Donna Gayle Holcomb v. State

Opinion issued August 28, 2014.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-08-00337-CR
———————————
DONNA GAYLE HOLCOMB, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1141352

OPINION ON REHEARING

Appellant Donna Gayle Holcomb has moved for rehearing. We grant

rehearing, withdraw our opinion and judgment of February 16, 2012, and issue the

following in their stead.
 A jury convicted appellant, Donna Gayle Holcomb, of theft of property with

an aggregated value of between $100,000 and $200,000, a second-degree felony.

See TEX. PENAL CODE ANN. §§ 31.03(a), (b), (e)(6), 31.09 (West 2011 & Supp.

2014). It assessed punishment at eleven years’ imprisonment and a $10,000 fine.

On appeal, Holcomb challenges the sufficiency of the evidence and contends that

the trial court violated her rights under the federal constitution’s double jeopardy

clause by naming a complainant in the jury charge and entering judgment on the

jury’s guilty finding despite its earlier disposition of that complainant’s charges by

means of a directed verdict. We reform the judgment to convict Holcomb of the

third-degree felony theft of property with an aggregated value between $20,000

and $100,000, vacate the sentence, and remand to the trial court for a new

sentencing hearing on the third-degree felony theft conviction. See TEX. PENAL

CODE ANN. § 31.03(e)(5) (West Supp. 2014).

Background

The State indicted Holcomb for theft of property valued at between

$100,000 and $200,000 by means of deception or coercion and pursuant to one

scheme and continuing course of conduct. The State tried Holcomb alongside her

2
husband and co-defendant, Curtis Wayne Holcomb. 1 The indictment specifically

charged that Holcomb:

on or about VARIOUS DATES BETWEEN JANUARY 15, 2004
THRU SEPTEMBER 20, 2006, did then and there unlawfully,
pursuant to one scheme and continuing course of conduct, without
effective consent, namely, consent induced by deception and/or
coercion, appropriate, by acquiring or otherwise exercising control
over property, namely money, owned by Janet Lester, and/or José
Hinojosa, and/or Josefina Hinojosa, and/or Walter Davis, and/or
Marvin Bledsoe, and/or Barbara Heins, and/or Sandra Mathieu, and/or
Mark Theodoridis, with the intent to deprive Janet Lester, and/or José
Hinojosa, and/or Josefina Hinojosa, and/or Walter Davis, and/or
Marvin Bledsoe, and/or Barbara Heins, and/or Sandra Mathieu, and/or
Mark Theodoridis of said property, and the total value of the property
appropriated from the above persons was one hundred thousand
dollars or more but under two hundred thousand dollars.
The State later abandoned the charges relating to the Hinojosas.

The Holcombs held themselves out to be in the business of selling and

relocating older houses. At trial, the complainants each testified to having

contracted with the Holcombs to move a house. Although the Holcombs

performed some of the initial work they had promised to do, ineffective

communication, extensive delays, and shoddy workmanship plagued each of the

arrangements. The Holcombs delivered none of the houses to these complainants,

1
Curtis Holcomb was convicted of third-degree felony theft of property with
an aggregated value of between $20,000 and $100,000. On appeal, this
court affirmed his conviction, overruling his challenge to the legal and
factual sufficiency of the evidence. See Holcomb v. State, No. 01-08-00338-
CR, 2011 WL 2089630 (Tex. App.—Houston [1st Dist.] May 19, 2011, pet.
ref’d) (mem. op.).

3
and they did not refund any of the substantial down payments that the

complainants had made. Disputes broke out, and some of the complainants

reported the Holcombs to the police. The State claimed that Holcomb

misappropriated a total of $108,175 from the complainants. The record contains

testimony from the complainants as follows:

Janet Lester: In March 2005, Lester hired the Holcombs to move a house

she bought from Houston to Navasota. She paid a first installment of $12,000.

Lester understood from the Holcombs that the move would take about three weeks.

Lester had questions about preparing the Navasota lot for the home, so she

attempted to contact the Holcombs, but was unable to reach them at any of the

telephone numbers provided. After three weeks, Holcomb returned Lester’s call.

Holcomb informed Lester that the move would not occur for another two to three

weeks. By mid-April, Holcomb had placed the house on one beam and asked

Lester for the next installment of $4,000. Lester paid the installment. Still, the

Holcombs did not move the house. The roof was removed, and the house began to

deteriorate on the original site. The Holcombs would not return Lester’s telephone

calls; when Lester finally was able to speak to Holcomb, Holcomb provided her

with excuses for the delay, but did not perform any further work. The house was

red-tagged and eventually torn down by the city.

4
 Walter Davis: In August 2006, Davis contracted with Holcomb to move a

house from Houston to property he owned in Madisonville, Texas. Holcomb told

him that it would take three weeks to accomplish the move. Davis made a down

payment of $8,675. Four weeks later, Holcombe contacted Davis to make

arrangements to meet him for the second installment of $3,000 under the contract.

Holcomb showed Davis that the house had been placed on beams. After that,

Holcomb disappeared; Davis was unable to reach Holcomb at the telephone

numbers provided, and a certified letter he sent to Holcomb went unclaimed.

