## ORIGINAL No. PD-1233-14 IN THE COURT OF CRIMINAL APPEALS OF TEXAS DONNA GAYLEHOLCOMB 

### d^.v RECEIVED m 

### Petitioner, COURTOFCRMWAUPPEALS V. MAY 14 2015 

### THESTATEOFTEXAS AbBlAcost^ ^ Respondent

PETITIONER'S MOTION FOR REHEARING
On Appeal from the First CourtofAppeals in Cause No. 01-08-00337-CR and from the 230th District Court ofHarris County, Texas in Cause No. 1141352
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS: COMES NOW, DONNA HOLCOMB, Petitioner in the above-entitled 

### appeal and files this, her Motion for Rehearing of.the Court's refusal of Petitioner's Petition for Discretionary Review ("PDR") and in support thereof would show the Court the following:
FILED IN COURT OF CRIMINALAPPEALS MAY 14 2015 i Abel Acosta, ClerkI. GROUNDS FOR REHEARING A. CLERICAL ERRORS CORRECTED 1. After Petitioner's PDR was refused shortly after it had beenreceived, Petitioner contacted the Clerk of the Court to ask if Petitioner's PDR could have been refused based upon clerical errors. The Clerk said that it could have been refused for any reason and he didnotknow whatthose reasons were. 2. Petitioner is acting Pro Se and through an inadvertence did not sign 

### her Petition, other than the certificate of compliance. Further, Petitioner 

### inadvertently did not include a service page or signature block after the prayer. Petitioner did not realize she had made these mistakes until Petitioner's PDR was 

### summarily refused shortly after being received by the Court. Petitioner was 

### informed by the Clerk ofthe Court that she had to send in several more copies of the PDR andPetitioner intended to send them when she learned that her PDR was 

### refused. Petitioner respectfully requests that ifthe Court refused her PDR based 

### solely upon the clerical errors and number ofPDR's submitted, that the Court consider Petitioner's corrections (service page and signatures) to her PDR and grant review. B THE COURT SHOULD NOT REFUSE PETITIONER'S PDR AS PETITIONER HAS MERITORIOUS CLAIMS THAT PETITIONER'S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE WERE VIOLATED AND THAT IT WAS HARMFUL ERROR NOT TO SEND PETITIONER'S CASE TO THE TRIAL COURT FOR ANEW TRIAL ONGUILT OR INNOCENSE AND NOT JUST PUNISHMENT ON THE REMAINING THEFTS AND COMPLAINING WITNESSES 3. The Court ofAppeals held any harm resulting from the inclusion of Bledsoe, onwhom Petitioner received a directed verdict ofacquittal, in the charge can be remedied by reforming the judgment to reflect conviction ofthe lesser

### included offense oftheft ofproperty with an aggregated value ofbetween $20,000 and $100,000. 4. It was not harmless error which could be corrected by a reformation in 

### thejudgment because Petitioner was convicted ofalesser included offense or of elements of thefts constituting aggregated theft on rebuttal post-acquittal fact finding testimony. 5. Petitioner certifies that this motion for rehearing is grounded on 

### significant circumstances and the motion is made in good faith and not for delay and so thatjustice mightbe done. IfPetitioner is entitled to relieffor violation of the Double Jeopardy Clause of the U.S. Constitution, thenjustice may only be had ifPetitioner's PDR is considered. IV. ARGUMENTS AND AUTHORITIES 6. This Court has the authority to reconsider its refusal of a Petition for 

### DiscretionaryReview ifthe Petitioner files amotion for rehearing pursuantto Tex. 

### R. App. P. Rule 79. The motion for rehearing is due within 15 days ofthe refusal ofPetitioner's PDRonApril 22, 2015 which isMay 7, 2015.7. As the Court does not allow petitioners to know the reasons for a refusal of a petition for discretionary review, Petitioner does not know if the clerical errors in her PDR were the cause ofthe Court's initial refusal ofher PDR. However, Petitioner argues that pursuant to the Double Jeopardy Clause, Petitioner is entitled to a new trial on the guilt or innocence phase ofPetitioner's trial and not justthe punishment phase. 8. Petitioner was convicted of six constituent thefts of six complaining witnesses. It is undisputed that Petitioner received a directed verdict as to one of the complaining witnesses after the State rested its case. A rebuttal witness was called to testify as to the fact finding of the acquitted theft, which theft was then resurrected and acquittal set aside by the trial court. 9. The Court ofAppeals has held that it was error to reverse the acquittal in violation ofthe Double Jeopardy Clause, but that any harm to Petitioner could be corrected with a reformation ofthe judgment to the lesser included offense. In this Court's opinion in Ex Parte Goodman, 152 S.W.3d 67, 71-72 (Tex. Crim.App.2004), it was faced with a similar situation with one very important difference; the State in ExParte Goodman was never allowed to prosecute in the second indictment using facts from the acquitted first indictment. Specifically, Ex Parte Goodman, this Court determined that the State may attempt to prove any number of the aggregated theft's constituent thefts. Moreover, in Ex Parte

