Bowen, Deborah

PD-0798-15
PD-0798-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/29/2015 12:18:17 PM
Accepted 6/29/2015 5:12:56 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
AUSTIN, TEXAS

DEBORAH BOWEN,
APPELLANT

NO. __
(COURT OF APPEALS NO. 11-13-00114-
CR; TRIAL COURT NO. 3313)
STATE OF TEXAS,
APPELLEE

**************************************
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
ELEVENTH JUDICIAL DISTRICT
EASTLAND, TEXAS
**************************************
CHIEF JUSTICE JIM R. WRIGHT, PRESIDING
*********************************************************
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
*********************************************************
STAN BROWN
P.O. BOX 3122
ABILENE, TEXAS 79604
325-677-1851
FAX 325-677-3107
STATE BAR NO. 03145000
EMAIL: mstrb@aol.com

ATTORNEY FOR APPELLANT
June 29, 2015
 IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS

DEBORAH BOWEN.
APPELLANT

NO. __
(COURT OF APPEALS NO. 11-13-00114-
CR; TRIAL COURT NO. 3313)
STATE OF TEXAS,
APPELLEE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Hon. Glen Harrison Stan Brown
32nd District Court Appellant's Attorney/ Appeal
Nolan County Courthouse P.O. Box 3122
Sweetwater, TX 79566 Abilene, Texas 79604

Ann Reed John R. Saringer
32nd District Attorney Appellant' s Attorney/Trial
Nolan County Courthouse P.O. Box 360
Sweetwater, TX 79602 Abilene, TX 79604

Lisa McMinn Deborah Bowen, Appellant
State Prosecuting Attorney 6343 I.H. 20E
P.O. Box 13046 Abilene, TX 79601
Austin, TX 78711

II
 TABLE OF CONTENTS

SUBJECT PAGE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL .ii

STATEMENT REGARDING ORAL ARGUMENT vii

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY 2

UESTION PRESENTED FOR REVIEW NO. ONE

Was the retroactive overruling of Collier and Haynes by Bowen v.
State, 374 S.W.3d 427 (Tex. Crim. App. 2012) a denial of Due Process of
Law that was not considered by this Court; and on which the Court of
Appeals failed to consider Appellant's most important case? (Suppl. C.R. at
149-162)(VI Suppl. R.R. at 14-15) .3

EX PARTE SCALES MANDATES RETROACTIVE OVERRULING
OF COLLIER AND HAYNES DENIED APPELLANT DUE
PROCESS 3

RELATIONSHIP BETWEEN EX POST FACTO LAWS AND
OVERRULING ESTABLISHED PRECEDENT .5

THE RETROACTIVE OVERRULING OF THE CARVING
DOCTRINE, AS WELL AS COLLIER & HAYNES, VIOLATED DUE
PROCESS OF LAW 7
CONCLUSION 8
QUESTION PRESENTED FOR REVIEW NO. TWO

Did Jeopardy attach when the Court of Appeals reversed and reformed
Appellant's conviction of first degree felony Misapplication of Fiduciary
Property and entered a judgment of acquittal in Bowen v. State, 322 S.W.3d
435 (Tex. App.-Eastland 2010, pet. granted)? (Suppl. C.R. at 78) (IV Suppl.
R.R. at 19) 9

BURKS, EVANS, STEPHENS, AND MORENO MANDATE
JEOPARDY BARS ALL FURTHER PROSECUTION 9

III
JEOPARDY ATTACHES TO AN INTERMEDIATE APPELLATE
COURT ACQUITTAL .10

EVERY STAGE OF PROCEEDING AGAINST ACCUSED IS A
CRIMINAL PROSECUTION 13

CONCLUSION 15

PRA YER FOR RELIEF 16

CERTIFICATE OF SERVICE 16

CERTIFICATE OF COMPLIANCE 17

INDEX OF AUTHORITIES
CASES PAGE

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) passim

Bowen v. State, 322 S.W.3d 435 (Tex. App-Eastland 2010, pet.
granted) passim

Burks v. United States, 437 U.S. 1, 10, 98 S.Ct. 2141, 57 L.Ed.2d 1
(1978) 9, 10-11, 14

