529 U.S. 513 (2000), 98-7540, Carmell v. Texas

Docket Nº:Case No. 98-7540
Citation:529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577, 68 U.S.L.W. 4325
Case Date:May 01, 2000
Court:United States Supreme Court

Page 513

529 U.S. 513 (2000)

120 S.Ct. 1620, 146 L.Ed.2d 577, 68 U.S.L.W. 4325




Case No. 98-7540

United States Supreme Court

May 1, 2000

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.


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. 521-553.

(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

Page 514

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. 521-530.

(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. 530-531.

(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. 531-534.

(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. 534-539.

(e) Texas' additional argument that the fourth category is limited to laws that retrospectively alter the burden of proof is also rejected.

Page 515

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, 110 U.S. 574, and Thompson v. Missouri, 171 U.S. 380, is also unpersuasive. Unlike the witness competency rules at issue there, Article 38.07 is a sufficiency of the evidence rule. It does not merely regulate the mode in which the facts constituting guilt may be placed before the jury, but governs the sufficiency of those facts for meeting the burden of proof. Indeed, Hopt expressly distinguished witness competency laws from laws altering the amount or degree of proof needed for conviction. Moreover, a sufficiency of the evidence rule resonates with the interests to which the Ex Post Facto Clause is addressed, in particular the elements of unfairness and injustice in subverting the presumption of innocence. Pp. 539-547.

963 S.W.2d 833, reversed and remanded.

Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Rehnquist, C. J., and O'Connor and Kennedy, JJ., joined, post, p. 553.

Richard D. Bernstein, by appointment of the Court, 527 U.S. 1051, argued the cause for petitioner. With him on the briefs were Carter G. Phillips, Katherine L. Adams, and Paul A. Hemmersbaugh.

John Cornyn, Attorney General of Texas, argued the cause for respondent. With him on the brief were Andy Taylor, First Assistant Attorney General, Linda S. Eads, Deputy Attorney General, Gregory S. Coleman, Solicitor General, and Philip A. Lionberger, Assistant Solicitor General.

Beth S. Brinkmann argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Waxman, Assistant Attorney

Page 516

General Robinson, Deputy Solicitor General Dreeben, and Vicki S. Marani.[*]

Justice Stevens delivered the opinion of the Court.

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.


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.

Page 517

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).[1]

We emphasize three features of this law that...

To continue reading