Amicus Curiae Brief — Carmell v. Texas

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IN THE

Supreme Court of the Gnited States

ScoTT LESLIE CARMELL.

Petitioner.

~

STATE OF TEXAS,

Respondent.

On Writ of Certiorari

to the Texas Court of Appeals

BRIEF OF THE AMICI STATES

IN SUPPORT OF TEXAS

CARLA J. STOVALL

Kansas Attorney General

STEPHEN R. MCALLISTER

Kansas State Solicitor

(Counsel of Record)

301 S.W. 10th Avenue

Topeka, Kansas 66612

(785) 296-2215

Counsel for the Amici States

[Additional Counsel Listed After Conclusion]

TABLE OF CONTENTS

Page

Se te ES os ae be ce iii

INTERESTS OF THE AMICI STATES ............. |

SUMMARY OF THE ARGUMENT................ l

REE CNS oes aie’ a Pe Lea's 6 oles 3

I. THE 1993 AMENDMENT TO THE TEXAS

“OUTCRY” STATUTE DID NOT CHANGE ANY

ELEMENTS OF AN OFFENSE, ELIMINATE AN

AFFIRMATIVE DEFENSE, NOR INCREASE THE

PUNISHMENT FOR AN OFFENSE ............ 3

A. Constitutional Ex Post Facto Prohibitions Do Not

Apply To Changes In Procedural Rules That Do Not

Alter The Elements Of An Offense, Eliminate An

Affirmative Defense, Nor Increase The Punishment

PRE I rs Pb are wile en's wake cx S pave 3

1. This Court Already Has Rejected The Proposition

That The Fourth Calder v. Bull Category Of Ex

Post Facto Legislation Has Legal Significance

Independent Of The First Three Categories .. 3

2. This Court’s Decisions Subsequent To Collins v.

Youngblood Confirm That Constitutional Ex Post

Facto Prohibitions Are Not Implicated By Every

Change In The Law That A Defendant Claims Is

SE Sa ie ass Cite vie Blin wk OS 6

B. Other Constitutional Provisions, Such As The Right

To Due Process, The Right To Confront Witnesses,

The Right To Compulsory Process, And The

Prohibition On Bills Of Attainder, Adequately Protect

Defendants In The Circumstances Presented Here 7

Il. PROCEDURAL RULES DO NOT CREATE

“DEFENSES” FOR EX POST FACTO

PURPOSES .3 0.5. eta) ke el ee 9

A. Only Rules That Affect The Legal Definition Of An

Offense Constitute A “Defense” For Ex Post Facto

Purpeees . . ... o. co ee Se eee 9

B. The Ex Post Facto Clause Does Not Prohibit

Changes In Evidentiary Rules............... 10

C. The Ex Post Facto Clause Does Not Prohibit

Changes In Statutes Of Limitation ........... 12

D. The 1993 Amendment Did Not Alter The Substantive

Criminal Law OF Tomes... 0000 a4 ee ee 14

CONCLUSION 25s aS ak Circe ae 15

——_ —

TABLE OF AUTHORITIES

Page

Cases

Addington v. Texas, 441 US. 418(1979) _........... 7

Beazell v. Ohio, 269 U.S. 167(1925) .........9, 11,13

Calder v. Bull, 3 Dall. 386(1798)............. 1,3

California Department of Corrections v. Morales,

Se PUI. OU Die viet o's 0 oe “dial Seale

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

Coy v. lowa, 487 U.S. 1012(1988) ........ .... x

Dawson v. Delaware, 503 US. 159 (1992). 4

Department of Revenue of Montana v. Kurth Ranch,

511 U.S. 767 (1995) . Sie. Aiae tina. | 6

Hopt v. Utah, 110 US. $74 (1884) a, | 10,11

Idaho v. Wright, 497 U.S. 805(1990) ._.. | s

Kansas v. Hendricks, §2\1 US. 346 (1997) 6

Kring v. Missouri, 107 US 221 (1883)... 5

Miller v. Florida, 482 U.S. 423 (1987) _.. 12

People v. Frazer, 2\ Cal 4th 737 (1999) _. 12, 13, 14

Thompson v. Utah, 170 US. 343 (1898)... 5

In re Winship, 397 U.S. 358 (1970) __. ae i 7

Constitutional Provisions and Statutes

HES TT ee eee 1,8

I s , ; Ube ee ae ole oe 12

a ee 12

RE ne 12

EEE ne 12, 13

Miscellaneous

—

INTERESTS OF THE AMICI STATES