Mark Theodoridis: In April 2004, Theodoridis signed a contract with

Holcomb in connection with purchasing and transporting a house located in

Pearland to the Theodoridis’s property in Goliad which, Theodoridis explained to

Holcomb, was about 175 miles away. Theodoridis made an initial payment of

$10,500.

Theodoridis noticed that the house remained in Pearland beyond the

contracted delivery date of March 15, 2004. In the following weeks, Theodoridis

called Holcomb multiple times about the status of the move. Holcomb gave him

various excuses. Theodoridis paid the second installment of $3,000 in early April

for placing the house on beams for transport. Also around this time, the Holcombs

removed the roof from the house, but did not cover the opening with a tarpaulin.

The house stood unprotected from the elements for several months. In October,

5
Holcomb informed Theodoridis the house was ready to move and offered to deliver

it within thirty days. Theodoridis informed Holcomb that she was responsible for

the rain damage to the home, but he accepted her offer. After that point,

Theodoridis tried to contact the Holcombs numerous times, but without success.

By March 2005, Holcomb sent Theodoridis a letter asking him to rescind the

contract, which he agreed he would do if she refunded his payment. He did not

hear from her again, although by late summer, the home he had purchased

disappeared from the lot.

Barbara Heins: In the fall of 2004, Heins contracted with the Holcombs to

buy a house and have it placed on her property in Galveston County. Curtis

showed her a home in the Houston Heights area that she agreed to buy. When

Heins made the $17,500 down payment, the Holcombs told her that the home

would be moved to her property by February 1, 2005. In late December 2004,

Holcomb contacted Heins to inform her that they had placed the house on beams

for transport, which triggered another $5,000 payment. The February delivery date

passed without the delivery. Heins learned that, contrary to Holcomb’s

representation, the Holcombs had not yet placed the house on beams. Over the

next several weeks, Heins repeatedly telephoned the Holcombs, but to no avail.

They did not answer their phones, and their voicemail was full and would not

allow her to leave a message. At some point, the Holcombs removed the roof of

6
the house, but failed to cover it with a tarpaulin. In the summer of 2006, Heins

found the house, broken in two, at a vacant lot approximately four miles from her

Galveston County property.

Sandra Mathieu: Mathieu contracted with Holcomb in November 2004 to

move a house from a lot in Houston that was slated for new construction to another

lot in the city that Mathieu owned. When Mathieu made the down payment, she

understood that the move would occur within a month or so. In February 2005,

when Holcomb had the house placed on beams, Mathieu paid the next installment.

By June 2005, Holcomb informed Mathieu that a utility pole on Mathieu’s lot

posed an obstruction to the move. By early July, Mathieu had the pole removed

and informed Holcomb so that the house could be delivered. In August 2005,

Holcomb told Mathieu that she could not move the house because of a lien on the

property. Mathieu provided documentation showing that the lien was invalid, but

Holcomb told her that she would have to get the lien officially removed. In the

meantime, the house had to be moved from the lot, so Holcomb arranged to move

it to another property for storage.

Mathieu had the lien removed within a month, but for the next several

months, despite repeated calls to Holcomb, the house was not moved to her lot. By

December 2005, Mathieu, who already had paid Holcomb $25,500, ultimately

hired someone else to complete the move. By then, the home was in poor

7
condition because the Holcombs failed to cover the top of the house after removing

the roof and vagrants lived in it while it stood on the other property.

Marvin Bledsoe: Bledsoe testified that he and his girlfriend, LeSha Green,

contracted with Holcomb in May 2005 to purchase a house and have it moved to

Brazoria County. Bledsoe and Green met Holcomb at a bank, where Green signed

a contract and gave Holcomb a check for $19,000. When they asked for a copy of

the contract, Holcomb told Green and Bledsoe to follow her to a Kinko’s store.

Once on the road, Bledsoe recounted, Holcomb began running red lights and stop

signs. Unable to keep up, Bledsoe called Holcomb a bit later. Holcomb explained

that she had been in a rush to reach her father, who had suffered a heart attack.

Holcomb promised to be in contact soon, but Bledsoe’s later attempts to reach her

were fruitless. Several weeks later, Bledsoe saw Curtis working on the house that

was to be moved. The two spoke briefly, but Bledsoe was unable to reach either

Holcomb or Curtis afterwards. After filing a police report, Bledsoe finally spoke

to Holcomb; problems nevertheless persisted.

One night in October 2005, a neighbor called Bledsoe and informed him that

the house was being moved. Bledsoe and Green raced over, where they saw the

Holcombs and several other individuals pulling the house out into the street. Due

to its height and trees obstructing the path, however, the house was moved just 200

yards. Over the next two weeks, Bledsoe tried to contact Holcomb, but again, was

8
unable to reach her. One night, the house was gone. When Bledsoe finally

reached Holcomb by phone, she told him not to worry about the house and that he

would never find it. A few weeks later, while taking a shortcut home, Bledsoe

noticed a familiar house that was advertised for sale. He entered the house, and,

satisfied that it was the house he had purchased, had it relocated at his own

expense. Bledsoe described the house’s condition by the end as “destroyed”: all

of the windows were broken, and it had a big hole in the roof.

