Tibbs, James Ishmael, WR-19,786-23

Background

Defendant Scott Carmell was convicted in Texas (multiple sexual-offense counts) largely on his daughter's uncorroborated testimony; some offenses occurred before a 1993 amendment to Tex. Code Crim. Proc. art. 38.07 that relaxed corroboration requirements for certain child-victim testimony.
The amendment expanded an exception allowing a conviction on a victim’s uncorroborated testimony (outcry/age exceptions) and extended the child-victim age threshold; Carmell’s challenge targeted convictions for offenses committed before the amendment.
Carmell argued retroactive application of the amended Article 38.07 violated the Ex Post Facto Clause (Art. I, §10), because it lowered the quantum of evidence required to convict for pre-amendment offenses.
Texas courts treated Article 38.07 as a rule affecting witness competency/credibility; Carmell’s convictions were affirmed by the Texas courts and discretionary review was denied, then certiorari was granted by the U.S. Supreme Court.
The Supreme Court (5–4) reversed, holding retroactive application of the amended Article 38.07 to Carmell’s pre-amendment offenses violated the Ex Post Facto Clause under Calder’s fourth category (laws that alter legal rules of evidence and allow conviction on less or different testimony).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether retroactive application of amended Tex. Code Crim. Proc. art. 38.07 violates the Ex Post Facto Clause	Carmell: The amendment reduced the quantum of evidence needed to convict pre-amendment offenders (i.e., altered sufficiency rules), so retroactive application is an ex post facto law	State (Texas): Article 38.07 is an evidence/witness-competency rule (like admitting or disallowing witnesses); it does not change burden of persuasion or elements, so it is procedural and may apply retroactively	Court: The amendment functioned as a sufficiency-of-evidence rule that always advantaged the prosecution; applying it retroactively violated the Ex Post Facto Clause (Calder’s fourth category)
Whether Article 38.07 should be characterized as a witness-competency rule or a sufficiency-of-evidence rule	Carmell: Characterization as sufficiency rule—amendment lowered proof required to convict	State: Characterization as witness competency/credibility rule (Hopt)—it only changes which witnesses may testify, leaving burden beyond a reasonable doubt intact	Court: Treated Article 38.07 as a sufficiency rule rather than a mere competency rule and therefore subject to Calder’s fourth category
Whether Calder’s fourth category (altering rules of evidence) remains good law after later precedents (Beazell/Collins)	Carmell: Relied on Calder/Fenwick analogy to show retroactive easing of evidentiary threshold is covered by Ex Post Facto Clause	State: Pointed to Beazell and Collins narrowing/recasting the Clause to focus on substantive changes (e.g., punishment, elements, defenses), not routine procedural rules	Court: Majority held Calder’s fourth category remains applicable; dissent argued Collins/Beazell effectively eliminated or narrowed that category
Whether analogy to Sir John Fenwick (bill of attainder altering evidence rules) is apt	Carmell: Fenwick supports rule that retroactive reduction of evidence required is unconstitutional	State: Fenwick involved a bill of attainder and different historical context—modern procedural rules differ	Court: Majority considered the Fenwick analogy persuasive for Calder’s fourth category; dissent argued Fenwick is distinguishable and relied on different concerns (targeted attainder)

Key Cases Cited

Calder v. Bull, 3 U.S. 386 (1798) (articulated four-category formulation of ex post facto laws, including those altering rules of evidence)
Cummings v. Missouri, 71 U.S. 277 (1866) (applied Calder’s fourth category to invalidate a post–Civil War oath that altered presumption of innocence)
Kring v. Missouri, 107 U.S. 221 (1883) (applied Calder’s fourth category to procedural change that disadvantaged defendant)
Hopt v. Territory of Utah, 110 U.S. 574 (1884) (held statutes expanding witness competency are not ex post facto)
Thompson v. Missouri, 171 U.S. 380 (1898) (framed procedural-change inquiry around whether a "substantial right" was affected)
Beazell v. Ohio, 269 U.S. 167 (1925) (defined ex post facto more narrowly—omitting Calder’s fourth category—and focused on changes that punish, increase punishment, or remove defenses)
Collins v. Youngblood, 497 U.S. 37 (1990) (adopted Beazell’s formulation, overruled Kring/Thompson, and narrowed scope of the Ex Post Facto Clause as applied to procedural rules)