The States have a substantial interest in the interpretation

and application of the Ex Post Facto Clause of Article I,

section 10 of the Constitution. Properly understood, the

crimes. But, as in this case, the States nonetheless have been

confronted with ex post facto claims when the States have

changed virtually any rule of evidence, criminal procedure,

prison admunuistration, or the statutes of limitation that apply to

various offenses. This case presents the Court with an

opportunity to clarify whether the constitutional ex post facto

prohibition applies at all to changes in the States’ laws that do

not fall within the three traditional ex post facto categories.

This issue arises with some frequency in litigation initiated

against the States, particularly as the volume of prisoner suits

has grown over the years.

SUMMARY OF THE ARGUMENT

The Court’s decision in Collins v. Youngblood, 497 U S.

37 (1990), establishes that the Ex Post Facto Clauses in the

Constitution apply only to retroactive changes that either (1)

alter the elements of a criminal offense, (2) eliminate an

affirmative defense, or (3) increase the punishment for an

offense. Collins and other decisions of the Court make clear

that the fourth category of ex post facto laws that Justice Chase

identified in Calder v. Bull, 3 Dall. 386, 390 (1798)—changes

in evidentiary rules that permit conviction on the basis of less

testimony—has no legal significance independent of the three

traditional categories. Indeed, there is no reason to give Justice

Chase’s fourth category any separate legal significance,

because the concerns raised by retroactive changes in

evidentiary rules are addressed by several other constitutional

provisions and doctrines, such as general procedural due

process principles, the nght to confront witnesses, the right to

2

compulsory process, and the prohibition against bills of

attainder.

Nor is there any merit to petitioner's suggestion that a

change in an evidentiary rule can deprive him of a “defense” for

ex post facto purposes. Only affirmative defenses that amount

to legal excuses or justification for otherwise criminal conduct

are “defenses” for ex post facto purposes. Thus, situations

such as insufficient evidence of the crime, the incompetency of

a witness, the scientific unreliability of evidence, or the

existence of a statute of limitations are not “defenses” within

the contemplation of the constitutional prohibitions on ex post

facto \egisliation.

Petitioner’s ex post facto claim must fail because the 1993

amendment to the Texas statute did not (1) alter the elements

of an offense, (2) eliminate an affirmative defense, or (3)

increase the punishment for an offense Instead, the substantive

criminal law of Texas has remained unchanged with respect to

the sexual offenses for which petitioner was convicted.

3

ARGUMENT

l. THE 1993 AMENDMENT TO THE TEXAS

“OUTCRY” STATUTE DID NOT CHANGE ANY

ELEMENTS OF AN OFFENSE, ELIMINATE AN

AFFIRMATIVE DEFENSE, NOR INCREASE THE

PUNISHMENT FOR AN OFFENSE

A. Constitutional Ex Post Facto Prohibitions Do Not

Apply To Changes In Procedural Rules That Do Not

Alter The Elements Of An Offense, Eliminate An

Affirmative Defense, Nor Increase The Punishment

For An Offense

1. This Court Already Has Rejected The Proposition

That The Fourth Calder v. Bull Category Of Ex Post

Facto Legislation Has Legal Significance

Independent Of The First Three Categories

This Court’s decision in Collins v. Youngblood, 497 U S.