Calder v. Bull, 3 U.S. 386, 391 (1798) .4, 5

Carranza-De Salinas v. Holder, 700 F.3d 768 (5th Cir. 2012) 6

Carmel v. Texas, 529 U.S.513, 120 S.Ct. 1620, 146 L.Ed2d 577
(2000) 5-6, 8

Chalin v. State, 645 S.W.2d 265 (Tex. Crim. App. 1982) 6

Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999) .3, 6, 7,8

Douglas v. Buder, 412 U.S. 430,93 S.Ct. 2199, 37 L.Ed.2d 52 (1973) 6

Evans v. Michigan, U.S. _, 133 S.Ct. 1069, 185 L.Ed.2d 124
(2013) 9-11, 14

Ex Parte Castillo, S.W.3d , 2015 WL 3486960, NO. PD-
0545-14 (Tex. Crim. App. June 3, 2015) .14

IV
Ex Parte Chaddock, 369 S.W.3d 880 (Tex. Crim. App. 2012) 12

Ex Parte Clay, 675 S.W.2d 765 (Tex. Crim. App. 1984) 7

Ex Parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015) 4

Ex Parte McWilliams, 634 S.W.2d 815 (Tex. Crim. App. 1982) 7

Ex Parte Scales, 853 S.W.2d 586 (Tex. Crim. App. 1993) 3, 7,8

Fong Foo v. United States, 369 U.S. 141, 143,82 S.Ct. 671,7 L.Ed.2d 629
(1962) 12

Gaddy v. State, 433 S.W.3d 128 (Tex. App.-Fort Worth 2014, pet
ref'd) 8,10,13-14

Haynes v. State, 273 S.W.3d 183 (Tex. Crim. App. 2008) .3, 6,7,8

Howland v. State, 990 S.W.2d 274 (Tex. Crim. App. 1999) .13-14

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) 12-13, 15

Martinez v. Illinois, __ U.S. , 134 S.Ct. 2070, 188 L.Ed.2d 1112
(2014) 11

Monge v. California, 524 U.S. 721 (1998) 9

Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003) 14-15

State v. Blackshere, 344 S.W.3d 400 (Tex. Crim. App. 2011) .13

State v. Moreno, 294 S.W.3d 594 (Tex. Crim. App. 2009) 9,10,11-12,14

State v. Savage, 933 S.W.2d 497 (Tex. Crim. App. 1996) 9

Stephens v. State, 806 S.W.2d 812 (Tex. Crim. App. 1990) 9,10,12,14

Tigner v. State, 928 S.W.2d 540 (Tex. Crim. App. 1996) .14

U.S. v. Wilson, 420 U.S.332, 95 S.Ct. 1013,43 L.Ed.2d 232 (1975) 9-10

v
CONSTITUTIONAL PROVISIONS, RULES, & TREATISES PAGE

u.s. CONST. Art. I, §§9, 10 4,5,6,7

U.S. CONST. amends. V & XIV passim

Tex. R. App. P. 9.4 17

Tex. R. App. P. 66.3(c) 4,9

Black's Law Dictionary 1204 (6th ed. 1990) .14

VI
 STATEMENT REGARDING ORAL ARGUMENT

Appellant believes the QUESTIONS PRESENTED; the denial of Due

Process of Law by the retroactive overruling of established precedent, as well as

whether Jeopardy attaches to an intermediate court of appeals' determination the

evidence was insufficient; are issues that merit further clarification and discussion

for the bench and bar. Therefore, the usual give and take of oral argument would

be beneficial for the Court in determining which judicial changes in the law

should be applied prospectively only in order to comport with Due Process, and

also the extent to which all acquittals should bar further prosecution. Oral

argument is essential in order to aid this Court's decisional processes by providing

a more in-depth exploration of those extremely important issues.

