                IN THE 252nd,CRIMINAL DISTRICT COURT
                    FOR THE COUNTY OF JEFFERSON      R.ECEIVIED IN
                          sTATE oF TExAs        eou~r   oF
                                                        cRJWIINALAPPEALs
JAMES ISHMAEL TIBBS
                                                        MAY 13 2015
      -Vs.-                        Cause No. 21560

THE STATE OF TEXAS                                    Abel Acosta, Clerk
                        APPLICATION FOR WRIT

To: THE HONORABLE JUDGE WEST OF THE ABOVE SAID COURT.

    Comes now,JAMES ISHMAEL TIBBS, •• pursuant to Artical I,Sec.
10,Clause 1,of the u.s.C.A. -(no state •.. shall p~ss any bill of
attainder,ex post facto law,or law impairing the Obligation Of ~o
Contracts; ..

   .. Derek J. T. Adler, .. explaning that "the term' ex post facto law
wo~ld lit~rally refer to any law ... which gives legal consequences
to actions or events that took place before the date of its ...
passage" ..

    Ogden,25 U.S. at 266, •. explaining that'the states are forbidd
en to pass any •. ex post facto law,by which a man shall be punishe
criminally or penally,by loss of life,of his liberty,property,for
an act,which,at the time of its commission,violated no existing 1
law of the land" ••

••• Specifically •••

    A persons trial ends June 3rd,1994, •• under the laws that were
in effect the Judgment,Conviction,Sentance and Punishment was ove
Complete,.SEX OFFENDER REGISTRATION C.C.P. art.62.102, .. was not i
in effect untill Sept.1st, 1997,.it only applied to a person who
was eligable under applicable state law, •• Therefore Applicant is
not eligable,because this law was not in effect,it violates the
u.s.c.A. ex post facto and bill of attander Clause, •• sawyer V.
Whitly,112 Sct.2514, ••• Double Jeopardy Attaches,.because Multiple
Prosecutions for the same offence, .• a person who was tried convic
ted,sentanced and punished the Judgment held the new laws provisi
ons that were Adjudicated,.because of that; .. the Judge Orde~ed
a person to comply with .Sex Offinder Registration,C.C.P. Artical
62.102,Provisions, •. Failure to Comply where that law is applicabl
did not Require Indictment,.because the court Orders Failure to
Comply was CUREABLE and they were only arrested for a Capious
Profine or Contempt of Court Order, .• NOT A 25 to LIFE SENTANCE
TO PRISON_FOR THREE STRIKES FELONY CONVICTION •• which is a GLOSED
DOOR to the only Defence Avaliable A FIRST FEDERAL CLAIM OF ACTUA
INNOCENCE, see cf Lonkar V Thomas, 116 Set. 1293, •• First Federal
Claim Of Actual Innocence,.GATE-WAY-EXCEPTION,.where Schulp V.
Delo,115 Sct.851, •• no single juror acting rationally would lack
a reasonable doubt, .•• or vote to convict ,.is an AQUITTAL the end
RESULT
                                 1•
It is outside an assment as to whether no single juror laked
a reasonable doubt, •. because an Aquittal is cl~arly de~ined in
the GATE-WAY-EXCEPTION,Actual Innocence Acception For Procedural
Bar On A First Federal Claim, ..• Exhibit (A) •• a Subpoina was
sereved on Buellas Tibbs Grisham,.However; she was not Present
for Trial,and her testimony was reguirea ~sa Matter of l~w, •.•
because it was favorable to Defence,Because; •• the D.A. KNEW that
the .• SY~OPSIS OF OFFENSE~.is false and that both of her children
had motives,and she was interviewed by (CPS)-Agents,NOVEM~ER 30th
1989, .. Applicant was interviewed, .. Bonnie,and Damiens punititave
confession to (CPS) was the reason she lied about being sexually
assaulted was because Applicant slapped JACK, •• I,admitted to the
accusation of slapping JACK the younges boy~ •• Applicant has been
denied Brady material that had the jury heared, •• it is more likle
than not no single juror would lack reasonable doubt,or voted to
convict, ••. ,,

Applicant,JAMES ISHMAEL TIBBS, swears under penalty of perjury in
compliance wi~h 28 U.S.C.A. 1746 that the £oregoing clai~s are
true and correct.

    state Of texas
    County of Jefferson

         Swornto and subscribed on this,Jltb__,day of    frfay   2ojS


                                      ()_~~'7Jk
                                      ~ A fiant
                                           James Ishmael Tibbs
                                           3955 Rothwell Str,
                                          Beaumont,Texas 77705

•.. Relief •••

    The trial Court to SUBPOENA Buellas Tibbs Grisham for a jury
trial,or a hearing to resolve the issue of whether a reasonable J
doubt exzisted,under the Actual Innocence Acception, or the Brady
V. Maryland,suppression of favorable evidence to Applicant, ••••

    Also whether the ex post facto law is offended •••• and as to
whether in this particular case double jeopardy Attaches?

                               ~~TFULLY SUBMITTED

                                  ~~/~-ih
                                  James Ishmael Tibbs


                                 2.
EXHIBIT (A)
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                                           JAMPs TIBBS


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                                      EXHIBIT (fi.)
    .....   . . •)
y




                     Journal of Criminal Law and Cr-iminology
                     Volume91
                                                                                                                                                                 Article 4
                     Issue 2 Winter


                     Winter 2001


                     It's an Ex Post Fact: Supreme Court Misapplies the
                     Ex Post Facto Clause to Criminal Procedure
                     Statutes
                     Danielle Kitson




                     Follow this and additional works at: http:/ /scholarlycommons.law.northwestern.edu/jdc
                     0   Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal
                     Justice Commons


                     Recommended Citation
                     Danielle Kitson, It's an Ex Post Fact: Supreme Court Misapplies the Ex Post Facto Clause to Criminal Procedure Statutes, 91 J. Crim.
                     L. & Criminology429 {2000-2001)



                     This Supreme Court Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been
                     accepted for inclusion in Journal of Criminal Law and Criminology by an authorized administrator of Northwestern University School of Law Scholarly
                     Commons.
 I
\.




     0091-4169/01/9102~
     llrE jOUIINAl. OF CRIMINAL LAW &: CIU.\I!:'OLOCY                                Vul 91. N<l 'l
     CoP}right C 2001 by Nonh,.-esttm Uni\'ersil)', School of   uw                           t: S:\
                                                                                    i'teL-.J "'




      IT'§ AN EX POST JFACT: SUPREME COURT
      MII§APPLIES THE EX POST FACTO ClAUSE
        TO CRIMINAL PROCEDURE STATUTES

             Carmell v. Texas, 120 S. Ct. 1620 (2000)

                                               I. INTRODUCTION
             In Carmell v. Texas, 1 the Supreme Court held that the Ex
     Post Facto Law Clause of the United States Constitution2 prohib-
     ited the application of a Texas statute of criminal procedure 5 in
     trials against sexual offenders for their offenses committed prior
     to the amendment of the statute in 1995.4 The Court reasoned
     that the amendment to the Texas statute altered the sufficiency
     of the evidence needed to convict criminal defendants, and thus
     it qualified as an ex fOSt facto law as such under the seminal
     case of Calder v. Bull. In particular, the court was persuaded
     that the facts of Carmell mirrored the 300 year-old case of Sir
     John Fenwick, the same case that Justice Chase cited in CaldeT'




         I120 s. Ct. 1620 (2000).
        2
          U.S. CONST. art. I, § 10, d. 1. ("No state shall ... pass any Bill of Atlainder. ex
     post facto Law, or Law impairing the Obligation of Contracts ....·}.
        ' The Statute authorized conviction of sexual offenses on a victim's testimony
     alone, under certain conditions. See TEx. CoDE CRIM. P. ANN. an. 38.07 (West2000)
     (providing that a conviction "is supportable on the uncorroborated testimony of the
     victim of a sexual offense if the victim informed any person, other than the defen-
     dant, of the alleged offense within one year after the date on which the offense is al-
     leged to have occurred," or if"the victim was younger than 18 years of age at the time
     of the alleged offense.")
        • See Cannell, 120 S. Ct. at 1643 (holding that petitioner's convictions pursuant to
     Article 38.07 could not be sustained under the Ex Post Facto Law Clause).
        5
          See id. at 1625, 1631 (reasoning that "Article 38.07 is unquestionably a law 'that al-
     ters 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 of-
     fender."); Calder v. Bull, 3 U.S. 386,390 (1798) (noting that"e\'ery law that alters the
     legal rules of evidence, and receives less, or different, testimony, than the law re-
     quired at the time of the commission of the offence, in order to convict the of-
     fender," is an ex post facto law).
        6
          3 U.S. at 389.

                                                                429
430                            SUPREME COURT REVIEW                                   (Vol. 91

for the proposition that statutes altering the sufficiency of the
evidence needed to convict were invalid ex post facto laws. 7
     This Note argues that the Supreme Court's decision was inM
correct. First, the majority incorrectly found that Texas Article
38.07 altered the sufficiency of the evidence needed to obtain a
            8
conviction. Instead, Texas Article 38.07 is functionally identical
to rules of witness competency, and is not ex post facto as such
under the principles of Calder. 9 Second, the Court erroneously
analopzed the facts of John Fenwick's case to Cannell's situaM
     1
tion. Finally, even if the majority were correct in its assertion
that Texas Article 38.07 qualifies as an ex post facto law as deM
                  1
fined in Calder/ the majority ignored subsequent case law that
effectively reinterpreted the Calder definition, to the exclusion
of Calder's fourth category of ex post facto laws, those which al-
ter the legal rules of evidence. 12

                                    II. BACKGROUND

A       IllSTORY AND PURPOSE OF THE EX POST FACTO ClAUSE
    Article I, Section I 0, clause 1 of the United States Constitu-
tion provides that "no state shall ... pass any bill of attainder, ex

    7
      See Cannell, 120 S. Ct. at 1629, 1631 (noting that "the circumstances of peti·
tioner's case parallel those of Fenwick's case 300 years earlier").
   a See id. at 1648 (Ginsburg,]., dissenting) (arguing that the majority "places ... its
greatest weight on the 'sufficiency of the evidence' label," a label that "will not stick").
   9
      See id. at 1649 (Ginsburg, J., dissenting) (reasoning that "the corroboration re·
quirement of Article 38.07 is functionally identical to a conditional rule of witness
competency").
   10
       See id. at 1654 (Ginsburg, j., dissenting) (reasoning that the facts of the peti·
tioner's are distinguishable from the facts of Fenwick's case).
   11
      3 U.S. at 390 (writing for the majority, Justice Chase explained that there were
four categories of ex post facto 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. 2nd. Every law that aggra·
    vates a crime, or makes it greater than it was when committed. 3rd. 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 Jaw required at the time of the commission of the offence, in
  order to convict the offender.
The fourth category is at issue in Carmel!).
     See id.; Cannell, 120 S. Ct. at 1651 (Ginsburg, J, dissenting) (reasoning that the
     12

Calder definition had been changed, and that "a strong case can be made that ... [the
Court) pared the number of Calder categories down to three, eliminating altogether
the fourth category").
                  2001]                            CARMEIL V. TEXAS                                      431

                        post facto law, or law impairing the obligation of contracts. " 13
                        The framers of the Constitution drafted this clause in order to
                        restrain State legislatures from acts of injustice against citizens,
                        in both criminal and civil matters.'• In particular, the framers
                        were concerned with the power of the Parliament of Great Brit-
                        ain to pass bills of attainder and bills of "pains and penalties"
                       specifically against individuals or classes of individuals. Bills of
                        attainder irriposed a sentence of death and bills of pains and
                       penalties imposed lesser punishment. 15 The framers were con-
                       cerned that bills of attainder violated the principle of separation
                       of powers. When a legislature passed a bill of attainder, the leg-
                       islature passed judgment on an individual. The framers consid-
                       ered this act to be "an exercise ofjudicial power."'G
____________________________ Literally, the prohibition against ex post facto laws encom-
                      -passes any law ·with a retrospective application, that is, any law
                                                  17
                       applying "after the fact. " At the very heart of this prohibition is
                       the notion that a citizen cannot be deprived of life, liberty,
                       property, or reputation for an act which, at the time it was
                       committed, did not violate any law. 18 As the Court noted in
                       Ogden v. Saunders, 19 "laws of this character are oppressive, unjust,
                       and tyrannical; and, as such, are condemned by the universal


                     15
                         U.S. CoNST. art. I, § 10, cl. 1.
                     14
                         It is important to note that the clause includes three categories of impennissible
                  laws: bills of attainder, ex post facto laws, and laws impairing the obligation of con-
                  tracts. The first two deal with criminal matters; the third with civil maucrs. Se2
                  Ogden v. Saunders, 25 U.S. 213, 216 (1827) (explaining that the framers prohibited
                  bills of attainder and ex post facto laws "in order to restrain the State legislatures
                  from oppressing individuals by arbitrary sentences, clothed with the forms of legisla-
------'-tion, and from making retrospective laws applicable to criminal mauers").
                      15
                         See Calder, 3 U.S. at 389.
                      16 Id.
                      17
                         See id. at 390 (reasoning that the literal meaning of ex post facto is "on!)•, that a
                  law shall not be passed concerning, and after the fact, or thing done, or action com-
                  mitted"); DerekJ.T. Adler, Ex Post Facto Limitnlwns on Cluznges in ET.ridenliary Lou•: &-
                  peal of Accomplice Comlboralion Requirements, 55 FORDHAM L. RE\•. 1191, 1192 {1987)
                  (explaining that the term "ex post facto law" would "literallr refer to any law ...
                  which gives legal consequences to actions or events that took place before the date of
- - - - - - I · t s passage").
                      11
                         Ogden, 25 U.S. at 266 (explaining that "the States are forbidden to pass any ...
                  ex post facto law, by which a man shall be punished criminally or penall)"• by loss of
                  life, of his liberty, property, or reputation, for an act which, at the time of its commis-
                  sion, violated no existing law of the land").
                      19 Id.
432                         SUPREME COURT REVIEW                                 [Vol. 91
                                        20
sentence of civilized man. " The Court recognized in Calder
that entrusting State and Federal·legislatures with such power
was contrary to the core concept of free Republican govern-
ment, in which men enter into society willingly in order to form
                   21
a social compact. As Justice Chase explained, "this fundamen-
tal principle flows from the very nature of our free Republican
governments, that no man should be compelled to do what the
laws do not require; nor to refrain from acts which the laws
permit." 22 The framers of the Constitution infused a great deal
of power into the federal legislature, but also left a great deal of
power to the state legislatures to "enjoin, permit, forbid, and
punish; . . . declare new crimes; and establish rules of conduct
for all ... citizens in future cases; ... [and] command what is
right, and prohibit what is wrong." 23 However, the framers did
not entrust the federal or the state legislatures with the power to
"change innocence into guilt; or punish innocence as a crime;
or violate the right of an antecedent lawful private contract; or
the right of private property. "24
     Commentators have noted that the Ex Post Facto Clause in
the Constitution serves three main functions. 25 First, it provides
notice to the public "to assure that legislative acts give fair warn-
ing of their effect. "26 Second, it protects the right of citizens to
reasonably rely on existing laws in choosing what actions to take,
without fear that the laws will be changed capriciously or mali-