37 (1990), establishes that the fourth ex post facto category

that Justice Chase identified in Calder v. Bull, 3 Dall. 386

(1798) (opinion of Chase, J.)'—the only category on which the

petitioner relies in this case—has no legal effect independent of

the first three categories. Thus, the Texas statutory

amendment at issue in this case cannot violate the ex post facto

prohibition unless it either (1) defines a new crime, (2)

aggravates the seriousness of a crime by, for example,

' Justice Chase identified four situations that, in his view, would

contravene the constitutional ex post facto prohibition: (1) a “law that

makes an action done before the passing of the law, and which was

imnocent when done, criminal”, (2) a “law that aggravates a crime, or

makes it greater than it was, when committed”, (3) a “law that changes

the punishment, and inflicts a greater punishment, than the law annexed

to the crime, when committed”; and (4) a “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.” 3 Dall. 386, 390 (opinion of Chase, J.).

4

eliminating an affirmative defense, or (3) increases the

punishment for a crime, none of which it does.

In Collins, this Court addressed a sex offender’s claim that

a new statute permitting an appellate court to reform an

otherwise improper verdict (rather than require a new trial of

the case) could not be applied retroactively. The Court

unanimously rejected the sex offender’s ex post facto claim. In

doing so, the majority opinion disavowed any notion that

Justice Chase’s fourth category—tretroactive changes in the

rules of evidence—has any legal meaning or significance

independent of the first three categories.

In his opinion for the Court, the C rief Justice pointed out

that the Court has not endorsed Justice Chase’s fourth

category. 497 U.S. at 43 n. 3. Instead, the Court has adopted

a “definition [that] omits the reference by Justice Chase in

Calder v. Bull to alterations in the ‘legal rules of evidence.’ As

cases subsequent to Calder make clear, this language was not

intended to prohibit the application of new evidentiary rules

in trials for crimes committed before the changes.” 497 U S.

at 43 n 3 (emphasis added, internal citations omitted). The

Court discussed several of those subsequent cases, some of

which relied upon a distinction between “procedural” and

“substantive” changes in the law, and declared that, in the ex

post facto context, “it is logical to think that the term

[‘ procedural’ ] refers to changes in the procedures by which a

criminal case is adjudicated, as opposed to changes in the

substantive law of crimes.” /d at 45. The Court emphasized

that labeling a law “procedural” does not insulate it from ex

post facto challenge. Rather, the Court held that “the

constitutional prohibition is addressed to laws, ‘whatever their

5

form,’ which make innocent acts criminal, alter the nature of

the offense, or increase the punishment.”’ /d. at 46.

In Collins, the Court recognized that some of its older ex

post facto decisions spoke in terms of changes in the law that

deprived a defendant of “substantial protections”, but the

Court used the Collins case to expressly disavow such

language. 497 US. at 45-46. Indeed, the Court overruled two

decisions that the Court found inconsistent with the proper

historical understanding of the ex post facto prohibition. /d. at

47-52 (overruling Kring v. Missouri, 107 U.S. 221 (1883), and

Thompson v. Utah, 170 U.S. 343 (1898)). In so doing, the

Court clarified that the constitutional ex post facto prohibition,

as summarized in the Calder v. Bull categories, does not

prohibit every “change which ‘alters the situation of a party to

his disadvantage.” 497 U.S. at 50. “[S]uch a reading of the

Clause departs from the meaning of the Clause as it was

understood at the time of the adoption of the Constitution, and

is not supported by later cases.” /d.

Thus, even though the Texas statute at issue in Collins

altered the law in a way that operated to the defendant's

disadvantage in that case, the Court found no ex post facto

violation. Instead, the Court concluded that

The Texas statute allowing reformation of improper

verdicts does not punish as a crime an act previously

committed, which was innocent when done, nor make more

burdensome the punishment for a crime, after its

commission, nor deprive one charged with crime of any

defense available according to law at the time when the act

was committed Its application to respondent therefore is

not prohibited by the Ex Post Facto Clause of Art. I, § 10

’ Thus, the States are not contending that a “procedural” change can never

violate the constitutional ex post facto prohibition, but that it 1s likely to

be a rare case in which such a violation occurs.

