefore,
cannot be trusted in his testimony.” ) .“

The outcry or corroboration requirements imposed by
the Texas outcry statute beginning in 1975 and pre-1975
Texas case law were based on the same principle: absent
a timely outcry, a sex crime victim's uncorroborated testi-
mony is inherently untrustworthy, unreliable, and less
credible than the testimony of other crime victims. See
Villareal v. State, 511 S.W.2d 500, 502 (Tex. Crim.
App. 1974) (stating that “[t}he basis of this rule is
that the failure to make an outcry or promptly report the
rape diminishes the credibility of the prosecutrix”); Hind-
man v. State, 152 Tex. Crim. 75, 80, 211 S.W.2d 182,
185 (1948) (same); Ex parte Merrill, 150 Tex. Crim.
365, 367, 201 $.W.2d 232, 234 (1947) (same); Topo-
lanck v. State, 40 Tex. 160, 1874 WL 7921, at *2
(1874) (same); see also 42 Grorce E. Dix & RoBERT
O. DAWSON, CRIMINAL PRACTICE AND PROCEDURE
§ 31.241, at 301 (1995) (Texas Practice); Irving Youn-
ger, The Requirement of Corroboration in Prosecutions for
Sex Offenses in New York, 40 ForpHAM L. Rev. 263,
264 (1971). Like the law in Hopt, the Texas outcry

13 Although this disqualification began disappearing from Anglo-
American law in the last century, Wicmore § 519, at 726, and today
a person with a prior conviction for an infamous crime can now
testify, the credibility of such an individual is subject to attack
through the introduction of his prior convictions into evidence.
Miller, Note, Prior Conviction Evidence, at 169.

14 The oft-quoted statement of Lord Chief Justice Hale reflects
the classic perception of this rule: “It is one thing whether a wit-
ness be admissible to be heard; another thing, whether they are
to be believed when heard. It is true, rape is a most detestable
crime, and therefore ought to be severely and impartially to be
punished with death; but it must be remembered that it is an
accusation easily to be made and hard to be proved; and harder

27

statute was an evidentiary safeguard intended to ensure
that only trustworthy or reliable testimony would be used
to support a conviction.

When the legislature in 1993 reinstated the pre-1975
common-law rule, it merely removed the stigma of unreli-
ability attached to a teenaged victim’s testimony in a sex-
ual offense case, a modest evidentiary adjustment com-
pared to Hopt. Indeed, the 1993 amendments to article
38.07 were far less unfavorable to criminal defendants
than the change in Hopt. After the change in both in-
stances, the prosecution could rely in whole or part on the
testimony of a felon witness or sex crime victim, respect-
ively. But prior to the repeal of the Utah law at issue in
Hopt, the prosecution was barred from relying on the
testimony of a convicted felon and, therefore, in order
to obtain a conviction, the prosecution had to satisfy its
entire burden of proving each element of the crime be-
yond a reasonable doubt from evidence other than a felon
witness.

By contrast, the 1983 outcry statute merely declared
that, if the victim did not make an outcry within six
months, then the prosecution was required to introduce
some evidence corroborative of the victim’s testimony.
Unlike the Utah rule, which required the prosecution to
prove its entire case without reference to the felon’s testi-
mony, the 1983 outcry statute required only slight corro-
bative evidence to vouch for the victim’s credibility.
Although the statute required some corroboration, it did
not dictate what that evidence would have to be, did not
redefine any of the elements of the crime, and did not
even require that the corroborating evidence satisfy any of
the elements of the crime. If Hopt was not an ex post

to be defended by the party accused, tho never so innocent.” Youn-
ger, Corroboration in Sex Offenses, at 264 n.7 (quoting 1680 Pleas
of the Crown I, at 635).

28

facto violation, then the application of the 1993 amend-
ments to Carmell’s trial could not have been, either.”

