                                                                   PD-0798-15
                                                  COURT OF CRIMINAL APPEALS
                                                                  AUSTIN, TEXAS
                                               Transmitted 11/18/2015 10:37:43 AM
                                                  Accepted 11/18/2015 3:28:21 PM
                                                                   ABEL ACOSTA
                      NO. PD-0798-15                                       CLERK

            IN THE COURT OF CRIMINAL APPEALS
                  OF THE STATE OF TEXAS
                      AUSTIN, TEXAS

DEBORAH BOWEN,
     APPELLANT
V.

STATE OF TEXAS,
      APPELLEE

     ****************************************************
  APPELLANT’S MOTION FOR REHEARING ON REFUSAL OF
          PETITION FOR DISCRETIONARY REVIEW
     ****************************************************
   ON APPEAL FROM THE 32ND DISTRICT COURT OF FISHER
  COUNTY, TEXAS, NO. 3313; AND FROM THE 11TH COURT OF
                APPEALS, NO. 11-13-00114-CR
    *****************************************************

    STAN BROWN               ANGELA MOORE
    P.O. BOX 3122            310 S. ST. MARY'S ST. STE 1830
    ABILENE, TEXAS 79604     SAN ANTONIO, TEXAS 78205
    325-677-1851             210-364-0013
    FAX 325-677-3107         FAX 210-855-1040
    STATE BAR NO. 03145000   STATE BAR NO. 14320110
    EMAIL: mstrb@aol.com     EMAIL: amoorelaw2014@gmail.com


                 ATTORNEYS FOR APPELLANT




 November 18, 2015
          IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                        AUSTIN, TEXAS


DEBORAH BOWEN,
     APPELLANT

                                 NO. PD-0798-15
                                 (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                     Angela Moore
    32nd District Attorney       Appellant’s Attorney/Appeal
    Nolan County Courthouse      310 S. St. Mary's St., Ste 1830
    Sweetwater, TX 79602         San Antonio, TX 78205

    Lisa McMinn                  Deborah Bowen, Appellant
    State Prosecuting Attorney   6343 I.H. 20E
    P.O. Box 13046               Abilene, TX 79601
    Austin, TX 78710

    John R. Saringer
    Appellant's Attorney/Trial
    P.O. Box 360
    Abilene, TX 79604




                                      2
               IN THE COURT OF CRIMINAL APPEALS
                     OF THE STATE OF TEXAS
                         AUSTIN, TEXAS

DEBORAH BOWEN,
     APPELLANT
V.
                              NO. PD-0798-15
STATE OF TEXAS,             (TRIAL COURT NO. 3313; COURT OF
     APPELLEE                 APPEALS NO. 11-13-00114-CR)

             APPELLANT'S MOTION FOR REHEARING

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

      Now comes DEBORAH BOWEN, Appellant, pursuant to Tex. R.

App. P. 79.1 and 79.2, and moves this Honorable Court, on the basis of

substantial intervening case law addressed below, to reconsider the decision

of November 4, 2015 to refuse Appellant’s Petition for Discretionary

Review, for the following good and sufficient reasons, which both

undersigned counsel hereby certify is made in good faith and not for delay,

but in accordance with aforementioned Rule 79.2, to-wit:




                                     3
                ISSUE RELIED UPON FOR REHEARING

1.    Appellant respectfully suggests two very recent decisions, Ex parte
Reyes,             S.W.3d             , 2015 WL 6726711 (Tex. Crim. App.
November 4, 2015); and State v. Ramos,              S.W.3d           , 2015
WL 6653231(Tex. App.-El Paso, October 30, 2015); considered together,
bear directly and favorably on both of our related issues, that Jeopardy
attached to her acquittal in the court of appeals and furthermore, Due
Process should prohibit the retroactive overruling of Collier and Haynes by
Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012).

                                  ARGUMENT

       In Ex parte Reyes,          S.W.3d               ,   2015    WL     6726711

(Tex. Crim. App. November 4, 2015) the trial court granted appellee (Reyes)

relief on one of five grounds raised. The State appealed and the El Paso

Court of Appeals reversed and rendered, reinstating the guilty plea. The

Court of Appeals reasoned as the decision upon which the trial court had

based relief; Padilla v. Kentucky, 559 U.S. 356 (2010);1 had been declared

non-retroactive, the appellee’s guilty plea would therefore be reinstated. Ex

parte Reyes, supra, 2015 WL 6726711 at Slip Op. 2.

       Reyes explained, “So, when an article 11.072 habeas applicant

advances multiple issues that would entitle him to relief, the trial court may

limit its grant of relief to only one of the issues, as long as the court does not

neglect an issue that would result in greater relief than the one addressed.

