Has anyone out there read a CCA opinion called Scott v. State, 55 S.W.3d 593, and thought: oh my God! Am I missing something, or is this a complete distortion of Ex Post Facto jurisprudence?

George Sharmen is referring a trial court to Scott here in San Antonio in an attempt to convince the judge to quash an indictment in a DWI 3d case. His argument, based on Scott, is that it violates the Ex Post Facto clause of the federal constitution to allow the State to enhance his client's case to felony status using a conviction for an offense that was "committed" more than 10 years before his client's offense.

Apparently, TxRevCivStat 6701l-1, which was effective in 1991 (the year of his client's prior), had a provision that said: "A conviction may not be used for the purpose of enhancement . . . if the conviction . . . was for an offense COMMITTED more than 10 years before the offense for which the person is being tried was committed." The new and amended provision in 49.04 of the Penal Code allows enhancement as late as 10 years after discharge from probation.

I have thought of a few ways to factually distinguish this case from Scott (this is a DWI case not an enhancement under art. 12.42 of the Penal Code; the defendant did not plea guilty in our prior but was convicted after a trial), but someone please tell me that Scott was wrongly decided.

[This message was edited by kyeary on 12-16-04 at .]

I don't think it will help, but Scott does seem to be wrongly decided. The ex post facto law was designed to prevent the government from changeing the consequences of an act after the act was committed, e.g. you commit a DWI in January, they increase the punishment in September, and your are convicted and punished using the greater range in December. IN your case, nothing about the defendant's punishment range has changed as a result of legislative action since his commission of the crime, so he knew what the consequences would be when he committed it, which is the right that ex post facto protects, in my opinion.

The Scott opinion seems to suggest that a law which informs you of the collateral consequences of your current crime can bar changes to those collateral consequences by a later legislature. How this differs from any statute that alters the punishment range for habitual offenders is beyond me, although the court seems to be drawing the distinction.

To illustrate: assume I have been convicted of two prior generic felonies. At the time of my second conviction, the law says a third felony is punishable by 5-99 or life. Later, the legislature changes the law to say third felonies are punishable by 25-99 or life. The citations mentioned in Scott say that is OK. But if Scott means what it says, I should be allowed to argue, when I commit my third felony, that the legislature back when I committed my second felony had said that my two priors would never subject me to a minimum 25 years. Why can I not rely on that statute the same way the court seems to feel Scott can rely on the statute describing deferred adjudication?

I think Scott is wrong and inconsistent with every ex post facto case I've ever seen.

Thanks for your reply Wes. You know, I read Scott, and I was just shocked. It was written by Judge Keller, who I usually think gets the law right, and nobody dissented or concurred, and I thought: Am I missing something here?

I hope we can convince the CCA to overrule Scott, but it would make me a little more hopefull if at least one of the 9 judges on the CCA had expressed a litte concern about that opinion. One good thing is that Scott seems to be decided on strictly U.S. Constitutional grounds, so maybe the problems it creates could be corrected by the U.S. Supreme Court. I wonder if the U.S. Supremes would stay out of it on the ground that States can decide for themselves what constitutes punishment, i.e. if Texas says that changing the law to allow a prior conviction to be used for enhancement purposes is punishment, then that is their right.

Anyway, I guess all those questions will not matter for a long time. For now, I think we are going to argue in the trial court that our cases are distinguishable from Scott and let George Sharmen and any other defense attorney who wants to jump on the band waggon raise the issue on appeal. I'd rather address this in a defendant's appeal than in a state's appeal.

And cite the 8th Circuit. Pfeifer