Other courts, too, have correctly recognized that modi-
fication of a statutory corroboration requirement does not
implicate the Ex Post Facto Clause. In thoughtful ana-
lyses, both the Sixth Circuit and the New York Court of
Appeals, have determined that the repeal of a corrobora-
tion requirement will not implicate the ex post facto pro-
hibition. In Murphy v. Sowders, 801 F.2d 205, 209
(CA6 1986), the Sixth Circuit held that the repeal of a
Kentucky law requiring an accomplice witness’s testimony
to be corroborated by other evidence in order to support
a conviction against the accused did not violate the Ex
Post Facto Clause.

“Applying the teachings of the Supreme Court in
Hopt, it would appear that the repeal of [the accom-
plice witness corroboration requirement] did not (1)

15Carmell also attempts to distinguish Hopt on the grounds
that the change in the Utah law was facially neutral, while the
1993 modification of article 38.07 “will always and invariab:. work
to the disadvantage of the defendant,” Pet. Br. 26, and “was
consciously designed to make it easier to convict those accused of
sexual offenses against teenagers” [i.e., vindictive lawmaking],
id., at 32. The Court has never required neutrality; to the con-
trary, the Court in Collins expressly rejected the proposition that
an ex post facto challenge may be premised on the claim that the
evidentiary or procedural change works to the defendant’s disad-
vantage. See infra Part III.C. When a state has created obstacles
that make the prosecution of a particular crime more difficult, the
Ex Post Facto Clause does not prevent the state from lifting those
obstacles—as long as the state does not redefine the elements of the
crime or increase the punishment. There is no evidence in this case
of the sort of legislative abuse contemplated by the framers and
the Court’s ex post facto jurisprudence. It simply does not follow
from the legislature’s removal of an arbitrary and purposeless
corroboration requirement imposed on underage victims of sex
crimes that the legislature vindictively sought to exact some meas-
ure of retribution against sex offenders. See infra Part IV.

29

attach criminality to any act previously committed;
(2) aggravate any crime theretofore committed; (3)
provide greater punishment than was prescribed at
the time of the commission of the crime; or (4)
alter the degree or lessen the amount or measure of
the proof necessary to sustain a conviction when the
crime was committed... . A corroboration require-
ment clearly did not occupy the status of an element
of the crime nor did its elimination alter the reason-
able doubt standard which traditionally protected
criminal defendants. The same essential facts were
required to be established by the evidence at Mur-
phy’s trial as were required to be proven prior to
the repeal of [the corroboration requirement] to con-
vict him of the crime of murder. Accordingly, the
dictates of the Supreme Court in Hopt suggest a
conclusion that the legislative enactment that re-
pealed [the corroboration requirement] did not con-
Stitute an ex post facto act as applied to Murphy.”
Id.

Murphy rejected the defendant’s reliance on Hopt to
contend that the repeal of the corroboration requirement
violated the Ex Post Facto Clause because it permitted
his conviction on a lesser “amount” or “degree of proof.”
Id. The court stated instead that Hopt contrasted laws
that retroactively change the elements of a crime or bur-
den of proving those elements, which violate the Ex Post
Facto Clause, with laws that merely alter the procedure
at trial, which do not. Hopt’s “reference to the degree
or amount of ‘proof’ in the initial sentence obviously re-
ferred to the burden of proof by which the government
must prove its case, not proof of evidentiary facts which
could have been placed before a jury.” Jd. The court
concluded that the Court in Hopt was “drawing a sharp
distinction between the burden of proof by which the
prosecution was required to prove its case and the manner

30

in which a state by evidentiary rules might permit a
prosecutor to do so.” Id. at 209-10.

The Sixth Circuit refused to interpret Hopt's reference
to “proof” as synonymous with “evidence.” Jd. Instead,
the court concluded that Hopt’s discussion of the amount
of proof refers not to any particular evidence or evi-
dentiary rule, but to “the degree of proof that is re-
quired in each criminal action to convince a factfinder
of the guilt of the accused beyond a reasonable doubt.”
See id., at 210-11 (citing and quoting Jackson v. Vir-
ginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397
U.S. 358, 364 (1970)).