VII
 IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
DEBORAH BOWEN,
APPELLANT

NO. __
(COURT OF APPEALS NO. 11-13-00114-
CR; TRIAL COURT NO. 3313)
STATE OF TEXAS,
APPELLEE
**************************************
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
ELEVENTH JUDICIAL DISTRICT
EASTLAND, TEXAS
**************************************
STATEMENT OF THE CASE

The jury convicted Appellant of First Degree felony misapplication of

fiduciary property valued at $200,000.00 or more owned by and being held

for the benefit of Dana White. (C.R. at 2, 54, 56).' On October 8, 2008, the

trial court sentenced her to eight years TDCJ-ID, a fine of $10,000.00, and

restitution of $350,000.00. (C.R. at 60). On September 2, 2010, the 111h

Court of Appeals found the evidence insufficient, reversed the judgment of

the trial court, and rendered a judgment of acquittal. Bowen v. State, 322

S.W.3d 435 (Tex. App.-Eastland 2010, pet. granted). This Court granted

review, reversed the judgment of the 111hCourt of Appeals, and remanded to

the trial court to reform the conviction to Second Degree felony

I Citations to the previous record in II-08-00262-CR will be designated (C.R. at) and
(R.R. at), while citations to the record following the remand by the Court of Criminal
Appeals will be designated (SuppJ. C.R. at) and (SuppJ. R.R. at).
misapplication of fiduciary property and conduct a new punishment hearing.

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012). Prior to that

second punishment proceeding, Appellant filed her Plea in Bar (Suppl. C.R.

at 78), and on March 6, 2013, the trial court denied the Plea in Bar (IV

Suppl. R.R. at 19) and sentenced Appellant to seven years TDCJ-ID, a fine

of $7,500.00, and restitution of $103,344.00 "with giving credit for any

monies that you paid toward restitution." (V Suppl R.R. at 145)(Suppl. C.R.

at 84). Immediately following the denial of our First Amended Motion for

New Trial on April 8,2013, (Suppl. C.R. at 89)(VI Suppl. R.R. at14-15),

Appellant's Notice of Appeal was filed. (Suppl. C.R. at 214). The Trial

Court's Certification of Defendant's Right of Appeal was filed March 6,

2013. (Suppl. C.R. at 88). Appellant seeks review of the decision of the

Court of Appeals that affirmed her conviction.

STATEMENT OF PROCEDURAL HISTORY

Appellant presented four issues in her brief, and the Eastland Court of

Appeals affirmed. Bowen v. State, S.W.3d 2015 WL

1956866 (Tex. App.-Eastland April 30, 2015)(Appendix). Appellant filed a

motion for rehearing May 15, 2015, which was denied without written

opinion May 29,2015. This petition is due to be filed by June 29,2015; it is

therefore timely filed.

2
 QUESTION PRESENTED FOR REVIEW NO. ONE

Was the retroactive overruling of Collier and Haynes by Bowen v.
State, 374 S.W.3d 427 (Tex. Crim. App. 2012) a denial of Due Process of
Law that was not considered by this Court; and on which the Court of
Appeals failed to consider Appellant's most important case? (SuppJ. C.R. at
149-162) (VI Suppl. R.R. at 14-15).

ARGUMENT

EX PARTE SCALES MANDATES RETROACTIVE OVERRULING
OF COLLIER AND HAYNES DENIED APPELLANT DUE PROCESS

The Court of Appeals, relying on established precedent, as did trial

counsel, entered a judgment of acquittal because there was no evidence at

trial Appellant had misapplied fiduciary property valued at $200.000.00 or

more owned by or being held for the benefit of Dana White, a first degree

felony, and no lesser offense was charged. Bowen v. State, 322 S.W.3d 435

(Tex. App.-Eastland 2010, pet. granted). This Court then ruled,

retroactively, the authority relied upon by the Court of Appeals and trial

counsel no longer applied, and remanded to the trial court "to reform the

conviction to reflect the felony of misapplication of fiduciary property in the

second degree and to conduct a new punishment hearing." Bowen v. State,

supra, 374 S.W.3d at 432.

Ex Parte Scales, 853 S.W.2d 586,588 (Tex. Crim. App. 1993), the

case upon which Appellant primarily relies, ignored by the court below, held

the retroactive application of the abandonment of the "carving doctrine"

denied Mr. Scales Due Process of Law. Collier v. State, 999 S.W.2d 779

(Tex. Crim. App. 1999) and Haynes v. State, 273 S.W.3d 183 (Tex. Crim.