Cross-examination of Bledsoe focused on the ownership of the $19,000 paid

to Holcomb. Bledsoe expressed that, due to his relationship with Green, he felt

that both of them owned the money. Under further questioning, however, he

conceded that the funds used were held by either Green or by S.A.G. Enterprises,

L.L.C., a business entity managed by Green:

[Counsel]: [T]he funds actually came out of a bank account from
S.A.G. Enterprises, L.L.C. or LeSha Green, correct?
[Bledsoe]: I don’t think it was S.A.G. It was from LeSha because
[payment occurred at] Bank of America. . . . [Holcomb]
wouldn’t accept a personal check.
[Counsel]: But didn’t S.A.G. Enterprises, L.L.C. bank at Bank of
America?
[Bledsoe]: Yes.
[Counsel]: And you, in fact, did not have an account at Bank of
America?
[Bledsoe]: Yes, correct.
[Counsel]: So, it couldn’t have been your funds?
[Bledsoe]: Correct.

9
 At the conclusion of the State’s case-in-chief, the Holcombs moved for

directed verdict challenging, among other things, the sufficiency of the evidence

relating to Bledsoe’s ownership of the money transferred to the Holcombs. The

court heard argument from both sides and reserved its ruling until the following

day to allow time for review of Bledsoe’s testimony on the issue of ownership.

The State rested its case and the next morning, the court granted the motion for

directed verdict in part, explaining:

The Court having reviewed the record and [Bledsoe’s] testimony . . .
regarding the check, regarding his position as manager and
specifically a question that was asked of Mr. Bledsoe—the question
was, “So it couldn’t have been your funds, correct?” And his
response was, “Correct.” The defendant’s Motion for Instructed
Verdict as to the complainant Marvin Bledsoe is granted in each case.

The defense went forward with its case, with Holcomb testifying on her own

behalf. On cross-examination, she stated that she had made the contract with

Green and that it was Green who had given her the check.

The State then called Green to testify in rebuttal.2 Green stated that although

the funds came directly from S.A.G. Enterprises, L.L.C.’s business account, they

ultimately belonged to both her and Bledsoe:

2
Although the defense had objected earlier to relitigation of the ownership
issue, the court did not make a ruling on the record.

10
 [Counsel]: At some point in time did you get funds to pay for this
house?
[Green]: Yes, ma’am.
[Counsel]: What account did those funds come from?
[Green]: At a business account, S.A.G. Enterprises.
[Counsel]: Whose business is that?
[Green]: Marvin and I.
[Counsel]: Whose funds were used to purchase the house?
[Green]: Those were our funds together.

While cross-examining Green, defense counsel was called to the bench in

the midst of a series of questions regarding S.A.G. Enterprises. There, the court

asked about the relevancy of the questions and advised:

If the issue is ownership, the issue is that [of] ownership of the funds,
not the ownership of the company. So, if you ask [Green] about—if
this is being offered for impeachment, then let’s get straight to that
and not about an issue of resurrecting a corporation or who didn’t
resurrect a corporation. If it’s to impeach Mr. Bledsoe, let’s get after
that.

With that, counsel stopped pursuing the line of questioning.

Once both sides rested, the court asked if there were any objections to the

jury charge, to which Holcomb’s counsel responded, “We have nothing, Your

Honor.” The charge, however, instructed the jury to convict Holcomb upon

finding, beyond a reasonable doubt, that she committed theft by deception against

“Janet Lester, or Walter Davis, or Marvin Bledsoe, or Barbara Heins, or Sandra

11
Mathieu, or Mark Theodoridis” (emphasis added). The jury subsequently found

Holcomb guilty of second-degree felony theft of property.

Discussion

We would normally begin our discussion with an analysis of Holcomb’s

evidentiary sufficiency challenge. As a prudential matter, courts generally refrain

from passing on constitutional questions unless necessary to the disposition of a

case. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (“As a rule, we only

decide constitutional questions when we cannot resolve issues on nonconstitutional

grounds.”). In this case, Holcomb’s evidentiary sufficiency challenge depends in

part on our resolution of her double jeopardy challenge: if we conclude that the

trial court’s directed verdict on Bledsoe’s complaints against Holcomb constitutes

an acquittal under the Double Jeopardy Clause, then it was error to name Bledsoe

in the jury charge and, in addressing Holcomb’s evidentiary sufficiency challenge,

the $19,000 that she allegedly misappropriated from Bledsoe cannot be considered

toward the aggregate amount of the theft. We therefore begin by examining

Holcomb’s contention that the trial court erred by naming Bledsoe in the jury

charge after the directed verdict had already disposed of Bledsoe’s complaints

against her, and that this error subjected her to a double jeopardy violation.

12
I. Double Jeopardy

The Double Jeopardy Clause provides that no person shall “be subject for

the same offense to be twice put in jeopardy of life or limb.” 3 U.S. CONST. amend.