6

497 US. at 52. With all due respect, applying the same three

standards to the Texas “outcry” statute at issue in this case, the

only reasonable conclusion is that retroactive application of the

1993 amendment does not contravene ex post facto principles.

2. This Court’s Decisions Subsequent To Collins vy.

Youngblood Confirm That Constitutional Ex Post

Facto Prohibitions Are Not Implicated By Every

Change In The Law That A Defendant Claims Is

Detrimental

Since Collins, this Court on several occasions has reiterated

the proposition that the x Post Facto Clause does not prohibit

any and all retroactive changes in the law that may

“disadvantage” an offender. Thus, in California Dept. of

Corrections v. Morales, 514 U.S. 499 (1995), the Court

declared that “[a]fter Collins, the focus of the ex post facto

inquiry is not on whether a legislative change produces some

ambiguous sort of ‘disadvantage,’ .. . but on whether any such

change alters the definition of cnminal conduct or increases the

penalty by which a crime is punishable.” 514 US. at 506 n. 3.

C7. Kansas v. Hendricks, 521 U.S. 346 (1997) (involuntary

civil commitment statute that applies to sex offenders is not

punitive and therefore does not violate ex post facto principles

when applied retroactively to convicted sex off fers).

Indeed, this Court has expressly held that “whether a

sanction constitutes punishment is not determined from the

defendant’s perspective.” Department of Revenue of Montana

v. Kurth Ranch, 511 U.S. 767, 777 n. 14 (1995). See also

Harold J. Krent, 7he Puzzling Boundary Between Criminal

And Civil Retroactive Lawmaking, 84 Geo. L_.J. 2143 (1996).

Thus, the mere fact that the 1993 amendment to the Texas

statute may not please petitioner does not implicate the

constitutional ex post facto prohibition. Instead, the questions

are whether the Texas statute (1) created a new crime, (2)

increased the punishment for the crime, or (3) altered the

nature of the crime, for example, by eliminating an affirmative

7

defense. With all due respect, the 1993 amendment to the

Texas statute did none of those things.

B. Other Constitutional Provisions, Such As The Right

To Due Process, The Right To Confront Witnesses,

The Right To Compulsory Process, And The

Prohibition On Bills Of Attainder, Adequately

Protect Defendants In The Circumstances Presented

Here

Importantly, the Court’s decision in Collins that the fourth

Calder v. Bull category has no legal significance independent

of the first three categories leaves no gap in the constitutional

protection of criminal defendants. Other constitutional

provisions adequately protect defendants such as petitioner in

the context of changes or amendments to evidentiary or other

procedural rules.

To the extent petitioner's complaint goes to the

competency of his victim to testify against him, the

Constitution already addresses those concerns in other

provisions, making resort to the ex post facto prohibition

unnecessary. Due process principles generally assure

fundamental fairness in criminal proceedings. Basic procedural

due process principles, for example, limit a State’s ability to

lower the State’s burden of proof in criminal proceedings, e.g.,

In re Winship, 397 U.S. 358 (1970), and some civil

proceedings. E.g., Addington v. Texas, 441 U.S. 418 (1979).’

General due process principles also apply to issues concerning

the reliability and relevance of evidence. F.g., Dawson v.

Delaware, 503 U.S. 159 (1992).

* Thus, in the highly unlikely circumstance that a State enacted a statute

that retroactively altered the State's burden of proof for some or all

criminal offenses below the requirement of proof beyond a reasonsble

doubt, such a change would violate due process, whether applied

retroactively or prospectively, and there would be no reason to invoke the

ex post facto prohibition in order to declare the statute unconstitutional.

8

In addition, the Confrontation Clause of the Sixth

Amendment limits the use of hearsay evidence, see, e.g., Idaho

v. Wright, 497 U.S. 805 (1990), and limits the measures the

States may take to shield even very young child witnesses from

their alleged molesters. See, e.g., Coy v. lowa, 487 U.S. 1012

(1988). The Compulsory Process Clause of the Sixth

Amendment ensures that defendants have the assistance of

formal judicial process to compel the presence and testimony

of favorable witnesses.

