Fowler v. StateFowler v. State
- Reporters:
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- Before:
- Holland
Lead Opinion
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
HOLLAND, J.,delivered the opinion of the Court,
in which McCORMICK, P.J., MANSFIELD, KELLER, and WOMACK JJ., joined.A jury convicted appellant of aggravated kidnapping.
In three points of error, appellant complained on appeal of the admission of testimony from a family violence counselor whom the State called as an expert. This counselor testified generally regarding domestic violence and its effects on victims. She also testified as to her counseling of the victim in this case. The Tenth Court of Appeals concluded the trial court erred in admitting the testimony. Fowler v. State, 958 S.W.2d at 864.1 The Tenth Court then applied
This Court granted review of appellant’s petition on two grounds: first, whether the Tenth Court of Appeals erred in relying upon
In his first ground, appellant argues the Tenth Court erred when it applied
The Tenth Court of Appeals applied the harmless error standard of
In his second ground for review, appellant argues “
Appellant argues that an ex post facto law are laws which “make an act criminal that was not, or increased the punishment for a crime already committed.” In contrast, he argues a retroactive law is one which “disturbs vested, substantive rights.” Appellant asserts this Court recognized this distinction between retroactive laws and ex post facto laws in Grimes v. State, 807 S.W.2d 582 (Tex.Crim.App.1991). Appellant also relies on two appeals from civil cases to support this argument. The vested, substantive right which appellant claims was disturbed by the Tenth Court’s application of
This Court was asked to decide whether application of
In support of this conclusion in Grimes, this Court relied on the concurrence in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).
The mere possibility of a capricious and unlikely windfall is not the sort of procedural protection that could reasonably be judged substantial from the perspective of the defendant at the time the offense was committed.
497 U.S. at 61, 110 S.Ct. at 2729. This Court concluded “the State’s constitutional prohibition against retroactive legislation is not violated by Article 44.29(b)’s application in the trial court to cases which have been reversed on appeal for errors committed only in the punishment phase of trial.” Grimes, 807 S.W.2d at 588.
When we handed down Ex parte Davis, 947 S.W.2d 216 (Tex.Crim.App.1996), we relied on our conclusion in Grimes regarding how to resolve the question of what constitutes a retroactive law. In Ex parte Davis, this Court was asked whether the Legislature’s decision to restrict the number of applications for writ of .habeas corpus which an inmate sentenced to death could file could be applied retroactively to death penalty litigants. See Tex.Code CRiM. PROC. Ann. art. 11.071 § 5. This Court relied on Grimes v. State to conclude application of Article 11.071 § 5 did not violate the Texas Constitution’s prohibition of retroactive laws.
In light of our holding above that Article 11.071’s provisions are the Legislature’s enactment effecting and implementing the constitutional right of writ of habeas corpus, we are constrained to hold that such provisions in the Code of Criminal Procedure are indeed procedural and are thus outside the purview of the “retroactive law” prohibition.
Ex parte Davis, 947 S.W.2d at 220.
In this case, appellant claims a vested and substantive right in the application of the former Rule 81(b)(2) because he would be granted relief under that rule. This Court disagrees. This Court concludes the possibility of an appellate error being found to be harmless does not constitute a vested and substantive right. Rather, it is the right to appeal a conviction which constitutes such a right. The procedural mechanisms for reviewing that conviction are not a vested and substantive right.
This Court concludes the change in the standard of review from former Rule 81(b)(2) to
The decision of the Court of Appeals and the judgment of the trial court are affirmed.
PRICE, J., filed a concurring opinion in which MEYERS, JOHNSON, and KEASLER, JJ., joined.Notes
.Appellant argued the State did not establish the reliability or relevancy of Gregory’s testimony. The Tenth Court of Appeals concluded it was necessary under Rule 702 of the Rules of Criminal Evidence for the State to prove that Gregory’s testimony was expert testimony based on “scientific knowledge” that would help the trier of fact to understand the evidence or determine a fact in issue. Fowler v. State, 958 S.W.2d at 860. Applying the Kelly test, this Court concluded “the State failed to present sufficient evidence of the validity of the scientific theories underlying Gregory’s testimony and the validity of the techniques used to apply the theories.” Fowler v. State, 958 S.W.2d at 864. See Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992). Specifically, the Tenth Court of Appeals determined that the State “as the proponent of this evidence, failed to make an adequate showing of a valid underlying scientific theory, a valid technique applying the theory, or that any technique at all was applied in the present case.” Zd.As such, the Tenth Court of Appeals concluded Gregory’s testimony was improperly admitted. Id.
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(a) Constitutional error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
. Former Rule 81(b)(2) sets out:
If the appellate record in a criminal case reveals error in the proceedings below, the appellate record shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or the punishment.
