I1within 75 days of defendant's sentencingin open court on October 31,1986. Article44.29, V.A.C.C.P. (1985). To apply the1987 amendment to Article 44.29,V.A.C.C.P. (1987), retroactively merelybecause there was a delay and the court ofappeals' judgment was rendwed after theeffectivedate of the statutory amendmentwould result in depriving thedefendant ofsubstantial protection - the right underArticle 44.29, V.A.C.C.P. (1985) torelitigate before a new jury the issues ofboth guilt and punishment in this cause.Such are violations of the Texas Constitution.On rehearing, this Court shouldmodify its original opinion to provide forreversal and remand for new trial in accordancewith the pmvisions of Micle4429, V.A.C.C.P. (1985). See Ex parieAbahosh, supra.As to procedural changes other thanchanges in the rules of evidence, theSupreme Gourt has stated the test in thisway: a procedural change which does notinjuriously affect a substantial right towhich the accused was entitled as of thetime of his offense is not ex post factothough retroactive; but it is otherwise if itdoes deprive him of a substantial right.Miller v. Florida, 482 US.-, <strong>10</strong>7 S.Ct.2446.2450-2454.96 L.Ed.2d 351 (1987);Kring v. Missouri, I07 US. 221, 2 S.0.443,449-455,27 L.Ed. 506 (<strong>18</strong>83) [wherethe Court held the new law was an nnconstitutionalex post facto law which depriveddefendant of a substantial rightsince old law in effect at time of offense,provided that on a charge of first-degreemurder aguilty plea tosecond-degreemurderoperated as an acquittal of fust-degreemurder, even if the plea is later set aside,while the new law, passed after commissionoftheoffense, provided that if the pleais set aside, new trial may be had for fmtdegreemurder]. However, it is not alwayseasy to place a particular proceduralchange in one category or the other. Exparte Johnson, 697 S.W.2d 605Tex.CrimApp. (1985)(separatedissentingopinions by Judges Onion, Clinton andTeague). A procedural change, which hasbeen held to be substantial, is the completeabolition of jury trial, State ex rel. Sherbumev. Baker, 50 La.Ann. 1247,24 So.240 (<strong>18</strong>98), or the abolition ofjury trial asto assessment of punishment. Winston v.Stare, <strong>18</strong>6 Ga. 573, 198 S.E. 667, 669(1938)[where the Georgia Supreme Courtheld that the new law permitting only annexed to the crime, when comjudgesto set punishment was an ex post mitted. 4th. Every law that alters thefacto law as to Winstonbecauseit deprived legal rules of evidence, and receiveshimofthesubstantial preexistingabsolute less, or different, testimony, than theright to have a jnry asses punishment law at the time of the cornunderthe indeterminate sentence law in mission of the offense in order toeffect when the criminal act was comtheoffender.nlitted]; Hurt v. State, <strong>18</strong>7 Ga, 73,199 S.E.801 (1938)[sameas Winston, supra]; Camp Texas has adopted that samedefinition.v. State, <strong>18</strong>7 Ga. 76, 200 S.E. 126Hill v. State, 146 Tex.0.R. 333, 171(1938)[same as Winston, supra]. See alsoS.WSd 880, 883 (1943), cert. dismissedWave and Scott, Szrbstantive Criminal320 U.S. 806,64 S.Ct. 72, 88 L.Ed. 487Law, 5 2.4 Ex Post Facto Laws pgs. 140-(1943); Millican v. State, 145 Tex.Cr.R.141 (West 1986).It isclearthat whilesome195, 167 S.W.2d <strong>18</strong>8, 190 (1942); Holt v.of the methods of trial may be changed,Stafe, 2 Tex. 363, 364 (<strong>18</strong>47)[where theeven as to offenses of a prior date, but theCoiiri held the legislation, Stats. <strong>18</strong>46,law securing to theaccused the right oftrial161, which required the jury in certainby jnry cannot be repealed, as relates tocases to assess the punishment to be incriminalacts which had been done at theflicted, not to be an ex post facto lmv, intime of the repeal through subsequentviolation of Article 1, 5 14 of the Texaslegislation or constitutional amendment. A Constitution in reference to the <strong>18</strong>46 trialnew statute or consfifution, materially imofthiscauseonan <strong>18</strong>44 indictment, whichpairing to his disadvantage the right of theprosecution was pending at the period ofaccused to have the question of his guiltadoption of the first state Constitition,determined according to the law as it wassince that act of <strong>18</strong>46, ". . . merely subwhentheoffense wascommitted,is exposfstitutes the opinion of the jury for that offact0 in its application to felonies comthejudge in those cases, but it does in nomitted before enactment of the new law.respect operate to the prejudice of the ac-. ...". . .because, in respect of such crimes, the. ."I.constitution bf theunited States gave theaccused, at the time of the commission ofhis offense, the right to be tried by a jury oftwelve persons and made it impossible todeprive him of his liberty except by theunanimous verdict of such a jury."T?ionipson v. Ufah, 