ex post facto clause in Texas

2011See Ieppert, 908 S.W.2d at 218 ("The Court of Appeals did not reach the merits of" the ex post facto claim, "holding instead that appellant forfeited the right to complain of it on appeal because he did not first raise it in the trial court.”), 220 (holding that "ex post facto prohibitions do not merely confer upon the people a waivable or forfeita-ble right not to have their conduct penalized retroactively” and remanding for proceedings consistent with the opinion). .

2011See Ieppert , 908 S.W.2d at 218 ("The Court of Appeals did not reach the merits of" the ex post facto claim, "holding instead that appellant forfeited the right to complain of it on appeal because he did not first raise it in the trial court."), 220 (holding that "ex post facto prohibitions do not merely confer upon the people a waivable or forfeitable right not to have their conduct penalized retroactively" and remanding for proceedings consistent with the opinion). 6.

2012When an appellate court engages in an ex post facto analysis, its sole concern is whether the statute assigns more severe criminal or penal consequences to an act than did the law in place when the act occurred, and it is irrelevant whether the statutory change touches any vested rights. 8 Grimes, 807 S.W.2d at 587 (citing Weaver v. Graham, 450 U.S. 24 , 29 n. 13, 101 S.Ct. 960, 964, n. 13 , 67 L.Ed.2d 17 (1981)).

2012See Grimes, 807 S.W.2d at 587, 588 (holding that the legislature’s enactment of Code of Criminal Procedure Article 44.29(b), which changed the law so that reversible error during the punishment phase of a trial would result only in a new punishment hearing rather than a completely new trial, did not constitute an ex post facto violation under either federal or Texas constitutions).

2018PENAL CODE § 2.05(b); see also e.g., id. § 9.32(b); see also Carmell v. Texas, 529 U.S. 513, 522, 530 (1999) (finding an ex post facto violation when a law “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” which occurred when the law “changed the quantum of evidence necessary to sustain a conviction”).

2018See Tex. Penal Code § 2.05(b) ; see also e.g., id. § 9.32(b) ; see also Carmell v. Texas , 529 U.S. 513 , 522, 530, 120 S.Ct. 1620 , 146 L.Ed.2d 577 (2000) (finding an ex post facto violation when a law "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" which occurred when the law "changed the quantum of evidence necessary to sustain a conviction").

2017Moreover, “the United States Supreme Court has never held that the imposition of criminal penalties for violating a civil regulatory scheme ipso facto renders an act punitive, rather than civil.” See Fisher, 164 S.W.3d at 652–53 (citing Smith v. Doe, 538 U.S. 84, 90 , 105–06 (2003) (holding that Alaska Sex Offender Registration Act was civil even though a knowing failure to comply would subject the offender to criminal prosecution) and Hawker v. New York, 170 U.S. 189 , 192–94, 200 (1898) (holding that New York statute prohibiting 3 felons from obtaining licenses to practice medicine did not v

2016Moreover, “the United States Supreme Court has never held that the imposition of criminal penalties for violating a civil regulatory scheme ipso facto renders an act punitive, rather than civil.” See Fisher, 164 S.W.3d at 652 -53 (citing Smith v. Doe, 538 U.S. 84, 90, 105-06 (2003) (holding that Alaska Sex Offender Registration Act was civil even though a knowing failure to comply would subject the offender to criminal prosecution) and Hawker v. New York, 170 U.S. 189, 192-94, 200 (1898) (holding that New York statute prohibiting felons from obtaining licenses to practice medicine did not viol

2009The Texas Court of Criminal Appeals has already held that the sex offender registration requirement is civil and remedial in nature and that it does not constitute punishment.2 The Texas Court of Criminal Appeals has also already held that because the sex offender registration statute is essentially remedial in nature, its application to a particular defendant does not violate the ex post facto clause of the state and federal constitutions. 3 We therefore hold that Appellant may be tried for his failure to register as a sex offender without implicating either his rights to be free from double

2006See Smith v. Doe, 538 U.S. 84 , 93 (2003) (holding Alaska's retroactive sex offender registration statute not violative of the ex post facto clause); Rodriguez v. State, 93 S.W.3d 60 , 69 (Tex.Crim.App. 2002) (holding Texas' retroactive amendments to sex offender registration statute not violative of the ex post facto clause).