3
App. 2008); which this Court overruled in Bowen v. State, 374 S.W.3d 427

(Tex. Crim. App. 2012); had stood for the proposition "an appellate court

may reform a judgment to reflect a conviction for the lesser-included offense

when that lesser-included offense was submitted in the jury charge." Id. at

429. The retroactive overruling of established precedent is closely akin to

the legislative enactment of an ex post/acto law prohibited by U.S. CONST.

Art. I, §§9, 10.2 See generally, Calder v. Bull, 3 U.S. 386, 391 (1798),

wherein Mr. Justice Chase proclaimed:

But I do not consider any law ex post facto, within the
prohibition, that mollifies the rigor of the criminal law; but only
those that create, or aggravate, the crime; or encrease the
punishment, or change the rules of evidence, for the purpose of
conviction .... There is a great and apparent difference between
making an UNLAWFUL act LAWFUL; and the making an
innocent action criminal, and punishing it as a CRIME.

The ruling below certainly involves an overridingly important

question of law that should be addressed by this Court. Should the

overruling of precedent detrimental to Appellant's fundamental right to

either be convicted of the offense charged or acquitted be prospective only

in order to preserve Appellant's right to Due Process of Law? The 11th Court

of Appeals therefore decided an important question of state and federal law

that conflicts with the foregoing and following applicable decisions of this

Court and the Supreme Court of the United States; Tex. R. App. P. 66.3(c);

and which merits further discussion by this Court.

2 Ex Parte Heilman, 456 S.W.3d 159, 166 (Tex. Crim. App. 2015): "Courts can still
violate the Due Process Clause ... through an 'unforeseeable judicial enlargement of a
criminal statute, applied retroactively.''' (Footnotes omitted)(Emphasis supplied).

4
 RELATIONSHIP BETWEEN EX POST FACTO LAWS AND
OVERRULING ESTABLISHED PRECEDENT

Carmel v. Texas, 529 U.S.513, 120 S.Ct. 1620, 146 L.Ed2d 577

(2000) held the amendment to a Texas statute authorizing conviction of

certain sexual offenses on only the victim's testimony, which was not

previously permitted, was a law that altered the rules of evidence by

requiring less evidence to convict; such laws are ex post facto laws; and

convictions that rested solely on testimony of the victim who was 14 or 15

years of age at time of the offense were barred by that clause.

Carmel goes on to explain the analysis of Calder also applies to Due

Process violations that change established precedent to the detriment of the

accused.

"As for what Calder says, the fourth category applies to
'(e)very 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.' ... The last six words are crucial. The relevant
question is whether the law affects the quantum of evidence
required to convict; a witness competency rule that (in certain
instances at least) has the practical effect of telling us what
evidence would result in acquittal does not really speak to
Calder's fourth category ... 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 defect of the laws, provide against the
commission of future crimes of the same sort. The
escape of one delinquent can never produce so
much harm to the community, as may arise from

5
 the infraction of a rule, upon which the purity of
public justice, and the existence of civil liberty,
essentially depend. 3 Commentaries on the
Constitution § 1338, at 211, n. 2." Id. at 529 U.S. at
551,552-553. (Citation omitted).

As aptly summarized in Carranza-De Salinas v. Holder, 700 F.3d

768, 772 (5th Cir. 2012), Appellant's position the retroactive overruling of

Collier and Haynes violated her Due Process rights is particularly

compelling: "'[T]he presumption against retroactive legislation is deeply

rooted in our jurisprudence, and embodies a legal doctrine centuries older

than our Republic.' Landgrafv. USI Film Products, 511 U.S. 244, 265,114

S.Ct. 1483, 128 L.Ed.2d 229 (1994). The presumption 'finds expression in

several provisions of our Constitution,' including the Ex Post Facto Clause,

the Contract Clause, and the Fifth Amendment's Due Process Clause.":'