1
  Held the Sixth Amendment to the Constitution of the United States imposes a duty on
attorneys representing non-citizen criminal defendants to advise the client about the
potential removal consequences arising from a guilty plea.

                                         4
Id. 2015 WL 6726711 at Slip Op. 3. (Emphasis supplied). This Court cited

Benavidez v. State, 323 S.W.3d 179 (Tex. Crim. App. 2010) in support of

that statement. Ex parte Reyes, supra, 2015 WL 6726711 at Slip Op. 3,

FN18; followed with an explanation, “But because we have not, before now,

explicitly labeled actual-innocence relief as a greater form of relief than a

new trial, we do not fault the trial court and the parties for failing to dispose

of this claim at the time relief was granted on the Padilla claim.” Id. at 3.

(Emphasis supplied). That recognition, for the first time, of the overriding

importance of a finding of insufficient evidence certainly provides additional

support to our position Jeopardy attached to Appellant's acquittal in the

Court of Appeals, Bowen v. State, 322 S.W.3d 435 (Tex. App.-Eastland

2010, pet. granted).

      Benavidez, relied upon at page twenty-three of Appellant’s Brief in

the Court of Appeals, explains: "We have never required a cross-petition

from an appellant to justify remanding the cause to the intermediate

appellate court to address any extant, as-yet-unaddressed claims of trial

error. Because of the jeopardy consequences of an appellate acquittal, it is

even more ‘necessary to final disposition of the appeal’ that, when a court of

appeals erroneously concludes that there is trial error in a case, but has not

yet addressed a claim of legal sufficiency, we remand the case to that court


                                       5
for consideration of that still-pending issue." Benavidez v. State, supra, 323

S.W.3d at 183 FN 19.

         This Court in Reyes, furthermore, made plain the issue of whether a

court decision is retroactive or not is also an issue of constitutional

magnitude:

                The trial court made additional findings of fact on the
         Padilla claim that were favorable to appellee, but it made one
         unfavorable conclusion of law: In light of Chaidez v. United
         States,2 handed down on February 20, 2013, the trial court
         reconsidered its earlier conclusion that Padilla applied
         retroactively and observed that the Supreme Court held that
         Padilla did not apply retroactively in a federal felony
         conviction case. However, the trial court expressed no
         conclusion in the supplemental findings as to the ultimate
         disposition of the case, and the case was returned to the court of
         appeals.
                Relying on Chaidez and Ex parte De Los Reyes,3 the
         court of appeals held that Padilla did not apply retroactively,
         and, as a result, appellee was not entitled to relief on the Padilla
         claim. In passing, the court of appeals observed that, while the
         trial court made findings of fact that could ostensibly support
         appellee’s non-Padilla claims, the trial court did not rely upon
         any non-Padilla theory of law to support its ruling granting
         appellee relief. In a footnote, the court of appeals declined
         appellee’s invitation to remand the case to the trial court to
         allow for further development of the record because appellee
         was given “a meaningful opportunity at two hearings to develop
         an evidentiary record to support his claim of ineffective
         assistance of counsel.” Consequently, the court of appeals
         reversed the trial court’s order of relief and rendered judgment
         reinstating appellee’s guilty plea. Ex parte Reyes, supra, 2015
         WL 6726711 at Slip Op. 2 (Footnotes omitted).

2
    Chaidez v. United States, 133 S. Ct. 1103(2013).
3
    Ex parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013).

                                            6
     As explained above, Ex parte Reyes indeed provides additional support

for both our U.S. Const. amend. V, Jeopardy, and U.S. Const. amend. XIV,

Due Process, arguments presented in our petition for discretionary review.

As to Due Process, Janecka v. State, 937 S.W.2d 456, 461 (Tex. Crim. App.

1996) states the standard for determining when retroactive application of a

new rule of law denies Due Process:

           It is true the Supreme Court has held that retroactive
      application of an unforeseeable judicial construction of a
      statute, or a sudden, unanticipated change in a court-made rule,
      may violate due process in much the same way that retroactive
      application of new or modified penal provisions violates the Ex
      Post Facto Clause. See, respectively, Bouie v. Columbia, 378
      U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) and Marks v.
      United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260
      (1977). But 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. Bouie, supra, at 352, 84 S.Ct. at 1701–02;
      Marks, supra, at 195 & 196, 97 S.Ct. at 994 & 995.