Similarly, the New York Court of Appeals in People v.
Hudy, 73 N.Y.2d 40, 535 N.E.2d 250 (1988), held that
a New York law that repealed statutory provisions re-
quiring corroboration of the victim’s testimony in certain
sex-crime prosecutions involving underage victims did
not violate the Ex Post Facto Clause. /d., at 44, 535
N.E.2d, at 252. Like Murphy, the court concluded that
Hopt’s “reference to the quantum of proof . . . ha[d] no
application to the repealing legislation at issue here” be-
cause that reference “principally concerned retrospective
reductions in the People’s burden of proof.” /d., at 51-52,
535 N.E.2d, at 256-57.

Murphy and ludy persuasively demonstrate that Jus-
tice Chase’s fourth category in Calder does not invalidate
the application of new evidentiary rules, including modi-
fied or repealed corroboration requirements, unless they
alter the elements that must be shown to convince a trier
of fact beyond a reasonable doubt that the crime has
been committed. Because the 1993 amendments to article
38.07 left unchanged both the definition of the crimes of
sexual assault and indecency with a child as well as the
punishment declared for those crimes, the district court

31

properly applied the amended statute in Carmell’s trial,
and he was properly convicted. )

C. Collins Specifically Rejects Carmell’s Assertion
that Evidentiary or Procedural Changes that Dis-
advantage a Defendant Violate the Ex Post Facto
Clause.

To avoid the Court’s comprehensive expression of the
ex post facto doctrine in Collins and other cases, Carmell
encourages the Court to ignore its recent formulations in
favor of a strained and unsupported interpretation of
Justice Chase’s fourth category of ex post facto laws
that was rejected more than 100 years ago. In the after-
math of the Civil War, the courts found themselves faced
with a variety of statutes that placed criminal defendants
at a disadvantage. Although Justice Chase’s oft-quoted
categories had o.ice been regarded as the “exclusive defi
nition of ex post facto laws,” Collins, 497 U.S., at 42,
some of the post-Civil War cases of the Court seemed to
broaden the list.

In Kring v. Missouri, 107 U.S. 221 (1883), the Court
first departed from Justice Chase’s categories and stated
that Calder should not be understood to have presented
an exclusive list of “all the cases to which the constitu-
tional provision would be applicable.” /d., at 228. The
Court altered the scope of ex post facto scrutiny by
including any law that, “‘in relation to the offence or its
consequences, alters the situation of a party to his dis-
advantage.” /Jd., at 228-29 (quoting United States v.
Hall, 26 F. Cas. 84, 86 (D. Pa. 1809) (No. 15,285)).
The Court also introduced the notion that a “law of pro-
cedure” may violate the Ex Post Facto Clause if it takes
away “any substantial right which . . . the defendant
[had] at the time to which his guilt relates.” /Jd., at 232;
see also Thompson v. Utah, 170 U.S. 343, 352-53 (1898)

32

(reversing the defendant’s conviction on the basis of the
Ex Post Facto Clause because the defendant was “de-
prive[d] . . . of a substantial right involv[ing] . . . his
liberty” and his situation was “materially altere[d] . . . to
his disadvantage” ).