V; see also Tex. Const. art. I § 14; TEX. CODE CRIM. PROC. ANN. art. 1.10 (West

2005) (containing similar provisions). This broad prohibition includes the

requirement that a defendant not be subjected to “postacquittal factfinding

proceedings going to guilt or innocence.” Smith v. Massachusetts, 543 U.S. 462,

467, 125 S. Ct. 1129, 1134 (2005) (quoting Smalis v. Pennsylvania, 476 U.S. 140,

145, 106 S. Ct. 1745, 1749 (1986)).

Holcomb did not make a double jeopardy objection at trial. Nonetheless,

due to the “fundamental nature of double jeopardy protections,” she may raise her

double jeopardy claim for the first time on appeal provided that (1) the undisputed

facts show the double jeopardy violation is clearly apparent on the face of the

record and (2) enforcement of usual rules of procedural default would serve no

legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App.

2000).

3
This constitutional guarantee is applicable to the states through the Due
Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395
U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969).

13
 A. Standard of review

In the double jeopardy context, determination of whether an acquittal has

occurred “is not to be controlled by the form of the judge’s action” but instead by

examining whether the judge’s ruling, “whatever its label, actually represent[ed] a

resolution, correct or not, of some or all of the factual elements of the offense

charged.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct.

1349, 1354–55 (1977); see also Benavidez v. State, 323 S.W.3d 179, 181 (Tex.

Crim. App. 2010) (observing that appellate court may order entry of judgment of

acquittal only when either trial court’s ruling amounts to de facto but

unacknowledged acquittal or appellate court finds evidence is insufficient to

support conviction). The determination of whether an acquittal occurred turns on

“whether the judgment resolved any of the ultimate elements in the defense.”

Moreno v. State, 294 S.W.3d 594, 600 (Tex. Crim. App. 2009).

B. Analysis

1. Nature of directed verdict

Under the first prong of Gonzalez, then, we consider whether the trial court’s

directed verdict constitutes an acquittal under the Double Jeopardy Clause. After

the State rested its case-in-chief, Holcomb presented a motion for directed verdict

asserting, inter alia, that there was legally insufficient evidence that Bledsoe owned

14
the $19,000 that Holcomb allegedly stole from him. 4 In granting the directed

verdict as to Bledsoe immediately after the State rested its case, the trial court

referred to Bledsoe’s testimony in explaining the basis of its ruling, essentially,

that the evidence showed—contrary to the allegations in the indictment—that

Bledsoe was not the owner of the $19,000 given to Holcomb.

Ownership is an essential element of the offense of theft. See TEX. PENAL

CODE ANN. § 31.03(a) (“A person commits an offense if he unlawfully

appropriates property with intent to deprive the owner of property.”). The Texas

Penal Code defines an “owner” as a person who “has title to the property,

possession of the property, whether lawful or not, or a greater right to possession of

the property than the actor.” TEX. PENAL CODE ANN. § 1.07(a)(35)(A) (West Supp.

2014); see also Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004)

(applying definition as used in jury charge to assess sufficiency of evidence). The

indictment names Bledsoe as owner, but the funds were not held under Bledsoe’s

name, and Bledsoe conceded that he could not claim ownership of them. The trial

court’s directed verdict is expressly based on those facts. The trial court, therefore,

4
In a prosecution for theft, the State has the burden of proving ownership.
Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986); see also
TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2014) (theft requires that
accused “unlawfully appropriate[] property with intent to deprive owner of
property).

15
determined that the evidence was legally insufficient to sustain a conviction

because Bledsoe was not the owner of the funds.

It follows, then, that the trial court’s inclusion of Bledsoe’s name in the jury

charge subjected Holcomb to further factfinding proceedings going to Holcomb’s

guilt or innocence on Bledsoe’s complaint, in contravention of double jeopardy

protections. See Smith, 543 U.S. at 467–68, 125 S. Ct. at 1133–34 (declaring that

Fifth Amendment prohibits reexamination of court–decreed acquittal). The face

of the record thus makes apparent that Holcomb was impermissibly subjected to a

double jeopardy violation. See Gonzalez, 8 S.W.3d at 643.

2. Legitimate state interests

Under the second prong of Gonzalez, we ask whether any legitimate state

interests would be served by applying the usual waiver rule against Holcomb’s

double jeopardy claim. See id. “In cases where the trial court either knew or

should have known of the jeopardy problem, no purpose is served in enforcing the

state procedural rule [regarding waiver of double jeopardy claims not raised at

trial,] and the defendant may assert this interest after trial.” Beltran v. State, 30

S.W.3d 532, 533 n.1 (Tex. App.—San Antonio 2000, no pet.) (quoting DeMoss v.

State, 12 S.W.3d 553, 559 n.2 (Tex. App.—San Antonio 1999, pet. ref’d)); see

State v. Torres, 805 S.W.2d 418, 423 (Tex. Crim. App. 1991); Shaffer v. State, 477

S.W.2d 873, 875–76 (Tex. Crim. App. 1971) (collecting cases dating back to late

16
nineteenth century); Grant v. State, 247 S.W.3d 360, 370 n.8 (Tex. App.—Austin

2008, pet. ref’d); Roy v. State, 76 S.W.3d 87, 94 (Tex. App.—Houston [14th Dist.]

