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Carmell v. Texas

May 1, 2000

SCOTT LESLIE CARMELL, PETITIONER
v.
TEXAS



Court Below: 963 S. W. 2d 833.

SYLLABUS BY THE COURT

OCTOBER TERM, 1999

Argued November 30, 1999

In 1996, petitioner was convicted on 15 counts of committing sexual offenses against his stepdaughter from 1991 to 1995, when she was 12 to 16 years old. Before September 1, 1993, Tex. Code Crim. Proc. Ann., Art. 38.07, specified that a victim's testimony about a sexual offense could not support a conviction unless corroborated by other evidence or the victim informed another person of the offense within six months of its occurrence, but that, if a victim was under 14 at the time of the offense, the victim's testimony alone could support a conviction. A 1993 amendment allowed the victim's testimony alone to support a conviction if the victim was under 18. The validity of four of petitioner's convictions depends on which version of the law applies to him. Before the Texas Court of Appeals, he argued that the four convictions could not stand under the pre-1993 version of the law, which was in effect at the time of his alleged conduct, because they were based solely on the testimony of the victim, who was not under 14 at the time of the offenses and had not made a timely outcry. The court held that applying the 1993 amendment retrospectively did not violate the Ex Post Facto Clause, and the State Court of Criminal Appeals denied review.

Held: Petitioner's convictions on the counts at issue, insofar as they are not corroborated by other evidence, cannot be sustained under the Ex Post Facto Clause. Pp. 6-40.

(a) In Calder v. Bull, 3 Dall. 386, 390, Justice Chase stated that the proscription against ex post facto laws was derived from English common law well known to the Framers, and set out four categories of ex post facto criminal laws: "1st. 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 offence, in order to convict the offender." The Court has repeatedly endorsed this understanding, including the fourth category. Both Justice Chase and the common-law treatise on which he drew heavily cited the case of Sir John Fenwick as an example of the fourth category. England charged Fenwick with high treason in the late 17th century, but, under an Act of Parliament, he could not be convicted without the testimony of two witnesses. Parliament passed a bill of attainder making the two-witness rule inapplicable, and Fenwick was convicted on the testimony of only one witness. Pp. 6-15.

(b) Article 38.07 plainly fits within Calder's fourth category. Requiring only the victim's testimony to convict, rather than that testimony plus corroborating evidence, is surely "less testimony required to convict" in any straightforward sense of those words. Indeed, the circumstances here parallel those of Fenwick's case. That Article 38.07 neither increases the punishment for, nor changes the elements of, the offense simply shows that the amendment does not fit within Calder's first or third categories. Pp. 15-17.

(c) The fourth category resonates harmoniously with one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice. A law reducing the quantum of evidence required to convict is as grossly unfair as retrospectively eliminating an element of the offense, increasing punishment for an existing offense, or lowering the burden of proof. In each instance, the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life. Indeed, Fenwick's case itself illustrates this principle. Pp. 17-20.

(d) None of the reasons that the United States as amicus advances for abandoning the fourth category is persuasive. It asserts that the fact that neither Blackstone nor ex post facto clauses in Ratification-era state constitutions mention the fourth category shows that Justice Chase simply got it wrong. Accepting this assertion would require the Court to abandon the third category as well, for it is also not mentioned in any of those sources. And it does not follow from the fact that Fenwick was convicted by a bill of attainder that his case cannot also be an example of an ex post facto law. In fact, all of the specific examples that Justice Chase listed in Calder were passed as bills of attainder. Nor, as the United States and Texas argue, was the fourth category effectively cast out in Collins v. Youngblood, 497 U. S. 37, which actually held that it was a mistake to stray beyond Calder's four categories, not that the fourth category was itself mistaken. Pp. 20-25.

(e) Texas' additional argument that the fourth category is limited to laws that retrospectively alter the burden of proof is also rejected. The Court's decision in Cummings v. Missouri, 4 Wall. 277, nowhere suggests that a reversal of the burden of proof is all the fourth category encompasses; and laws that lower the burden of proof and laws that reduce the quantum of evidence necessary to meet that burden are indistinguishable in all meaningful ways relevant to concerns of the Ex Post Facto Clause. Texas' assertion that Fenwick's case concerns only a reduction in the burden of proof is based on a mistaken historical premise. And its argument that the present case is controlled by Hopt v. Territory of Utah, The opinion of the court was delivered by: Justice Stevens

Opinion of the Court

On Writ Of Certiorari To The Court Of Appeals Of Texas, Second District

An amendment to a Texas statute that went into effect on September 1, 1993, authorized conviction of certain sexual offenses on the victim's testimony alone. The previous statute required the victim's testimony plus other corroborating evidence to convict the offender. The question presented is whether that amendment may be applied in a trial for offenses committed before the amendment's effective date without violating the constitutional prohibition against State "ex post facto" laws.