When the Court in Collins revisited Calder’s list of pro-
hibited ex post facto laws, it specifically reexamined
those cases that broadened the Calder list. Examining the
apparent inconsistency between Calder, on the one hand,
and decisions such as Kring and Thompson vy. Utah on
the other, see Collins, 497 U.S., at 45-52, the Court
stated that Kring and Thompson had caused confusion
in state and federal courts about the scope of the Ex
Post Facto Clause. The Court overruled Kring because
its holding unjustifiably departed from the meaning of
the clause as it was understood at the time of the Con-
Stitution’s adoption. /d., at 47-50. The Court noted that
Kring relied heavily upon the language in United States
v. Hall, 26 F. Cas. 84 (D. Pa. 1809) (No. 15,285), in
order to justify its departure from “Calder’s explanation
of the original understanding of the Ex Post Facto
Clause,” but that “[t]he language in the Hall case .. .
[did] not support a more expansive definition of ex post
facto laws.” Collins, 497 U.S., at 49. As the Court ex-
plained, the language in Hall condemned a law that abol-
ished a defense of justification or excuse as being ex post
facto. Id. The Court remarked that Hall’s analysis was
“consistent with the Beaze/l framework,” but that “[n]oth-
ing in the Hall case supports the broad construction of
the ex post facto provision given by the Court in Kring.”
Id., at 49, 50.

The Court also overruled Thompson v. Utah to the
extent it rested on the Ex Post Facto Clause and not the
Sixth Amendment right to a jury trial. Id., at 51-52.

33

The Court concluded that the Texas statute at issue in
Collins did not violate the Ex Post Facto Clause because
the statute: (1) did not punish a previously committed
act that was innocent when committed; (2) did not in-
crease the punishment for a crime after its commission;
and (3) did not deprive the defendant of a defense avail-
able by law at the time of the commission of the offense.
Id., at 52. In overruling Kring and Thompson, the Court
made clear that “disadvantage” to the defendant will not
be sufficient to invoke the Ex Post Facto Clause.

D. Collins Also Rejects Carmell’s Assertion that the
1993 Amendments Deprived Him of a Defense.

Carmell asserts that application of the 1993 amend
ments to his case improperly deprived him of a defense.
Pet. Br. 29-30. When the Court in Collins overruled
Kring, it observed that Kring could be reconciled with
prior cases by asserting that the change in Missouri Jaw
took away a defense available to the defendant. 497
U.S., at 50. The Court also noted, however, that those
prior cases had broadly interpreted the term “defense.”
in contrast to the narrow, technical meaning used in
Beazell, in which “the term was linked to the prohibition
on alterations in ‘the legal definition of the offense’ or
‘the nature or amount of the punishment imposed for its
commission.’” Id. (quoting Beazell, 269 U.S., at 169-
70).

“The ‘defense’ available to Kring under the Missouri
law was not one related to the definition of the
crime, . . . Missouri had not changed any of the
elements of the crime of murder, or the matters
which might be pleaded as an excuse or justification
for the conduct underlying such a charge... .” 7d.

Carmell wrongly suggests that a challenge to the suffi-
ciency of the evidence under a corroboration rule is a

34

“defense” that can support an ex post facto challenge.
The same argument could be made about any changed
evidentiary rule—consider Hopt or Thompson v. Mis-
souri, for example. Collins, however, made clear that
only defenses that relate to the definition of the crime,
ordinarily affirmative defenses like “excuse or justifica-
tion,” can implicate the Ex Post Facto Clause. /d.

Carmell’s claim of an “absolute defense,” Pet. Br. 29,
is also insupportable because it is the legislature’s sole
province to define defenses or affirmative defenses, and
the legislature has never identified lack of corroborating
evidence as a defense or affirmative defense to prosecu-
tion for the offenses of sexual assault and indecency with
a child. The Texas Penal Code specifically provides that
a defense or affirmative defense to an offense will include
the phrase: “[i]t is a defense to prosecution” or “[i]t is
an affirmative defense to prosecution.” Tex. PEN. Cope
ANN. §§ 2.03, 2.04 (Vernon 1994). Although the code
expressly provides defenses and affirmative defenses for
Carmell’s offenses, see id. § 21.11(b); id. § 22.011(d),
(ec), neither offense (nor any other in the Texas Penal
Code) sets out the lack of corroboration of the victim’s
testimony as a defense or affirmative defense. Carmell
was not improperly denied a defense to the crimes for
which he was convicted.

IV. THE CORE CONCERNS OF THE EX POST FACTO
CLAUSE WERE NOT IMPLICATED BY THE AP-
PLICATION OF THE 1993 AMENDMENTS TO CAR-
MELL’S TRIAL.