2002, no pet.).

Here, the trial court was aware or should have been aware that it was

subjecting Holcomb to a double jeopardy violation by including Bledsoe in the

jury charge. Just days before, the court had granted the directed verdict as to

Bledsoe. See Shaffer, 477 S.W.2d at 875–76; Beltran, 30 S.W.3d at 533 n.1

(noting that “the complained-of jeopardy problem consists of two convictions,

before the same judge and jury, arising out of conduct that occurred during the

same criminal episode”); Honeycutt v. State, 82 S.W.3d 545, 547 (Tex. App.—San

Antonio 2002, pet. ref’d) (“[B]ecause the two convictions were in the same court,

on the same day, before the same judge, and were based on the same evidence, the

enforcement of the statutory requirements would have served no state interest.”).

We therefore hold that no legitimate state interests would be served by applying

the waiver rule to Holcomb’s double jeopardy claim.

III. State’s Challenges to Double Jeopardy Claim

A. Validity of ruling

The State contends that Holcomb’s double jeopardy claim does not

withstand scrutiny because the trial court had no authority—under either the

common law or the Code of Criminal Procedure—to grant a directed verdict in this

17
case. This purported lack of authority, the State claims, rendered the directed

verdict a legal nullity incapable of offending the Double Jeopardy Clause. The

Court of Criminal Appeals recently refused to countenance this same argument, in

part because—just as here—the State failed to interpose this objection at trial. See

Moreno, 294 S.W.3d at 601–02 (holding that trial court’s grant of defendant’s

motion for directed verdict before State rested case-in-chief constituted acquittal

for double jeopardy purposes).

In any event, challenges to a court’s authority to render an acquittal are

almost never reviewable on appeal. The Double Jeopardy Clause generally bars

appellate review of judgments of acquittal, even when those judgments are

erroneously made. Sanabria v. United States, 437 U.S. 54, 64, 69, 98 S. Ct. 2170,

2178, 2181 (1978); State v. Blackshere, 344 S.W.3d 400, 406 (Tex. Crim. App.

2011); see Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 672 (1962)

(concluding that court’s directed verdict of acquittal could not be reviewed without

violating the Double Jeopardy Clause, despite fact that it rested upon an

“egregiously erroneous foundation”). Only two remotely similar instances exist in

which the double jeopardy bar does not preclude such a challenge: (1) where the

court lacked jurisdiction over the case or the defendant and (2) where jeopardy

failed to attach in the first place. See Ball v. United States, 163 U.S. 662, 669–70

(1896); State v. Fisher, 212 S.W.3d 378, 380–81 (Tex. App.—Austin 2006, pet.

18
ref’d). Neither exception applies here. There is no contention—and nothing in the

record to suggest—that the court lacked jurisdiction over this case or Holcomb.

And because this was a jury trial, “jeopardy attache[d] when the jury [was]

empaneled and sworn.” Moreno, 294 S.W.3d at 597; cf. Fisher, 212 S.W.3d at 381

(holding that jeopardy did not attach because “no jury was ever empaneled or

sworn, no evidence was offered or received, and no plea was entered by [the

defendant] after the announcement of ready by both sides”).

B. Retractability of ruling

The State alternatively contends that, even if the trial court had authority to

render a directed verdict, its failure to actually direct the jury to return a particular

verdict and its inclusion of Bledsoe in the jury charge amounted to an implied

retraction of the directed verdict. The Double Jeopardy Clause, however,

“prohibits reexamination of a court-decreed acquittal to the same extent it prohibits

reexamination of an acquittal by jury verdict.” Smith, 543 U.S. at 467, 125 S. Ct.

at 1133. In Smith, the Supreme Court specifically held:

If, after a facially unqualified midtrial dismissal of one count, the trial
has proceeded to the defendant’s introduction of evidence, the
acquittal must be treated as final, unless the availability of
reconsideration has been plainly established by pre-existing rule or
case authority expressly applicable to midtrial rulings on the
sufficiency of the evidence . . . . [A]ny contention that the Double
Jeopardy Clause must itself (even absent provision by the State) leave
open a way of correcting legal errors is at odds with the well-
established rule that the bar will attach to a preverdict acquittal that is
patently wrong in law.

19
Id. at 473, 125 S. Ct. at 1137.

The State does not identify, and our own examination of relevant precedent

fails to reveal, any pre-existing rule or authority “plainly establish[ing]” the ability

of a Texas trial court to reconsider a partial midtrial directed verdict like the one

granted in Holcomb’s case. See id. The Texarkana Court of Appeals recently

confirmed the lack of such a rule, noting that “[i]n Texas, there is no such statute,

rule, or case” allowing for reconsideration under the rule set out in Smith.5

Towery, 262 S.W.3d at 592.