2021The ex post facto clause “provides simply that ‘[n]o State shall . . . pass any . . . ex post facto Law.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting U.S. CONST. art.

2020Heilman, 456 S.W.3d at 166 (citing Rogers v. Tennessee, 532 U.S. 451 , 457–62 (2001) which clarified that the ex post facto clause does not apply to the judiciary, and due process does not –16– incorporate all of the ex post facto clause’s strictures); Harber, 594 S.W.3d at 443.

2012When an appellate court engages in an ex post facto analysis, its sole concern is whether the statute assigns more severe criminal or penal consequences to an act than did the law in place when the act occurred, and it is irrelevant whether the statutory change touches any vested rights. 8 Grimes, 807 S.W.2d at 587 (citing Weaver v. Graham, 450 U.S. 24 , 29 n. 13, 101 S.Ct. 960, 964, n. 13 , 67 L.Ed.2d 17 (1981)).

2012When an appellate court engages in an ex post facto analysis, its sole concern is whether the statute assigns more severe criminal or penal consequences to an act than did the law in place when the act occurred, and it is irrelevant whether the statutory change touches any vested rights. 8 Grimes, 807 S.W.2d at 587 (citing Weaver v. Graham, 450 U.S. 24 , 29 n. 13, 101 S.Ct. 960, 964, n. 13 , 67 L.Ed.2d 17 (1981)).

2019In assessing a claim of an ex post facto violation, “we look beyond the actor that is directly committing the alleged violation for some legislative origin of the alleged violation.” Id. at 165 .

2015We explained that in Ieppert “we did not appear to appreciate the distinction” between the legislature and the courts due to Bouie v. City of Columbia’s due process prohibition against the judiciary “achieving, through construction of a statute, the exact same consequence that would be prohibited by the ex post facto clause if the Legislature had so acted.”28 We noted that the Supreme Court in Rogers v. Tennessee had since declared that reasoning dicta—clarifying that Bouie turned only on a due process violation—and held the federal Ex Post Facto Clause inapplicable to the courts, citing the “

2015But I join the majority opinion because Phillips did not involve ex post facto legislation; it involved a “plain-vanilla limitations claim.” Phillips, 362 S.W.3d at 624 (Keller, P.J., dissenting).

2015See Phillips, 362 S.W.3d at 616 .

2009Appellant relies upon Munoz v. State, 133 S.W.3d 836, 837-38 (Tex. App.—El Paso 2004, no pet.) (citing Scott, 55 S.W.3d at 597–98), to support his argument that enhancement by the 1999 family assault is an ex post facto violation.

2009Appellant relies upon Munoz v. State, 133 S.W.3d 836, 837-38 (Tex. App.—El Paso 2004, no pet.) (citing Scott, 55 S.W.3d at 597–98), to support his argument that enhancement by the 1999 family assault is an ex post facto violation.

2015See Phillips, 362 S.W.3d at 608, 616-19 ; Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993).

2015See Phillips, 362 S.W.3d at 608, 616-19 ; Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim.

2004Moreover, this contention is analogous to a sufficiency of the evidence challenge, see generally Givens v. State, 26 S.W.3d 739, 740 (Tex.App.-Austin 2000, pet. ref'd); Flanary v. State, 166 Tex.Crim. 495 , 316 S.W.2d 897, 898 (1958), or error based on an ex post facto claim.

2004Moreover, this contention is analogous to a sufficiency of the evidence challenge, see generally Givens v. State , 26 S.W.3d 739, 740 (Tex. App. -- Austin 2000, pet. ref'd); Flanary v. State , 166 Tex. Crim. 495 , 316 S.W.2d 897, 898 (1958), or error based on an ex post facto claim.

2004See also Blue v. State, 41 S.W.3d 129, 131 (Tex.Cr.App.2000). 1 Turning to the question, “Is Error Re- versible?” the court said: The State contends that error, if any, was harmless and that under article 44.46 of the Code of Criminal Procedure, appellant’s conviction cannot be reversed on the ground that an absolutely disqualified person was impaneled on the jury.

