Grimes v. State

• Decision Date: 27 March 1991
• Docket Number: No. 769-88,769-88
• Citation: 807 S.W.2d 582
• Parties: Troy Lee GRIMES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 582

807 S.W.2d 582

Troy Lee GRIMES, Appellant, v. The STATE of Texas, Appellee.

No. 769-88.

Court of Criminal Appeals of Texas,

En Banc.

March 27, 1991.

J. Pink Dickens, Clyde M. Hudson, Amarillo, for appellant.

Guy Hardin, Dist. Atty., and Harold L. Comer, Asst. Dist. Atty., Pampa, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON THE STATE'S PETITIONS FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A jury convicted appellant, Troy Lee Grimes, of aggravated sexual assault for which he was sentenced to life imprisonment and ordered to pay a $10,000.00 fine. For reasons not important to this opinion, the Amarillo Court of Appeals reversed the conviction "for errors committed in the punishment phase only." 1% N Grimes v. State, (Tex.App.--Amarillo, No. 07-87-0137-CR, delivered May 23, 1988) (unpublished opinion). Instead of simply remanding the case to the trial court, the Court of Appeals, after it held that application of Article 44.29(b), V.A.C.C.P., would violate the Ex Post Facto Provision of the Texas Constitution, ordered the trial court to provide appellant with "a full new trial." Grimes v. State, (Tex.App.--Amarillo, No. 07-87-0137-CR, delivered June 21, 1988) (unpublished opinion on rehearing). Both the District Attorney and State Prosecuting Attorney petitioned this Court for discretionary review. Both petitions were granted to determine the correctness of the Court of Appeals' holding. We will reverse.

Article 44.29(b) became effective after appellant's trial but before his conviction was reversed on appeal; it provides in part:

"If the court of appeals or the Court of Criminal Appeals awards a new trial to the defendant only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the of the trial...." The Court of Appeals noted that "laws changing procedure are not generally within the prohibition imposed by the Texas Constitution on the retroactive application of criminal statutes" but that if it is shown that the ex post facto application of Article 44.29(b) deprives the accused of "substantial protection," such application is unconstitutional. Slip op. pp. 2-3, citing Ex parte Abahosh, 561 S.W.2d 202, 203 (Tex.Cr.App.1978), and Ex parte Roper, 61 Tex.Crim. 68, 134 S.W. 334, 339 (1911). The lower appellate court observed that Article 44.29(b) "deprives the appellant of a retrial on his guilt or innocence," and from this premise the court concluded that "application of the statute was improper." Slip op. p. 3.

Article I, Section 16, of the Texas Constitution provides that "[n]o bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made." The term "ex post facto law" literally means any law passed "after the fact" or commission of an act which retrospectively changes the consequences of such act. However, as early opinions from the United States Supreme Court have explained, "ex post facto law" is a term of art that had an established meaning at the time of the framing of the United States Constitution. Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Justice Chase's opinion in Calder v. Bull, 3 Dall. 386, 391, 1 L.Ed. 648 (1798), was the first to delineate those legislative acts which implicated the Ex Post Facto Clause of the United States Constitution:

"1st. Every law that makes an action done before 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." Calder, 3 Dall. at 390.

The early opinions from the Supreme Court accepted the Calder definition of "ex post facto " as being exclusive. See, e.g., Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162 (1810); Cummings v. Missouri, 4 Wall. 277, 325-326, 18 L.Ed. 356 (1867); Gut v. State, 9 Wall. 35, 38, 19 L.Ed. 573 (1870); Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884). ² With the passage of time, however, the Supreme Court added to the Calder definition.

In Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), the Supreme Court held that a Utah law which reduced the size of juries in criminal cases from twelve persons to eight persons deprived Thompson of "a substantial right involved in his liberty." Consequently, when the new law was utilized in his trial after the commission of the offense, such was said to violate the Ex Post Facto Clause of the United States Constitution. 170 U.S. at 352, 18 S.Ct. at 623. The Thompson concept of extending the Ex Post Facto Clause to protect "substantial rights involved in liberty" has since evolved to prohibit subsequently enacted laws affecting "matters of substance," by depriving a defendant of "substantial protection with which the existing law surrounds the person accused of crime," Duncan v. Missouri, 152 U.S. 377, 382-383, 14 S.Ct. 570, 571-572, 38 L.Ed. 485 (1894), or which arbitrarily infringe upon preexisting "substantial personal rights." Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 508, 59 L.Ed. 905 (1915). See also Kring v. Missouri, 107 U.S. 221, 228, 2 S.Ct. 443, 444, 27 L.Ed. 506 (1883) (defining ex post facto laws as those which "in relation to the offense or its consequences, alters the situation of a party to his disadvantage").

When interpreting our state constitution's Ex Post Facto Provision, Texas cases have followed the Supreme Court lead. Of particular interest is the case of Ex parte Abahosh, cited by the Court of Appeals in this case to support its holding. In Abahosh, a panel of this Court held that a statute, enacted after a defendant had pled guilty to criminal charges and which restricted his privilege to appeal from that plea, acted to deprive the defendant of "substantial protections." Specifically, Presiding Judge Onion, writing for the panel, stated:

"At the time of the guilty pleas and the entry of the judgments assessing punishment, appellant's plea bargain did not give the trial court the authority to nullify his right to appeal. To apply the 1977 amendment of Article 44.02, supra, retroactively merely because there was a delay and the imposition of sentence and the giving of the notice of appeal were after the effective date of the amendment would result in depriving the petitioner of substantial protection --the right to appellate review. See Ex parte Roper, supra. This would be a violation of Article I, § 16 of our State Constitution, and further violate fundamental fairness embodied in 'the due course of the law of the land.' Article I, § 19, Texas Constitution." 561 S.W.2d at 204 (emphasis added).

Other Texas cases utilizing the Thompson "substantial protections" concept of ex post facto analysis are: Ex parte Alegria, 464 S.W.2d 868, 872 (Tex.Cr.App.1971) (recognizing "substantial disadvantage" test); Ex parte Rutledge, 741 S.W.2d 460, 461-462 (Tex.Cr.App.1987) (same); Hill v. State, 146 Tex.Crim. 333, 171 S.W.2d 880, 883-884 (App.1943) (Court seemingly adopts "substantial disadvantage" test but purports to accept Calder v. Bull definition as exclusive test for ex post facto analysis). Recently, however, the Supreme Court, utilized a case originating in this State to reevaluate Thompson and its progeny.

In Collins v. Youngblood, supra, the Court was asked to determine if Article 37.10(b), V.A.C.C.P., ³ when applied to a defendant after the commission of his crime but before appellate review, violated the ex post facto prohibition of Article 1, Section 10, of the United States Constitution. The Court found that it did not and in so doing disavowed the Thompson line of cases. The Court wrote:

"Several of our cases have described as 'procedural' those changes which, even though they work to the disadvantage of the accused, do not violate the Ex Post Facto Clause. [Citations omitted.] While these cases do not explicitly define what they mean by the word 'procedural,' it is logical to think that the term refers to changes in the procedures by which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes. Respondent correctly notes, however, that we have said a procedural change may constitute an ex post facto violation if it 'affects matters of substance,' Beazell [v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68 , 70 L.Ed. 216 (1925) ] by depriving a defendant of 'substantial protections with which the existing law surrounds the person accused of crime,' Duncan v. Missouri, 152 U.S. 377, 382-383, 14 S.Ct. 570 [571-572], 38 L.Ed. 485 (1894), or arbitrarily infringing upon 'substantial personal rights.' Mallory v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507 , 59 L.Ed. 905 (1915); Beazell, supra, 269 U.S. at 171 .

"We think this language from the cases cited has imported confusion into the interpretation of the Ex Post Facto Clause." 110 S.Ct. at 2720.

The Youngblood Court determined that the interpretation most faithful to the "original understanding" of the Ex Post Facto Clause is that espoused in Calder and that case law adopting the Thompson analysis is inconsistent "with the understanding of the term 'ex post facto ' at the time the Constitution was adopted." 110 S.Ct. at 2722. ⁴ The Court determined that Article 37.10(b) "does not punish as a crime an act previously committed, which was...