I.

In 1996, a Texas grand jury returned a 15-count indictment charging petitioner with various sexual offenses against his stepdaughter. The alleged conduct took place over more than four years, from February 1991 to March 1995, when the victim was 12 to 16 years old. The conduct ceased after the victim told her mother what had happened. Petitioner was convicted on all 15 counts. The two most serious counts charged him with aggravated sexual assault, and petitioner was sentenced to life imprisonment on those two counts. For each of the other 13 offenses (5 counts of sexual assault and 8 counts of indecency with a child), petitioner received concurrent sentences of 20 years.

Until September 1, 1993, the following statute was in effect in Texas:

"A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The requirement that the victim inform another person of an alleged offense does not apply if the victim was younger than 14 years of age at the time of the alleged offense." Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon 1983).*fn1

We emphasize three features of this law that are critical to petitioner's case.

The first is the so-called "outcry or corroboration" requirement. Under that provision, a victim's testimony can support a conviction for the specified offenses only if (1) that testimony is corroborated by other evidence, or (2) the victim informed another person of the offense within six months of its occurrence (an "outcry"). The second feature is the "child victim" provision, which is an exception to the outcry or corroboration requirement. According to this provision, if the victim was under 14 years old at the time of the alleged offense, the outcry or corroboration requirement does not apply and the victim's testimony alone can support a conviction -- even without any corroborating evidence or outcry. The third feature is that Article 38.07 establishes a sufficiency of the evidence rule respecting the minimum quantum of evidence necessary to sustain a conviction. If the statute's requirements are not met (for example, by introducing only the uncorroborated testimony of a 15-year-old victim who did not make a timely outcry), a defendant cannot be convicted, and the court must enter a judgment of acquittal. See Leday v. State, 983 S. W. 2d 713, 725 (Tex. Crim. App. 1998); Scoggan v. State, 799 S. W. 2d 679, 683 (Tex. Crim. App. 1990). Conversely, if the requirements are satisfied, a conviction, in the words of the statute, "is supportable," and the case may be submitted to the jury and a conviction sustained. See Vickery v. State, 566 S. W. 2d 624, 626-627 (Tex. Crim. App. 1978); see also Burnham v. State, 821 S. W. 2d 1, 3 (Tex. Ct. App. 1991).*fn2

Texas amended Article 38.07, effective September 1, 1993. The amendment extended the child victim exception to victims under 18 years old.*fn3 For four of petitioner's counts, that amendment was critical. The "outcry or corroboration" requirement was not satisfied for those convictions;*fn4 they rested solely on the victim's testimony. Accordingly, the verdicts on those four counts stand or fall depending on whether the child victim exception applies. Under the old law, the exception would not apply, because the victim was more than 14 years old at the time of the alleged offenses. Under the new law, the exception would apply, because the victim was under 18 years old at that time. In short, the validity of four of petitioner's convictions depends on whether the old or new law applies to his case, which, in turn, depends on whether the Ex Post Facto Clause prohibits the application of the new version of Article 38.07 to his case.

As mentioned, only 4 of petitioner's 15 total convictions are implicated by the amendment to Article 38.07; the other 11 counts -- including the 2 convictions for which petitioner received life sentences -- are uncontested. Six counts are uncontested because they were committed when the victim was under 14 years old, so his convictions stand even under the old law; the other five uncontested counts were committed after the new Texas law went into effect, so there could be no ex post facto claim as to those convictions. See Weaver v. Graham, 450 U. S. 24, 31 (1981) ("The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date"). What are at stake, then, are the four convictions on counts 7 through 10 for offenses committed between June 1992 and July 1993 when the victim was 14 or 15 years old and the new Texas law was not in effect.

Petitioner appealed his four convictions to the Court of Appeals for the Second District of Texas in Fort Worth. See 963 S. W. 2d 833 (1998). Petitioner argued that under the pre-1993 version of Article 38.07, which was the law in effect at the time of his alleged conduct, those convictions could not stand, because they were based solely on the victim's testimony, and the victim was not under 14 years old at the time of the offenses, nor had she made a timely outcry.