The jury’s failure to return a verdict duplicating the trial court’s directed

verdict does not undermine the finality of the trial court’s ruling either. No pre-

existing rule or authority requires a trial court, after holding the evidence to be

legally insufficient to support some element of the State’s case, to submit that

decision to the jury. 6 See State v. Lewallen, 927 S.W.2d 737, 739 n.2 (Tex. App.—

5
Towery v. State further concluded that Smith v. Massachusetts did not apply
because the trial court’s directed verdict of acquittal was a “clerical error”
that it later corrected. 262 S.W.3d 586, 596–97 (Tex. App.—Texarkana
2008, pet. ref’d). Towery also noted that nothing in the record showed that
the trial court intended to enter an acquittal and that there was no evidence
of reliance on the ruling by any of the litigants. Id. at 593–97. In contrast,
the record here shows that the trial court explicitly considered the
sufficiency of the evidence and explained its ruling.
6
The State points to article 38.17 of the Texas Code of Criminal Procedure as
the authority for reconsidering a directed verdict, but that provision applies
only under specific conditions; it does not establish a general rule. See TEX.
CODE CRIM. PROC. ANN. art. 38.17 (West 2005) (providing that “[i]n all

20
Fort Worth 1996, no pet.) (“A ‘directed verdict’ is commonly defined as the action

taken by a trial judge in a jury trial to decide the issues in the case without allowing

them to be submitted to the jury because, as a matter of law, the party with the

burden of proof has failed to make a prima facie case for jury consideration.”

(emphasis added)).

On the contrary, the widely-accepted rule is that finality will be accorded to

a directed verdict based on a finding of insufficient evidence, even when that

finding is unilaterally issued by a trial court. 7 See, e.g., Smith, 543 U.S. at 464–75,

125 S. Ct. at 1132–38 (holding that Double Jeopardy Clause barred trial court from

submitting count to jury when court had previously acquitted defendant of that

count and rejecting argument that court’s submission of that count to jury was

permissible retraction of prior acquittal); Moreno, 294 S.W.3d at 600 (recognizing

that, in jury trial case, that trial court’s directed verdict triggered double jeopardy

protections). This rule promotes the principles embodied in the Double Jeopardy

Clause identified by the Supreme Court in Green v. United States, 355 U.S. 184,

cases where, by law, two witnesses, or one with corroborating
circumstances, are required to authorize a conviction, if the requirement be
not fulfilled, the court shall instruct the jury to render a verdict of acquittal,
and they are bound by the instruction”).
7
There are few exceptions, none of which apply to this case, such as when the
judge grants an acquittal notwithstanding the jury’s verdict. See United
States v. Wilson, 420 U.S. 332, 339–52, 95 S. Ct. 1013, 1020–27 (1975)
(discussing constitutional bounds of double jeopardy).

21
187–88, 78 S. Ct. 221, 223 (1957). In Green, the Court explained that the clause

aims to protect the individual against repeated attempts to convict him of an

alleged offense, which would subject that person “to embarrassment, expense and

ordeal,” and “compel[] him to live in a continuing state of anxiety and insecurity,

as well as enhancing the possibility that even though innocent he may be found

guilty.” Id. at 187–88.

The Supreme Court also warned that “[t]he Double Jeopardy Clause’s

guarantee cannot be allowed to become a potential snare for those who reasonably

rely upon it.” Smith, 543 U.S. at 473, 125 S. Ct. at 1137. It explained that, “when

. . . the trial has proceeded to the defendant’s presentation of his case, the

possibility of prejudice arises. The seeming dismissal may induce a defendant to

present a defense to the undismissed charges when he would be better advised to

stand silent. Id. at 472, 125 S. Ct. at 1136. In particular, the Court noted that in

jurisdictions like Texas, that consider the entire record in reviewing evidentiary

sufficiency challenges, “the defendant who puts on a case runs ‘the risk that . . . he

will bolster the Government case enough for it to support a verdict of guilty,’” or,

through the defendant’s own evidence, “may lay the foundation for otherwise

inadmissible evidence in the Government’s initial presentation or provide

corroboration for essential elements of the Government’s case.” Id. at 472, 125 S.

Ct. at 1137 (quoting McGautha v. California, 402 U.S. 183, 215, 91 S. Ct. 1454,

22
1471 (1971)). And in all jurisdictions, the Court observed, the danger of allowing

for the retraction of an acquittal creates the danger that a partial acquittal on one

count would give the defendant a false sense of security and thereby “induce the

defendant to present defenses to the remaining counts that are inadvisable—for

example, a defense that entails admission of guilt on the acquitted count.” Id.

This case exemplifies the dangers identified in Smith. Bledsoe’s inclusion in

the jury charge effectively gave the State a second try at getting a conviction that it

could not have obtained at the conclusion of its case-in-chief. Also, the directed

verdict may well have lulled Holcomb into testifying on the issue that led to the

State’s ability to call Bledsoe’s girlfriend as a rebuttal witness. 8 As a result, we

hold, in keeping with Smith and Moreno, that the Double Jeopardy Clause

precluded the trial court from retracting its directed verdict.