While it is true the effect of what this Court ordered in Bowen, supra,

was the retroactive overruling of Collier and Haynes, it is equally true the

Court did not consider whether the retroactive overruling violated

Appellant's Due Process of Law rights. It is that consideration, we

respectfully urge, which is crucial to the criminal jurisprudence of the State

3 See also, Chafin v. State, 645 S.W.2d 265,271-272 (Tex. Crim. App. 1982), "Although
the ex post Jacto clause of the United States Constitution 'is addressed at legislative action
only,' and does not reach erroneous or inconsistent decisions by the courts, Frank v.
Mangum, 237 U.S. 309,344,35 S.Ct. 582,59 L.Ed. 969 (1915), the principles embodied
in the clause are applicable to judicial actions through the Due Process Clause of the Fifth
Amendment to the Constitution. Marks v. United States, 430 U.S. 188,97 S.Ct. 990,51
L.Ed .2d 260 (1977); Bouie v. City oj Columbia, supra; also see Douglas v. Buder, 412
U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973)."
Douglas v. Buder, supra, 93 S.Ct. at 2200 declared: "Moreover, even if it were clear
that respondent had declared Missouri law to be that a traffic citation is the equivalent of
an arrest, we would have to conclude that under the rationale of Bouie v. City of
Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), the unforeseeable
application of that interpretation in the case before us deprived petitioner of due process."

6
of Texas, in addition to the future of Appellant, Deborah Bowen. The entire

area of the law regarding when the overruling of established precedent to the

detriment of an accused becomes the judicial equivalent of a legislative ex

post/acto law merits an open, vigorous, and additional discussion.

THE RETROACTIVE OVERRULING OF THE CARVING
DOCTRINE, AS WELL AS COLLIER & HAYNES, VIOLATED DUE
PROCESS OF LAW

Ex Parte Scales, supra, 853 S.W.2d at 588 controls on the issue of

denial of Due Process by the retroactive overruling of Collier and Haynes:

Essentially in our review today we must determine the scope
of the "carving doctrine.'?" In this very case, applicant is now
liable to conviction for two offenses, or more. Under the
carving doctrine, if he engaged in only one criminal transaction,
he would be liable to only one criminal conviction because,
under the carving doctrine, the transaction was the offense.
Likewise, where he might once have been exposed only to the
punishment prescribed for unlawfully carrying a weapon, he
must now expect to face the punishment prescribed for
aggravated assault as well, even though he may have committed
but a single criminal transaction. And finally, where the law
once entitled him to prevent prosecution for aggravated assault
after a conviction for the same criminal transaction, he is now
denied the benefit of this substantive defensive theory.
Therefore, our decision to make the abandonment of the
"carving doctrine" retroactive in Ex Parte Clay' violated the
Due Process Clause of the Federal Constitution. As such Ex
Parte Clay and other cases in conflict with this decision are
overruled.

4 The carving doctrine was abandoned in Ex Parte Mcwilliams, 634 S.W.2d 815 (Tex.
Crim. App. 1982), which defined it as follows: "Initially, carving was applied when the
two offenses charged contained common material elements or when the two offenses
required the same evidence to convict. .. This Court added the 'continuous act or
transaction' test. .. Since that time the 'same evidence' and the 'continuous assaultive
transaction' tests have been randomly applied." Id. at 823 (Citations omitted).

5 Ex Parte Clay, 675 S.W.2d 765 (Tex. Crim. App. 1984).

7
 CONCLUSION

As Justice Dauphinot succinctly wrote in Gaddy v. State, 433 S.W.3d

128, 135 (Tex. App.-Fort Worth 2014, pet refd)(Dauphinot, J., dissenting):

"The State and the defense each chose its strategy, based on the law as it

existed at the time of trial, and both were fully aware of the consequences of

their choices of strategy. The National Football League (NFL) is considering

doing away with the extra point, or points, after a touchdown. Just as it

would be fundamentally unfair for the NFL's Rules Committee to change the

scoring system retroactively to affect the outcome of the Super Bowl played

two years ago, applying the Bowen rule to this case unfairly rescues one side

from the consequences of its failed strategy." (Footnote omitted).

The retroactive overruling of Collier and Haynes in this case IS

analogous to the retroactive overruling of the carving doctrine. That

doctrine, too, was unpopular with prosecutors. Nonetheless, Ex Parte Scales

definitively illustrates, just as the retroactive abandonment of the carving

doctrine violated Mr. Scales' Due Process rights, so does the retroactive

overruling of Collier and Haynes violate Deborah Bowen's fundamental

right to Due Process of Law; her right to rely on the doctrine she could only

be convicted of what was charged in the indictment and instructed in the

charge. As Carmel reminds us: "And, of course, nothing in the Ex Post

Facto Clause prohibits Texas' prospective application of its amendment."

