1 COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS TIMOTHY EDWARD WHITINGTON, Appellant,

v. THE STATE OF TEXAS, Appellee. § § § § § § No. 08

- 13

- 00102

- CR

Appeal from the
432nd District Court of Tarrant County, Texas (TC#1284003R)

O PINION ON REHEARING In denying Appellant’s ex post facto claim, we held that Appellant w as required to show
that the statute itself operates retroactively , not that the trial court applied it retroactively. We based our holding on Ortiz v. State , 93 S.W.3d 79, 91 (Tex.Crim.App. 2002), in which the Court of Criminal Appeals concluded there was no ex post facto violation because the appellant failed to show, or argue, that a statute itself operated retroactively, but rather complained only about the trial court’s erroneous retroactive application of the statute in the jury charge. We noted that, l ike
the statute in Ortiz , the continuous sexual abuse statute does not itself operate retroactively; indeed, the statute explicitly provides that it does not apply to acts of sexual abuse committed before its effective date of September 1, 2007. See Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 20 07 T EX
. G EN
. L AWS 1120, 1127, 1148. Therefore, we concluded that the error2

that occurred in this case , in which the trial court allowed the jury to consider conduct occurring before the effective date of the statute, result ed from the trial court’s erroneous appli cation of the statute, which did not amount to an e x p ost f acto violation. On rehearing, Appellant contends that our holding conflicts with the United States Supreme Court decision in Peugh v. United State s , __U.S.__, 133 S.Ct. 2072 , 186 L. Ed. 2d 84 (2013) . In particular, Appellant asserts that Peugh stands for the proposition that a trial court’s improper retroactive application of a statute may violate the Ex Post Facto C lause. We disagree.
In Peugh , the defendant was convicted of fiv e counts of bank fraud that occurred in 1999
and 2000. The trial court sentenced him to 70 months’ imprisonment based on the Federal Sentencing Guidelines issued by the United States Sentencing Commission in 2009 , rather than on
the 1998 Guidelines that were in effect at the time he committed his offense s
. 1 Id . at 2079. The
defendant in Peugh contended that the trial court’s application of the 2009 Sentencing Guidelines
violated the Ex Post Facto Clause , and that he should have instead been sentenced un der the 1998
version of the Sentencing Guidelines that were in effe ct at the time of his offenses. Id . at 2078.
T he Supreme Court initially noted that the Ex Post Facto Clause only forbids the passage of ex post facto “ laws ” ; as such, the Court question ed whether the S entencing Guidelines had the force and effect of law for purposes of the Ex Post Facto Clause. Id. In answering this question in the affirmative, the Court initially pointed out that the Guidelines were promulgated by t he United States Sentencing Commission, which, in turn, was created by Congress for the delegated purpose of adopting mandatory sentencing guidelines. Id. at 2079. T he Court further noted that 18 U.S.C. § 3553(a)(4)(A)(ii) expressly instructs district co urts to apply the Sentencing Guide lines

1 The applicable sentencing range under the 1998 Guidelines was 30 to 37 months, while the sentencing range rose under the 2009 Guidelines to 70 to 87 months, making the low end of the 2009 Guidelines 33 months higher than the high end of the 1998 Guidelines range. Id . at 2078

- 79.3

that are “in effect on the date the defendant is sentenced , ” rather than the Guidelines in effect at the time the defendant’s offense was committed. Id. at 2081. Because the defendant in Peugh did in
fact receive a n increased punishment based on the trial court’s appl ication of the Commission’s 2009 Sentencing G uidelines , which were adopted after he committed his offense, the Court held
that this violated the Ex Post Facto Clause. Appellant points out that in reaching this result, the Court in Peugh stated that the scope of
the Ex Post Facto Clause “ is not limited to legislative acts ,” and he believes that the Court thereby
intended to expand the scope and applicability of the Clause to other non

- legislative s ituations,
such as when trial courts mist akenly apply laws retroactively

. However, a s the Texas Court of
Crimi nal Appeals explained in Ex parte Heilman, 456 S.W.3d 159 (Tex.Crim.App. 2015) , Peugh does not stand for this proposition.
In Heilman , the Court recognized that under the holding in Peugh , it is not just the legislature acting alone that may violate the Ex Post Facto Clause , and that executive agencies
may also violate the Clause when they are exercising rule

- making authority delegated to them by the legislature. Id

. at 165 ( noting that the leg islature “cannot escape the stri ctures of either the
Texas or federal Ex Post Facto Clause by mere delegation ”)

. However, the Court in Heilman
made it clear that Peugh d id not expand the scope of the Ex Post Facto Clause to situations in
which a trial court has simply erred by misapplying a law retroactively ; instead, the Court explained that the error must have some “ legislative origin” for the Ex Post Facto C lause to be
invoked. In particular, the Court noted that Peugh requires courts to “look beyond the actor that is directly committing the alleged [ex post facto] violation for some legislative origin of the alleged
violation

– such as the enabling statutes of either the United States Sentenci ng Commission in4

Peugh , or the state parole board in Garner .” 2 Id. The Court concluded that “the Supreme
Court’ s reasoning in Peugh reaffirms our holding in Ortiz that the Ex Post Facto Clause is

‘ directed at the Legislature, not the courts. ’ ” Id. at 165. Applying this rationale, the Court in Heilman found that no e x p ost f acto violation occurred where the trial court’s conduct

– in accepting a plea agreement that allowed a defendant to plead guilty to an otherwise time

- barred plea offense

– originat ed from the pa rties’ plea negotiations, and
did not derive from any law or rul e enacted by the Legislature or a delegated body. Id. Similarly, in the present case, Appellant cannot p oint to any “legislative origin” for the

error i n the trial court’s jury charge . The erroneous jury charge did not arise from any law or rule promulgated by the Legislature or from any other legislative or executive body having delegated
rule

- making authority

. In fact, as stated above, the continuous sexual abuse statute itself explicitly disallows its ex post facto application , and the trial court therefore simply erred whe n it applied the statute in that manner. As Peugh did not extend the scope of the Ex Post Facto Clause to judicial acti ons of this
nature, we conclu de that A p pellant has not show n an ex post facto violation based solely on the trial court’s erroneous jury charge in this case

. Appellant’s motion for rehearing is denied

.

STEVEN L. HUGHES, Justice July 1, 2015 Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)

2 In Garner , the U.S. Supreme Court held that the retroactive application of a rule promulgated by a state parole board could arguably violate the Ex Post Facto Clause, as the Board operates under an “enabling statute” enacted by the Georg ia Legislature, which allowed the Board to adopt such rules and to make determinations regarding a prisoner’s release. Garner v. Jones , 529 U.S. 244, 257, 120 S. Ct. 1362, 1371, 146 L. Ed. 2d 236 (2000).