   20
       /d. (" [T] he injustice and tyranny which characterizes ex post facto laws, consists
altogether in their retrospective operation, which applies with equal force, although
not exclusively, to bills of attainder.").
    21
       See Calder, 3 U.S. at 388; Wayne A. Logan, The Ex Post Facto Clause and the jurispru-
dence of Punishment, 35 AM. CRIM. L. REv. 1261, 1275 (1998) (noting that ':James Madi-
son proclaimed that 'ex post facto laws ... are contrary to the first principles of the
social compact, and to every principle of sound legislation").
    22
       Calder, 3 U.S. at 388.
    u Id.
    24 !d.
    25
       See Adler, supra note 17, at 1196-97; DavidS. Matteo, Welcome to Anytown, U.S.A.-
Harne of Beautiful Scenery (and a Convicted Sex Offender): Sex Offender Regis!ration and N()o
tifuatwn LAws in E.B. v. Verniero, 43 VILL. L. REv. 581, 595 (1998); Logan, supra note
21, at 1276.
    26
        See Carmell v. Texas, 120 S. Ct. 1620, 1650 (2000) (Ginsburg, J., dissenting)
(quoting Weaverv. Graham, 450 U.S. 24, 28-29 (1981) ); Adler, supra note 17, at 1196.
(noting that it "ensures that citizens are given fair warning of what acts will be penal-
ized and to what extent"); Matteo, supra note 25, at 595; Logan, supra note 21, at 1276
(noting that "ex post facto Jaws are especially unfair because they deprive citizens of
notice of the wrongfulness of behavior, and thus result in unjust deprivations").
 2001]                            CARJviELL V. TEXAS                                     433
           27
ciously. Third, it preserves the principle of separation of pow-
ers by ensuring that "legislatures do not meddle with the judici-
ary's task of adjudicating guilt and innocence in individual
cases. "28 The ban on ex post facto ·laws not only prevents the
legislature from adjudicating guilt and innocence for an indi-
vidual, but it also prevents the legislature from acting in an arbi-
trary or vindictive fashion while acting in a judicial vein.a

B. TIIE EARLY CASES: CALDER V. BULL AND CUMMINGS V. l\fiSSOURI
    The early case of Calder v. BuU was the first to address the Ex
Post Facto Clause of the Constitution. so In the oft-quoted opin-
ion written by Justice Chase, the Court explored the parameters
of the Clause, and set out a four-category definition of ex post
facto laws. 31 In the case of Cummings v. Missouri, 12 the Court first
applied the fourth Calder category, regarding a law that "alters
the legal rules of evidence, and receives less, or different, testi-
mony, than the law required at the time of the commission of
the offence, in order to convict the offender...ss Consideration
of these two early cases is crucial to understanding which pro-
cedural provisions the Court understood to be ex post facto in
nature.
    Calder v. Bull involved a resolution passed by the legislature
of Connecticut that set aside a decree of the Court of Probate of
Harford. 34 The decree in question disapproved and refused to
record Normand Morrison's will.S!l As a result of this legislative

   27
       See Adler, supra note 17, at 1197; Mary-Marsha Porter Loe, Arl;ansas Saual Of
fender Registration and Notification lAws: An Ex Post Facto Vrolation 7, 53 ARK. L. R£\'. 175,
189 (2000} (explaining that "in order to achieve fundamental fairness, people must
know the law before they act"); Co:rmell, 120 S. CL at 1650 (Ginsburg,j., dissenting)
 (qwtingWeaver v. Graham, 450 U.S. 24, 28-29 (1981} } (noting that the Clause "per-
mit[s] individuals to rely on ... [a law's] meaning until explicidy changed").
   sa See Carmell, 120 S. CL at 1650; Adler, supra note 17, at 1193-94 (explaining that
the framers included the Ex Post Facto Clause to "uphold the separation of powers by
preventing improper legislative interference in the judicial process").
   29
       See Adler, supra note 17, at 1197 (e.-.:plaining that the ban on ex post facto laws
"prevents arbitrary or vindictive acts on the part of the legislature"}; Matteo, supra
note 25, at 595.
   sa SeeCalderv. Bull, 3 U.S. 386, 387 (1798}.
   51
      See supra note 11 (setting out the four-category definition).
   52
      71 u.s. 277 (1866).
   55
      Calder, 3 U.S. at 390.
   54
      Id. at 386.
   55 ld.
 434                         SUPREME COURT REVIEW                              [Vol. 91

 resolution, Mr. Morrison's will was probated and recorded. 36
 Calder and his wife, who would have inherited the estate if the
will had not been probated, as the Court of Probate had origi-
nally ordered, were disinherited. 37 Caleb Bull, whose wife was
named in Mr. Morrison's will, inherited the estate. 38 Calder and
his wife claimed on appeal that the legislative resolution to set
aside the decree of the probate court was an ex post facto law. 59
     The Court held that the legislative decree was not an invalid
ex post facto law. 40 Justice Chase reasoned that the Ex Post
Facto Clause encompassed only penal statues, and that the
"framers of the Constitution ... understood and used the words
in their known and appropriate signification, as referring to
crimes, pains, and penalties, and no further.""' Because Cal-
der's case involved a civil matter, the legislative resolution could
not be ex post facto under the Constitution as a matter of defi-
nition. 42 Justice Chase further explored the Ex Post Facto
Clause in reaching his holding, and explained there were four
types of ex post facto 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.
  2nd. Every law that aggravates a crime, or makes it greater than it was,
  when committed. 3rd. Every law that changes the punishment, and in-
  flicts 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
                                                                     43
  the commission of the offence, in order to convict the offender.
    In developing this definition, Justice Chase explained that
he relied heavily on the works of William Blackstone and Rich-

   36
           See id.
       7
   '       See id. at 387.
   "'/d.
   u Id.

    •o See id. at 397 (noting that ex post facto laws are limited to penal statutes: "they
extend to penal statutes and no further; they are restricted in legal estimation to the
creation, and, perhaps, enhancement of crimes, pains and penalties") .
    .. !d. See Adler, supra note 17, at 1193 (explaining that the Ex Post Facto Clause
has been interpreted to prohibit only legislative acts that operate to the detriment of
a criminal defendant).
    42
       3 U.S. at 397 (noting that "ex post facto laws must be limited in the manner al-
ready expressed [to criminal statues]; they must be taken in their technical, which is
also their common and general, acceptation, and are not to be understood in their
literal sense").
    "ld. at 390.
 2001]                          CARMELL V. TEXAS                                     435

 ard Wooddeson, as well as the definitions given in the constitu-
 tions of Maryland, North Carolina, and Massachusetts. 44
     As an example of the fourth category of ex post facto laws,
Justice Chase cited briefly to the case of Sir John Fenwick in
       45
 1696. The details of this case are important because the Car-
 mell Court relied significantly on them in determining that laws
that altered the sufficiency of evidence needed to obtain a
criminal conviction were ex post facto. 16
   . In Sir John Fenwick's case, an act of Parliament proclaimed
that two witnesses were necessary to convict a person of high
          47
treason.      John Fenwick, a Jacobite, plotted with two co-
conspirators to restore James II to the throne after his over-
throw by King William Ill in the Revolution of 1688.19 The
number of conspirators expanded over the course of a few
months, and the throne began arresting the conspirators one by
one after three of them disclosed the restoration plot to the
King. 49 The conspirators were systematically arrested, tried,
convicted of treason and put to death.50
     When Fenwick was eventually arrested, there were only two
witnesses among the group of conspirators who could prove
Fenwick's guilt, George Porter and Cardell Goodman.51 Fen-
wick's '\vUe was successful in bribing Goodman to leave the
country, and under the act of Parliament, Porter's testimony
alone would not be sufficient to obtain a conviction. 52
     The House of Commons reacted to Goodman's absence by
passing a bill of attainder against Fenwick, nullifying the two-

   44
      See id. at 391. It is important to note that none of the Constitutions cited by Jus-
tice Chase included a provision for the fourth category of Calder. The Massachusetts
constitution provided that ex post facto laws were "laws made to punish actions done
before the existence of such laws, and which have not been declared crimes by pre-
ceding laws; the Maryland Constitution provided that ex post facto laws were "retro-
spective Jaws punishing facts committed before the existence of such Jaws, and by
them only declared criminal"; and the North Carolina Constitution provided the ex-
act same definition as the Maryland Constitution. ld. at 391-92.
   45
      See id. at 389 n.A.
   46
      See infra, Section IVA, at 37 (discussing the majority's analogy between the facts
ofCarmell's case and the facts of Fenwick's case).
   0
      SeeCarmell v. Texas, 120 S. Ct. 1620, 1629 (2000) .
   .a Seeid.
   c9 See id.

   ~ Seeid.
   s• See id.
   52
      See id. at 1630.
 436                        SUPREME COURT REVIEW                                [Vol. 91

 witness requirement in his case.53 Sir John Fenwick was be-
                                54
 headed onJanuary 28, 1697. Justice Chase cited to Fenwick's
 case as an example of ex post facto laws falling under the fourth
 category, laws which alter the rules of evidence necessary to ob-
                   55
tain a conviction.
     In their concurring opinions in Calder, Justices Paterson and
Iredell provided their own definitions of ex post facto laws. 56
Neither Iredell nor Paterson discussed Justice Chase's fourth
          57
category. Justice Paterson adopted the language of the state
Constitutions of Maryland, North Carolina, and Massachusetts,
as well as William Blackstone's description of ex post facto
      58
laws. Justice Iredell provided the following definition: "[legis-
latures] shall not pass any ex post facto law; or, in other words,
they shall not inflict a punishment for any act, which was inno-
cent at the time it was committed; nor increase the degree of
punishment previously denounced for any specific offence." In
adopting the language of the state constitutions, neither Justice
Iredell nor Justice Paterson made any mention of laws altering
the sufficiency of the evidence needed to obtain a criminal con-
viction when formulating a definition of ex post facto laws. 59
     The Court did not consider the fourth Calder cat~ory again
until sixty-eight years later, in Cummings v. Missouri. In Cum-
mings, the Court applied the fourth Calder category to invalidate
a "test oath" imposed by the Missouri state constitution. 61 In the
wake of the Civil War, Missouri's legislature implemented the
                                                 62
oath, designed to ensure loyalty to the Union. The affiant of
the oath was required to deny "that he ha[d] ever 'been in
armed hostility to the United States, or to the lawful authorities

   ss  See id.
   sc  Id.
    ss SeeCalderv. Bull, 3 U.S. 386,390 n.A (1798).
   56
       See id. at 395-400.
   57
       See id.; Carmell, 120 S. Ct. at 1651 (Ginsburg,]. dissenting) (highlighting the fact
that justices Paterson and Iredell in their own seriatim opinions gave no hint that
they considered rules of evidence to fall within the scope of the Clause") .
   .ss 3 U.S. at 396 ("[W)hen after an action, indifferent in itself, is committed, the
Legislator, then, for the first time, declares it to have been a crime, and inflicts a pun-
ishment upon a person who has committed it.").
   59
       See Camzell, 120 S. Ct. at 1651 (Ginsburg,]., dissenting).
   60
       71 u.s. 277, 316 (1866).
   61 Id.
   62
        See id.
2001]                            CARMELL V. TEXAS                                      437

 thereof,"' or "that he ha[d] ever, 'by act or word,' manifested
 his adherence to the cause of the enemies of the United States,
                            55
foreign or domestic . . .. " The Missouri constitution provided
 that any person who was unable to take the oath was declared
 incapable of holding certain offices in the state, including "'any
 office of honor, trust, or profit. "64 These offices included the
posts of "councilman, director, or trustee, or other manager of
any corporation, public or private, . . . professor or teacher in
any educational
         65
                    institution, or in any common or other
school. " Additionally, the constitution provided- that anyone
who did not take the oath could not practice law, or practice as
a "bishop, priest, deacon, minister, elder, or other clergyman, of
any religious persuasion, sect, or denomination. "66 Cummings,
a Roman Catholic Priest, was convicted of teaching and preach-
ing without first having taken the oath.67 Cummings challenged
the oath on the grounds that it was an invalid ex post facto law.GS
     The Court held that the test oath violated the Ex Post Facto
Clause of the Constitution.69 Justice Field, writing for the Court,
adopted the Calder four-category formulation and reasoned that
the test oath fell under the fourth category, the prohibition on
laws that change the "rules of evidence by which less or different
                                                             70
testimony is sufficient to convict than was then required." Jus-
tice Field reasoned that the clauses in the test oath "subvert the
presumptions of innocence, and alter the rules of evidence,
which heretofore, under the universally recognized principles of
the common law, have been supposed to be fundamental and
unchangeable. "71 Justice Field explained that the test oath
merely assumed that parties v{ere guilty, without affording them
the presumption of innocence that is embedded in our legal
system.72 In promulgating such a test oath, Justice Field argued,


   MId.
   64 Id.
   65
       Id. at317.
   (,6 Id.

