Opinion filed April 30, 2015




                                        In The


        Eleventh Court of Appeals
                                      __________

                                 No. 11-13-00114-CR
                                      __________

                        DEBORAH BOWEN, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 32nd District Court
                                 Fisher County, Texas
                               Trial Court Cause No. 3313


                                     OPINION
       Deborah Bowen was initially convicted of the first-degree felony offense of
misapplication of fiduciary property owned by, or held for the benefit of, Dana White
and valued at $200,000 or more. See TEX. PENAL CODE ANN. § 32.45(b), (c)(7)
(West Supp. 2014). In Appellant’s first appeal to this court, we held that, although
the evidence was sufficient to show that Appellant misapplied more than $200,000
of the family trust, the evidence was insufficient to show that $200,000 of those
misapplied assets were owned by White, one of four beneficiaries under the trust.
See Bowen v. State, 322 S.W.3d 435, 437 (Tex. App.—Eastland 2010), rev’d, 374
S.W.3d 427 (Tex. Crim. App. 2012) (Bowen I). Based on our holding that the
evidence was insufficient to support the conviction and based on the fact that the
jury charge did not contain a lesser included offense, we reversed and entered a
judgment of acquittal. Id. The Court of Criminal Appeals reversed the judgment of
this court, held that the evidence supported a conviction for the second-degree felony
offense of misapplication of fiduciary property, and remanded the case to the trial
court to reform the conviction to a second-degree felony and to conduct a new
punishment hearing on the reformed conviction. Bowen v. State, 374 S.W.3d 427,
432 (Tex. Crim. App. 2012) (Bowen II). In authorizing a reformation of the
conviction, the Court of Criminal Appeals overruled Collier v. State, 999 S.W.2d
779 (Tex. Crim. App. 1999), and Haynes v. State, 273 S.W.3d 183 (Tex. Crim. App.
2008), in which it had previously held that the court of appeals could not reform a
conviction of a greater offense to a lesser included offense unless the lesser included
offense was submitted to the jury. Id. On remand, the trial court convicted Appellant
of the second-degree offense as instructed by the Court of Criminal Appeals; held a
hearing on punishment; and assessed Appellant’s punishment at confinement for a
term of seven years, a fine in the amount of $7,500, and restitution in the amount of
$103,344. Appellant presents four issues for our review. We affirm.
      In her first issue, Appellant asserts that the trial court abused its discretion
when it denied her plea in bar. Specifically, Appellant argues that our acquittal
should stand and she should not have been subject to further prosecution by the Court
of Criminal Appeals and subsequently by the trial court. The Double Jeopardy
Clause provides in part that no person shall be “subject for the same offense to be
twice put in jeopardy of life or limb.” U.S. CONST. amend. V. The Double Jeopardy
Clause protects criminal defendants from three harms: (1) a second prosecution for
                                           2
the same offense after acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense. Ex parte Milner, 394
S.W.3d 502, 506 (Tex. Crim. App. 2013) (citing Brown v. Ohio, 432 U.S. 161, 164–
65 (1977)).
      Appellant directs us to the following quote from Stephens v. State, 806 S.W.2d
812, 819 (Tex. Crim. App. 1990), in support of her argument: “Therefore, we 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.” However, in Stephens, the State sought a new
indictment and conviction for the offense of rape after the Court of Criminal Appeals
affirmed the judgment of acquittal of the Dallas Court of Appeals in which the Dallas
court held that the evidence was insufficient to support a conviction for aggravated
rape. 806 S.W.2d at 813–14. The court explained that the Double Jeopardy Clause
precluded the State from retrying the defendant and that the State was not entitled to
a separate opportunity to present evidence that it failed to present during the first
trial. Id. at 816–17. Here, Appellant was not subject to a second trial on the lesser
included second-degree felony offense of misapplication of fiduciary property. The
Court of Criminal Appeals used the evidence presented at Appellant’s first trial to
determine that the evidence supported a conviction for a second-degree felony even
though it did not support a conviction for a first-degree felony. Bowen II, 374
S.W.3d at 432.
       Appellant also cites to several other cases to support her argument that “[a]n
acquittal is an acquittal” and that she should not have been subject to any further
prosecution, including further review of her case by the Court of Criminal Appeals.
See, e.g., Evans v. Michigan, 133 S. Ct. 1069, 1073 (2013) (Double Jeopardy Clause
bars retrial following a court-decreed acquittal even where acquittal is based upon
                                          3
erroneous conclusion of law); Burks v. United States, 437 U.S. 1, 18 (1978) (accused
cannot be subjected to a second trial when an appellate court reverses the conviction
for lack of legally sufficient evidence); State v. Blackshere, 344 S.W.3d 400, 406
(Tex. Crim. App. 2011) (State not authorized to appeal acquittal; “any further
prosecution, including an appeal by the prosecution that would lead to a second trial,
is prohibited”) (relying in part on State v. Moreno, 294 S.W.3d 594, 598, 602 (Tex.
Crim. App. 2009) (holding same)). However, what is banned in each of the cases
upon which Appellant relies is a second trial on guilt/innocence, not a second trial
on punishment. 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.
See Monge v. California, 524 U.S. 721, 724 (1998) (holding that the Double
Jeopardy Clause is not applicable to noncapital sentencing proceedings). Therefore,
Appellant has not been “tried again,” nor has she received multiple punishments for
the same offense.
      Furthermore, a post-verdict judgment, such as a trial court’s grant of a motion
