                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS
 TIMOTHY EDWARD WHITINGTON,                       §
                                                                  No. 08-13-00102-CR
                              Appellant,          §
                                                                     Appeal from the
 v.                                               §
                                                                   432nd District Court
 THE STATE OF TEXAS,                              §
                                                                of Tarrant County, Texas
                              Appellee.           §
                                                                     (TC#1284003R)
                                                  §

                                  OPINION ON REHEARING

       In denying Appellant’s ex post facto claim, we held that Appellant was required to show

that the statute itself operates retroactively, not that the trial court applied it retroactively. We

based our holding on Ortiz v. State, 93 S.W.3d 79, 91 (Tex.Crim.App. 2002), in which the Court of

Criminal Appeals concluded there was no ex post facto violation because the appellant failed to

show, or argue, that a statute itself operated retroactively, but rather complained only about the

trial court’s erroneous retroactive application of the statute in the jury charge. We noted that, like

the statute in Ortiz, the continuous sexual abuse statute does not itself operate retroactively;

indeed, the statute explicitly provides that it does not apply to acts of sexual abuse committed

before its effective date of September 1, 2007. See Act of May 18, 2007, 80th Leg., R.S., ch. 593,

§§ 1.17, 4.01(a), 2007 TEX. GEN. LAWS 1120, 1127, 1148. Therefore, we concluded that the error
                                                  1
that occurred in this case, in which the trial court allowed the jury to consider conduct occurring

before the effective date of the statute, resulted from the trial court’s erroneous application of the

statute, which did not amount to an ex post facto violation.

        On rehearing, Appellant contends that our holding conflicts with the United States

Supreme Court decision in Peugh v. United States, __U.S.__, 133 S.Ct. 2072, 186 L.Ed.2d 84

(2013). In particular, Appellant asserts that Peugh stands for the proposition that a trial court’s

improper retroactive application of a statute may violate the Ex Post Facto Clause. We disagree.

        In Peugh, the defendant was convicted of five counts of bank fraud that occurred in 1999

and 2000. The trial court sentenced him to 70 months’ imprisonment based on the Federal

Sentencing Guidelines issued by the United States Sentencing Commission in 2009, rather than on

the 1998 Guidelines that were in effect at the time he committed his offenses.1 Id. at 2079. The

defendant in Peugh contended that the trial court’s application of the 2009 Sentencing Guidelines

violated the Ex Post Facto Clause, and that he should have instead been sentenced under the 1998

version of the Sentencing Guidelines that were in effect at the time of his offenses. Id. at 2078.

        The Supreme Court initially noted that the Ex Post Facto Clause only forbids the passage

of ex post facto “laws”; as such, the Court questioned whether the Sentencing Guidelines had the

force and effect of law for purposes of the Ex Post Facto Clause. Id. In answering this question

in the affirmative, the Court initially pointed out that the Guidelines were promulgated by the

United States Sentencing Commission, which, in turn, was created by Congress for the delegated

purpose of adopting mandatory sentencing guidelines. Id. at 2079. The Court further noted that

18 U.S.C. § 3553(a)(4)(A)(ii) expressly instructs district courts to apply the Sentencing Guidelines

1
  The applicable sentencing range under the 1998 Guidelines was 30 to 37 months, while the sentencing range rose
under the 2009 Guidelines to 70 to 87 months, making the low end of the 2009 Guidelines 33 months higher than the
high end of the 1998 Guidelines range. Id. at 2078-79.
                                                       2
that are “in effect on the date the defendant is sentenced,” rather than the Guidelines in effect at the

time the defendant’s offense was committed. Id. at 2081. Because the defendant in Peugh did in

fact receive an increased punishment based on the trial court’s application of the Commission’s

2009 Sentencing Guidelines, which were adopted after he committed his offense, the Court held

that this violated the Ex Post Facto Clause.

        Appellant points out that in reaching this result, the Court in Peugh stated that the scope of

the Ex Post Facto Clause “is not limited to legislative acts,” and he believes that the Court thereby

intended to expand the scope and applicability of the Clause to other non-legislative situations,

such as when trial courts mistakenly apply laws retroactively. However, as the Texas Court of

Criminal Appeals explained in Ex parte Heilman, 456 S.W.3d 159 (Tex.Crim.App. 2015), Peugh

does not stand for this proposition.

        In Heilman, the Court recognized that under the holding in Peugh, it is not just the

legislature acting alone that may violate the Ex Post Facto Clause, and that executive agencies

may also violate the Clause when they are exercising rule-making authority delegated to them by

the legislature. Id. at 165 (noting that the legislature “cannot escape the strictures of either the

Texas or federal Ex Post Facto Clause by mere delegation”). However, the Court in Heilman

made it clear that Peugh did not expand the scope of the Ex Post Facto Clause to situations in

which a trial court has simply erred by misapplying a law retroactively; instead, the Court

explained that the error must have some “legislative origin” for the Ex Post Facto Clause to be

invoked. In particular, the Court noted that Peugh requires courts to “look beyond the actor that is

directly committing the alleged [ex post facto] violation for some legislative origin of the alleged

violation – such as the enabling statutes of either the United States Sentencing Commission in


                                                   3
Peugh, or the state parole board in Garner.” 2 Id. The Court concluded that “the Supreme

Court’s reasoning in Peugh reaffirms our holding in Ortiz that the Ex Post Facto Clause is

‘directed at the Legislature, not the courts.’” Id. at 165.

         Applying this rationale, the Court in Heilman found that no ex post facto violation occurred

where the trial court’s conduct – in accepting a plea agreement that allowed a defendant to plead

guilty to an otherwise time-barred plea offense – originated from the parties’ plea negotiations, and

did not derive from any law or rule enacted by the Legislature or a delegated body. Id.

         Similarly, in the present case, Appellant cannot point to any “legislative origin” for the

error in the trial court’s jury charge. The erroneous jury charge did not arise from any law or rule

promulgated by the Legislature or from any other legislative or executive body having delegated

rule-making authority.         In fact, as stated above, the continuous sexual abuse statute itself

explicitly disallows its ex post facto application, and the trial court therefore simply erred when it

applied the statute in that manner.

         As Peugh did not extend the scope of the Ex Post Facto Clause to judicial actions of this

nature, we conclude that Appellant has not shown an ex post facto violation based solely on the

trial court’s erroneous jury charge in this case. Appellant’s motion for rehearing is denied.


                                                      STEVEN L. HUGHES, Justice
July 1, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)


2
  In Garner, the U.S. Supreme Court held that the retroactive application of a rule promulgated by a state parole board
could arguably violate the Ex Post Facto Clause, as the Board operates under an “enabling statute” enacted by the
Georgia Legislature, which allowed the Board to adopt such rules and to make determinations regarding a prisoner’s
release. Garner v. Jones, 529 U.S. 244, 257, 120 S.Ct. 1362, 1371, 146 L.Ed.2d 236 (2000).
                                                          4