   61
       Id. at 316.
   63
       See id. at 307.
   69
       Id. at 332.
   70
       Id. at 326.
   71
       Id. at 328.
   12
       See id. (noting that the clauses in the test oath "assume that the panies are guilty:
they call upon the parties to establish their innocence; and they declare that such in~
 .
'·



     438                       SUPREME COURT REWEW                              [Vol. 91

      the state legislature had subverted one of the great principles of
      "social security, to wit: that every man shall be presumed inno-
                                       73
      cent until he is proven guilty. " Justice Field reasoned that in
     subverting one of the fundamental protections of the criminal
     justice system, the presumption of innocence, the test oath al-
      tered the rules of evidence with regard to the sufficiency of the
     evidence needed to convict, and that the test oath was ex post
     facto under the fourth Caldercategory. 74
     C. THE COURT APPUES TilE FOURTH CATEGORY: KRING V.
     MISSOURI, HOPT V. UTAH, AND THOMPSON V. MISSOURI
          The Court next considered the fourth category of Calder in
     1883's Kring v. Missouri. 15 Shortly after Kring, in 1884, the Court
     took up the subject again in Hopt v. Territory of Utah. 76 In 1898,
     the Court also addressed the fourth category of Calder in Thomp-
                       77
     son v. Missouri.      These cases are important because they
     changed the way in which the Court regarded the fourth Calder
     category, and tested the parameters of which laws fell under the
     fourth category.
         In Kring, the Court invalidated a Missouri law of criminal
     procedure as an invalid ex post facto law under the fourth cate-
     gory of Calder. 78 Kring was charged with first-degree murder,
     but, after negotiations with the prosecutor, ultimately pled
     guilty to second-degree murder. 79 When he was sentenced to
     twenty-five years in prison, Kring appealed the conviction, claim-
     ing that the prosecutor promised only a ten-year sentence.80
     The Supreme Court remanded his case for further proceedings,
     and Kring was then tried and convicted for first-degree murder
     and sentenced to death. 81


     nocence can be shown only in one way-by an inquisition, in the form of an expurga-
     tory oath, into the consciences of the parties").
        7
          ' !d. at 330.
        7< See id.

        '15 107 u.s. 221 (1882).
        76
            llO U.S. 574 (1884).
        77
            171 u.s. 380 ( 1898).
        78
             Kring, 107 U.S. at 235 (explaining that the Missouri law was "clearly ex post
     facto").
        79
            See id. at 222.
        80
            See id.
        er See id.
2001]                           CARlvlEIL V. TEXAS                                  439

    _ The law in Missouri at the time that Kring committed the
 offense provided that a criminal defendant could not be tried
 for first-degree murder after an accepted plea of guilty for sec-
 ond-degree murder '\vas entered. 82 In 1875, after Kring commit-
 ted the offense, that law was abrogated, and criminal defendants
 who pled guilty to second-degree murder could be tried for
 first-degree murder.53
      The U.S. Supreme Court held that the application of the
,f:Lew law to Kring was a violation of the Ex Post Facto Clause.84
 This .holding adopted the fourth category of Calder, and gave it a
 very liberal reading, noting that "any law passed after the com-
 mission of an offense which, ...in relation to that offense, or its
 consequences, alters the situation of a party to his disadvantage,
 is an ex post facto law."85
      In Hopt v. Territory of Utah, the Court limited Kring's some-
what expansive reading of the fourth category of Calder, and
 upheld the application of an amended statute allowing felons to
 testify in criminal cases. 86 The defendant in Hopt was convicted
 of first-degree murder, and his conviction \vas reversed by the
 Court of Appeals on a writ of error. 87 In his second trial, Hopt
was a~ convicted of first-degree murder, and sentenced to
 death. The prosecution at this second trial offered the testi-
mony of a man who was serving a sentence for murder at the
 time that he testifi.ed.89 As of the date that Hopt committed the
 offense, Utah law provided that convicted felons were incompe-
 tent to testify in criminal trials.9D Mter the date of the homicide,
 but before the date ofHopt's first trial, the law was amended to
 allow felons to testify.91 Hopt challenged his conviction on the



   82
       See id. at 224.
   83
       See id. at 223 (noting that the "law was abrogated, and for this reason the defen-
dant could be tried for murder in the first degree, nonvithstanding his conviction and
sentence for murder in the second degree").
   84
       See id.
   as Id. at 235.
   85
       110 u.s. 574, 589 (1882)
   tl7 Id. at 575.

   83 Id.
   39
       See id. at 587.
   ~,See   id.
   91
        See id. at 588.
440                        SUPREME COURT REVIEW                      rvol. 91

basis that application of the new Utah law to his case violated
the Ex Post Facto Clause. 92
    The Court held that application of the new Utah law, allow-
ing felons to testify in criminal trials, did not violate the Ex Post
              9
Facto Clause. ' The Court reasoned that laws affecting witness
competency were not ex post facto under the fourth category of
       94
Calder. Writing for the Court,Justice Harlan explained:
       Statutes which simply enlarge the class of persons who may be com·
  petent to testify in criminal cases are not ex post facto in their applica-
  tion to prosecutions for crimes committed prior to their passage; for
  they do not attach criminality to any act previously done, and which was
  innocent when done, nor aggravate any crime theretofore committed,
  nor provide a greater punishment therefore than was prescribed at the
  time of its commission, nor do they alter the degree, or lessen the
  amount or measure, of the proof which95
                                             was made necessary to convic·
  tion when the crime was committed.
    Justice Harlan further explained that laws of witness compe-
tency did not fall under the fourth category of Calder because
they did not change "the quantity or degree of proof necessary
to establish . . . guilt," and because they did not change the in-
gredients of the offense or the ultimate facts necessary to estab-
lish guilt.96
     In Thompson v. Missouri, the Court again altered the test for
determining whether a law fell under the fourth Calder category,
holding that a procedural law was ex post facto if it affected a
"substantial right" of the criminal defendant. 97 In Thompson, the
defendant was convicted of first-degree murder for the killing of
                                  98
a priest with strychnine poison. Thompson's trial centered on
a p~escription for strychnine that the prosecution offered as
evidence against Thompson. 99 The trial court admitted letters
written in Thompson's hand, allowing the jury to compare the
                                           100
letters to the strychnine prescription.         At the time that
Thompson committed the offense, such letters were inadmissi-

  92
      See UJ.
  9
   s  Id. at 590.
  114
      See UJ. at 589.
  9S Id.

  96
      Id. at 589-90.
  !17 171 u.s. 380, 384 (1898).

  9a See id. at 380-81.
  99
      See id. at 381.
  100
       See id.
..
     2001]                             CARMEIL V. TEXAS                                           441
                                       101
      ble as a matter of law.      In 1895, the general assembly of Mis-
      souri passed a law providing that "comparison of a disputed
     writing with any writing proved . . . to be genuine shall be per-
      mitted to be made by witnesses, and such writings and the evi-
      dence of witnesses respecting the same may be submitted to the
      court and jl:l!Y as evidence of the genuineness ... of the writing
                   102
      in dispute. " Thompson challenged the application of this new
      law to his case, arguing that the letters should not have been
      admitted. 10s
           The Court held that the application of the new Missouri law
      did not violate the Ex Post Facto Clause.uH The Court analyzed
      Kring and Hopt, and adopted the language that procedural laws
     were ex post facto where they "alter the situation of a party to
                          105
     his disadvantage. " The Court added, however, that the altera-
      tion must affect a "substantial right" of the criminal defen-
      dant.106 The Court concluded that "mere modes of procedure,"
                               107
     were not ex post facto.       Finally, Justice Harlan, writing for the
      Court, explained that the law in this case was not ex post facto
      because it did not "disturb the fundamental rule that the state,
     as a condition of its right to take the life of an accused, must
      overcome the presumption of his innocence, and establish his
     guilt beyond a reasonable doubt." 108 Justice Harlan explained
     that the ultimate question of whether Thompson had written
     the prescription was left for the jury to decide, and that the
     jury's decision was governed by the same duty before and after
                              109
      the passage of the law.


        •o• Seeid.
        102 Id.
        103
            See id. at 382.
        •ot Id. at 388.
        105
            I d. at 383.
        105
            See id. at 384 (noting that the law in Kring was invalidated because the right to
     protection against a first-degree murder conviction was a "substantial one").
        107
            Id. at 386.Justice Harlan noted:
       [l]t is well settled that the accwed is not entided of right to be tried in the exact mode, m
       all respects, that may be prescribed for the trial of criminal ClSes at the time or the com-
       mission of the offense charged against him ... so far as mere modes of procedure are con·
       cemed, a pany has no more right in a criminal th:m in a civil action to insist that his case
       shall be disposed of under the law in force when the act to be im·estigated is charged to
       have taken place.
        IGS   Id. at 387.
        109
          Id. (reasoning that the ultimate determination "was left for the jury and the
     duty of the jury. in that particular, 'vas the same after as before the passage of the
442                          SUPREME COURT REVIEW                               [Vol. 91

 D. MODERN INTERPRETATION OF THE EX POST FACfO CLAUSE:
.BEAZELL V. OHIO AND COLUNS V. YOUNGBLOOD
     In the twentieth century, the Court addressed the question
 of whether procedural statutes violated the Ex Post Facto Clause
 in two important cases, Beazell v. Ohio110 and Collins v. Young-
       111
 blood. The Court in Beazell appeared to abandon the Kring and
 Thompson tests for determining if procedural rules violated the
 Ex Post Facto Clause, 112 and in Collins the Court adopted Beazell's
 reasoning, overruling Kring and Thompson outright.m Beazell
 and Collins changed the way the Court analyzed procedural
 rules under the Ex Post Facto Clause.         -
     In Beazell, the Court upheld a statute of criminal procedure
 dealing with defendants who were jointly indicted, tried, and
 convicted. 114 The defendants in Beazell were jointly indicted for
 embezzlement. 115 At the time the defendants committed the of-
fense, Ohio law provided that "when two or more persons are
jointly indicted for a felony, on application to the court for that
purpose, each shall be tried separately. "116 Mter the commission
of the defendants' offense, but before their trials, the law was
changed to provide, "when two or more persons are jointly in-
dicted for a felony, except a capital offense, they shall be tried
jointly, unless the court for good cause shown ... order that one
or more of said defendants shall be tried separately. "117 Beazell
                                                            118
was jointly tried with his co-defendant, and convicted.         He
challenged application of the new law to his case on the basis
that it violated the Ex Post Facto Clause. 119



statute. The statue did nothing more than remove an obstacle arising out of a rule of
evidence .... ").
        269 u.s. 167 (1925).
    110


    Ill 497 U.S. 37 (1990).
    112
        See Beazel~ 269 U.S. at 170-171.
    115
        See Collins, 497 U.S. at 43 (explaining that "the Beazell formulation is faithful to
our best understanding of the Ex Post Facto Clause: Legislatures may not retroac-
tively alter the definition of crimes or increase the punishment for criminal acts.");
ld. at 50-51 (overruling Kring, overruling Thompson).
    114
        See Beazel~ 269 U.S. at 171.
    m ld. at 168.
    116 ld.
    117
        ld. at 169.
    118 ld.
    119
        See id.
2001]                           CARMEU V. TRYAS                                      443

    The Court held that application of the new Ohio statute to
Beazell's case did not violate the Ex Post Facto Clause.'!:'() Justice
Stone, ·writing for the Court, set out the definition of ex post
facto laws as follows:
   It is settled, by decisions of this court so well known that their citation
   may be dispensed with, that any statute which punishes as a crime an act
   previously committed, which was innocent when done, which makes
   more burdensome the punishment for a crime, after its commission, or
   which deprives one charged with crime of any defense available accord-
   ing to law 121at the time when the act was committed, is prohibited as ex
   post facto.
      In setting out this definition, Justice Stone omitted the
fourth category of Calder. 122 However, the Court did reason that
the Ohio statute was not ex post facto, in part because "the
quantum and kind of proof required to establish guilt, and all
questions which may be considered by the court and jury in de-
termining guilt or innocence, remain the same." 123 Justice Stone
acknowledged that previous judicial decisions have held that al-
terations of the rules of evidence or procedure could be ex post
facto, and cited Calder, Cummings, and Kring.m But Justice
Stone explained that these kinds of procedural changes were
not to be considered ex post facto unless they deprived the ac-
cused of a defense. If they operated "only in a limited and un-
substantial manner to his disadvantage," they were not ex post
facto. 125 Finally, Justice Stone explained that there was no for-
mula for determining what alterations of procedure were "of
sufficient moment to transgress the constitutional prohibi-
tion."126 It could be argued that justice Stone collapsed the four-
~ategory Calder definition into three with this reasoning, includ-




