Bowen, Deborah

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