The Court of Appeals rejected petitioner's argument. Under the 1993 amendment to Article 38.07, the court observed, petitioner could be convicted on the victim's testimony alone because she was under 18 years old at the time of the offenses. The court held that applying this amendment retrospectively to petitioner's case did not violate the Ex Post Facto Clause:

"The statute as amended does not increase the punishment nor change the elements of the offense that the State must prove. It merely `removes existing restrictions upon the competency of certain classes of persons as witnesses' and is, thus, a rule of procedure. Hopt v. Utah, 110 U. S. 574, 590 ... (1884)." Id., at 836.

The Texas Court of Criminal Appeals denied discretionary review. Because the question whether the retrospective application of a statute repealing a corroboration requirement has given rise to conflicting decisions,*fn5 we granted petitioner's pro se petition for certiorari, 527 U. S. 1002 (1999), and appointed counsel, id., at 1051.

II.

To prohibit legislative Acts "contrary to the first principles of the social compact and to every principle of sound legislation,"*fn6 the Framers included provisions they considered to be "perhaps greater securities to liberty and republicanism than any [the Constitution] contains."*fn7 The provisions declare:

"No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts ... ." U. S. Const., Art. I, §10.*fn8

The proscription against ex post facto laws "necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing." Calder v. Bull, 3 Dall. 386, 390 (1798) (Chase, J.). In Calder v. Bull, Justice Chase stated that the necessary explanation is derived from English common law well known to the Framers: "The expressions `ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors." Id., at 391; see also id., at 389 ("The prohibition ... very probably arose from the knowledge, that the Parliament of Great Britain claimed and exercised a power to pass such laws ..."); id., at 396 (Paterson, J.). Specifically, the phrase "ex post facto" referred only to certain types of criminal laws. Justice Chase catalogued those types as follows:

"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. 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 offence, in order to convict the offender." Id., at 390 (emphasis in original).*fn9

It is the fourth category that is at issue in petitioner's case.

The common-law understanding explained by Justice Chase drew heavily upon the authoritative exposition of one of the great scholars of the common law, Richard Wooddeson. See id., at 391 (noting reliance on Wooddeson's treatise).*fn10 Wooddeson's classification divided ex post facto laws into three general categories: those respecting the crimes themselves; those respecting the legal rules of evidence; and those affecting punishment (which he further subdivided into laws creating a punishment and those making an existing punishment more severe).*fn11 See 2 R. Wooddeson, A Systematical View of the Laws of England 625-640 (1792) (Lecture 41) (hereinafter Wooddeson). Those three categories (the last of which was further subdivided) correlate precisely to Calder's four categories. Justice Chase also used language in describing the categories that corresponds directly to Wooddeson's phrasing.*fn12 Finally, in four footnotes in Justice Chase's opinion, he listed examples of various Acts of Parliament illustrating each of the four categories. See 3 Dall., at 389, nn. *, , , ¶.*fn13 Each of these examples is exactly the same as the ones Wooddeson himself used in his treatise. See 2 Wooddeson 629 (case of the Earl of Strafford); id., at 634 (case of Sir John Fenwick); id., at 638 (banishments of Lord Clarendon and of Bishop Atterbury); id., at 639 (Coventry Act).

Calder's four categories, which embraced Wooddeson's formulation, were, in turn, soon embraced by contemporary scholars. Joseph Story, for example, in writing on the Ex Post Facto Clause, stated:

"The general interpretation has been, and is, ... that the prohibition reaches every law, whereby an act is declared a crime, and made punishable as such, when it was not a crime, when done; or whereby the act, if a crime, is aggravated in enormity, or punishment; or whereby different, or less evidence, is required to convict an offender, than was required, when the act was committed." 3 Commentaries on the Constitution of the United States §1339, p. 212 (1833).

James Kent concurred in this understanding of the Clause:

"[T]he words ex post facto laws were technical expressions, and meant every law that made an act done before the passing of the law, and which was innocent when done, criminal; or which aggravated a crime, and made it greater than it was when committed; or which changed the punishment, and inflicted a greater punishment than the law annexed to the crime when committed; or which altered the legal rules of evidence, and received less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender." 1 Commentaries on American Law 408 (3d ed. 1836) (Lecture 19).