Carmell argues that applying the 1993 outcry statute
in order to convict him violated the “fundamental purpose”
of the Ex Post Facto Clause and that he fell victim to a
“legislature[] . . . respond[ing] to an emotionally charged
electorate” that changed the outcry statute “in order to

‘i

35

convict a class of unpopular defendants.” See Pet. Br.
14. While it is true that the Ex Post Facto Clause pro-
tects persons from legislative abuses, that is not the only
purpose that the clause serves and, in any event, Carmell
was not subjected to a hot-blooded legislature that vindic-
tively singled out him, or others like him, for unfair
treatment.

A strong bias against ex post facto laws has existed
since ancient times*® and existed in America at the
time of the Constitutional Convention of 1787. See
Calder v. Bull, 3 U.S. (3 Dall.) 386, 389 (1798)
(Chase, J.). This bias was so entrenched that some of
the framers of the United States Constitution thought
that an ex post facto clause would be unnecessary and
that inserting such a prohibition would “proclaim that
we are ignorant of the first principles of Legislation.” 2
MAX FARRAND, THE RECORDS OF THE FEDERAL CON-
VENTION OF 1787, at 376, 378-79 (1937). The prevail-
ing view, however, was that ex post facto laws were so
inimical to individual liberty and the basic principles of
republican government that the prohibitions against ex
post facto laws in the Constitution were a necessary re-
straint against legislative excesses. Jd., at 375-76; see
also THE FEDERALIST No. 44, at 282 (James Madison)
(Clinton Rossiter ed., 1961) (declaring that “ex-post-
facto laws . . . are contrary to the first principles of the
social compact, and to every principle of sound legisla-

16 The ancient Greeks denounced retroactive lawmaking. Elmer
E. Smead, The Rule Against Retroactive Legislation: A Basic
Principle of Jurisprudence, 20 MINN. L. Rev. 775, 775 (1936) (cit-
ing the case of Timokrates and the Athenian Ambassadors as an
example of the Greeks’ abhorrence of retroactive lawmaking).
Roman law recognized the principle that no man can change his
purpose to another’s injury. /d. (noting that Corpus Juris Civilis,
Digest announced the principle “nemo potest mutare consilium
suum in alteris injuriam”’ ).

arbitrary imprisonments, have been, in all ages, the favor-
ite and most formidable instruments of tyranny.”).”

Justice Chase noted in Calder that the framers of the
Constitution felt that the Ex Post Facto Cluuse was a
necessary safeguard against punitive and arbitrary law-
making by vindictive legislatures. See 3 U.S. (3 Dail.),
at 388-89..* Chief Justice Marshall reiterated the same

17 See also Wayne A. Logan, The Ex Post Facto Clause and the
Jurisprudence of Punishment, 35 Am. Crim. L. Rev. 1261, 1275
(1998) (noting that the Ex Post Facto Clause derives prominence
from its location in article I of the Constitution that is “otherwise
reserved for structural issues of broad democratic governance”) ;
Breck P. McAllister, Ex Post Facto Laws in the Supreme Court
of the United States, 15 Cau. L. Rev. 269, 269 (1927) (attaching
importance in the primacy of the Ex Post Facto Clause relative
to the Bill of Rights).

38 Carmell mentions the 1696 case of Sir John Fenwick as an
example of the type of vindictive lawmaking that influenced the
framers adoption of the Ex Post Facto Clause. Pet. Br. 16. Carmell
claims that his case “is a clear violation of the Ex Post Facto
Clause” like the Fenwick case because “Texas convicted {Carmell]
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.”
Id., at 9. Aside from the fact that the outcry statute has never
had a two-witness rule requirement, see supra Part III.A, Carmell’s
reliance on the Fenwick case is misplaced. Although Justice Chase
cites the case as an example of the British Parliment passing an
ex post facto law that altered the rules of evidence in order to
convict Sir John Fenwick of treason, Parliament actually passed a
bill of attainder convicting him without a judicial trial because it
lacked sufficient evidence (i.e., only one witness could be secured to
provide testimony against Fenwick) to convict him in a court of law.
People v. Hudy, 73 N.Y.2d 40, 53 n.8, 535 N.E.2d 250, 257 n.8
(1988); Derek J.T. Adler, Note, Ex Post Facto Limitations on
Changes in Evidentiary Law: Repeal of Accomplice Corroboration