. Appellant was convicted on August 1, 1996. Appellant filed his brief with the Tenth Court of Appeals on February 14, 1997. The State filed its response brief on July 11, 1997.
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No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligations of contract, shall be made.
. Appellant does not argue that the Tenth Court‘s application of
.In Grimes, this Court reviewed a decision by the Amarillo Court of Appeals to reverse a conviction and remand for a hearing on punishment only pursuant to Article 44.29(b). Article 44.29(b) “became effective after appellant‘s trial but before his conviction was reversed on appeal.” Grimes, 807 S.W.2d at 583. Prior to enactment of Article 44.29(b), a conviction would be reversed and remanded for a completely new trial if the appellate court concluded an error occurred during the punishment stage of the trial. Pursuant to Article 44.29(b), a conviction would be reversed and remanded for a new punishment hearing only when the error was found to have occurred during the punishment stage.
Concurrence Opinion
delivered a concurring opinion,
in which MEYERS, JOHNSON and KEASLER, JJ., joined.
I write separately because I believe the majority fails to properly address whether
This Court directed in a written order that the revised Rules of Appellate Procedure would become effective on September 1, 1997. See Final Approval of Revisions to the Texas Rules of Appellate PROCEDURE, 948-949 S.W.2d (Texas Cases) XLI-II-IV (Aug. 15, 1997). We further directed that the revised rules “should govern all proceedings thereafter brought, and in all such proceedings then pending except to the extent that in the opinion of the court their application in a particular proceeding then pending would not be feasible or would work injustice.” (emphasis added).
Pursuant to this provision, appellant contends that the application of
Tenth Court of Appeals applied the harmless error standard of Rule jj.2 in appellant’s case because that was the rule in effect at the time of appellant’s appeal. ... Appellant was entitled to nothing more than an appellate review of his convivtion. Appellant’s contention that he is entitled to a reversal of his conviction is also without merit. Appellant suffered no injustice by virtue of the Tenth Court’s application of the harmless error rule in effect at the time of the disposition of his appeal.
In other words, through somewhat circular reasoning, the majority opinion determines that the revised rule was appropriate in this case because it did not work injustice, and it did not work injustice because appellant was only entitled to review under the appropriate revised rule. This conclusion renders the aforementioned injustice language — contained within our written order — meaningless, as every cause brought after September 1, 1997 would be entitled to review under only the revised rules, and therefore could not work injustice.
Thus, the question remains as to whether or not injustice was worked in this cause. Appellant argued that utilizing a new standard of appellate review worked injustice because it did not allow him time to adequately brief and argue such on appeal. Appellant cited Chase Commercial Corp. v. Datapoint, Corp., 774 S.W.2d 359 (Tex.App.—Dallas 1989), as persuasive authority for this proposition.
In Chase, the issue confronting the Court of Appeals was whether or not it should apply a new appellate review standard articulated in a recent opinion, Qantel Business Systems Inc. v. Custom Controls Co., 761 S.W.2d 302 (Tex.1988). Chase, 774 S.W.2d at 361. Chase had relied upon the former appellate standard in the preparation and presentation of its appeal and did not address the new Qantel standard. Id. at 362. The Chase Court determined that the change was not sufficiently foreseeable to appellant for proper preparation and argument and that it would be unfair to punish appellant for relying on the previous standard. Id.
In the cause before us, it is difficult to see how appellant was unfairly surprised by the change in appellate procedure. The exact language of the new rules was at appellant’s disposal for weeks. We established our approval of the revised Rules of Appellate Procedure, including
Appellant also argued that he possessed a substantial, vested right in the prior appellate review standard, because applying the revised rule curtailed his appeal and led to the opposite result. The majority addressed this argument in the same manner that it addressed appellant’s first argument: by concluding that the Court of Appeals used the proper rule in effect at the time of the appeal. However, this conclusion does not actually reach the crux of appellant’s argument.
I would hold that appellants do not have a right to one certain appellate review standard over another. A revised rule should be utilized on and after its effective date unless it would work injustice to do so.4 As the previous discussion illustrates, no injustice was worked in this case.
For the foregoing reasons, I concur only in the judgment of this Court.
. The New Texas Rules of Appellate Procedure were tentatively released for review in March of 1997, over six months from the date of oral arguments in this case.
.Oral argument was originally scheduled for September 17, 1997, but was reset for October 1, 1997. Nevertheless, under the originally scheduled hearing date appellant would have had almost one month notice of the changes and the new rules would have been in effect for over two weeks.
. Certainly justice would require that appellant be given the chance to brief and argue a new law applicable to his case if he had requested the opportunity to do so. However, appellant did not pursue this option.
. This conclusion is why we included such precautionary language in our order approving of the revised rules.