   12
     J See id. at 171.
       121
       Id. at 169-70.
   122
       See id. (making no reference to any law that ualters the legal rules of evidence..
.").
       123
       Id. at 170.
       124
       Jd. (explaining that u(e)xpressions are tO be found in earlier JUdicial opmions lO
the effect that the constitutional limitation may be transgressed by alterations in the
rules of evidence or procedure").
   125
       Id. at 170-71.
   126
       ld. at 171.
 444                        SUPREME COURT REVIEW                               [Vol. 91

 ing changes in the rules of evidence in the definition only if
 they deprived the accused of a defense. 127
      In Collins, the Court adopted the Beazell definition of ex post
facto laws, and upheld a Texas statute that allowed reformation
                         128
of improper verdicts.         Defendant Carroll Youngblood was
charged and convicted of aggravated sexual assault, and was
sentenced by ajury to life imprisonment and a $10,000 fine. 129
The imposition of a fine was not authorized by statute, and, un-
der the controlling case law, 130 the judgment and sentence were
void, and Youngblood was entitled to a new trial. 151 While
Youngblood was in the process of petitioning for habeas corpus
relief, the legislature passed a law allowing appellate courts to
reform improper verdicts. 132 Relying on this law, the trial court
reformed Youngblood's verdict by ordering deletion of the
fine. 155 Under the old version of the law, Youngblood would
have received a new trial after the improper verdict was ren-
dered. 154 Under the new law, the trial court was able to delete
the fine, thereby reforming the verdict without need for a new
trial. 155 Youngblood challenged the application of the new
Texas statute to his case on the basis that it violated the Ex Post
Facto Clause. 1!16
     The Court held that the application of the Texas statute did
not violate the Ex Post Facto Clause.J.S7 Chief justice Rehnquist,
   127
         See Carmell v. Texas, 120 S. Ct. 1620, 1651 (2000) (Ginsburg,]., dissenting) (ar-
guing that the Caldercategories had been pared·down to three).
    I:IB See Collins v. Youngblood, 497 U.S. 37, 52. (1990)
    129
         See id. at 39.
    150
         Bogany v. State, 661 S.W.2d 957 (1983).
    1 1
     s See CoUins, 497 U.S. at 39.
    1 2
     s See id. at 39-40 (citing TEx. CODE CRIM. P. ANN. art. 37.10(b) (West 1990)).
    1
     " See id. at 40.
    1 4
     s See id. at 39.
    135
         See id. at 40.
    136 See id.
    17
     s /d. at 52 (noting that application of the law to "respondent therefore is not pro-
hibited by the Ex Post Facto Clause"). It is interesting to note that Justice Stevens,
author of the CarmeU majority opinion, concurred in the judgment in Collins. See id.
at 52 (Stevens,]., concurring in the judgment). Justice Stevens agreed with the con-
clusion in CoUins, but reasoned that the conclusion was "entirely consistent with out
precedents." Jd. at 52-53 {Stevens, J., concurring in the judgment); see infra note 143
(discussing the Court's decision in CoUins to overrule Kring and Thompson). Justice
Stevens reasoned that under the framework of Kring and Thompson, as interpreted by
Beaz.ell, the question of whether a procedural statute has a sufficiently drastic impact
on a defendant to be characterized as "substantial" is "a matter of degree." See Collins
...·'


        2001]                           CARMELL V. TEXAS                                     445

        writing for the Court, cited the four Calder categories, and noted
        that the principles of the definition, and the meaning of the
        Clause itself, was best summarized by Beazell: ·
          [A]ny statute which punishes as a crime an act previously committed,
          which was innocent when done; which makes more burdensome the
          punishment for a crime, after its commission, or which deprh·es one
          charged with crime of any defense available according to the law at the
          time when the act was committed, is prohibited as ex post facto. ISS
             Chief Justice Rehnquist noted that the Beazell formulation
         omitted the fourth category of Calder, and explained that the
         Beazell formulation was faithful to "our best knO\vled§e of the
        original understanding of the Ex Post Facto Clause." sg Chief
        Justice Rehnquist pointed out that the early state constitutions
        mirrored the formulation of ex post facto laws set forth in
        BeazeU. 14{) The Beazell formulation, according to Chief Justice
        Rehnquist, comported with Blackstone's definition of ex post
        facto laws as well. 141 Chief Justice Rehnquist ultimately applied
        the elements of the Beazell formulation, one by one, to Young-
        blood's case, and determined that the application of the new
        Texas statute did not offend the Ex Post Facto Clause. 142
             In addition to adopting and applying the Beazell formulation
        for determining whether a law is ex post facto, the Collins Court


        v. Youngblood, 497 U.S. 37,57 (1990) (Stevens,]., concurring in the judgment). Jus-
        tice Stevens proposed a "threshold test," under which the Court would nullify a pro-
        cedural statute if it affected "the modes of procedure by which a valid conviction or
        sentence may be imposed." Id. at 58 (Stevens,]., concurring in the judgment); ste also
        infra Section NA. at 38 Gustice Stevens' discussion of procedural laws that dispropor-
        tionately aid the prosecution in obtaining a conviction).
            1
             ss Collins v. Youngblood, 497 U.S. 37,42 (1990) (quoting Bcazell v. Ohio, 269 U.S.
        167 (1925)).
            159
                CoUins, 497 U.S. at 43.
            140
                See id. (citing and discussing the state constitutions of Maryland and North Caro-
        lina).
           141
               Id. at 44 (Blackstone explained that ex post facto laws were passed ''when after
        an action (indifferent in itself) is committed, the legislator then for the first time de-
        clares it to have been a crime, and inflicts a punishment upon the person who has
        committed it").
           112
               See id. at 52 ("The Texas statute allowing reformation of improper \"erdicts 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 prohib-
        ited by the Ex Post Facto Clause of Art. I,§ 10").
 446                        SUPREME COURT REVIEW                                [Vol. 91

overruled two earlier cases, Kring and Thompson. 143 In overruling
these cases, Chief Justice Rehnquist explained that Kring and
Thompson~ discussion of "substantial protections," and "substan-
tial personal rights," had "imported confusion into the interpre-
tation of the Ex Post Facto Clause. "144 The Court reasoned that
testing a statute to determine if it was "merely procedural" or if
it implicated a "substantial right" was not consistent with the
original understanding of the Ex Post Facto Clause at the time
that the Constitution was drafted. 145

              III. FACTS AND PROCEDURAL HISTORY
    In 1996, defendant Scott Leslie Carmell was charged in a 15-
count indictment by a Texas grand jury for various sexual of-
fenses committed against his stepdaughter. 146 Cannell was
charged with eight counts of indecency with a child, two counts
of aggravated sexual assault, and five counts of sexual assault
against his daughter; he was convicted on all fifteen counts in
the 367th District Court in Texas. 147 Carmell committed the of-
fenses against his daughter over a prolonged period of more
than four years, from February 1991 to March 1995. 148 Carmell's
daughter was twelve years old when Carmell began victimizing
her, and sixteen when the conduct ceased. 119 The assaults
ended in 1995, when Carmell's daughter told her mother what
had happened. 150 The Court sentenced Cannell to life impris-
onment for each of the two aggravated sexual assault offenses
and imposed concurrent twenty-year sentences for each of the
                                                151
remaining thirteen counts in the indictment.        Carmell was

    '" Id. at 50, 51 (overruling Kring, overruling Thompson). It is interesting to note
 that justice Stevens, the author of the majority opinion in Cannell, did not agree that
 Kring and Thompson should be overruled. See Collins v. Youngblood, 497 U.S. 37, 52-
53 (1990) (Stevens,]., concurring in the judgment); see also supra note 137. Instead,
Justice Stevens argued that the Court's conclusion was "entirely consistent with our
 precedents." Collins, 497 U.S. at 52-53.
    141
        Collins v. Youngblood, 497 U.S. 37,45 (1990).
    145
        See id. at 47 ("Neither of these decisions, in our view, is consistent with the un-
derstanding of the term 'ex post facto law' at the time the Constitution was
 adopted").
    It& SeeCarmell v. Texas, 120 S. Ct. 1620, 1624 (2000).

    B7 See id.

    148 See id.

    li9 ld.

    IW See id.
    151
        See id.
2001]                         CARMELL V. TEXAS                                447

convicted on all fifteen counts in the indictment on the basis of
his daughter's uncorroborated testimony.' 52
    In 1992, when Cannell began victimizing his daughter, the
Texas Code of Criminal Procedure provided:
        A conviction under Chapter 21, Section 22.011, or Section 22;021,
  Penal Code, is supportable on the uncorroborated testimony of the \ic-
  tim of the sexual offense if the victim informed any person, other than
  the defendant, of the alleged offense within sLx months after the date on
  which the offense 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 of-
  fense.1ss

     Under the Texas statute, a sexual offender could not be
convicted on the basis of a victim's testimony alone, unless one
of two exceptions applied. 154 The first exception created an
"outcry" provision; a victim's uncorroborated testimony was suf-
ficient to support a conviction if the victim told anyone, other
than the defendant, about the offense within she months after
the date on which the offense was committed.'~ The second
exception created a "child victim" provision, whlch applied
based on the victim's age; a victim's uncorroborated testimony
was sufficient to support a conviction if the victim was under
                                                156
fourteen years old on the date of the offense.      Cannell com-
mitted eleven offenses against his daughter during the time that
                                157
these provisions were in effect. Six of the offenses were com-
mitted when Carmell's daughter was under fourteen, and they
were not conteste d .158
    On September 1, 1993, the Texas statute was amended.
The amendment extended the child victim exception to victims
under eighteen years of age. 159 Carmell was convicted in 1996
under the provisions of the amended statute. 1m Of the fifteen
counts for which Carmell was charged, he comr,nitted four of

   152
       See Cannell v. Texas, 120 S. Ct. 1620, 1624 (2000).
   155
       Seeid. at 1624 (quoting TEx. CODE CRIM. P. ANN. art. 38.07 (West 1983)).
   154
       See Cannell, 120 S. Ct. at 1625.
   155
       See id. at 1624-25.
   156
       See id. at 1625.
   157
       See id. at 1626.
   158
       See Cannell v. Texas,l20 S. Ct. 1620, 1626 (2000).
   159
       See supra note 3 (the amendment also extended the time period on the outcry
provision to one year); Carnzell, 120 S. Ct. at 1625.
   160
       See Carnzell, 120 S. Ct. at 1624.
..
     448                        SUPREME COURT REVIEW                             [Vol. 91

     them while the older version of the statute was in place and
     while his daughter was fourteen to fifteen years of age. 161 Thus,
     if the older version of the statute were applied to these offenses,
     Cannell's conviction could not stand; his daughter did not sat-
     isfy the outcry provision and was not young enough to qualify
     under the child victim provision of the statute. 162 Five of the
     remaining offenses for which Cannell was charged occurred af-
     ter the amendment of the statute and were therefore not con-
     tested.163 The two counts of aggravated sexual assault, for which
     life imprisonment sentences were imposed, were not at issue. 161
          The defendant appealed four of his convictions for offenses
     committed between june 1992 and july 1993, during which time
     his daughter was fourteen and fifteen years old and before the
     Texas law was amended. 165 On appeal, Cannell argued that the
     older version of the Texas statute should have applied to those
     offenses committed prior to the 1993 amendment. 166 Carmen
     further asserted that the four convictions he was appealing
     could not have stood under the older version of the statute be-
     cause the victim's testimony was uncorroborated, the victim was
     over fourteen years of age, and the victim had not made an out-
     cry to satisfy the outcry provision. 167 Cannell argued that apply-
     ing the new law to offenses committed before the statute was
     amended violated the Constitutional prohibition on ex post
     facto laws. 168
          The Court of Appeals upheld Cannell's convictions, 169 hold-
     ing that application of the amendment retrospectively to Car-
     mell's offenses did not violate the Ex Post Facto Clause of the
     Constitution. 170 The Court of Appeals reasoned that Texas Arti-

        161
            See id. at 1626.
        162 See id.
        I6S See id.

        l&t SeeCarmell v. Texas, 120 S. Ct.l620,1626 (2000).

        165 See id.

        166 See id.

        167 See id.
        168
            See id.
        169
            SeeCarmell v. Texas,"963 S.W.2d 833 (1998).
        170
            See id. at 836 (noting that "the statute as amended does not increase the pun-
     ishment 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") (quoting Hopt v. Utah, 110 U.S. 574, 590
     (1884) ).
 2001]                            CARMELL V. TEXAS                                    449

 de 38.07 functioned as a rule of ·witness competency and '\vas
 therefore not an ex post facto law under the holding of Hopt v.
       171
 Utah.     The Texas Court of Criminal Appeals denied discre-
                172
 tionary review. The United States Supreme Court granted
 Carmell's pro se petition for certiorari and appointed counsel. 173

                            IV.   SUMMARY OF OPINIONS


A THE MAJORI1Y OPINION
      On May 1, 2000, the Supreme Court reversed the decision
of the Court of Appeals of Texas, and vacated the convictions
                  17
against Carmell.        Writing for the majority, Justice Stevens
ruled that the application of Texas Article 38.07, as amended, to
Cannell's four contested convictions, could not be sustained
under the Ex Post Facto Clause of the United States Constitu-
tion.175 In particular, the Court reasoned that application of
amended Texas Article 38.07 violated the Ex Post Facto Clause
under the fourth category of ex post facto laws as defined in the
                             176
early case of Calder v. BulL
       The Court first analyzed the components of the Texas
statute, and determined that "Texas courts treat Article 38.07 as
a sufficiency of the evidence rule, rather than as a rule concern-
                                                   177
ing the competency or admissibility of evidence. " Justice Stev-