37.

view ten years later in Fletcher v. Peck, 10 U.S. (6
Cranch 87 (1810), in which he stated that “the framers
of the constitution viewed, with some apprehension, the
violent acts which might grow out of the feelings of the
moment,” and that the Ex Post Facto Clause’s “restric-
ticns on the legislative power of the states are obviously
founded in this sentiment.” /d., at 137 38.

Two of the best examples of vindictive and abusive
lawmaking by state legislatures that were found to violate
the Ex Post Facto Clause are the test oath cases. See
Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866);
Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866). In
Cummings, the Court noted that the Missouri constitution
was framed at the time of the Civil War, that “the struggle
for ascendency” in that state had aroused “fierce passions,”
and that “{i]t was against the excited action of the States,
under such influences as these, that the framers of the
Federal Constitution intended to guard.” Z/d., at 322.
Thus, as the test oath cases exemplify, one of the core
concerns of the Ex Post Facto Clause is protecting against
vindictive legislative enactments that are directed toward
maligned persons of the moment in times of political
upheaval.

In evaluating the presence of vindictive lawmaking, the
Court has sometimes focused on the legislature’s intent

Requirements, 55 Forpuam L. Rev. 1191, 1211 n.113 (1987). In
other words, Parliamment did not change the law to convict Fenwick
of an act that was innocent when it was committed, i.e., an ex post
facto law; rather, Parliament passed a bill of attainder in order
to convict Fenwick without a jury trial. Hudy, 73 N.Y.2d at 53
n.8, 585 N.E.2d at 257 n.8; Adler, Note, Ex Post Facto, at 1211
n.118; see also Selective Serv. Sys. v. Minnesota Pub. Interest Re-
search Group, 468 U.S. 841, 846-47 (1984) (defining a bill of at-
tainder as “a law that legislatively determines guilt and inflicts
punishment upon an identifiable individual without provision of the
protections of a judicial trial”). Fenwick’s case has no application
to this case.

and purpose in enacting the challenged law. See Hawker
v. New York, 170 U.S. 189, 196 (1898) (looking to the
legislature's intent in enacting a law that prohibited con-
victed felons from practicing medicine and rejecting an
ex post facto challenge because “[t]he state [was] not
seeking to further punish a criminal, but only to protect
its citizens from physicians of bad character”); see also
James v. United States, 366 U.S. 213, 247 n.3 (1961)
(Harlan, J., concurring in part and dissenting in part)
(“{T]he policy of the prohibition against ex post facto
legislation would seem to rest on the apprehension that
the legislature in imposing penalties on past conduct... .
may be acting with a purpose not to prevent dangerous
conduct generally but to impose by legislation a penalty
against specific persons or classes of persons.”); DeVeau
v. Braisted, 363 U.S. 144, 160 (1960) (holding that
Congress intended to regulate the waterfront, not punish
ex-felons, by enacting a statute that prohibited unions
from soliciting or collecting dues from workers on the
New York waterfront if any officer or agent of the union
had been previously convicted of a felony); Trop v.
Dulles, 356 U.S. 86, 95-96 (1958) (stating that in de-
ciding whether a law is penal, the Court's determination
-“normally depends on the evident purpose of the legis-
lature”).

