By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Admitting adjudications at penalty permissible
although could not have been admitted under law at time adjudications occurred
(99-3-39)
On July 30, 1999, the Dallas Court of Appeals held that evidence of juvenile
adjudications was admissible in criminal penalty proceedings under Art. 37.07 of
the Code of Criminal Procedure despite the fact that under the law in effect at
the time of the juvenile adjudications they would not have been admissible.
99-3-39. Wills v. State, UNPUBLISHED, No. 05-97-01586-CR, 1999 WL 553705, 1999
Tex.App.Lexis ___ (Tex.App.—Dallas 7/30/99)[Texas Juvenile Law (4th Edition
1996)].
Facts: Kevion Ramon Wills appeals from his jury trial conviction of murder. The
jury assessed punishment at forty-five years confinement in the state
penitentiary. In nineteen points of error, Wills claims that the evidence is
legally and factually insufficient, the trial court erred in admitting evidence
of his juvenile adjudications during the punishment phase of the trial, the
trial court erred in denying his motion to suppress his written statement, the
trial court erred in admitting crime scene and autopsy photographs, and the
trial court erred in overruling his motion for mistrial based on jury argument
error. Because the evidence is legally and factually sufficient, the evidence of
Wills's juvenile adjudications, his written statement, and the crime scene and
autopsy photographs were properly admitted, and the trial court properly denied
his motion for mistrial based on the State's jury argument, we affirm.
Held: Affirmed.
Opnion Text: In his fourth, fifth, and sixth points of error, Wills contends
that article 37.07 § 3(a), under which the trial court admitted evidence of
Wills's juvenile adjudications, violates the ex post facto clause of both the
United States and Texas constitutions and the retroactive law clause of the
Texas Constitution. See U.S. Const. art. I, § 9; Tex. Const. art. I, § 16.
Wills objected on these grounds at trial, and the trial court overruled his
objections. Article 37.07 § 3(a) permits the admission during the punishment
phase of the trial of a defendant's juvenile adjudications for felonies and for
misdemeanors punishable by confinement in jail. See Tex.Code Crim.Proc.Ann. Art.
37.07 § 3(a) (Vernon Supp.1999). Wills claims that the application of the
statute violates the ex post facto clauses of the United States and Texas
constitutions and the retroactive law clause of the Texas Constitution because
at the time he committed the juvenile offenses, they would not have been
admissible in the punishment phase of a subsequent criminal trial.
An ex post facto law is one that (1) punished 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. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344
(1977). A statute is procedural if it does not punish an act that was innocent
when done, does not increase punishment for a crime after its commission, and
does not lessen the State's burden of proof. See Collins v. Youngblood, 497 U.S.
37, 51-52, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); Ex parte Scales, 853 S.W.2d
586, 588 (Tex.Crim.App.1993). A procedural change in a statute is not an ex post
facto violation, even though it may work to a defendant's disadvantage. Brooks
v. State, 822 S.W.2d 765, 769 (Tex.App.--Houston [1st Dist.] ), pet. granted on
other grounds and remanded, 854 S.W.2d 659 (Tex.Crim.App.1992). Procedural
statutes generally control litigation from their effective date and apply to
litigation that is pending. See Wade v. State, 572 S.W.2d 533, 534
(Tex.Crim.App.1978); Carter v. State, 813 S.W.2d 746, 747-48 (Tex.App.--Houston
[1st Dist.] 1991, no pet.).
Because article 37.07 § 3(a) is merely a rule of evidence which only affects
trial procedure, and does not do any of the things prohibited by the ex post
facto clauses of the United States and Texas Constitutions or the retroactive
law clause of the Texas Constitution, the application of the statute does not
violate these constitutional provisions. Carter, 813 S.W.2d at 747-48; Brooks,
822 S.W.2d at 769. Wills claims that the Texas Constitution's ex post facto
clause should provide him more protection than its federal counterpart does.
Given the similarities between the text and purposes of the ex post facto
provisions of the federal and Texas constitutions, we conclude that article one,
section sixteen of the Texas Constitution does not provide any greater ex post
facto rights to Wills than those contained in article one, section nine of the
United States Constitution. See Trujillo v. State, 952 S.W.2d 879, 882 (Tex.App.--Dallas
1997, no pet.). We overrule Wills's fourth, fifth, and sixth points of error.
In his seventh and eighth points of error, Wills contends that the trial court
erred in admitting State's Exhibits Nos. 63 and 64 during the punishment phase
of the trial because they were orders modifying prior adjudication of
delinquency orders and did not qualify for admission as
"adjudications" under article 37.03 § 3(a). Wills has waived any
error by his failure to object to the exhibits on this basis at trial.
Tex.R.App.P. 33.1(a); Fuller v. State, 827 S.W.2d 919, 924-25
(Tex.Crim.App.1992), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722
(1993). We overrule Wills's seventh and eighth points of error.