Campbell v. State , 1986 Tex. Crim. App. LEXIS 805 ( 1986 )

TEAGUE, Judge,

concurring.

This Court’s court made evidentiary rule of law that is applicable and that controls the issue before this Court for it to resolve is set out in Rains v. State, 146 S.W.2d 176 (Tex.Cr.App.1940). Because it is set out in the majority opinion, it need not be repeated here. This evidentiary court made rule of law was in effect at the time when Louis Campbell, hereinafter referred to as the appellant, was tried and convicted, as well as being in effect at the time when this cause was submitted to this Court on October 16, 1985. Today, the majority opinion correctly reaffirms that evidentiary rule of law. I concur.

Neither the Federal Government, see Art. I, Section 9, Federal Constitution, nor any State Government, see Art. I, Section 10, Federal Constitution, shall pass any ex post facto law. The Texas Constitution contains a like provision: “No ... ex post facto law ... shall be made.” See Art. 1, Section 16. As easily seen, there is not any limitation or qualification on what department of our State government will not enact an ex post facto law. “Literally, it [ex post facto] is only that a law shall not be passed concerning, and after the fact, or thing done, or action committed.” Calder v. Bull, 3 Dall. 386 (1798).

I write only because the majority opinion contains dicta that might be construed as approving ex post facto laws. The majority opinion states the following therein: “It is appropriate ... to examine the continued viability of Rains, supra, in light of the recent promulgation of the new rules of evidence in Texas. ” (My emphasis.) It is not. These rules did not become effective until September 1, 1986, by fiat of this Court on December 18, 1985. These rules, although rules, are “laws” of this State, see Pannell v. State, 666 S.W.2d 96, 102 (Tex.Cr.App.1984) (Teague, J., dissenting opinion), and cannot be applied to any cases pending on appeal because of the ex post facto clauses, either State or Federal. Because it is not necessary to invoke, apply, or discuss any of the new rules of criminal evidence in this cause, the majority opinion prematurely and unnecessarily interprets one of the new rules of criminal evidence.

It has long been axiomatic in these United States, and in this State, what Justice Bushrod Washington wrote almost 190 years ago in United States v. Hall, 2 Wash.C.C. 366, 373 (Fed.Cas. No. 15,285, 26 Fed.Cas., Cir.Ct.D.Pa.1809), and what Justice Samuel Chase stated in Calder v. Bull, supra. In the former case, Justice Washington said: “An ex post facto law is one which, in its operation, makes that criminal or penal which was not so at the time the action was performed; or which increases the punishment; or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage.” (My emphasis.) Thus, any statutory or court made alteration of an evidentiary rule of law favorable to the defendant, enacted while a criminal case was pending on appeal, which would materially impair the right of the defendant to have the question of his guilt determined according to the law as it was when the offense was committed, would be an ex post facto law. In sum, alterations in the rules of criminal evidence, if unfavorable to a defendant, may amount to an ex post facto law. Also see Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898); Kring v. Missouri, 107 U.S. [17 Otto] 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); The Constitution of the United States of America: Analysis and Interpretation (1973 edition). Just what alterations will be held to be sufficient to transgress the constitutional prohibitions cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). Happily in this instance it is not necessary for this Court to get embroiled in whether any of the new criminal rules of evidence violate the ex post facto clauses because the former evidentiary rule of criminal evidence, see Rains v. State, supra, controls the decision of this Court.

I further point out, but do so in reference to the rules of civil procedure, that the above principles of law have been approved and adopted by the Supreme Court of Texas, see Federal Underwriters Exchange v. Lynch, 168 S.W.2d 653 (1943); Airline Motor Coaches, Inc., v. Fields et al., 166 S.W.2d 917 (1943), which held that where a case was tried before the effective date of the then Rules of Civil Procedure, questions raised on writ of error were required to be considered m light of principles of law then applicable. Also see Goff v. Tuchscherer, 614 S.W.2d 934 (Corpus Christi Civ.App.—1981), reversed, Goff v. Tuchscherer, 627 S.W.2d 397 (Tex.1982); Livingston v. Gage, 581 S.W.2d 187 (El Paso Civ.App.1979). As to the rules of civil evidence, see Tramel v. Estate of Billings, 699 S.W.2d 259 (Tex.App.—San Antonio 1985).

This Court has long adhered to the above principles of law. In Plachy v. State, 91 Tex.Cr.R. 405, 239 S.W. 979 (Tex.Cr.App.1922), this Court stated the following: “It seems well settled in this state that a law which alters the rules of evidence applicable in a given case, so that under the law less or different testimony is required to convict the offender than was required at the time of the commission of the offense, must be held an ex post facto law, and not applicable upon the trial of one for an offense committed prior to the taking effect of such new enactment.” (981). Also see Hill v. State, 171 S.W.2d 880 (Tex.Cr.App.1943); The Constitution of the State of Texas: An Annotated and Comparative Analysis (1977 edition).

For all of the above and foregoing reasons, I concur.