2004See also Blue v. State , 41 S.W.3d 129,131 (Tex. Cr.

2004Moreover, this contention is analogous to a sufficiency of the evidence challenge, see generally Givens v. State, 26 S.W.3d 739, 740 (Tex.App.-Austin 2000, pet. ref'd); Flanary v. State, 166 Tex.Crim. 495 , 316 S.W.2d 897, 898 (1958), or error based on an ex post facto claim.

2004Moreover, this contention is analogous to a sufficiency of the evidence challenge, see generally Givens v. State, 26 S.W.3d 739, 740 (Tex.App.-Austin 2000, pet. ref'd); Flanary v. State, 166 Tex.Crim. 495 , 316 S.W.2d 897, 898 (1958), or error based on an ex post facto claim.

2020Appellant argues that under Calder v. Bull, using article 12.01 as applied to appellant’s case would be an ex post facto violation because it would be “manifestly unjust and oppressive.” See Calder v. Bull, 3 U.S. 386, 390-91 (1798).

2016This Court has described an ex post facto violation based on the theory that ‘“the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it.’ ” Ex parte Heilman, 456 S.W.3d 159, 163 (Tex.Crim.App.2015) (quoting Colder v. Bull, 3 U.S. 386 , 3 Dali. 386, 1 L.Ed. 648 (1798)).

2011See Rogers v. Tennessee, 532 U.S. 451, 462 , 121 S.Ct. 1693 , 149 L.Ed.2d 697 (2001) (holding that the retroactive application of a judicial decision abolishing the common law "year and a day” rule was not an ex post facto violation because that constitutional clause applies to legislative acts — black letter law— not to judicial decisionmaking); Johnson v. United States, 529 U.S. 694, 699 , 120 S.Ct. 1795 , 146 L.Ed.2d 727 (2000) ("The heart of the Ex Post Facto Clause, U.S. Const., Art.

2011See Rogers v. Tennessee, 532 U.S. 451, 462 , 121 S.Ct. 1693 , 149 L.Ed.2d 697 (2001) (holding that the retroactive application of a judicial decision abolishing the common law "year and a day” rule was not an ex post facto violation because that constitutional clause applies to legislative acts — black letter law— not to judicial decisionmaking); Johnson v. United States, 529 U.S. 694, 699 , 120 S.Ct. 1795 , 146 L.Ed.2d 727 (2000) ("The heart of the Ex Post Facto Clause, U.S. Const., Art.

2013Aylor v. State 727 S.W.2d 727, 729 (Tex.App. -- Austin 1987, pet. ref'd).

2013Aylor v. State 727 S.W.2d 727, 729 (Tex.App.-Austin 1987, pet. ref'd).

2013In other words [a] retroactive increase in the 'quantum of punishment' violates the ex post facto clause." Johnson v. State 930 S.W.2d 589, 591 (Tex. Crim.

2000See Weaver v. Graham , 450 U.S. 24, 28 (1981); Johnson v. State , 930 S.W.2d 589, 591 (Tex. Crim.

2002The court overruled the point of error, explaining that “because the registration requirement is remedial in nature, i.e., a statute enacted for the advancement of the public good, it does not impose ‘punishment’ for constitutional purposes and is not susceptible to an ex post facto claim.” Id. at 689 (citations omitted).

2001See Rodriguez v. State, 45 S.W.3d 685, 688 (Tex.App.—Fort Worth 2001, pet. filed) (concluding that the sex-offender registration requirement is remedial in nature and therefore not subject to an ex post facto analysis); Saldana v. State, 33 S.W.3d 70, 71-2 (Tex.App.—Corpus Christi 2000, pet. ref'd) (holding that the sex offender registration requirement is not punitive and therefore not susceptible to ex post facto principles).