      At the time of trial, Appellant did not know she could be convicted of

misapplication of fiduciary property of Dana White and others valued at less

than $200,000.00 as she had been charged with misapplication of fiduciary

property belonging to Dana White valued at $200,000.00 or more. The

retroactive overruling of 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)

deprives Appellant Deborah Bowen of the right to rely on the longstanding

doctrine the State must prove what it has alleged in the indictment as

                                      7
reflected in the trial court's charge to the jury4 just as the retroactive

abandonment of the "carving doctrine" denied the appellant Due Process of

Law in Ex Parte Scales, 853 S.W.2d 586, 588 (Tex. Crim. App. 1993).5

       This Court’s re-emphasis of Benavidez in Ex parte Reyes further

strengthens our Jeopardy argument. Certainly, it is axiomatic, as Benavidez

and Ex parte Reyes reinforce, an appellate finding of insufficient evidence is


4
  It is elementary the State must prove each element of the offense beyond a reasonable
doubt. See, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000) which held the Fourteenth Amendment's Due Process clause requires any fact that
increases the penalty for a state crime beyond the prescribed statutory maximum--other
than the fact of a prior conviction--must be submitted to a jury and proved beyond a
reasonable doubt. "Any possible distinction between an 'element' of a felony offense and
a 'sentencing factor' was unknown to the practice of criminal indictment, trial by jury, and
judgment by court as it existed during the years surrounding our Nation's founding. As a
general rule, criminal proceedings were submitted to a jury after being initiated by an
indictment containing 'all the facts and circumstances which constitute the offence, . . .
stated with such certainty and precision, that the defendant . . . may be enabled to
determine the species of offence they constitute, in order that he may prepare his defence
accordingly . . . and that there may be no doubt as to the judgment which should be given,
if the defendant be convicted.'…The defendant's ability to predict with certainty the
judgment from the face of the felony indictment flowed from the invariable linkage of
punishment with crime…(after verdict, and barring a defect in the indictment, pardon or
benefit of clergy, "the court must pronounce that judgment, which the law hath annexed
to the crime" (Emphasis supplied))." Id. 530 U.S. at 478-479. (Footnote and citations
omitted).
5
   See generally, State v. Colyandro, 233 S.W.3d 870, 887 FN3 (Tex. Crim. App.
2007)(Price, J., concurring), “See Annotation, Prospective or Retroactive Operation of
Overruling Decision, 10 A.L.R.3d 1371, §§ 7[a] & [b], at 1393 & 1396 (1966) (“[I]t is
now generally recognized that a court has the power...to overrule a case purely
prospectively and give the overruling decision no retroactive effect whatsoever, that is, to
hold that the rule established by the overruling decision will operate only upon future
transactions or events and will not even be operative upon the parties to the overruling
case…especially where there has been strong reliance on an earlier decision, the most
equitable way of overturning the earlier decision may be to hold that the parties to a
particular case are to have their rights governed by the earlier decision, but to warn, by
means of dictum, that anyone who subsequently relies upon the earlier decision…”)

                                             8
a matter at a different and higher level than a reversal and remand resulting

from trial court error.       An appellate finding of insufficient evidence to

support the conviction is, indeed, a bar to all further prosecution.

       State v. Ramos,               S.W.3d                ,   2015    WL     6653231

(Tex. App.-El Paso, October 30, 2015), handed down four days prior to the

refusal of Appellant’s Petition for Discretionary Review,                      provides

additional persuasive authority for this Court's consideration. The State

appealed the trial court’s order granting Ramos a new trial. “Ramos…was

acquitted of murder but convicted of aggravated assault arising out of a

stabbing incident. Ramos’ only defense at trial was self-defense…the State

contends that rendition of these apparently inconsistent verdicts is not proof

that the jury believed Ramos’s self-defense claim, and that verdict

inconsistency does not justify acquittal or a new trial grant on the aggravated

assault charge…” Id. 2015 WL 6653231 at Slip Op 1.6

       The El Paso Court of Appeals, on rehearing, stated the core issue:

“Ramos’ defense of the new trial grant on appeal rests heavily on Alonzo v.

State, 353 S.W.3d 778 (Tex.Crim.App.2011). Ramos argues that Alonzo

stands for the proposition that when a defendant pleads self-defense and the


6
  The Eighth Court of Appeals had initially reversed and reinstated the conviction. State
v. Ramos, NO. 08-13-00279-CR (Tex. App.-El Paso, July 15, 2015)(Unpublished and
subsequently withdrawn opinion).

                                           9
jury believes his self-defense claim, it cannot acquit the defendant of murder

but still convict him of aggravated assault. As such, the trial court was

justified in ordering a new trial here in light of inconsistent verdicts that

indicated the jury believed his self-defense argument.” Ramos v. State,

supra, 2015 WL 6653231 at Slip Op 4.

             On rehearing, Ramos clarified that jury charge error
      stemmed from the fact that aggravated assault by threat was
      not, in fact, a lesser-included offense. The State concedes that
      the particular aggravated assault instruction at issue here was
      erroneous. As explained below, we conclude that giving this
      instruction constituted reversible error, and that the new trial
      order could be justified as a curative measure aimed at
      correcting this mistake. However, Ramos is still entitled to legal
      sufficiency review, since a finding of legal insufficiency would
      interpose a jeopardy bar against retrial. Benavidez v. State,
      323 S.W.3d 179, 182 (Tex.Crim.App.2010). We find that
      Ramos was not entitled to an acquittal on the aggravated assault
      charge because the evidence was legally sufficient to support it.
      Instead, a new trial on that charge is the appropriate remedy
      here. Id. 2015 WL 6653231 at Slip Op. 3. (Emphasis
      supplied).