### Goodman, consistent with the Double Jeopardy Clause, this Court determined that 

### the State may not attempt to relitigate the facts underlying the theft alleged in the first indictment in an effort to prove that offense or any ofits lesser included 

### offenses as one ofthe aggregated theft's constituent thefts. In other words, the 

### State, in proving aggregated theft, may not rely upon proofofthe theft alleged in thefirst indictment orany of itslesser included offenses. 

### 10. The larger difference between Ex Parte Goodman and Petitioner's case is that the trial court and the State went one step further when itintroduced 

### rebuttal post-acquittal fact-finding testimony ofawitness to bolsterthe testimony of the acquitted complaining witness. Having already been acquitted of the 

### complaining witness and after the State concluded its case, Petitioner took the stand to testify. After Petitioner's testimony, a rebuttal witness was called to 

### testify andthetrial courtreversedits decision aftertherebuttal witness' testimony. 11. Thejury determinedits findings ofguiltorinnocence onthe acquitted 

### complaining witness and the othercomplaining witnesses (lesser included offense) based in whole or in part upon the rebuttal post-acquittal fact-finding testimony. 

### The U.S. Supreme Court has determined that post-acquittal fact-finding testimony 

## to prove the truth ofthat offense or alesser included offense violates the Double Jeopardy Clause ofthe U.S. Constitution. Smith v. Massachusetts, 543 U.S. 462,

### 467, 125 S. Ct. 1129, 1134 (2005) (quoting Smalis v. Pennsylvania, 4,16 U.S. 140, 145, 106 S. Ct. 1745, 1749 (1986)). 12. In the Court of Appeals ruling that it could reform thejudgment to 

### include the lesser including offenses presupposes that Petitioner would not have 

### been acquitted on all ofthe other thefts ofthe other complaining witnesses. The Courtof Appeals has made afactual determination substituting its own fact finding 

### forthejury's fact finding. Itis impossibleto know if thejury wouldhave acquitted Petitioner on guilt or innocence ofall the thefts ifthe damaging testimony ofthe 

### post-acquittal fact-finding rebuttal witness' testimony had not been heard by the jury. The othercomplainingwitnesses andthefts weremerelycontractual disputes, but the rebuttal witness' testimony was clearly testimony ofPetitioner taking her 

### money and literally running with the money and never to be seen or heard from again by rebuttal witness. 

### 13. For this very reason, the Double Jeopardy Clause requires the trial 

### courtto take any post-acquittal fact-finding testimony out ofthe equation so that a 

### defendant may be found guilty only ofthe offenses he or she has committed and not based upon post-acquittal testimony to prove the trust ofthe other lesser
included offenses.V. PRAYER Wherefore Premises Considered, Petitioner requests that the Court grant Petitioner's Motion for Rehearing and to grant Petitioner all other reliefto which shemay show herselfjustlyentitled. tfully submi
50NNA HOLCOMB (PRO SE) 4906 Scott ReefDr. Bacliff, Texas 77518 Ph. 281-942-8840 Email: d holcomb@,aol.com Petitioner, Pro Se

CERTIFICATE OF SERVICE 

### Ihereby certify that atrue and correct copy ofthe foregoing was served on the following:

Harris County District Attorney 1201 Franklin Houston, Texas 77002 DONNA HOLCOMB (PRO SE)

Via U.S. MailUNITEDSTATES POSTAL SERVICE* inmuimmammi

U.S. POSTAGE $18.65 PM 2-DAY |77573 0004 S Date of sale 305/07/15 * H06 2S00 w ?08349756 w Expected Delivery 05/11/2015
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