1995Also, in French, supra, the court reaffirmed its decision in Grimes v. State, supra, and the French court reaffirmed its adoption of the analysis set out in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990), in addressing and analyzing an ex post facto challenge, concluding that the amended and revised Article 37.07, § 4 was not prohibited by the ex post facto provision of the Texas Constitution.

1995Also, in French, supra, the court reaffirmed its decision in Grimes v. State, supra, and the French court reaffirmed its adoption of the analysis set out in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990), in addressing and analyzing an ex post facto challenge, concluding that the amended and revised Article 37.07, § 4 was not prohibited by the ex post facto provision of the Texas Constitution.

2016In Dominguez, the court examined an ex post facto challenge to article 38.37, § 2(b) and held that the amended statute “neither changes the State's burden of proof to support a conviction for sexual assault of child nor lessens the amount of evidence required to sustain a conviction.” Id. at 526 (citing McCulloch v. State, 39 S.W.3d 678, 684 (Tex. App.—Beaumont 2001, pet. ref’d)).

2015Application of Texas Code of Criminal Procedure Article 38.37 In McCulloch v. State, 39 S.W.3d 678 (Tex. App.—Beaumont 2001, pet. ref’d), the appellant also raised an ex post facto challenge to the original version of article 38.37, also enacted after appellant’s charged offense.

2020Heilman, 456 S.W.3d at 166 (citing Rogers v. Tennessee, 532 U.S. 451 , 457–62 (2001) which clarified that the ex post facto clause does not apply to the judiciary, and due process does not –16– incorporate all of the ex post facto clause’s strictures); Harber, 594 S.W.3d at 443.

2016This Court has described an ex post facto violation based on the theory that ‘“the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it.’ ” Ex parte Heilman, 456 S.W.3d 159, 163 (Tex.Crim.App.2015) (quoting Colder v. Bull, 3 U.S. 386 , 3 Dali. 386, 1 L.Ed. 648 (1798)).

2019Rather, the source of Harber’s time-barred conviction is his forfeiture of the defense pursuant to a rule of -4- 04-17-00595-CR procedural default that is of judicial, not legislative origin. 3 See id. at 165 ; Proctor, 967 S.W.2d at 845 .

2011The Court claims that a jury charge erroneously containing the words “a public servant” would be “an ex post facto violation under Johnson.”13 But the Court’s own parenthetical quote from Johnson effectively refutes the Court’s contention: “To prevail on this sort of ex post facto claim, Johnson must show . . . that the law he challenges operates retroactively (that it applies to conduct completed before its enactment).14 9 Id. (quoting Rogers, 532 U.S. at 460 ). 10 Proctor v. State, 967 S.W.2d 840, 845 (Tex. Crim.

2026Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex. Crim.

2022Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex. Crim.

2001Neither is it on “whether an amendment affects a prisoner’s ‘opportunity to take advantage of provisions for early release.’ ” Morales, 514 U.S. at 506 n. 3, 115 S.Ct. 1597 . (emphasis added) Instead, the focus of an ex post facto inquiry is on “whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id.

2001Neither is it on “whether an amendment affects a prisoner’s ‘opportunity to take advantage of provisions for early release.’ ” Morales, 514 U.S. at 506 n. 3, 115 S.Ct. 1597 . (emphasis added) Instead, the focus of an ex post facto inquiry is on “whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id.

2015Id.

2013App. 1981) (en banc); see also Barnes v. State, 70 S.W.3d 294, 303 (Tex. App.—Fort Worth 2002, pet. ref’d) (approving such use in response to an ex post facto challenge).

2010See Ieppert v. State, 908 S.W.2d 217, 220 (Tex.Crim.App.1995); Holcomb v. State, 146 S.W.3d 723, 730 (Tex.App.-Austin 2004, no pet.); Dean v. State, 60 S.W.3d 217 , 219 n. 1 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd).

2004See Rodriguez v. State, 93 S.W.3d 60, 66 (Tex.Crim.App.2002); Dean v. State, 60 S.W.3d 217, 219-20 (Tex.App.-Houston 2001, pet. ref'd).

2000See Marks v. United States , 430 U.S. 188, 191-92 (1977).

1988Marks v. United States, 430 U.S. 188 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977).