Carmel v. Texas, supra, 529 U.S. at 553. This ongoing fundamental Due

Process of Law issue merits review by the Court of Criminal Appeals.

8
 QUESTION PRESENTED FOR REVIEW NO. TWO
Did Jeopardy attach when the Court of Appeals reversed and reformed
Appellant's conviction of first degree felony Misapplication of Fiduciary
Property and entered a judgment of acquittal in Bowen v. State, 322 S.W .3d
435 (Tex. App.-Eastland 2010, pet. granted)? (Suppl. C.R. at 78) (IV Suppl.
R.R. at 19).
ARGUMENT

BURKS, EVANS, STEPHENS, AND MORENO MANDATE
JEOPARDY BARS ALL FURTHER PROSECUTION

The court below utterly failed to consider our argument Jeopardy bars

all further prosecution. Instead, it merely concluded at page four of the Slip

Opinion, "Appellant has not been subjected to a 'second trial' to determine

her guilt or innocence; she has been subjected only to a second punishment

hearing," citing Monge v. California, 524 u.S. 721, 724 (1998) for the

holding Jeopardy is not applicable to non capital sentencing proceedings.

Then on that same page the Court of Appeals erroneously relied on State v.

Savage, 933 S.W.2d 497, 500 (Tex. Crim. App. 1996) for its reliance on

U.S. v. Wilson, 420 U.S.332, 95 S.Ct. 1013,43 L.Ed.2d 232 (1975).6

The 11th Court of Appeals, therefore, decided an important question of

state and federal law that conflicts with the applicable decisions of this Court

and the Supreme Court of the United States. Tex. R. App. P. 66.3(c). Those

fundamental controlling decisions are: Burks v. United States, 437 U.S. 1,

10,98 S.Ct. 2141,57 L.Ed.2d 1 (1978); Evans v. Michigan, _ U.S. _, 133

S.Ct. 1069, 185 L.Ed.2d 124 (2013); Stephens v. State, 806 S.W.2d 812, 819

6 Reliance on U.S. v. Wilson is misplaced. Wilson held Jeopardy did not prevent review
of the trial court's dismissal of an indictment on the ground the delay between the offense

9
(Tex. Crim. App. 1990); and State v. Moreno, 294 S.W.3d 594 (Tex. Crim.

App.2009). We shall further demonstrate the importance of this issue to the

criminal jurisprudence of the State of Texas by showing, contrary to the

court below, the term "criminal prosecution" is all encompassing, and Gaddy

v. State, 433 S.W.3d 128, 131 FN2 (Tex. App.-Fort Worth 2014, pet ref'd)

holding that court's previous judgment acquitting Gaddy of felony DWI did

not bar further prosecution, should not be the final word on this extremely

important issue.

JEOPARDY ATTACHES TO AN INTERMEDIATE APPELLATE
COURT ACQUITTAL

Burks v. United States, 437 U.S. 1 (1978) held the Sixth Circuit Court

of Appeals, an intermediate appellate court just as the 11th Court of

Appeals, erred when it found the evidence insufficient and reversed and

remanded to the trial court for a new trial. When the evidence is found

insufficient on appeal, the appellate court must reverse and reform to show a

judgment of acquittal. "[W]e are squarely presented with the question of

whether a defendant may be tried a second time when a reviewing court has

determined that in a prior trial the evidence was insufficient to sustain the

verdict of the jury." [d. at 5.