This Court, moreover, has repeatedly endorsed this understanding, including, in particular, the fourth category (sometimes quoting Chase's words verbatim, sometimes simply paraphrasing). See Lynce v. Mathis, 519 U. S. 433, 441, n. 13 (1997); Dobbert v. Florida, 432 U. S. 282, 293 (1977); Malloy v. South Carolina, 237 U. S. 180, 183-184 (1915); Mallett v. North Carolina, 181 U. S. 589, 593-594 (1901); Thompson v. Missouri, 171 U. S. 380, 382, 387 (1898); Hawker v. New York, 170 U. S. 189, 201 (1898) (Harlan, J., dissenting); Gibson v. Mississippi, 162 U. S. 565, 589-590 (1896); Duncan v. Missouri, 152 U. S. 377, 382 (1894); Hopt v. Territory of Utah, 110 U. S. 574, 589 (1884); Kring v. Missouri, 107 U. S. 221, 228 (1883), overruled on other grounds, Collins v. Youngblood, 497 U. S. 37 (1990); Gut v. State, 9 Wall. 35, 38 (1870); Ex parte Garland, 4 Wall. 333, 390-391 (1867) (Miller, J., dissenting); Cummings v. Missouri, 4 Wall. 277, 325-326, 328 (1867). State courts, too, in the years following Calder, adopted Justice Chase's four-category formulation. See Boston & Gunby v. Cummins, 16 Ga. 102, 106 (1854); Martindale v. Moore, 3 Blackf. 275, 277 (Ind. 1833); Davis v. Ballard, 24 Ky. 563, 578 (1829); Strong v. State, 1 Blackf. 193, 196 (Ind. 1822); Dickinson v. Dickinson, 7 N. C. 327, 330 (1819); see also Woart v. Winnick, 3 N. H. 473, 475 (Super. Ct. 1826).*fn14

III.

As mentioned earlier, Justice Chase and Wooddeson both cited several examples of ex post facto laws, and, in particular, cited the case of Sir John Fenwick as an example of the fourth category. To better understand the type of law that falls within that category, then, we turn to Fenwick's case for preliminary guidance.

Those who remained loyal to James II after he was deposed by King William III in the Revolution of 1688 thought their opportunity for restoration had arrived in 1695, following the death of Queen Mary. 9 T. Macaulay, History of England 31 (1899) (hereinafter Macaulay). Sir John Fenwick, along with other Jacobite plotters including George Porter and Cardell Goodman, began concocting their scheme in the spring of that year, and over the next several months the original circle of conspirators expanded in number. Id., at 32, 47-48, 109-110. Before the conspirators could carry out their machinations, however, three members of the group disclosed the plot to William. Id., at 122-125. One by one, the participants were arrested, tried, and convicted of treason. Id., at 127-142. Fenwick, though, remained in hiding while the rest of the cabal was brought to justice. During that time, the trials of his accomplices revealed that there were only two witnesses among them who could prove Fenwick's guilt, Porter and Goodman. Id., at 170-171. As luck would have it, an act of Parliament proclaimed that two witnesses were necessary to convict a person of high treason. See An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 7 & 8 Will. III, ch. 3, §2 (1695-1696), in 7 Statutes of the Realm 6 (reprint 1963).*fn15 Thus, Fenwick knew that if he could induce either Porter or Goodman to abscond, the case against him would vanish. 9 Macaulay 171.

Fenwick first tried his hand with Porter. Fenwick sent his agent to attempt a bribe, which Porter initially accepted in exchange for leaving for France. But then Porter simply pocketed the bribe, turned in Fenwick's agent (who was promptly tried, convicted, and pilloried), and proceeded to testify against Fenwick (along with Goodman) before a grand jury. Id., at 171-173. When the grand jury returned an indictment for high treason, Fenwick attempted to flee the country himself, but was apprehended and brought before the Lord Justices in London. Sensing an impending conviction, Fenwick threw himself on the mercy of the court and offered to disclose all he knew of the Jacobite plotting, aware all the while that the judges would soon leave the city for their circuits, and a delay would thus buy him a few weeks time. Id., at 173-174.

Fenwick was granted time to write up his confession, but rather than betray true Jacobites, he concocted a confession calculated to accuse those loyal to William, hoping to introduce embarrassment and perhaps a measure of instability to the current regime. Id., at 175-178. William, however, at once perceived Fenwick's design and rejected the confession, along with any expectation of mercy. Id., at 178-180, 194. Though his contrived ploy for leniency was unsuccessful in that respect, it proved successful in another: during ...


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