Carmel! does not attempt to suggest that he, personally,
was vindictively singled out by the 73rd Legislature for
unfair treatment. Rather, Carmell asserts that “the legis-
lative purpose here was to exact retribution against a
paradigmatically unpopular group—alleged sex offenders”
—of which he is a member. See Pet. Br. 17. The sole
support Carmell cites for that assertion—the bill analysis
of the 1993 amendments—is bereft of any suggestion that
the legislature was acting in the heat of the moment to
“exact [political] retribution” against sex offenders.

39

Supporters of the bill were focused on the victims of
sexual assaults, not sex offenders. They recognized that
“a long overdue change in Texas law governing the trial
of sexual assault cases” was needed because “the nature
of sexual assaults [was] such that the victim is often the
only witness to the crime other than the defendant.”
House RESEARCH ORG., BILL ANALysis, Tex. H.B. 261,
73rd Leg., R.S. (1993). They sought to remove the
“arbitrary” and “artificial” barrier in the 1983 version of
the outcry statute that presented “an absurd obstacle for
prosecuting” sexual assault cases. Id. Some supporters of
the bill believed that the outcry and corroboration require-
ments of the former outcry statute were “based on cruel
and outdated notions about the victims of sex crimes”
and that “{v]jictims in sexual assault cases [were] no more
likely to fantasize or misconstrue the truth than victims
of most other crimes, which do not require corroboration
of testimony or previous ‘outcry.’” /d.

Statistics indicated that “in the majority of sexual as-
sault cases, the offenders [were] acquainted with the vic-
tim,” that “{iJn these situations particularly, the victim
may feel that the perpetrator will be believed and the
victim will not,” and that “{bJecause of these fears, vic-
tims of sexual offenses often hesitate[d] to ‘cry out’ to
someone.” Jd. Supporters hoped to “remove .. . [a]
vestige of sexism and prejudice against women, the pri-
mary victims of these crimes,” and to bring Texas in line
with “most states [which] no longer require[d] this type
of corroboration.” Id.

The Texas Legislature acted not out of vindictiveness
toward sex offenders like Carmell, but out of concern for
their victims. The 1993 amendments were not the result
of political upheaval, nor was political retribution their
purpose. The purpose and intent of the legislature was
to protect a particularly vulnerable class of persons who

40

were statistically more likely to fall prey to sex offenders
but not report the crime because of their relationship with
the perpetrator. See Hawker, 170 US., at 196; DeVeau,
363 U.S., at 160. A prior legislature—without any sup-
port in the common-law development of corroboration
requirements in Texas—had burdened young sex crime
victims and prosecutors with an unnecessary (and unfair)
corroboration requirement. The legislature in 1993 sought
not to stack the deck against alleged sex offenders, as
Carmell asserts, but simply to put them on a level playing
field with other criminal defendants. This Court has never
suggested, much less held, that such an enactment violates
the Ex Post Facto Clause.

Moreover, protecting against legislative vindictiveness
is only one of the core concerns of the Ex Post Facto
Clause. The other concerns—ensuring fair warning and
protecting reliance on existing laws—are equally impor-
tant. Yet, besides a passing reference in a footnote, Pet.
Br. 17 n.9, Carmell fails to discuss the other core ex post
facto concerns addressed in several recent decisions of the
Court. See, e.g., Miller v. Florida, 482 U.S. 423 (1987);
Weaver v. Graham, 450 U.S. 24 (1981); Dobbert v.
Florida, 432 U.S. 282 (1977). The Court has charac-
terized an ex post facto law as one that fails to provide
fair warning of the punishable conduct and frustrates
one’s reliance on existing laws. See Weaver, 450 US.,
at 28-29 (stating that the framers considered the Ex Post
Facto Clause as a means “to assure that legislative Acts
give fair warning of their effect and permit individuals to
rely on their meaning until explicitly changed”); Dob-
bert, 432 U.S., at 297-98 (stating that Florida’s death
penalty statutes “provided fair warning as to the degree of
culpability which the State ascribed to the act of murder”
and “the penalty which Florida would seek to impose
upon him if he were convicted of first-degree murder”).