   171
        See Cannell, 963 S.W.2d. at 836; see also supra note 93.
   1
    '12 See Cannell, 120 S. Ct. at 1626.
   175
        SeeCarmell v. Texas, 120 U.S. 1620, 1626 (2000}.
   m    See id. at 1643.
    175
        See id. The Court split five to four in the decision, with Justices Scalia, Souter,,
Thomas, and Breyer joining in the majority opinion. Justice Ginsburg filed a dissent-
ing opinion, in which Chief Justice Rehnquist joined, as well as Justices O'Connor
and Kennedy. See id. at 1624. This split was described as extremely odd by commen-
tators. See Tony Mauro, U.S. Supreme Court 1999-2000 Tenn in Review; There Wt'Te Feu:er
 Cases but Mlll'e ClDse Calls, 'TExAS lAWYER, july 10, 2000, at 8 (noting that Carme//"pro-
duced the rarest alignment in the court: a majority composed of the left and right
wings with all the members of the court's center-Rehnquist., O'Connor and Ken-
nedy-in dissent"). It is interesting to note that Justice Stevens concurred in the
judgment in Collins. See supra note 137, at 143 (discussing Justice Stevens' reasoning
 that the question of whether procedural statutes violate the Ex Post Facto Clause is a
matter of degree); see also infra Section IVA, at 38-40 (discussion of procedural rules
altering the sufficiency of the evidence necessary to obtain a conviction).
    176
        See Carmell, 120 S. Ct- at 1624.
    177
        See id. at 1625 n.2 (explaining that the Texas statute included three compo-
nents: an "oi.ttcry" provision, a "child victim" provision, and "a sufficiency of the evi-
 450                       SUPREME COURT REVIEW                             [Vol. 91

  ens based this determination on the differences between the
  consequences of the rules of evidence admissibility, and the
·.consequences of Texas Article 38.07. 178 He noted that "when
  evidence that should have been excluded is erroneously admit-
  ted against a defendant" under the ordinary rules of evidence,
  an appellate court will reverse a conviction and remand for a
 new trial, whereas a "failure to comply with Article 38.07, by
 contrast, results not in remand for a new trial, but in the rever-
 sal of conviction and remand for entry of an order or acquit-
tal. n179
     The Court then analyzed the history and purpose of the Ex
Post Facto Clause of the Constitution and adopted the defini-
tion of ex post facto laws set out in the early case of Calder v.
      180
Bull. Justice Stevens explained that Justice Chase derived the
four-category definition of ex post facto laws outlined in Calder
largely from the treatise of Richard Wooddeson, "one of the
great scholars of the common law." 181 Justice Stevens noted that
the same formulation had been ap~roved by such great academ-
ics as Joseph Story and James Kent. 82 In support of the formula-
tion, the majority cited a host of Supreme Court cases that had
adopted the four-category formulation 183 and argued that these

dence rule respecting the minimum quantum of the evidence necessary to sustain a
conviction").
   178
       Carmen v. Texas, 120 S. Ct. 1620, 1625, n.2 (2000).
   179 Id.
   180
        See id. at 1626-31 (noting that "this Court, ... has repeatedly endorsed {Cal-
per's] understanding, including, in particular, the fourth category"); for the four-
category definition of ex post facto laws in Calder v. Bull, see supra note 11.
   181
       See CarmeU, 120 S. Ct. at 1627-28 (noting that Wooddeson's treatise divided ex
post facto laws into three categories: "those respecting the crimes themselves; those
respecting the legal rules of evidence; and those affecting punishment (which .•• fur-
ther subdivided into Jaws creating a punishment and those making an existing pun-
ishment more severe)." The Court explained that Justice Chase's formulation
"correlate[s] precisely" to Calder's four categories).
   181
       See id. at 1628.
   185
       Id. at 1628-29. The Court cited Lynce v. Mathis, 519 U.S. 433, 441 (1997); Doh-
bert v. Florida, 432 U.S. 282, 293 (1977); Malloy v. South Carolina, 237 U.S. 180, 183-
84 (1915); Mallett v. North Carolina, 181 U.S. 589, 593-94 (1901); Thompson v. Mis-
souri, 171 U.S. 380, 382 (1898); Hawker v. New York, 170 U.S. 189, 201 (1898)
(Harlan,]., dissenting); Gibson v. Mississippi, 162 U.S. 565, 589-90 (1896); Duncan v.
Missouri, 152 U.S. 377, 382 (1894); Hopt v. Territory of Utah, llO U.S. 574, 589
(1884); Kring v. Missouri, 107 U.S. 221, 228 (1883), rev'd 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, 390-91 (1867) (Miller,J., dissenting); Cummings v. Missouri, 4 Wall. 277,
325-26 {1867).
 2001]                             CARMEU V. TEXAS                                         451

 cases adopted the fourth category ~ of Calder in particular,
                                                      1


 "sometimes quoting Justice Chase's words verbatim, sometimes
simply paraphrasing. "185
     In order to fully understand the implications of the fourth
category of Calder, the Court turned to the English case of Sir
                186
John Fenwick.       The same case is cited in Calder under the
fourth category for the proposition that statutes altering the suf-
ficiency of the evidence needed to convict a criminal defendant
                                 187
are invalid, ex post facto laws.     The majority analogized Fen-
wick's case to Carmell's, arguing that the laws in each case "al-
ter[ed] the legal rules of evidence," receiving less testimony
than the law required at the time the offenses were commit-
     188
ted.     Justice Stevens argued that the circumstances in Fen-
wick's case paralleled the circumstances in Cannell;
       Just as the relevant law in Fenwick's case required more than one
  witness' testimony to support a conviction ... , Texas' old version of Ar-
  ticle 38.07 required more than the victim's testimony alone to sustain a
  conviction.... And just like Fenwick's bill of attainder, which permitted
  the House of Commons to convict him with less evidence than was oth-
  erwise required, Texas' retrospective application of the amendment to
  Article 38.07 permitted petitioner to be  convicted with less than the pre-
   .
  VIOus        . d quantum of eVl"dence. 169
        1y reqwre

     The Court then argued that the fourth category of Calder
functions as a safeguard against the subversion of "fundamental
justice."190 As Justice Stevens explained, the interests of funda-
 mental justice were at the heart of the passage of the Ex Post
Facto Clause. 191 The framers desired to protect against laws that

   1114
         Calder v. Bull, 3 U.S. 386, 390 (1798) ("4th. Every Jaw 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").
     185
         Carmell v. Texas, 120 S. Ct. 1620, 1628-29 (2000).
     185
         For a discussion of the facts of SirJohn Fenwick's case, see SU/Jril Section liB.
     187
         See Cannell, 120 S. Ct. at 1629-31; see also Calder, 3 U.S. at 389 (citing "the case of
Sir John Fenwick, in 1696" as an example of laws that "violated the rules of C\idence .
. . by admitting one witness, when the existing Jaw required two; by receiving evidence
without oath; or the oath of the \vife against the husband; or other testimony, which
the courts ofjustice would not admit. ..").
     183
         Camze1J. 120 S. Ct. at 1631.
     189
         Id. at 1631-32.
     t!P Id. at 1632 (noting that "the fourth category, so understood, resonates hann~

niously with one of the principal interests that the Ex Post Facto Clause was designed
to serve, fundamental justice").
     t91 Id.
452                         SUPREME COURT REVIEW                               [Vol. 91

were "manifestly unjust and oppressive.''192 The majority insisted
 that the fourth category addressed these concerns directly and
 that "a law reducing the quantum of evidence required to con-
vict an offender is as grossly unfair as retrospectively eliminating
an element of the offense, increasing the punishment for an ex-
isting offense, or lowering the burden of proof.'' 193
     The Court distinguished an ordinary amendment to the
rules of evidence from an alteration in the rules of evidence fa-
voring the prosecution. 194 Justice Stevens pointed out that most
amendments to the rules of evidence apply in an evenhanded
fashion, adversely affecting or benefiting both sides equally. 195 In
contrast, the Court argued that the amendment to Texas Article
38.07 could only benefit the prosecution. 196 Justice Stevens ar-
gued that retroactively applying any statute such as this one,
"making it easier to meet the threshold for overcoming the pre-
sumption" of innocence, is fundamentally unfair. 197 He argued
that in so doing, 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." 198 Thus, the
Court concluded that laws of this nature allow the government
to "subvert the presumption of innocence by reducing the
number of elements it must prove to overcome that presump-
tion; by threatening such severe punishment so as to induce a
plea to a lesser offense or a lower sentence; or by making it eas-
ier to meet the threshold for overcoming the presumption." 199
     The majority concluded that the four category definition of
ex post facto laws outlined in Calder, including the fourth cate-
gory involving laws that alter the rules of evidence, continue to

   191
         Carmell v. Texas, 120 S. Ct. 1620, 1632 (2000) (adding that the Ex Post Facto
Clause was drafted "as an additional bulwark in favour of the personal security of the
subject, to protect against the favorite and most formidable instruments of tyranny").
   193
        Id. at 1632-33.
   194
        See id. at 1633.
    195
        See id. (reasoning that rules of evidence "are ordinarily evenhanded, in the sense
that they may benefit either the State or the defendant in any given case," and argu-
ing that regular rules regarding admissibility "do not at all subvert the presumption of
innocence, because they do not concern whether the admissible evidence is sufficient
to overcome the presumption").
   196 See id.
   197
        /d. at 1633.
   1118
        Carmen v. Texas, 120 S. Ct. 1620, 1633 (2000).
   199 Id.
2001]                           CARMELL V. TEXAS                  453
                 200
 be good law.       The court also concluded that amended Texas
 Article 38.07 fell under the fourth Calder category of ex post
             201
 facto laws.     In light of this analysis, the Court held that retro-
 active application of amended Texas Article 38.07 to Carmell's
 contested four convictions violated the Ex Post Facto Clause of
 the United States Constitution. 202
     In response to the dissent's argument that Collins and Beazell
 effectively re-formulated the definition· of ex post facto laws~3
 without using the fourth category of Calder, Justice Stevens ar-
 gued that instead, Collins did not abandon the fourth category
                            201
 and ·was "rather cryptic. " The Cannell Court noted that Collins
 referred to Calder's four categories as the "exclusive definition"
 of ex post facto laws but also called Beazell's definition a "faith-
ful" rendition of the original understanding of the clause, even
                                       205
 though it omitted category four.           A footnote in Collins ex-
plains, as the m~ority pointed out, that "the Beazell definition
 omits the reference by Justice Chase in Calder v. Bull to altera-
 tions in the legal rules of evidence. As cases subsequent to Cal-
der make clear, this language was not intended to prohibit the
application of new evidentiary rules in trials for crimes commit-
ted before the changes. "206 Justice Stevens acknowledged that
 Collins went on to assert that the Beazell formulation was true to
the original understanding of the Ex Post Facto Clause.m But
Justice Stevens explained: "if Collins had intended to resurrect a
long forgotten original understanding of the Ex Post Facto
Clause, shorn of the fourth catego~ we think it strange that it
would have done so in a footnote." 8 The majority concluded
that Collins merely "eliminated a doctrinal hitch" that had de-
veloped in the case law, defining the scope of the Ex Post Facto
Clause along the lines of distinguishing between substantial pro-
tections and procedural provisions.m Thus, the Court summa-
rized, "Collins held that it was a mistake to stray beyond Calder's

  ~,   See id. at 1643.
  :ol  Seeid.
  202
       See id.
  %05 See infra Section IVB.
  204
       CarmeJl, 120 S. Ct. at 1635.
  205
       Cannell v. Texas, 120 S. Ct. 1620, 1635-36 (2000).
  205
       Id. at 1635. (quoting CoUins, 497 U.S. at 43, n. 3)
  207
       See Cannell, 120 S. Ct. at 1635.
  20! Id. at 1636.

  :209 Id.
454                       SUPREME COURT REVIEW                       [Vol. 91

 four categories, not that the fourth category was itself mis-
 taken."210 Justice Stevens ultimately determined that the Calder
 categories had not been abandoned in Beazell or Collins. 111      _

      In response to the dissent's argument that the fourth cate-
 gory applies only to laws that alter the burden of proof, 212 the
 Court noted that there is no distinction between laws that alter
 the burden of proof and laws that "reduce the quantum of the
evidence necessary to meet that burden. "213 The effect of both
kinds of laws, according to Justice Stevens, is the same: "the two
types of laws are indistinguishable in all meaningful ways rele-
vant to concerns of the Ex Post Facto Clause. 'The legal result
must be the same, for what cannot be done directly cannot be
done indirectly. The Constitution deals .with substance, not
shadows. '" 214 In other words, the distinction between a law alter-
ing the burden of proof and a law lowering the quantum of the
evidence needed to meet that burden of proof is merely techni-
cal.215 The effect of both, in regard to the legal result, however,
. th e same. 216
ts
      Finally, the Court argued that the dissent's reliance on Hopt
for the proposition that Article 38.07 functions as a rule of wit-
ness competency, 217 rather than a sufficiency of the evidence
rule, is misplaced, and that 38.07 does not function as a rule of
                       218
witness competency.        In support of this contention, Justice
Stevens pointed out that both before and after the amendment
to Article 38.07, the victim's testimony was competent evidence
under the law. 219 Further, the mcyority explained that Hopt ex-
pressly distinguished between witness competency laws and laws
that "alter the degree, or lessen the amount or measure, of the
proof which was made necessary to conviction when the crime



  210   Id.
  111
       See id.
  212
       See infra Section IVB.
  11
     s Carmen v. Texas, 120 S. Ct. 1620, 1637 (2000).
  214
       Id. (quoting Cummings v. Missouri, 71 U.S. 277,325 (1867)).
       Carmel~ 120 S. Ct at 1637.
  215

  216 Seeid.
  117
       See supra Section liB.
  218
       Carmel~ 120 S.Ct. at 163843.
  119
       See id. at 1639.
2001]                            CARMELL V. TEXAS                                     455
                       220
was committed. " Article 38.07, the majority argued, is the lat-
ter- a sufficiency of the evidence rule.2:1•
    The Court distinguished between laws of witness compe-
tency and sufficiency of the evidence laws by explaining that
witness competency laws apply in an evenhanded fashion,
whereas the sufficiency of the evidence laws work in perpetual
favor of the prosecution. 222 In this case, Justice Stevens argued,
Article 38.07 functioned as a sufficiency of the evidence rule,
working only in favor of the prosecution in every case.zn