170 US. 343,<strong>18</strong> S.0.620, 623-624, 42 L.Ed. <strong>10</strong>61(<strong>18</strong>98)[reversing conviction by jnry ofonly eight persons for crime committed inUtah territory but prosecuted after Utahbecame a state].Article 1, S$ <strong>10</strong>, clause 1, of the UnitedStates Constitution prohibits a State'senactment of any ex post facto law. <strong>The</strong>United States Supreme Court stated theclassic definition of an ex post facto law inOllder v. Bull, 3 US. (3 Dall.) 386, 390(1798), where the Court said:1st. Every Law that makes actiondone before the passing of the lawand which was innocent when done.criminal; and punishes such action.2d. Every law that aggravates acrime,or makes it greater thanit was,when committed. 3d. Every law thatchanges the punishment, and inflictsa greater punishment, than the lawSupporting Authorities1. Exparte Abahosh, 561 S.W.2d 202,204 (Tex.Cr.App. 1978)[where the 1977amendment to Anicle 44.02, V.A.C.C.P.(effective August 29,1977), was declarednot to be retroactive so as to nullify theappeal of a defendant, who had pled guiltyon August 5, 1977 but was sentenced on~e~tember 9,19771.2. Chalin v. Slate, 645 S.W.2d 265(Tex.Cr.Aoo. 1982>(0n Rehearingi983)[whe& the C&t holding dueprocess of law does not allow prosecutionfor possession or delivery of phentermineif the offense occurred between the timewhen Riddle was decided and whenAshcrafi was decided, the Court quotedfrom Bouie v. City of Columbia, 378 US.347, 352-355, 84 s.0. 1697, 1702, 12L.Ed.2d 894 (1964) in part saying:When a state court overrules a consistentline of procedural decisionswith the retroactiveeffectofdenyinga litigant a hearing ina pending case,it thereby deprives him of dueprocess of law "in its primary Sense34 VOlCEfor the Defezse I June 1989
ot an opportunity to be heard and to that the provisions of V.T.C.A. Penal pmhibit the enactment of ex post factodefend [his] substantive right." Code, 8 12.46, which becameeffectiveon laws: Article 1, 8 <strong>10</strong>, United States Con-Brinkerhof-Faris Trust & Sav. Co. June 7,1979, applied only to prosecutions stitution; Article 1, $16, Texas Constituv.Hill,281 US. 673,678 [SO S.Ct. ofcrin~esmmrnitredafteritseffectivedate, tion].451,453,74 L.E.. 1<strong>10</strong>71. fortoapply it retroactively toprosecutions 4. Fx parte Alegria, 464 S.W.2d 868conducted after its effective date of June 7, (Tex.Cr.App. 1971) [where the Court3. fi pane Bonfrartr, 707 S.W.2d <strong>10</strong>7 1979, would violate the provisions of the granted relief for although the statute in(Tex.Cr.App. 1986)Lwhere the Court held Federal and State Constitutions which effect at thecommission of the offense andTentative FY89 CDLP/TCDLA Seminar ScheduleJune 8-<strong>10</strong>,1989 June 29,1989TCDLA Criminal Law Short TCDLA Executive CommitteeConrse- San Antonio -Holiday Inn Meeting-5:OO-6:30 p.m.-HolidayRivetwalkInn RiverwalkJune 28Juty 1,1989SBOT ConventionSan Antonio<strong>The</strong> Sfare Bar of Texas will beHendquaneredat rite MarriortJune 29,1989Criminal Law InstituteSponsored by: Texas District andCounty Attorneys Association,Criminal Justice SectionJune 29,1989CDLP Executive Committee June 30,1989June 29,1989TCDLA Annual Party with Auction&Hall of Fame Inductees -7:00 p.m.-closing - (Plaza Nacionalin LaVillita)June 30,1989TCDLEI Boad Meeting-9:3@<strong>10</strong>:30 a.m.-Holiday lnnRivetwalkti^^ 4:00.5:~) p,m.-Holiday inn Friends of TCDLA Board Meeiing -Riverwalk<strong>10</strong>:30 a.m:12:00p.m.TCDLNCDLP Proposed FY90 Seminar ScheduleJune 30,1989TCDLA Amual Meeting (BoardMeeting)-<strong>10</strong>:30 a.m.-1:OOp.m.July 20-21,1989CDLP Skills Cours~Ahilene(Embassy Suites)August <strong>10</strong>-11,1989CDLPFederal &State AppellatePractice-Ft. Worth WoahingtonHotel-tentatively)September 20-22,1989TCDZAFederal Shortcourse-Dallas (Holiday InnDowntown Elm Street)September 8-9,1989TCDLA Board and ExecutiveMeetings - Odessa (CDLPExecutive Meetings)September 20-22,1989TCDLAFederal Criminal Law ShortCourse -DallasOctober 19-20,1989CDLP DWI Seminar- San AntonioDecember 9,1989TCDLMCDLP Board and Executive-DallasJanuary ll-12,1990CDLP Dnig Offenses - McAlknFebruary 15-16,1990CDLP Sex Offenses - HoustonFebruary 17,1990TCDLMCDLP Board and Executive-HoustonApril <strong>18</strong>-22,1990TCDLA Spring SeminarMay 17-<strong>18</strong>,1990CDLPFederal Crimid Law - SanAntonioJune7-<strong>10</strong>,1990SBOT Convention - DallasCriminal Law InstituteTCDLNWLP Board &ExecutiveMeetings, TCDLA AnnualAwardSmartyMarch 3-9,1990 July 12-13,1990November 16-17,1989 Criminal Trial Advocacy Inst. - CDLP Skills Course - WacoCDLP Skills Course -Austin Huntsv~lleAugust 16-17,1990Decen~ber 7-8,1989 Aprn 6,1990 CDLP Appellate Law Seminar -CDLP Federal Criminal Law - Dallas CDLP Skills Course -El Pas0 HoustonJune 1989 1 VOICEfir the Defeme 35
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