V. Evidentiary Sufficiency

Holcomb contends that, as a result of the de facto acquittal on Bledsoe’s

complaints, the evidence is legally and factually insufficient to prove that Holcomb

committed theft of property with an aggregated value of at least $100,000, the

8
The fact that Holcomb’s husband was her co-defendant also may have
implicated her reliance interests. See Smith v. Massachusetts, 543 U.S. 462,
471–72 n.6, 125 S. Ct. 1129, 1136–37 n.6 (2005) (discussing implications
for multiple defendant cases). The ruling as to Bledsoe may have induced
Holcomb to testify, perhaps hoping that her testimony would aid in her
husband’s defense as well.

23
minimum amount required to support a second-degree theft conviction. See TEX.

PENAL CODE ANN. § 31.03(e)(6)(A).

A. Standard of Review

This Court reviews legal and factual sufficiency challenges using the same

standard of review. Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d) (construing majority holding of Brooks v. State, 323 S.W.3d

893, 912, 926 (Tex. Crim. App. 2010)). Under this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational factfinder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In

re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the

evidence is insufficient under this standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11; Laster, 275

S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally, the evidence is

24
insufficient as a matter of law if the acts alleged do not constitute the criminal

offense charged. Williams, 235 S.W.3d at 750.

An appellate court determines “whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.” Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). In viewing the record, direct and

circumstantial evidence are treated equally. Id. Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt. Id. An appellate court

presumes that the factfinder resolved any conflicting inferences in favor of the

verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Clayton, 235 S.W.3d at 778. An appellate court also defers to the

factfinder’s evaluation of the credibility and weight of the evidence. See Williams,

235 S.W.3d at 750.

B. Analysis

1. Intent

Holcomb contends that the evidence is insufficient to support the jury’s

finding that she acted with the criminal intent to deprive the owners of their

property—at most, she claims, the evidence shows failure to perform her

contractual duties, which is enough to support civil claims for breach of contract,

25
but not theft. For purposes of the theft statute, the appropriation of property is

unlawful if the defendant takes it without the owner’s consent. TEX. PENAL CODE

ANN. § 31.03(b). The owner cannot effectively consent to letting the defendant

take the property if the defendant uses deception to induce consent. Id.

§ 31.01(3)(A). Relevant to this case, the Penal Code defines “deception” as:

• creating or confirming by words or conduct a false impression of law
or fact that is likely to affect the judgment of another in the
transaction, and that the actor does not believe to be true; [or] . . .

• promising performance that is likely to affect the judgment of another
in the transaction and that the actor does not intend to perform or
knows will not be performed, except that failure to perform the
promise in issue without other evidence of intent or knowledge is not
sufficient proof that the actor did not intend to perform or knew the
promise would not be performed.

Id. § 31.01(1)(A), (E).

In support of her contention, Holcomb points to evidence that she and her

husband partially performed their contracts with the complainants. She and her

husband prepared some of the houses to be moved by securing permits, removing

roofs, loading the houses on beams, and hiring police escorts. They actually

transported parts of some of the houses, and Holcomb gave various explanations

for the delays and problems in moving each of the houses. According to the State,

however, application of the “doctrine of chances” shows that sufficient

circumstantial evidence exists to allow a rational factfinder to find beyond a

26
reasonable doubt that Holcomb did not intend to deliver the complainants’ houses

at the time she entered into the contracts.

The doctrine of chances is “the principle that evidence of the repetition of

similar unusual events over time demonstrate a decreasing probability that those

unusual events occurred by chance.” Martin v. State, 173 S.W.3d 463, 467 (Tex.

Crim. App. 2005). Here, the evidence shows that the Holcombs repeatedly:

(1) failed to take reasonable steps to protect the houses from the weather and other

potential causes of damage in preparing the houses for transport; (2) had extensive

delays, which they failed to explain to the complainants; (3) avoided the

complainants’ attempts to have them address and explain the delays, sometimes for

months at a time; (4) failed to transport the houses even after the complainants

eliminated the obstacles that Holcomb identified; and (5) never refunded any

payments made.

Holcomb points to Thomas v. State, 753 S.W.2d 688 (Tex. Crim. App. 1988),

and Phillips v. State, 640 S.W.2d 293 (Tex. Crim. App. 1982), in support of her

contention that the State failed to prove that her failure to fully perform on the

contracts was evidence of criminal intent. Thomas is inapposite because, having

charged the defendant with the theft of a car he had acquired under a car rental

contract, the State had to prove that the defendant intended to deprive the owner of

the car rather than withhold it only temporarily. 753 S.W.3d at 690–91. The facts

27
relevant to Holcomb’s intent present no question of temporary withholding or

permanent deprivation. In Phillips, the defendant contracted to build an addition to

the complainant’s house for approximately $21,000 and asked for a down payment

of approximately $7,000. Id. at 294. The defendant drew up some plans and

conferred with the complainant. The defendant informed the complainant on

several occasions, however, that he was having difficulty getting the plumbers to

do their job and, ultimately, could not perform. Id. The Court of Criminal Appeals

set aside the conviction and rendered an acquittal, holding that “[t]he only evidence

presented was [defendant]’s failure to perform, which . . . is not sufficient to prove

deception.” Id. (citing TEX. PENAL CODE ANN. § 31.01(2)(E)).