B. JUSTICE GINSBURG'S DISSENT
      In a dissendng opinion joined by Chief Justice Rehnquist,
Justice O'Connor, and Justice Kennedy, Justice Ginsburg at-
 tacked the majority opinion on three general grounds. First,
Justice Ginsburg questioned the mcyority's conclusion that
Texas Article 38.07 is a "sufficiency of the evidence rule" and
argued that the statute is functionally equivalent to witness
competency and credibility rules, held to be non-violative of the
Ex Post Facto Clause under Hopt v. Utah.Zl-« Next, Justice Gins-
burg argued that the fourth category of Calder applied only to
those Ia'vs that lowered the prosecution's burden of persua-
sion.225 Justice Ginsburg noted that Texas Article 38.07 in no
way affected "the burden of persuasion that the prosecution
must satisfy to support a conviction."226 Finally, justice Ginsburg
argt!ed that the fourth category of Calder is no longer valid
law.227 She argued that Collins v. Youngblootfl.a "pared the num-

        !d.
   'l!J.Q

   221  See id.
   222
        See id. at 1639-40 (noting that such rules will always run in the prosecution's fa-
vor, because "they always make it easier to convict the accused•••• Witness compe-
tency rules, to the contrary, do not necessarily run in the State's favor. A felon
witness competency rule, for example, might help a defendant if a felon is able to re-
late credible exculpatory evidence").
   223
        See id; See supra Section IVA, discussion of the majority's reliance on Fenwick's
case for the proposition that Texas Article 38.07 fell under the founh Ca/da category
of ex post facto laws.
   22
      • See Carmell v. Texas, 120 S. CL 1620, 1646 (2000). (Ginsburg, j. dissenting)

(noting that "the history of Article 38.07 bears out the view that irs focus has alwa)'S
been on the competency and credibility of the victim as a wibless"); Sa Hopt v. Terri-
tory ofUtah, 110 U.S. 574 (U.S. 1884).
   mId. at 1647 (Ginsburg,j., dissenting).
   mId.
   m !d.
456                         SUPREME COURT REVIEW                                [Vol. 91

 ber of Calder categories down to three, eliminating altogether
 the fourth category on which the Court ... so heavily relies. "229
        The dissent first attacked the m'!iority by pointing out that
 Texas Article 38.07 is not a "sufficiency of the evidence rule, as
 the majority had claimed, but is rather a rule "functionally iden-
 tical to a conditional rule of witness competency."230 According
 to Justice Ginsburg, Texas Article 38.07 is an evidentia;y provi-
 sion under which the jury may credit victim testimony. 23 Thus,
 if a victim falls under one of the exceptions in the statute (ei-
 ther by virtue of age alone, or by making an "outcry" within the
specified time period), the statute simply gives the victim full
 testimonial stature, and an undiminished competency to tes-
 tify.232 The premise for this statute, the dissent argued, is the
legislative judgment that accusations made by sexual assault vic-
 tims above a certain age were not independently trustworthy. m
Justice Ginsburg likened the corroboration requirement in the
statute to corroboration requirements in similar evidentiary
provisions, particularly those regarding accomplices. 234 The dis-
sent argued that accomplice corroboration requirement stat-
utes, like Texas Article 38.07, were "designed to ensure the
credibility of the relevant witness," not to affect the sufficiency
of the evidence required to obtain a conviction. 235
       Justice Ginsburg further indicated that the legislative history
of Texas Article 38.07 bears out the interpretation of 38.07 as a
witness competency and credibility provision. 236 As Justice Gins-
   m   110 S.Ct. 2715 (1990).
   229
       Carmel/, 120 S. Ct. at 1651 (Ginsburg,]., dissenting).
   230
       Id. at 1649 (Ginsburg,]., dissenting).
   231
       See id. at 1646 (Ginsburg,]., dissenting) (reasoning that"the version of Article
38.07 applied at Cannell's trial was thus, in both effect and purpose, an evidentiary
rule governing the weight that may be given to the testimony of sexual assault victims
who had attained the age of 14").
    252
        ld. at 1645 (Ginsburg,]., dissenting) (noting that "If the victim is of a certain
age, the jury, in assessing whether the prosecution has met its burden of demonstrat-
ing guilt beyond a reasonable doubt, must give no weight to her testimony unless that
testimony is corroborated, either by other evidence going directly to guilt or by 'out-
cry'").
   233
        See id. (Ginsburg,]., dissenting).
   254
        See id. at 1645-46 (Ginsburg,]., dissenting) (stating that "it suffices to note that
Article 38.07's corroboration requirement rests on the same rationale that underpins
accomplice corroboration requirements: the notion that a particular witness, because
of his or her role in the events at issue, might not give trustworthy testimony").
   255
        ld. at 1645 (Ginsburg,]., dissenting).
   236
        See id. at 1646 (Ginsburg,]., dissenting).
2001]                            CARMEU V. TEXAS                                       457

 burg explained, "the historical development of Article 38.07 re-
veals a progressive alleviation of restrictions on the competency
 of victim testimony, not a legislative emphasis on the quantum
 of evidence needed to convict."2S7 The dissent explained that
Article 38.07 was functionally equivalent to a witness credibility
 statute: "If the former version of Article 38.07 had provided
 that 'the testimony of the victim shall be inadmissible to prove
 the defendant's guilt unless corroborated,' it would produce the
 same results as the actual statute in every case."2l!l Under Hopt,zz9
Justice Ginsburg argued, rules of evidence affecting witness
 competency do not violate the Ex Post Facto Clause of the Con-
stitution.240
     Next, Justice Ginsburg argued that Article 38.07 did not al-
 ter the prosecution's burden of persuasion and therefore did
not violate the Ex Post Facto Clause as interpreted through the
fourth category of Calder.241 The dissent pointed out that the
prosecution's burden of persuasion remains the same whether
or not Article 38.07 applies; regardless of its application, the
prosecution must prove all of the elements of the offense be-
yond a reasonable doubt. 242 As Justice Ginsburg noted, if the
prosecution seeks to obtain conviction on the basis of a victini's
uncorroborated testimony, and the witness satisfies one of the
exceptions under Article 38.07, the conviction can only be ob-
tained if the prosecution proves all the elements of the offense
beyond a reasonable doubt, regardless of the application of
38.07.243 Thus, satisfaction of 38.07 can be necessary to obtain a
conviction where the prosecution seeks to obtain the conviction
on the victim's uncorroborated testimony alone, but it is not suf
ficient unless the prosecution meets its burden of proving guilt
beyond a reasonable doubt. 244 Further,Justice Ginsburg argued,
the victim's testimony is not even necessary in many cases: "To
convict a defendant of sexual assault in Texas today as before

   257
       Id. (Ginsburg,]., dissenting).
   :s Id.  at 1649 (Ginsburg,]., dissenting).
   2S9 110 u.s. 574 (1884).
   24
      G See id. at 589 (emphasizing that "[s] tarutes which simply enlarge the class of per-

sons 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").
   m See Cannell v. Texas, 120 S. Ct. 1620, 1647 (2000) (Ginsburg,]., dissenting).
   242
        See id. (Ginsburg,]., dissenting).
   245
        See id. (Ginsburg,]., dissenting).
   244
        See id. (Ginsburg,]., dissenting).




                                       r.•
458                        SUPREME COURT REVIEW                              [Vol. 91

1993, the prosecution need not introduce the victim's testimony
at all, much less any corroboration of that testimony."245 The
dissent ultimately concluded that Article 38.07 merely func-
tioned to restrict the State's method of proving its case, "without
affecting in any way the burden of persuasion that the prosecu-
tion must satisfy to support a conviction."246
    Additionally, Justice Ginsburg argued that the amendment
to Article 38.07 did not "reduce the quantum of evidence neces-
sary" to convict, for the "simple reason that Texas has never re-
quired the prosecution to introduce any particular number of
witnesses or items of eroof to support a sexual assault convic-
                          47
tion" in the first place. Further, the dissent noted that Article
38.07 did not "subvert the presumptions of innocence," using
the language of the majority, because "the burden of persuasion
remained at all times with the State. "218
    In sum, Justice Ginsburg depicted the "sufficiency of the
evidence" needed to convict as an evidentiary hurdle; the 1993
repeal of the corroboration requirement for victims between
the ages of fourteen and eighteen did not lower that hurdle, ac-
cording to Justice Ginsburg, but "simply expanded the range of
methods the State could use to surmount" that hurdle. 219
    Finally, the dissent argued that the fourth category of Calder
has been effectively nullified by subsequent Supreme Court
cases. 250 Justice Ginsburg highlighted the fact that the four-
category definition of ex post facto laws in Calder was dictum, as
                                                     251
Calder involved a civil statute, not a criminal one.     Further, the
dissent indicated that Justices Iredell and Paterson, in their own
concurring opinions, "gave no hint" that they considered the


   ttS  Id. (Ginsburg,]., dissenting).
   246
        Id. (Ginsburg,]., dissenting).
   247
        /d. (Ginsburg,]., dissenting).
   248
         Id. at 1648 (Ginsburg, J., dissenting) (noting that the majority's reliance on
Cummings v. Missouri, 4 Wall. 277 (1867), from which the phrase "subvert the pre·
sumptions of innocence" originated, was misplaced, because Cummings dealt with a
post-Civil War amendment that assumed parties were guilty of treason unless they
swore an oath to establish their innocence. The dissent noted that "nothing of the
kind" is involved in the Cannell case).
   24
      g Cannell, 120 S. Ct. 1648 (Ginsburg,]., dissenting).

   ~ Seeid. at 1651 (Ginsburg,]., dissenting).
   251
        See id. (Ginsburg, J., dissenting) (explaining that '1ustice Chase's formulation
was dictum, of course, because Calder involved a civil statute and the court held that
the statute was not ex post facto for that reason alone").
2001]                            CARMELL V. TEXAS                                     459

rules of evidence to fall ·within the scope of the Ex Post Facto
        252
Clause. Justice Ginsburg pointed to the ex post facto formula-
tion in BeazeU and CoUins and noted that they omitted the fourth
category of Calder completely. 2Ss In Beazell, Justice Ginsburg
noted, the Court catalogued ex post facto laws without even
mentioning Calder's fourth category, 254 and CoUins approved of
this formulation, concluding that "the Beazell formulation is
faithful to our best knowledge of the original understanding of
the Ex Post Facto Clause: Legislatures may not retroactively al-
ter the definition of crimes or increase the punishment for
criminal acts. "255              -

     The dissent attacked the majority's assertion that the Court
has repeatedly endorsed Justice Chase's fonnulation.s.u Al-
though the majority cited what Justice Ginsburg called "an im-
pressive-looking" array of cases in support of this assertion, she
pointed out that all of the cases cited "simply quoted or para-
phrased Chase's enumeration, a mechanical task that naturally
                                                                7
entailed a recitation of the fourth category.~2S Further, the dis-
sent noted that not one of these cases depended on the fourth
category for the judgment the Court reached.~ Justice Gins-
burg explained that the only two cases to strike down retroactive
application of rules as ex~ost facto under the fourth category of
Calder, Kring v. Missouri' and Thompson v. Utah, :UJ were both
                      261
overruled by Collins.


   252
        Id. (Ginsburg,]., dissenting) .
   25
        Su id. (Ginsburg,]., dissenting) (noting that "{a]s long ago as 1925, in Be~JUll v.
        '

Ohio, .•. the Court catalogued ex post facto laws without mentioning Chase's fourth
category at
   25
            a1n .
      • Su Beaull, 46 S. CL at 68 (defining ex post facto laws as "any statute which pun-

ishes as a crime an act previously committed, which was innocent when done, which
makes more burdensome the punishment for a crime, after ils commission, or which
deprives one charged with crime of any defense available according to law at lhe time
when the act was committed").
   255
        Cannell v, Texas, 120 S. Ct. 1620, 1651 (2000) (Ginsburg,j., dissenting) (quot-
ing Collins v. Youngblood, 497 U.S. 37,43 (1990)).
   ~ Car7Tielll20 S. Ct. at 1651 (Ginsburg,]., dissenting).
   257
        Id. (Ginsburg,]., dissenting).
   258
        Id. (Ginsburg,]., dissenting).
   259
        2 S. CL 443 (1883).
   260
        18 S. Ct. 620 (1898).
   261
         Su Cannell v. Texas, 120 S. Ct. 1620, 1652 (2000) (Ginsburg, J., dissenting)
(noting that "[i]t is true that the Court has on two occasions struck down as ex post
460                         SUPREME COURT REWEW                                 [Vol. 91