Finally, Article I, § 10, the same provision that declares the

ex post facto prohibition applicable to the States, also prohibits

States from passing any bill of attainder. Thus, if the Texas

legislature had amended the statute in order to target petitioner,

or perhaps even child molesters generally, for retroactive

punishment, the constitutional prohibition on bills of attainder

might be implicated.

These substantial constitutional protections are directed

more specifically than the Ex Post Facto Clause to issues

arising from application of the rules of evidence to criminal

defendants and the witnesses who may testify against them.

Given the existence of these numerous provisions, and the

scope of the protections they provide, there is simply no reason

to stretch the constitutional ex post facto prohibition beyond its

historical roots to encompass retroactive changes in rules of

evidence that do not (1) create a new offense, (2) alter the

nature of an offense, or (3) increase the punishment for an

offense.

9

ll. PROCEDURAL RULES DO NOT CREATE

“DEFENSES” FOR EX POST FACTO PURPOSES

A. Only Rules That Affect The Legal Definition Of An

Offense Constitute A “Defense” For Ex Post Facto

Purposes

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

beyond any doubt that the “defenses” which the Ex Post Facto

Clause prohibits the States from altering retroactively,’ are

“legal” defenses, not simply any rule or procedure a defendant

might invoke to avoid prosecution or conviction. In Collins,

the Chief Justice expressly declared for the Court that “[a] law

that abolishes an affirmative defense of justification or excuse

contravenes Art. I, § 10, because it expands the scope of a

criminal prohibition after the act is done.” 497 U.S. at 49

(emphasis added). Thus, petitioner’s argument that the

amended Texas statute in this case deprives him of a “defense”

for ex post facto purposes is completely without merit.

Insufficient proof to support a _ conviction, the

incompetency of a particular witness to testify, the scientific

unreliability of particular forensic evidence, or the time

constraints imposed by a statute of limitations may be obstacles

to the prosecution of a criminal offense in specific cases, but

none of those situations amount to “defenses” to prosecution

in the sense the ex post facto prohibition contemplates. As

Collins expressly recognizes, for ex post facto purposes,

* Strictly speaking, none of the first three Calder v. Bull categories refer

to “defenses” at all, but this Court long appears to have recognized that

retroactive elimination of an affirmative defense to a crime would create

an ex post facto problem, apparently because it would “aggravate” the

offense (the second Calder v. Bull category). See, e.g., Beazell v. Ohio,

269 U.S. 167, 169-70 (1925) (a retroactive law “which deprives one

charged with crime of any defense available according to law at the time

when the act was committed, is prohibited as ex post facto”).

10

“defense” means an affirmative defense of “justification or

excuse” to criminal liability.

An affirmative defense is one that applies even though the

State can prove beyond a reasonable doubt ‘hat the defendant

committed the offense with which he has been charged. In

other words, an affirmative defense is a legal excuse or

justification for conduct that would otherwise be criminal

These defenses historically have included justifications such as

self-defense, defense of others, immunity, privilege, or some

other /egal justification for the defendant’s conduct.

Affirmative defenses, and thus the “defenses” recognized for ex

post facto purposes, do not include procedural or evidentiary

rules or even statutes of limitation that may, in a particular

case, preclude a successful criminal prosecution.

B. The Ex Post Facto Clause Does Not Prohibit

Changes In Evidentiary Rules

More than 100 years ago, the Court made plain that the Ex

Post Facto Clause does not prohibit the States from

retroactively changing rules of procedure or evidence, including

laws that govern the competency of witnesses to testify, like

the Texas statute at issue here. In Hopt v. Utah, 110 U.S. 574

(1884), the Court rejected an ex post facto challenge to a Utah

law that changed prior law by permitting convicted felons to

testify in criminal proceedings. At the time of the petitioner’s

crime, the law of Utah forbade convicted felons from testifying

in civil or criminal proceedings. But before petitioner’s trial,

the law was changed to permit felons to testify in criminal

proceedings, and a felon previously convicted of murder was

then a key witness in the petitioner’s trial.