Unlike Phillips, the record in this case does not show just a single failure to

perform. It shows a pattern of conduct in which Holcomb collected payments,

agreed to move houses, accomplished one or two tasks that triggered additional

installment payments, but then consistently failed to transport the houses to their

contracted destinations. The sequence of events is unusual, and is repeated often

enough to warrant application of the doctrine of chances. The jury was free to

resolve the conflicting versions of the testimony it heard from the complainants

and Holcomb and to make its own determinations as to credibility. Viewed in the

light most favorable to the verdict, we hold that the evidence would allow a

28
rational factfinder to find beyond a reasonable doubt that Holcomb did not intend

to fulfill the contracts when she entered into them.

2. Aggregated value of property taken

The Penal Code provides that amounts obtained by theft pursuant to one

scheme or continuing course of conduct, whether from the same or several sources,

may be considered as one offense, allowing for aggregation of the property value

in determining the grade of the offense. TEX. PENAL CODE ANN. § 31.09.

“Aggregated theft is the sum of all its parts.” Dickens v. State, 981 S.W.2d 186,

188 (Tex. Crim. App. 1998). “A part is a completed theft whose elements have all

been proven.” Id. Consequently, while the State is not required to prove every

individual appropriation when an individual is charged with the unlawful

appropriation of property with an aggregated value pursuant to one scheme or

continuing course of conduct, the evidence will not be sufficient to sustain a

conviction unless the State shows that the defendant illegally appropriated enough

property to meet the minimum aggregated value alleged. Lehman v. State, 792

S.W.2d 82, 85–86 (Tex. Crim. App. 1990).

The trial court granted a directed verdict acquitting Holcomb of the theft

charges relating to Bledsoe, and, as we have explained, the Double Jeopardy

Clause bars us from reviewing the merits of that ruling on appeal. See, e.g.,

Sanabria, 437 U.S. at 69, 98 S. Ct. at 2181 (holding that Double Jeopardy Clause

29
barred appellate review of trial court’s judgment of acquittal for insufficient

evidence). As a result, we do not consider Green’s rebuttal testimony, which was

elicited after the trial court’s ruling, in determining whether the evidence supports

the conviction for second-degree felony theft. See Smith, 543 U.S. at 473, 125 S.

Ct. at 1137 (holding that acquittal is final when rendered).

The State presented testimony from David Pilant, a fraud examiner with the

Harris County District Attorney’s Office, concerning the aggregate value of the

property taken. Pilant reviewed the canceled checks drawn on the six

complainants’ accounts and made out to the Holcombs during the relevant period

and calculated a total of $108,175. This total includes the $19,000 allegedly stolen

from Bledsoe, which should have been excluded. Second-degree felony theft,

however, requires proof that the property stolen had a minimum value of $100,000.

TEX. PENAL CODE ANN. § 31.03(e)(6). We therefore hold that the evidence is

insufficient to support the jury verdict finding Holcomb guilty of the theft of

property with an aggregated value of between $100,000 and $200,000.

VI. Disposition

Based on the double jeopardy violation and the lack of evidence to support

the conviction, Holcomb contends that she is entitled to a complete acquittal or a

new trial. She claims she was egregiously harmed because, without the amount

attributable to Bledsoe, she—“at the very worst”—would have been convicted of

30
the third-degree felony for theft of property with an aggregated value of between

$20,000 and $100,000. Holcomb, however, requested and obtained a lesser-

included instruction on that third-degree felony offense.

If the evidence is legally sufficient to support that lesser-included offense

and no harm would otherwise result from the double jeopardy violation, we may

reverse the judgment and remand to the trial court to reform the judgment to reflect

conviction of the lesser-included offense. See Bowen v. State, 374 S.W.3d 427,

432 (Tex. Crim. App. 2012). We consider whether Bledsoe’s erroneous inclusion

in the jury charge caused harm that cannot be remedied by disposing of the appeal

in this way.

Reformation would not be appropriate if the record shows a lack of unanimity on

the constituent elements of the lesser-included offense. See Cosio v. State, 353

S.W.3d 766, 772 (Tex. Crim. App. 2011); see also TEX. CONST. art. V, § 13; TEX.

CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2014). In this case, the record

shows that the jury could have reached a verdict that Holcomb committed theft of

an aggregated amount in excess of $100,000 only by unanimously finding that

Holcomb misappropriated all of the funds from all six complainants according to

the State’s proof at trial. Subtracting the amount attributable to Bledsoe’s

31
complaints, Holcomb misappropriated $89,175. 9 We hold that any harm resulting

from the inclusion of Bledsoe in the charge can be remedied by reforming the

judgment to reflect conviction of the lesser-included offense of theft of property

with an aggregated value of between $20,000 and $100,000.

CONCLUSION

We reverse the judgment of the trial court and remand the case to the trial

court to reform the conviction to reflect the third-degree felony of theft of property

with an aggregated value of between $20,000 and $100,000, and to conduct a new

punishment hearing.

Jane Bland
Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

9
Holcomb does not dispute the amounts proven with respect to the remaining
five complainants.

32