                              V. ANALYSIS
      The decision in Carmell was incorrect for three reasons.
 First, the majority incorrectly asserted that Texas Article 38.07 is
 a statute altering the sufficiency of the evidence needed to ob-
                     262
 tain a conviction.      Rather, Texas Article 38.07 functions as a
 rule of witness competency and is not ex post facto as such un-
 der the principles of Calder. 263 Second, the Court in Cannell re-
 lied too heavily on Sir John Fenwick's case, cited in Calder, in
 reaching its holding. 264 Furthermore, the Court overstated the
 analogy between the facts of this ancient case and Carmell's
 situation. 265 Third, even if the majority were correct in its asser-
 tion that Texas Article 38.07 qualifies as an ex post facto law
 under the fourth Calder category, the majority ignored subse-
 quent case law that effectively nullified that category.266 The ma-
jority's reasoning further confuses the precedent to be applied
in determining whether procedural laws violate the Ex Post
Facto Clause by ignoring the formulation set forth in Beazell and
 adopted in Collins, a formulation that .had made important
strides toward eradicating such confusion.267
A SUFFICIENCY OF THE EVIDENCE OR WITNESS COMPETENCY
PROVISION?
    First, the majority's decision was incorrect because Justice
Stevens incorrectly asserted that Texas Article 38.07 is a rule al-
tering the sufficiency of the evidence needed to obtain convic-
tion. Instead, Texas Article 38.07 functions as a law of witness
competency and credibility. 268 The mcyority's reasoning focused

facto the retroactive application of rules governing the functioning of the criminal
trial process-but both decisions have since been overruled").
    262
        See id. at 1648 (Ginsburg,]., dissenting) (arguing that the Court's "sufficiency of
the evidence label ... will not stick").
    m See id. at 1649 (Ginsburg,J., dissenting) (reasoning that "the corroboration re-
quirement of Article 38.07 is functionally identical to a conditional rule of witness
competency").
    264
        See id. at 1629 (turning to a lengthy discussion of Fenwick's case for "guidance").
    m See id.. at 1654 (Ginsburg, J., dissenting) (reasoning that the facts of the peti-
tioner's case do not parallel the facts of Fenwick's case "300 years earlier").
    266
        See id.. at 1651 (Ginsburg, J, dissenting) (reasoning that "a strong case can be
made that CoUins pared the number of Calder categories down to three, eliminating
altogether the fourth category on which the Court today so heavily relies").
    267
        See Collins v. Youngblood, 497 U.S. 37, 45 (1990) (noting that prior precedent
had "imported confusion into the interpretation of the Ex Post Facto Clause").
    m See supra note 9.
 2001]                           CARMELL V. TEXAS                                      461

   on the notion that "requiring only the victim's testimony to
   convict, rather than the victim's testimony plus other corrobo-
   rating evidence is surely 'less testimony required to convict. '"21,;9
   As such, the majority argued that Texas Article 38.07 is a suffi-
   ciency of the evidence rule that "governs the sufficiency of [the]
   facts for meeting the burden of proof. "270 _
         The majority's reasoning neglects one fundamental fact
   about Article 38.07: it does riot alter the reasonable doubt bur-
·- den that the prosecution must carry in order to obtain a convic-
   tion.271 As the dissent pointed out, "[u]nder both the old and
   the new versions of the statute, the applicable standard is proof
   beyond a reasonable doubt."272 The majority insists that requir-
   ing only the victim's testimony, rather than the victim's testi-
   mony plus corroborating evidence, lowers the bar on what the
   prosecution has to overcome to meet this burden, but this rea-
                       273
   soning is flawed.       The prosecution is not required to produce
   the victim's testimony in order to obtain a conviction; the
   prosecution may put any evidence it chooses before the jury,
   and as long as the prosecution meets its burden of proof, the
                            274
   conviction '\viii stand.     Texas Article 38.07 does not alter that
   fundamental burden ofproof. 275
         Moreover, even if the prosecution were to produce only the
   testimony of a victim who did meet the requirements under Ar-
   ticle 38.07, that testimony would not be sufficient unless the

    269
         Cannell v. Texas, 120 S. Ct. 1620, 1631 (2000).
    270
         Id. at 1639.                            ~
     271
         Seeid. at 1647 (Ginsburg,J., dissenting).
     mid. (Ginsburg,]., dissenting).
     m See Adler, supra note 17, at 1204-06 (explaining that accomphce corroboration
 statutes, which are equivalent to Texas Article 38.07 in that they require corroborat-
 ing evidence to "sustain a conviction," do not alter the ultimate burden of proof for
 the trier of fact. Rather, they set out a threshold determination for the judge of
 whether the testimony can be put before the trier of fact).
     274
          See Adler, supra note 17, at 1204-05. The author explains that accomplice cor-
 roboration laws require a judge to make a preliminary determination of whether the
 evidence may be put before the trier of fact. If the judge determines that there is suf-
 ficient corroborating evidence, the testimony may be put before the trier of fact. If
 there is not sufficient corroborating evidence, the witness rna)" not testif}•. Texas Arti-
 cle 38.07 functions as an accomplice corroboration law does: so long as the judge de-
 termines that there is corroborating evidence, the testimony is put before the trier of
 fact, but the ultimate issue of whether the prosecution has met its burden of proof
 remains a question for the trier of fact.              .
     275
         See CarmeU, 120 S. Ct. at 1647 (Ginsburg,]., dissenting).
462                        SUPREME COURT REVIEW                               [Vol. 91

prosecution could convince a jury of the defendant's guilt be-
                             276
yond a reasonable doubt.         Thus, 38.07 in no way affects the
burden that the prosecution must meet or the amount of evi-
            . d to meet It.
d ence requrre             . m
    In fact, Article 38.07 functions exactly as a law of witness
competency does, making Cannell's case analogous to Hcrpt. 278
As the dissent correctly explained, the policies behind 38.07 and
laws of witness competency are the same: in the passage of each
of these types of laws, the legislature expresses concern about
the credibility of a certain class of witnesses based on the special
circumstances involved in their case. 279 The laws function in the
same manner as the dissent argues, because "if the victim is of a
certain age, the jury, in assessing whether the prosecution has
met its burden of demonstrating guilt beyond a reasonable
doubt, must give no weight to her testimony unless that testi-
                         280
mony is corroborated. " Likewise, a law of witness competency
provides that the testimony of a certain class of witnesses is to be
given no weight by the jury. Because 38.07 operates as a rule of
witness competency, the dissent argued, it is analogous to Hcrpt,
and is not ex post facto because it "simply enlarge[s] the class of
                                                               281
persons who may be competent to testify in criminal cases."
    The dissent's analysis of 38.07 as a law of witness compe-
tency is preferable to the m~ority's analysis of it as a sufficiency
of the evidence rule, because the dissent's view comEorts best
with the purposes of the Ex Post Facto Law Clause. 2 The ex
post facto ban assures citizens fair warning and reasonable reli-
ance and prohibits the legislature from improperly interfering
                         283
in the judicial process.     Article 38.07, like an accomplice cor-
                                                                   281
roboration statute, is consistent with these goals and purposes.

   276  See id.
   m See Adler, supra note 17.
   278
        See id.
   279
        See CanneU, 120 S. Ct. at 1645 (Ginsburg,]., dissenting) ("Texas's requirement of
corroboration or outcry, like similar provisions in other jurisdictions, is premised on a
legislative judgment that accusations made by sexual assault victims above a certain
age are not independently trustworthy").
   280
        Id. (Ginsburg,]., dissenting).
   281
        Id. at 1653 (Ginsburg,]., dissenting).
   282
         See Adler, supra note 17, at 1219; see also supra Section IIA, discussion of the
three main purposes for the Ex Post Facto Clause.
   28
      ' See id.
    28< See id.
    I


"

        2001]                            CARMELL V. TEXAS                                        463
        Although a citizen may not be aware of the evidentiary protec-
        tions provided in Article 38.07, she has constructive notice that
        sexual contact with a minor is a criminal offense.ID Likewise, a
        citizen may not be aware of the laws requiring accomplice cor-
        roboration, but she has constructive notice about the criminal
        nature of her actions.286
             Moreover, an accomplice corroboration requirement is not
        a rule that is meant to induce reliance on the part of the gen-
        eral public, and neither is Article _38.07.w Finally, Texas Article
        38.07, like a rule of accomplice corroboration, is not a "capri-
        cious or vindictive legislative action that is repugnant to the ex
        post facto prohibition. "288 Article 38.07 and laws of accomplice
        corroboration do not "single out" any particular person or
        group, and are not used as a means of political oppression or
        retribution. 289

        B. THE MAJORITYS ANALYSIS OF FENWICK'S CASE
            ·Second, the moJority's decision is incorrect because Justice
        Stevens relied too heavily on Sir John Fenwick's case, cited in
        Callier; in reaching the conclusion that Texas Article 38.07
        qualified as an ex post facto law under the fourth Calder cate-
        gory.290 The moJority explained that an analysis of Fenwick's
        case would be helpful because it is cited in Calder as an example
        of the fourth category of ex post facto laws. 291 The majority de-
        voted a substantial portion of the opinion to discussing the facts
        of Fenwick's case and to analogizing those facts to Cannell's
        situation. 292 Ultimately, the Court concluded that Texas Article


           ms See id. (noting that a defendant is "on constructi\'e notice of the cnminal nature
        of her action and the degree to which society would seek to punish it'').
           :oas See id.
           w Seeid.
           w ld.
           m Id; see also supra Section VA (discussion of the egregious nature of laws that sm-
        gle out individuals).
           19
              ) See supra, Section IVA, at 38-39 (discussion of the majority's anal)'Sis ofFem·.ick's

        case).
           291
                See CanneU, 120 S. Ct. at 1629 ("Justice Chase and Wooddcson both cited scver:tl
        examples of ex post facto laws, and, in particular, cited the case of SirJohn Fcm~ick as
        an example of the fourth category. To better understand the type of law that falls
        within that category, then, we tum to Fenwick's case for prelimin:lf)' guidance").
           292
                 See supra Section IVA (discussion of majority's analogy between Frnu'lcl> and
        Carmell); seea/sosupraSection liB (discussion ofthe factsofFenwick's C41Se).
464                         SUPREME COURT REVIEW                                [Vol. 91

38.07 fell under the fourth Caltkr category of ex post facto laws
because the facts in Carmel! paralleled those in Fenwick's case. 29'
     Although Justice Chase did cite to Fenwick's case as an ex-
ample of the fourth category, Fenwick's case was never discussed
again by the Supreme Court, not even in those cases that in-
volved a procedural rule that would come under the fourth
                      294
category of Calder.       If Fenwick's case were considered an im-
portant guiding principle in a determination of ex post facto
laws under the fourth Calder category, the Court would have
used it as such in the precedent cases addressing procedural
statutes. 295 Additionally, Fenwick's case is mentioned only briefly
in Calder296 and is cited as an example of more than one category
of ex post facto laws. 297 As the dissent noted, the four-category
formulation in Calder is itself only dictum. 298 The majority made
no attempt to explain why Fenwick's case should be resurrected
as a '~ide" for determining if procedural laws were ex post
facto.      In short, the majority diverged from the reasoning of
well-establish precedent in using Fenwick's case, a case men-
tioned only briefly in Calder and never again, as a mcyor deter-
minant that Texas Article 38.07 violated the Ex Post Facto
Clause of the Constitution.300

   293
        See Cannell, 120 S. Ct. at 1632; see also supra Section 'N.A. (discussion of major-
ity's reliance on Fenwick).
    m See Cummings, 71 U.S. 277; Kring v. Missouri, 107 U.S. 221 (1883); Hopt, 110
U.S. 574; Thompson v. Missouri, 171 U.S. 380 (1898); Beazell v. Ohio, 269 U.S. 167
(1925); Collins v. Youngblood, 497 U.S. 37 (1990).
    295
        See Cummings, 71 U.S. 277; Kring, 107 U.S. 221; Hopt, 110 U.S. 574; Thompson,
171 U.S. 380; Beazell, 269 U.S. 167; Collins, 497 U.S. 37. None of these cases make any
reference to Fenwick sexample.
    296
        See Calder, 3 U.S. at 389 (Fenwick's case is mentioned in a footnote. The entire
text of the footnote reads: "The case of Sir John Fenwick, in 1696").
    297
        See id. (citing Fenwick's case for two propositions, "declaring acts to be treason,
which were not treason, when committed," and violating "the rules of evidence (to
supply a deficiency of legal proof) by admitting one witness, when the exiting Jaw re-
quired two").
    298
        See Cannell. 120 S. Ct at 1651 (Ginsburg, J., dissenting) (noting that Justice
Chase's formulation was dictum, because Calder involved a civil statute).
    299
        See id. at 1629.
    500
        See id. at 1629-1632 (whereas Calder mentioned Fenwick's case in passing, the
majority in CarmeU makes it a central focus of inquiry; the majority fully discusses the
facts of the case, analogizes them to Carmell's case, and determines that the two fact
patterns are so similar, that Texas Article 38.07 must fall under the fourth category of
Calder); /d. at 1641 (in responding to the dissenting opinion, as well, the majority re-
lies on Fenwick's case as "the guide").
2001]                           CARMEU V. TEXAS                                      465

     Furthermore, even if the majority were correct in relying on
Fenwick's case to invalidate Texas Article 38.07, Justice Stevens
overstated the analogy between the facts of Fenwick's case and
                         301
the facts of Carmell's.      Most, importantly, Fenwick's case in-
volved a Bill of Attainder; the Parliament passed a special piece
of legislation tarpeted at one individual and one individual
alone: Fenwick. 30 No such situation existed in Cannell's case.
In Carmell, the legislature passed a general piece of legislation
targeting criminal procedure in all sex offense cases. 31J3 The dis-
tinction betvveen these two types of legislative actions is para-
mount;304 the Framers regarded Bills of Attainder as especially
egregious to a fundamental notion of justice, and as such, im-
plicates all of the reasons the framers promulgated the Ex Post
Facto Clause. 305 A Bill of Attainder, the Court argued in Cum-
mings~ usurps the judicial function and removes all of the pro-
tections of trial from the criminal defendant. 506
    In contrast, Texas Article 38.07 does not implicate the con-
cerns of the Ex Post Facto Clause.so7 Texas Article 38.07 was not

   s~t See id. at 1631-32 (the majority noted that "Indeed, the circumstances of peti-
tioner's case parallel those ofFenwick's case 300 years earlier").
   ~ Id. at 1630; See Cummings, 71 U.S. at 323 (noting that bills of attainder "are gen-
erally directed against individuals by name," and that "[b] ills of this sort. .. have been
most usually passed in England in times of rebellion, or gross subservency to the
crown, or of violent political excitements; periods, in which all nations are most liable
(as well the free as the enslaved) to forget their duties, and to trample upon the rights
and liberties of others").
   S!l3 See TEx. CODE CRn.t. P. ANN. an. 38.07 (West 2000); sc.e also Carmel/, 120 S. CL at

1624.
   sot See Calder, 3 U.S at 390. Ifjustice Chase cited Fenwick's case because of the par-
ticularly egregious act of Parliament in altering the rules of evidence to ltugel one mdz-
vidual, than the Cannell Coun's analogy fails. Texas Article 38.07, unlike the law in
Fenwick's case, was not amended in order to target an individual.
   !!lS See Cummings, 71 U.S. at 323 (explaining the special nature of Bills of Attainder:

"In these cases the legislative body, in addition to its legitimate functions, exercises .
the powers and office ofjudge; it assumes, in the language of the text-books, judicia)
magistracy; it pronounces upon the guilt of the party, without any of the fonns or
safeguards of trial; it determines the sufficiency of the proofs produced, whether con-
formable to the rules of evidence or othenvise; and it fixes the degree or punishmem
in accordance with its own notions of the enormity of the offensen); sa al.ro ~1ark
Strasser, Ex Post Facto Laws, Bills ofAttainder, and the Definilwn of Punuhment: on Dama,
the Hawaii Amendment. and Federal Constitutional Constraints, 48 S\'RACUSE L RE.V. 227,
238-39 (1998).
   s!:'6 See id.

