552
Opinion of the Court
evidence sufficient to convict the offender. Sufficiency of the evidence rules, however, tell us precisely that.35
X
For these reasons, we hold that petitioner's convictions on counts 7 through 10, insofar as they are not corroborated by other evidence, cannot be sustained under the Ex Post Facto Clause, because Texas' amendment to Article 38.07 falls within Calder's fourth category. It seems worth remembering, at this point, Joseph Story's observation about the Clause:
" 'If the laws in being do not punish an offender, let him go unpunished; let the legislature, admonished of the
35 The dissent contends that the witness competency rule "would produce the same results" as a sufficiency rule, post, at 564-565 (emphasis deleted), and above we have been willing to assume as much for argument's sake. But the dissent's statement is not entirely correct. It would not be the witness competency rule that would produce the same result, but that rule in combination with the normally operative sufficiency rule. Failure to comply with the requirements of Article 38.07, by contrast, would mean that the evidence is insufficient to convict by the force of that law alone. That difference demonstrates the very distinction between witness competency rules and sufficiency of the evidence rules, points to precisely the distinction that Hopt drew, and illustrates why (contrary to the dissent's contention) our conclusion about Article 38.07 does not apply to "countless evidentiary rules." Post, at 571.
That is also why the dissent's statement that we have been "mis-directed" by the plain text of Article 38.07 is wrong. Post, at 564. The dissent asserts that "any evidence" admitted under an applicable rule of evidence could "potentially" support a conviction, ibid., and therefore Article 38.07's explicit specification that a conviction "is supportable" if its requirements are met does not distinguish it from ordinary rules of evidence. Once again, we point out that whether certain evidence can support a conviction is not determined by the rule of admissibility itself, but by some other, separate, normally operative sufficiency of the evidence rule. The distinction the dissent finds illusive is that Article 38.07 itself determines the evidence's sufficiency (that is why it is a sufficiency of the evidence rule), while witness competency rules and other ordinary rules of evidence do not (because they are admissibility rules, not sufficiency rules). See also n. 23, supra.
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