for new trial on sufficiency grounds, is reviewable on appeal and does not violate
double jeopardy. State v. Savage, 933 S.W.2d 497, 500 (Tex. Crim. App. 1996)
(citing United States v. Wilson, 420 U.S. 332, 336 (1975)). Our holding that the
evidence was insufficient to support Appellant’s conviction in Bowen I is analogous
to a post-verdict judgment of acquittal and, thus, was reviewable by the Court of
Criminal Appeals. In addition, our judgment of acquittal was never final and was
rendered a nullity when it was vacated by the Court of Criminal Appeals. See
Gaddy v. State, 433 S.W.3d 128, 131 n.2 (Tex. App.—Fort Worth 2014, pet. ref’d)
(op. on remand) (Court of Criminal Appeals vacated prior judgment, which refutes
defendant’s double-jeopardy argument). Therefore, Appellant’s claim that the Court
of Criminal Appeals and the trial court violated the Double Jeopardy Clause is
misplaced. Moreover, as an intermediate appellate court, we decline to hold that the
                                          4
Court of Criminal Appeals violated the Double Jeopardy Clause when it considered
the State’s petition for discretionary review, reversed our judgment, and remanded
the cause to the trial court for a new punishment hearing. We overrule Appellant’s
first issue.
        Appellant argues in her second issue that the trial court abused its discretion
when it denied her motion for new trial on the ground that her right to due process
had been violated.      Appellant asserts that due process of law and TEX. R.
APP. P. 43.2(c) demand that the decision by the Court of Criminal Appeals to allow
an appellate court to reform a judgment to reflect a conviction on a lesser included
offense, even when the jury is not instructed on the lesser included offense, should
have applied prospectively, not retroactively. Appellant argues that she was entitled
to rely on the doctrine that, when the prosecution failed to prove what was alleged
in the indictment and charged to the jury, an appellate court could not reform the
judgment to show a conviction of a lesser included offense. Prior to the decision of
the Court of Criminal Appeals in Bowen II, a defendant could forego requesting a
lesser included instruction when the defendant thought that there was insufficient
evidence to support the charged offense in hopes that the defendant would be
acquitted by the jury or on appeal. Although Bowen II might have changed the
defensive strategy for requesting jury instructions on lesser included offenses, it did
not violate due process.
       In Janecka v. State, the court explained that, although the “retroactive
application of an unforeseeable judicial construction of a statute, or a sudden,
unanticipated change in a court-made rule, may violate due process,” “the gravamen
of this due process guarantee is ‘fair warning’ to the defendant that his conduct was
criminal at the time he engaged in it.” 937 S.W.2d 456, 461 (Tex. Crim. App. 1996).
Here, the indictment charged Appellant with “intentionally, knowingly, or recklessly
misapply[ing] property, . . . of the value of $200,000 or more, that [Appellant] held
                                           5
as a fiduciary . . . in a manner that involved substantial risk of loss of the property to
Dana White . . . by appropriating the said property for her own benefit.” The
allegations in the indictment gave Appellant sufficient notice of the crime with
which she was being charged. Although the indictment did not allege in the
alternative that Appellant misapplied lesser amounts of fiduciary property,
Appellant’s misapplication of property in a lesser amount would not have made her
conduct a different crime but, instead, would have changed the degree of the offense
and the punishment applicable to her criminal conduct. The criminal conduct
alleged in the indictment against Appellant and set out in Section 32.45 of the Penal
Code has not changed. Therefore, Appellant cannot claim that she was denied due
process; Appellant had fair warning under Section 32.45 that her conduct was
criminal. Furthermore, the Court of Criminal Appeals clearly intended for its
decision to apply to Appellant when it applied its holding to Appellant’s case and
remanded the cause to the trial court to reform the judgment to reflect a conviction
for the lesser included offense. Bowen II, 374 S.W.3d at 431–32. We overrule
Appellant’s second issue.
      In her third issue, Appellant contends that the evidence was insufficient to
support a first-degree felony conviction. This issue is moot. We held in Bowen I
that the evidence was insufficient to support a conviction for a first-degree felony.
322 S.W.3d at 437. The Court of Criminal Appeals agreed that the evidence was
insufficient to support a first-degree felony but reversed our judgment of acquittal
because the evidence supported a lesser included offense. Bowen II, 374 S.W.3d at
432. Therefore, we overrule Appellant’s third issue.
      Appellant asserts in her fourth issue that the evidence is also insufficient to
support a second-degree felony offense of misapplication of fiduciary property. We
are not at liberty to again review the evidence at this juncture. This appeal comes to
us after a new sentencing hearing, not following a new trial on the merits.
                                            6
Furthermore, the Court of Criminal Appeals expressly concluded that “[t]he value
of the property misapplied was approximately $103,344, which supports a felony
conviction in the second degree. Accordingly, the judgment must be reformed to
reflect a second-degree felony conviction.” Id. (footnote omitted). The trial court
reformed the judgment as instructed by the Court of Criminal Appeals. We will not
disturb that judgment. Appellant’s fourth issue is overruled.
       We affirm the judgment of the trial court.




                                                               JIM R. WRIGHT
                                                               CHIEF JUSTICE


April 30, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Bailey, J., and McCall.1

Willson, J., not participating.




       1
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.


                                                  7
