ORIGINAL

No. PD-1233-14

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DONNA GAYLE HOLCOMB

d^.v RECEIVED m Petitioner, COURT OF CRMWAUPPEALS

V. MAY 14 2015

THE STATE OF TEXAS AbBl Acost^ ^

Respondent

PETITIONER'S MOTION FOR REHEARING

On Appeal from the First Court ofAppeals 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 CRIMINAL APPEALS

MAY 14 2015

i Abel Acosta, Clerk
I. GROUNDS FOR REHEARING

A. CLERICAL ERRORS CORRECTED

1. After Petitioner's PDR was refused shortly after it had been received,

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 what those 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 and Petitioner 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 of PDR'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 A NEW TRIAL ON
GUILT OR INNOCENSE AND NOT JUST PUNISHMENT ON THE

REMAINING THEFTS AND COMPLAINING WITNESSES

3. The Court of Appeals held any harm resulting from the inclusion of

Bledsoe, on whom Petitioner received a directed verdict of acquittal, in the charge

can be remedied by reforming the judgment to reflect conviction of the lesserincluded offense oftheft ofproperty with an aggregated value of between $20,000

and $100,000.

4. It was not harmless error which could be corrected by a reformation in

the judgment because Petitioner was convicted ofa lesser 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 that justice might be done. IfPetitioner is entitled to relief for violation of

the Double Jeopardy Clause ofthe U.S. Constitution, then justice 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

Discretionary Review ifthe Petitioner files amotion for rehearing pursuant to Tex.

R. App. P. Rule 79. The motion for rehearing is due within 15 days ofthe refusal

ofPetitioner's PDRon April 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 of her PDR.

However, Petitioner argues that pursuant to the Double Jeopardy Clause, Petitioner

is entitled to a new trial on the guilt or innocence phase of Petitioner's trial and not

just the 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 of Appeals has held that it was error to reverse the acquittal

in violation of the 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 Ex Parte 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 of its lesser included

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

State, in proving aggregated theft, may not rely upon proof of the theft alleged in

the first indictment or any 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 it introduced

rebuttal post-acquittal fact-finding testimony of awitness to bolster the 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 and the trial court reversed its decision after the rebuttal witness' testimony.

11. The jury determined its findings of guilt or innocence on the acquitted

complaining witness and the other complaining 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 of that offense or a lesser 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 the judgment to

include the lesser including offenses presupposes that Petitioner would not have

been acquitted on all of the other thefts of the other complaining witnesses. The

Court ofAppeals has made a factual determination substituting its own fact finding

for the jury's fact finding. It is impossible to know ifthe jury would have 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 other complaining witnesses and thefts were merely contractual disputes,

but the rebuttal witness' testimony was clearly testimony of Petitioner 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

court to take any post-acquittal fact-finding testimony out ofthe equation so that a

defendant may be found guilty only of the offenses he or she has committed and

not based upon post-acquittal testimony to prove the trust of the 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 relief to which

shemay show herselfjustly entitled.

tfully submi

50NNA HOLCOMB (PRO SE)

4906 Scott Reef Dr.

Bacliff, Texas 77518

Ph. 281-942-8840

Email: d holcomb@,aol.com

Petitioner, Pro Se

CERTIFICATE OF SERVICE

I hereby certify that a true 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. Mail
UNITEDSTATES

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