In rejecting the petitioner’s ex past facto claim in Hopt, the

Court declared 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.” 110 U.S. at 589. In

ll

reaching that conclusion, the Court reasoned that such a law

did not criminalize a previously innocent act, aggravate any

previously existing crime, provide a greater punishment for a

crime, nor alter the degree of proof necessary to establish guilt.

Id. The Court emphasized that evidentiary rules, such as those

affecting the competency of witnesses to testify, “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.” /d. at 590.

Similarly, in Beazel/ v. Ohio, 269 U.S. 167 (1925), the

Court reiterated that “it is now well settled that statutory

changes in the mode of trial or the rules of evidence, which do

not deprive the accused of a defense and which operate only in

a limited and unsubstantial manner to his disadvantage, are not

prohibited.” /d at 170. Furthermore, in Beaze// the Court

emphasized that “the constitutional [ex post facto] provision

was intended to secure substantial personal rights against

arbitrary and oppressive legislation, and not to limit the

legislative control of remedies and modes of procedure which

do not affect matters of substance.” /d. at 171.

Thus, the 1993 amendment is simply outside the categories

of retroactive laws the Ex Post Facto Clause prohibits. In

essence, petitioner's only complaint is that Texas in 1993

changed the rules regarding the competency of a juvenile

witness to testify against him with respect to sexual offenses,

a procedural change.* The Court’s cases make clear that it is

not whether anyone is adversely affected by a retroactive

legislative change but, rather, how they are affected that

* Petitioner also appears to suggest that the 1993 change is suspect because

the Texas Legislature did not amend the statute broadly enough to apply

to any minor victim of any crime, rather than limiting it to sex offenses.

See Brief of Petitioner, Argument [.B. (final paragraph). But the scope of

the amendment in that respect has no relevance to an ex post facto claim.

12

determines when a law violates the ex post facto prohibition.°

The only three ways that matter for ex post facto purposes are

retroactive (1) changes in the definition of an offense, (2)

increases in the punishment, or (3) elimination of an affirmative

defense, none of which are present in this case.

C. The Ex Post Facto Clause Does Not Prohibit

Change: In Statutes Of Limitation

Recently, the California Supreme Court applied Collins v.

Youngblood, 497 U.S. 37 (1990), in the context of an ex post

facto challenge to a retroactive change in the statute of

limitations in a criminal case. That court held, in People v.

Frazer, 21 Cal.4th 737 (1999), that a retroactive change in the

statute of limitations does not implicate ex post facto

protections.

In California, there is no statute of limitations for a small

number of specified offenses. Cal. Pen. Code § 799.

Otherwise, felony cases must be commenced either three years

or six years after commission of the offense, depending upon

the term of imprisonment prescribed for the crime. Cal. Pen.

Code §§ 800, 801. Penal Code section 803 sets forth

exceptions to these general rules and provides for the tolling or

extension of the generally-applicable statutes of limitations.

In 1994, the California legislature added subdivision (g) to

section 803 to provide that if an enumerated serious sex offense

was committed upon a victim who was a child at the time, and

if the normally-applicable statute of limitations had expired, a

criminal case could be filed nonetheless if the case was initiated

° For this reason, petitioner's reliance upon Miller v. Florida, 482 US.

423 (1987), is completely misplaced. See Brief of Petitioner, Arguments

LC, lll. Miller is a case in which the punishment for the offense

increased between the time the defendant committed the offense and the

ume of sentencing. Miller therefore, unlike this case, falls squarely within

one of the three traditional ex post facto categories.

13

within one year of the date on which the victim reported the

crime to a law enforcement agency and there was independent

evidence that clearly and convincingly corroborates the victim's

allegation. The legislature subsequently amended the statute to

make clear its intent that section 803(g) be applied retroactively

SO as to permit the prosecution of crimes that were time-barred

prior to 1994-the effective date of section 803(g).