41

The policy behind the fair warning rationale is that
“{a]n individual shou'd be warned that his contemplated
acts are punishable and of the extent to which they can
be punished, since only if he is warned of these conse-
quences can society expect him to refrain from acting.”
Note, Ex Post Facto Limitations on Legislative Power,
73 Micu. L. Rev. 1491, 1496 (1975). Similarly, the
policy underlying the twin evil of frustrated reliance is
that “[a]n individual who acted in reliance upon existing
definitions of crimes cannot fairly be punished and cannot
be punished without detracting from the liability of the
criminal law to provide guidance for conduct.” Jd. The
Court has recognized that the fair warning and reliance
rationales are “central to the ex post facto prohibition.”
Miller, 482 U.S., at 430.

The fair warning and reliance rationales do not even
remotely suggest that the 1993 outcry statute is an ex post
facto law. Carmell had fair warning that his inappropriate
sexual relationship with KM was illegal. Carmell—both
generally as a citizen and specifically as an incest coun-
selor—knew that sexually abusing a child was a criminal
act for which the State could properly punish him. Con-
sequently, the district court’s application of the 1993
outcry statute in Carmell’s trial was not obnoxious to the
Ex Post Facto Clause’s core concern for fair warning,
because Carmell had all the warning he needed to know
that his conduct was criminal and of the punishment
he might receive if convicted.

Carmell does not expressly claim a reliance interest
in the continued application of the 1983 outcry statute,
but it is implicit in his assertion that the application of
the 1993 amendments to his conduct unfairly allowed
him to be convicted of the crimes he committed. The
Court should neither recognize nor legitimize that form

42

of reliance as part of an ex post facto analysis because
it is undeserving of constitutional protection. Carmell
“had no legitimate right to rely on a procedural rule that
neither affected his culpability nor his expected punish-
ment but instead merely made the prosecution’s case
against him more difficult to prove.” People v. Hudy,
73 N.Y.2d 40, 54, 535 N.E.2d 250, 258 (1988) (hold-
ing that application of statute repealing requirement of
corroboration of minor victim’s testimony in certain sex-
crime prosecutions did not violate Ex Post Facto Clause).
The amendment of the outcry statute “did nothing more
than remove an obstacle arising out of a rule of evidence.”
Id. (quoting Thompson v. Missouri, 171 U.S. 380, 387
(1898)).

The Court has recognized that the reliance interest
gives individuals confidence that their actions, if legal
when done, will not later be declared illegal; ii emphati-
cally does not, however, permit individuals confidently
to structure their crimes so as to maximize the prosecu-
tion’s difficulty in proving the case without having to
worry that the legislature will close an evidentiary loop-
hole. The interest that Carmell “wants elevated to the
level of a constitutional right is a rather dubious interest
in being acquitted at trial after having committed a crim-
inal offense—an interest hardly worth preservation.” Note,
Ex Post Facto Limitations, at 1513. If Carmell’s view of
ex post facto protection were adopted, it would promote
criminal sophistication rather than honest living.

The change in the outcry statute (1) was not the result
of legislative abuse, (2) did not create criminal liability
without warning, and (3) did not frustrate reasonable
reliance on existing laws. Accordingly, application of the
1993 outcry statute to convict Carmell did not violate the
Ex Post Facto Clause, because the core concerns of that

43

clause were not implicated by the 1993 amendments to
the statute.

CONCLUSION

For these reasons, the judgment of the Texas court
of appeals should be affirmed.

Respectfully submitted,

JOHN CORNYN
Attorney General of Texas
Counsel of Record
ANDY TAYLOR
First Assistant Attorney
General
LINDA S. Eaps
Deputy Attorney General
for Litigation
GREGORY S. COLEMAN
Solicitor General
PHILIP A. LIONBERGER
Assistant Solicitor General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
(512) 936-1700

October 20, 1999 Counsel for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0295%3A07. Public record. Not legal advice.