Relying heavily on Burks', Evans v. Michigan, __ U.S. , 133

S.Ct. 1069, 185 L.Ed.2d 124 (2013) reversed the Michigan Supreme Court,

and the indictment had prejudiced the defendant. Wilson did not involve insufficient
evidence. Id. at 95 S.Ct. 1017.
7 "Most relevant here, our cases have defined an acquittal to encompass any ruling that
the prosecution's proof is insufficient to establish criminal liability for an offense ... Burks
v. United States, 437 U.S. 1,10,98 S.Ct. 2141,57 L.Ed.2d I (l978) ... Thus an 'acquittal'

10
"In the end, this case follows those that have come before it. The trial court's

judgment of acquittal resolved the question of Evans' guilt or innocence as a

matter of the sufficiency of the evidence, not on unrelated procedural

grounds. That judgment, 'however erroneous' it was, precludes

reprosecution on this charge, and so should have barred the State's appeal

as well." Id. at 133 S.Ct. 1078. (Emphasis supplied). And Martinez v.

Illinois, _U.S. , 134 S.Ct. 2070,188 L.Ed.2d 1112 (2014), relying

on Evans, reinforces our position an acquittal is an acquittal."

State v. Moreno, supra, 294 S.W.3d at 600, makes plain Jeopardy bars

further prosecution whether it is a new trial, resentencing, or any other

manner of prosecution:

The problem with the State's argument, as a matter of federal
law, is that it has been presented and rejected numerous times
in the federal courts, and the answer is now controlled by well-
established precedent. The facts of this case are strikingly

includes 'a ruling by the court that the evidence is insufficient to convict,' a 'factual
finding [that] necessarily establishles] the criminal defendant's lack of criminal
culpability,' and any other 'rulin[g] which relatels] to the ultimate question of guilt or
innocence.' ... " Evans at 133 S.Ct. 1074-1075. (Some citations omitted).
"Perhaps most inconsistent with the State's and United States' argument is Burks. There
we held that when a defendant raises insanity as a defense, and a court decides the
'Government ha]s] failed to come forward with sufficient proof of [the defendant's I
capacity to be responsible for criminal acts,' the defendant has been acquitted because the
court decided that 'criminal culpability hals] not been established.' 437 U.S., at 10,98
S.Ct. 2141. Lack of insanity was not an 'element' of Burks' offense, bank robbery by use
of a dangerous weapon ... Rather, insanity was an affirmative defense to criminal liability.
Our conclusion thus depended upon equating a judicial acquittal with an order finding
insufficient evidence of culpability, not insufficient evidence of any particular element of
the offense." Evans at 133 S.Ct. 1078. (Footnote and citation omitted).
8" '[Olur cases have defined an acquittal to encompass any ruling that the prosecution's
proof is insufficient to establish criminal liability for an offense.' Evans v. Michigan, 568
U.S. --, --, 133 S.Ct. 1069, 1074-1075, 185 L.Ed.2d 124 (2013). And the trial
court clearly made such a ruling here. After the State declined to present evidence against
Martinez, his counsel moved for 'directed findings of not guilty to both counts,' and the
court 'grantled] the motion for a directed finding.' Tr. 21. That is a textbook acquittal: a
finding that the State's evidence cannot support a conviction." Id. at 134 S.Ct. at 2076.

II
 similar to the seminal case of Fang Foo v. United States? In
that case, the district judge directed a verdict of acquittal before
the Government finished presenting its evidence because of a
supposed lack of witness credibility and prosecutorial
misconduct. The First Circuit Court of Appeals held that the
judge did not have authority to enter a verdict before the
Government rested its case. The Supreme Court recognized that
the judge's actions were 'egregiously erroneous,' but
nevertheless held that the Double Jeopardy Clause prohibited
the court of appeals from setting aside the verdict of acquittal
and subjecting the defendant to another trial.

Ex Parte Chaddock, 369 S.W.3d 880 (Tex. Crim. App. 2012) held:

Lesser-included offenses typically do not pass muster under
the Blockburger test because the elements of the lesser offense
are wholly subsumed by the elements of the greater offense; a
defendant ordinarily may not be punished or tried twice for a
greater-inclusive and a lesser-included offense without
violating double jeopardy. Id. at 883.