In 1996, pursuant to section 803(g), Raymond Frazer was

charged with one felony sex offense against a child, which was

alleged to have been committed in 1984. He challenged the

action, claiming the charge had been time barred in 1990, and

retroactive application of the statute to permit his prosecution

would violate the Ex Post Facto Clauses of the United States

and California Constitutions.

The California Supreme Court rejected the claim’ The

Court began its analysis of the ex post facto issue by examining

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

Youngblood, 497 U.S. 37 (1990). These cases, the California

Supreme Court found, set forth a two-part test: “‘Legislatures

may not retroactively alter the “efinition of crimes or increase

the punishment for criminal acts” People v. Frazer, 21

Cal 4th at 756 (emphasis original) (quoting Collins, 497 U.S.

at 43). This Court made clear in Collins and subsequent cases,

the state supreme court stated, that “the two categories of

impermissible retroactive legislation—redefining criminal

conduct and increasing punishment—are exclusive.” /d

The state supreme court further found that this Court, in

Collins, had clarified language in Beazell prohibiting

retroactive elimination of defenses to criminal charges. In

’ Frazer also argued that applying the new statutory provision to him

violated due process principles. The majority held there was no ex post

facto or due process violation, the dissent found a due process violation

based on the state constitution, and so did not reach the ex post facto

claim.

14

particular, the California Supreme Court read Collins to clarify

that Beazel/ “should not be misread as creating a separate or

third category of impermissible ex post facto legislation.”

Frazer, 21 Cal 4th at 757. Rather, Collins explained that this

aspect of the ex post facto prohibition applies to retroactive

changes that alter “the legal definition of the offenses” or “the

nature or amount of the punishment imposed for its

commission.” /d Accordingly, “the only ‘defense[s]’ that

cannot be restricted or withdrawn for ex post facto purposes

are those bearing on the ‘definition’ or ‘elements’ of the

charged crime, or involving ‘an excuse or justification for the

conduct underlying such a charge.”” /d. (quoting Collins, 497

US. at 50)

Thus, the court held that “section 803(g) regulates the time

at which child sexual abuse defined and punished elsewhere in

the Penal Code may be charged, but it does not impermissibly

withdraw a ‘defense’ as that term of art is used for ex post

facto purposes in [Collins]."" Frazer, 21 Cal 4th at 760. In

other words, “[s]tatutes regulating the time at which a future

criminal prosecution may be filed do not implicate the manner

in which criminal conduct is defined and punished at the time

it occurs—the sole concern of the ex post facto clause.” /d. at

763. Hence, a retroactive change even in the statute of

limitations applicable to a criminal offense does not violate ex

post facto principles

D. The 1993 Amendment Did Not Alter The

Substantive Criminal Law Of Texas

Petitioner makes no claim that the 1993 amendment either

(1) created a new criminal offense or (2) increased the

punishment for existing offenses, (3) nor has he been deprived

of any affirmative defense that was recognized at the time he

committed sexual offenses against his stepdaughter Because

there has been no change in the substantive criminal law of

Texas, petitioner's ex post facto claim must fail

— .—

15

CONCLUSION

For the foregoing reasons, as well as the reasons set forth

in Texas's brief, the Court should affirm the judgment of the

Texas Court of Appeals upholding petitioner’s convictions

Attorney General

State of Indiana

Respectfully submitted,

CARLA J. STOVALL

Kansas Attorney General

STEPHEN R. MCALLISTER

Kansas State Solicitor

(Counsel of Record)

301 SW. 10th Avenue

Topeka, Kansas 66612

(785) 296-2215

Counsel for the Amici States

RICHARD P_ IEYOUB

Attorney General

State of Louisiana

JENNIFER M. GRANHOLM

Attorney General

State of Michigan

JOE MAZUREK

Attorney General

State of Montana

DON STERNBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

BETTY D MONTGOMERY

Attorney General

State of Ohio

W_.A DREW EDMONDSON

Attorney General

State of Oklahoma

CHARLES M. CONDON

Attorney Genera!

State of South Carolina

October 1999

16

JAN GRAHAM

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

CHRISTINE O. GREGOIRE

Attorney General

State of Washington