      'Y7 See Carmell, 120 S. Ct. at 1650-51 (Ginsburg, J., dissenting) (noting that Texas
    3

Article 38.07 does not implicate either of two important purposes for which the E.x
466                         SUPREME COURT REVIEW                               [Vol. 91

passed with Scott Leslie Cannell in mind but as a general meas-
ure, affecting all citizens. As the dissent argued, "the amend-
ment of Texas 38.07 simply brought the rules governing certain
victim testimony in sexual offense prosecutions into conformi:;ra
with Texas law governing witness testimony generally." 3 8
Moreover, Texas Article 38.07 removed none of the protections
of a criminal trial; Cannell received a full trial, with benefit of
counsel, before a jury, and he was presumed innocent until the
prosecution could prove, beyond a reasonable doubt, that he
had committed the offenses for which he was charged. Because
Fenwick's case involved a Bill of Attainder, it is inherently dif-
ferent from Cannell's case; whereas Fenwick was the target of
"vindictive" legislation, aimed specifically at him, Carmell was
simply subjected to a general procedural rule applied to all
criminal defendants in sex offense cases.

C. THE Mi\)'ORI1YS TREATMENT OF BEAZELLAND COLLINS
     Third, the majority's decision was incorrect because even if
Justice Stevens was correct in his assertion that Article 38.07
meets the definition set forth in the fourth Calder category, the
majority ignored precedent that effectively nullified that cate-
gory.309 The maJority argued that Collins was at best "cryptic" on
 the issue of whether the fourth Calder category was still good
Iaw. 31 ° Further, the majority argued that if Collins intended to
 nullify the fourth category of Calder, "we think it strange that it
                                       511
would have done so in a footnote.''        These arguments avoid
 the ultimate conclusion reached by Collins.m First, Collins paid
 deference to the four categories of Calder, but only as a general
 principle, and the Court further explained that the Beazell defini-
 tion was the one best suited to the original understanding of the

Post Facto clause was promulgated: "to assure that legislative Acts give fair warning of
their effect and permit individuals to rely on their meaning until explicitly changed,"
and to "[restrict] governmental power by restraining arbitrary and potentially vindic-
tive legislation").
    308
          Id. at 1651 (Ginsburg,]., dissenting) .
    .!.09 See CoUins, 497 U.S. at 37.
    510
          See Carmell, 120 S. Ct. at 1635 (noting that "it seems most accurate to say that
CoUins is rather cryptic").
    m Id. at 1636.
    512
          It is interesting to note that CoUinswas authored by Chief justice Rehnquist, who
dissented in CarmeU. Wouldn't Chiefjustice Rehnquist, the author of CollinsJ be in the
best position to determine if the Court meant to nullify the fourth principle of Caldm
Of course.
2001]                          CARMEIL V. TEXAS                                   467
          313
framers.     The majority is correct that the Collins Court men-
tioned Beazell's omission of the fourth Calder category in a foot-
note, but tlle fact that the Court did so does not necessarily
mean that it was any less serious about adopting the Beazell defi-
nition. It is important to note tllat directly after tlle Collins
Court explained tlle omission, it adopted the Beazell definition
as "faithful to our best knowledge of the original understanding
of the Ex Post Facto Clause." 314
    Most importantly, in analyzing the facts involved in Collins,
the Court did not apply the four categories of Calder, the Court
ultimately applied the Beazell formulation in determining that
the Texas statute did not offend the Ex Post Facto Clause, even
though the statute was a rule of procedure.:us The majority in
Carmell ignored tlle fact that the Collins Court ultimately applied
the Beazell formulation, and ignored the fact that the Collins
Court did so with a rule of procedure, one which typically
should have been subjected to analysis under the fourth cate-
                316
gory of Calder. The Collins Court"s ultimate application of the
Beazell formulation as a pragmatic matter, along with its ringing
endorsement of the Beazell formulation in direct comparison
with the four Calder categories (and the explicit recognition that
Beazell omitted the fourth category) lead to one inescapable
conclusion: the Collins court effectively nullified the fourth
category of Calder, and replaced the four-category Calder formu-
lation with the more general formulation provided in BeazelL 117

   313
       See CoUins, 497 U.S. at 42-43.
   Sl4 Id.
   315
       See id. at 51. The Court applied the Beazell test in reaching its holdin~ "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 bur-
densome 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."
   516
       See Carmell, 120 S. Ct. at 1635-36.
   517
        See Neil Colman McCabe and Cynthia Ann Bell, Ex Post Facto Pruvzswns of Stale
Constitutions, 4 EMERGING IssuEs ST. CONST. L. 133, 134-35 (1991) (explaining that the
"four categories ... have not stood the test of time," and that Collms Court narrowed
the scope of the Ex Post Facto Clause, and curtailed the fourth cntegory); Victoria L
Miller, VII. Criminal Prow:lure: Trial and Post-tritzllssues, 29 RUTCERS LJ. 1257, 1288
(1998) (acknowledging that the CoUins Court adopted the BeDUll formulation for the
definition of ex post facto laws, and acknowledging that the Bcaull formulation omit-
ted the fourth category of Calde1); Matteo, supra, note 25, at 595.
i-.-1




        468                         SUPREME COURT REVIEW                               [Vol. 91

        Thus, Carmell majority's response that Collins is "cryptic" is un-
        persuasive.

                                  VI. CONCLUSION
            The Supreme Court's decision in Carmell was incorrect for
        three reasons. First, the majority erroneously concluded that
        Article 38.07 was a rule affecting the sufficiency of the evidence
        needed to convict.m In reality, 38.07 does not affect the ulti-
        mate sufficiency of the evidence standard: the prosecution's
        burden of proving its case beyond a reasonable doubt. s19 Addi-
        tionally, 38.07 functions exactly like a rule of witness compe-
        tency, the alterations of which were upheld in Hopt. 320 Second,
        the majority in Carmell relied too heavily on a three-hundred-
        year-old case that was mentioned only briefly in Calder v. Bull,
        and never again, even in cases that implicated Calder's fourth
        principle. 521 In addition, the mcyority's reliance on that case was
        misplaced; the facts surrounding Fenwick's execution are in-
        herently different from the facts in Carmell.m Third, even if the
        mcyority were correct in its assertion that 38.07 fell under the
        fourth category of Calder, the mcyority ignored important
        precedent that effectively nullified that category. 323 As a result,
        the majority frustrated what the Collins Court sought to achieve:
        eradication of the confusion surrounding whether procedural
        rules violated the Ex Post Facto Clause. 324 Thanks to the Carmell
        Court, the situation is now more confused than ever.


                                                                            Danielle Kitson




           sJs See supra notes 254-55; see also supra Section VB (discussion of Article 38.07 as a
        law of witness competency).
           m See id.
             20
           s See supra note 94.
           s See supra Section VA (discussion ofthe m~ority's reliance on Fenwick's case).
             21

           sn See id.
           su See supra note 310; see also supra Section VC (discussion of the abandonment of
        Calder's fourth category.
              4
           "    See supra note 260.
              l)
                                                                                                                                                          I
                                                                                                                                                          t
., 416/2015                                                       Legal Definition of'Ex Post Facto'

     Not every change in a convicted person's situation violates the Ex Post Facto Clause. A law implicates
     the Ex Post Facto Clause only if it criminalizes conduct that was not a crime when it was committed,
     increases the punishment for a crime beyond what it was at the time the act was committed, or deprives a
     person of a defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 42-
     43 (1990). Courts have held that legislation may lawfully impose new requirements on convicted persons
     if the statute's 'overall design and effect' indicates a 'non-punitive intent.' United States v. Huss, 7 F.3d
     1444, 1447 (9th Cir.'93).




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  E             ~J
':"' 41612015                                                                             Collins v. Youngblood, 497 U.S. 37 (1990)

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                                            Collins v. Youngblood (89-742), 497 U.S. 37 (1990)
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                                              constitutes no part of the opinion of the                                                 All lawyers
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                                                                      Syllabus

                          COLLINS, DIRECTOR, TEXAS DEPARTMENT OFCRIMINAL JUSTICE,
                                     INSTITUTIONALDIVISION v. YOUNGBLOOD

                                        CEirriORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT


                          No. 89-742. Argued March 19, 1990- Decided June 21, 1990

                     Respondent was convicted in a Texas state court of aggravated
                     sexual assault and sentenced to life imprisonment and a $10,000
                     fine. After his conviction and sentence were affirmed on direct
                     appeal, he applied for a writ of habeas corpus in state court,
                     arguing that Texas law did not authorize both a fine and prison
                     term for his offense, and thus that his judgment and sentence were
                     void and he was entitled to a new trial. The court, bound by a
                     State Court of Criminal Appeals' decision, recommended that the
                     writ be granted. Before the writ was considered by the Court of
                     Criminal Appeals however, a new statute was passed allowing an
                     appellate court to reform an improper verdict assessing a
                     punishment not authorized by law. Thus, the Court of Criminal
                     Appeals reformed the verdict by ordering that the fine be deleted
                     and denied the request for a new trial. Arguing that the new Texas
                     law's retroactive application violated the Ex Post-Facto Clause of
                     Art. 1, 10, respondent filed a writ of habeas corpus in Federal

  https:/twww.law.cornell .edu/supctlhtmii89-742.ZS.html                                                                                                                                        1/::1
  ~           .j
~· 41612015                                                      Collins v. Youngblood, 497 U.S. 37 (1990)

                   District Court, which was denied. The Court of Appeals reversed.
                   Relying on the statement in Thompson v. Utah, 170 U.S. 343, that
                   retroactive procedural statutes violate the Ex Post-Facto Clause
                   unless they "leave untouched all the substantial protections with
                   which existing law surrounds the ... accused," the court held that
                   respondent's right to a new trial under former Texas law was a
                   "substantial protection."

                   Held:

                   1. Although the rule of Teague v. Lane, 489 U.S. 288- which
                   prohibits the retroactive application of new rules to cases on
                   collateral review - is grounded in important considerations of
                   federal-state relations, it is not jurisdictional in the sense that this
                   Court, despite a limited grant of certiorari, must raise and decide                                     r:

                   the issue sua sponte. Since Texas has chosen not to rely on Teague,
                   the merits of respondent's claim will be considered. P. 3.                                                            ,·.
                                                                                                                                     ;7->.         ·.·•
                                                                                                                  .... --
                                                                                                             _··: / -.,. .
                                                                                                                                                 .·:_;.
                                                                                                                                               . _;'~~
                   2. The application of the Texas statute to respondent is not                                  ~.   .   -~-   .·   :




                   prohibited by the Ex Post-Facto Clause. Pp. 3-14.

                   (a) The definition of an ex post-facto law as one that (1) punishes
                   as a crime an act previously committed, which was innocent when
                   done, (2) makes more burdensome the punishment for a crime,
                   after its commission, or (3) deprives one charged with a crime of
                   any defense available according to law at the time when the act
                   was committed, Beazell v. Ohio, 269 U.S. 167, is faithful to this
                   Court's best knowledge.of the original underst~rding of the Clause:
                   Legislatures may not retroactively ~lter the definition of crimes or
                   increase the punishment for criminal acts. Respondent concedes
                   that Texas' statute does not fall within the Beazell categories,
                   since it is a procedural change in the law. However, h·e errs in
                   arguing that this Court's decisions have not limite.d the Clause's
                   scope to those categories, but have stated more broadly that
                   retroactive legislation contravenes the Clause if it deprives an
                   accused of a "substantial protection" under law existing at the time
                   of the crime, and that the new_ trial guaranteed by Texas law is
                   such a protection. When cases have described as "procedural" those
                   changes that do not violate.the Clause even though they work to
                   the accused's disadvantage, see, e.g.,
                                                       . .
                                                           Beazell,
                                                             ·.    .
                                                                     supra, at 171, it is
                   logical to presume that '"procedurar' refers to changes in the
                   procedures by which a criminal case is adjudicat~d as opposed to
                   substantive changes in the law; .the ·:substantial protection"
                   discussion in Beazell, Duncan v. Missouri, 152 U.S. 377, 382-383,
                   and Malloyv. South Carolina, 237 U.S. 180·, 183, has imported
                   confusion into the Clause's interpretation and should be read to
                   mean that a legislature does not immunize a law from scrutiny
                   under the Clause simply by labeling the law "procedural." It should
                   not be read to adopt without explanation an undefined
                   enlargement of the Clause. Pp. 3-9.

                   (b) Kring v. Missouri, 107 U.S. 221, and Thompson v. Utah, supra,

  htlps:/lwww .I em .cornell.edu/supctlhtmi/89-742.ZS.html                                                                                                ?J?.
                                                            Collins v. Youngblood, 497 U.S. 37 (1990)

            are inconsistent with the understanding of the term "ex post-facto
            law" at the time the Constitution was adopted, rely on reasoning
            that this Court has not followed since Thompson was decided, and
            have caused confusion in state and lower federal courts about the
            Clause's scope. Kring and Thompson are therefore overruled. Pp. 9-
            14.

            882 F. 2d 956, reversed.

            Rehnquist, C.J., delivered the opinion of the Court, in which
            White, Blackmun, O'Connor, Scalia, and Kennedy, JJ., joined.
            Stevens, J., filed an opinion concurring in the judgment, in which
            Brennan and Marshall, JJ., joined.



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https:/lwww.law.cornell.edu/supctlhtmii89-742.ZS.html                                                             . 313 .
