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In , petitioner was convicted on 15 counts of committing sexual offenses against his stepdaughter from to , when she was 12 to 16 years old. Before September 1, , Tex. Code Crim. Before the Texas Court of Appeals, he argued that the four convictions could not stand under the pre version of the law, which was in effect at the time of his alleged conduct, because they were based solely on the testimony of the victim, who was not under 14 at the time of the offenses and had not made a timely outcry.
The court held that applying the amendment retrospectively did not violate the Ex Post Facto Clause, and the State Court of Criminal Appeals denied review. Bull, 3 Dall. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. Every law that aggravates a crime , or makes it greater than it was, when committed. Every law that changes the punishment , and inflicts a greater punishment , than the law annexed to the crime, when committed.
Every law that alters the legal rules of evidence , and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Both Justice Chase and the common-law treatise on which he drew heavily cited the case of Sir John Fenwick as an example of the fourth category. England charged Fenwick with high treason in the late 17th century, but, under an Act of Parliament, he could not be convicted without the testimony of two witnesses.
Parliament passed a bill of attainder making the two-witness rule inapplicable, and Fenwick was convicted on the testimony of only one witness. That Article A law reducing the quantum of evidence required to convict is as grossly unfair as retrospectively eliminating an element of the offense, increasing punishment for an existing offense, or lowering the burden of proof.