      In addition to that further validation and recognition of the importance

of sufficiency review made plain by Benavidez, the El Paso Court of

Appeals went on to conclude:

      the jury acquitted Ramos of murder, which interposed a
      jeopardy bar against conviction for any lesser-included offense
      moving forward, including a conviction for aggravated assault
      by force. Benavidez, 323 S.W.3d at 182. The jury found Ramos
      guilty of aggravated assault by threat, and since that crime falls
      outside the murder jeopardy spectrum, retrial here is proper.
      However, we cannot now reform a conviction on a charge

                                     10
      outside of the murder spectrum to reflect a conviction for a
      charge within the murder spectrum after Ramos was acquitted
      of murder without violating Ramos’ double jeopardy rights.
      More to the point, the State’s proposed remedy does not
      ameliorate the due process violation that stemmed from the
      misinstruction. Under these circumstances, we have no choice
      but to affirm the new trial grant. State v. Ramos, supra, 2015
      WL 6653231 at Slip Op. 7. (Emphasis supplied).

      In arriving at that decision, the Court of Appeals observed,

“Convicting a defendant on an unindicted, less-but-not-included offense is a

due process violation.” State v. Ramos, supra, 2015 WL 6653231 at Slip

Op. 7 (citing Beasley v. State, 426 S.W.3d 140, 149 (Tex. App.-Houston [1st

Dist.] 2012, no pet.). Beasley, 426 S.W.3d at 149 succinctly proclaims:

“Allowing a jury to find the defendant guilty of an unindicted offense that

was not a lesser-included offense of the charged offense runs afoul of due

process requirements.”

      It would be remiss to ignore Thornton v. State, 425 S.W.3d 289 (Tex.

Crim. App. 2014), cited in State v. Ramos. Thornton alone does not bode

well for our Due Process argument, however, neither Thornton nor Bowen v.

State, 374 S.W.3d 427 (Tex. Crim. App. 2012) discuss the Due Process

ramifications of the retroactive overruling of established precedent.

Moreover, the Jeopardy ramifications from the appellate acquittal in Bowen

v. State, 322 S.W.3d 435 (Tex. App.-Eastland 2010, pet. granted) should not

be ignored.   As both Double Jeopardy and Due Process of Law are

                                    11
overarching principles of appellate review, both are issues that merit the

attention of this Honorable Court. The refusal of review of November 4,

2015 must therefore be reconsidered, and review should be granted in order

to give these overridingly important constitutional issues the appellate

respect they deserve.




                                   12
                                     PRAYER


      WHEREFORE, PREMISES CONSIDERED, Appellant prays this

Honorable Court reconsider its November 4, 2015 refusal of Appellant's

Petition for Discretionary Review, and upon such reconsideration, grant

review in order to allow a full exploration of the issues presented.

                                       Respectfully submitted,
/s/ Stan Brown                         /s/ Angela Moore
STAN BROWN                             ANGELA MOORE
P.O. BOX 3122                          310 S. ST. MARY'S ST, STE 1830
ABILENE, TEXAS 79604                   SAN ANTONIO, TEXAS 78205
325-677-1851                           210-364-0013
FAX 325-677-3107                       FAX 210-855-1040
STATE BAR NO. 03145000                 STATE BAR NO. 14320110
EMAIL: mstrb@aol.com                   EMAIL: amoorelaw2014@gmail.com


                      CERTIFICATE OF SERVICE

       We hereby certify that on this 18th day of November, 2015, a true
and correct copy of the above and foregoing Motion for Rehearing Refusal
of Petition for Discretionary Review was emailed to Ms. Ann Reed, 32nd
District Attorney, at ann@32ndda-tx.us; and to Ms. Lisa McMinn, State
Prosecuting Attorney, at information@spa.texas.gov.
                                      /S/ Stan Brown
                                      STAN BROWN
                                      /S/ Angela Moore
                                      ANGELA MOORE




                                      13
                  CERTIFICATE OF COMPLIANCE

      We hereby certify that according to the computer program used to
prepare the foregoing document, the word count, in accordance with Tex. R.
App. P. 9.4, is    1956 words; and further certify that the brief is in Times
14-point type, except for footnotes which are Times 12-point type.
                                      /S/ Stan Brown
                                      STAN BROWN
                                      /S/ Angela Moore
                                      ANGELA MOORE




                                     14