That reinforces the crucial language from Stephens v. State, supra,

806 S.W.2d at 819: "[W]e hold that when a defendant has obtained a

reversal of a conviction for a greater offense solely on the ground that there

was insufficient evidence to prove the aggravating element of that offense,

the Double Jeopardy Clause bars a subsequent prosecution for a lesser

included offense." (Emphasis supplied). And obviously, second-degree

Misapplication of Fiduciary Property is a lesser-included offense of first-

degree Misapplication of Fiduciary Property. 10

9 Fang Foo v. United States, 369 U.S. 141, 143,82 S.Ct. 671,7 L.Ed.2d 629 (1962).
10 See generally, Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781,61 L.Ed.2d 560
(I979):"The question whether a defendant has been convicted upon inadequate evidence
is central to the basic question of guilt or innocence. The constitutional necessity of
proof beyond a reasonable doubt is not confined to those defendants who are morally
blameless. E. g., Mullaney v. Wilbur, 421 U.S., at 697-698 (requirement of proof beyond
a reasonable doubt is not 'limited] to those facts which, if not proved, would wholly
exonerate' the accused). Under our system of criminal justice even a thief is entitled to

12
 EVERY STAGE OF PROCEEDING AGAINST ACCUSED IS A
CRIMINAL PROSECUTION

"Whether the acquittal is 'based on a jury verdict of not guilty or on a

ruling by the court that the evidence is insufficient to convict,' any further

prosecution, including an appeal by the prosecution that would lead to a

second trial, is prohibited. Even where an acquittal is based on an

'egregiously erroneous foundation,' such as erroneous exclusion of evidence

or erroneous weighing of evidence, the acquittal bars appellate review of the

ultimate disposition as well as the underlying foundation." State v.

Blackshere, 344 S.W.3d 400, 406 (Tex. Crim. App. 2011). (Footnotes

omitted)(Emphasis supplied). It is not only a second trial that is prohibited;

it is also any further prosecution. Howland v. State, 990 S.W.2d 274 (Tex.

Crim. App. 1999) affirms the obvious; each and every stage of a criminal

action by the State against a person, including but not limited to a trial, is a

criminal prosecution."

At page four of the Slip Opinion, the Court of Appeals, relying on

Gaddy v. State, supra, states "our judgment of acquittal was never final and

was rendered a nullity when it was vacated by the Court of Criminal

Appeals." Prior to that, on the same page, the court below concluded,

"Appellant has not been subjected to a 'second trial' to determine her guilt or

innocence; she has been subjected only to a second punishment hearing."

complain that he has been unconstitutionally convicted and imprisoned as a burglar." Id.
at 99 S.Ct. at 2791. (Emphasis supplied).
" "A plain reading of the statute demonstrates that the literal language includes all the
steps between official accusation and final judgment. Extratextual sources narrow the

13
Though headnote four of the Westlaw version of Gaddy is entitled "Double

leopardy," the Fort Worth Court of Appeals gives scant attention to the

subject. Burks, supra, was not even cited. Nor were Evans v. Michigan,

Stephens v. State, or State v. Moreno. The court below failed to perceive

Jeopardy prevents all further prosecution of Appellant.

Ex Parte Castillo, __ S.W.3d , 2015 WL 3486960, NO.

PD-0545-14 (Tex. Crim. App.lune 3,2015) is the most recent reaffirmation

of that: "We affirm ... that Appellant's prosecution for burglary is jeopardy

barred because he has shown that the burglary allegation is legally and

factually the same as the capital-murder charge for which he was previously

acquitted." Id. at Slip Op 9. (Emphasis supplied).

Additionally, this Court has adopted the Black's Law Dictionary

definition of criminal proceeding: "In a general sense, the form and manner

of conducting juridical business before a court or judicial officer; regular

and orderly progress in form of law; including all possible steps in an action

from its commencement to the execution of judgment ...All the steps or

measures adopted in the prosecution or defense of an action." Black's Law

Dictionary 1204 (6th ed. 1990)(Emphasis supplied). See, Sells v. State, 121

S.W.3d 748, 761-762 (Tex. Crim. App. 2003):

In Tigner [Tigner v. State, 928 S.W.2d 540, 543-544 (Tex.
Crim. App. 1996)], we construed the word "criminal
proceeding" to encompass voir dire as part of the trial in a
criminal prosecution. In so doing, we relied upon the language
of the statute, the legislative history, and commentary from

interpretive breadth of "proceeding" and illustrate that voir dire is within its ambit." Id.
at 277.

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