Holcomb, Donna Gayle, PD-1233-14

Background

Donna Gayle Holcomb and her husband ran a house-moving/sales business; multiple customers paid down payments for houses to be moved and set up, but the Holcombs failed to complete deliveries and did not refund payments.
The State indicted Holcomb for aggregated theft (between $100,000 and $200,000) based on multiple complainants.
At trial the State presented complainant testimony and a fraud examiner who aggregated payments totaling $108,175.
After the State rested, the trial court granted a directed verdict as to one complainant (Marvin Bledsoe), finding insufficient evidence that he owned the $19,000 payment.
The trial court nevertheless included Bledsoe in the jury charge; the jury convicted Holcomb of second-degree aggregated theft (11 years, $10,000 fine).
On appeal the court of appeals held the directed verdict as to Bledsoe triggered double jeopardy protections and reformed the judgment to convict Holcomb of the lesser-included third-degree aggregated theft (between $20,000 and $100,000) and remanded for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Holcomb)	Held
Whether the trial court's directed verdict as to one complainant amounted to an acquittal triggering Double Jeopardy	Inclusion of Bledsoe in the charge did not undo the directed verdict; no double jeopardy violation	The directed verdict disposed of Bledsoe's claim and naming him in the charge subjected Holcomb to forbidden post-acquittal factfinding	Directed verdict operated as an acquittal for double jeopardy purposes; naming Bledsoe in the charge was error
Whether the directed-verdict acquittal could be retracted by the trial court/jury submission	The court could reconsider or the jury submission implicitly retracted the directed verdict	Smith and related precedent bar reexamination of court-decreed acquittals; retraction prejudices defendant	Court could not retract the acquittal; Double Jeopardy barred reliance on Bledsoe-related proof that followed the ruling
Sufficiency of evidence to support aggregated theft of $100,000+ after excluding Bledsoe's $19,000	Aggregate proof (checks, fraud examiner's tally) shows theft > $100,000	Excluding Bledsoe's $19,000 (acquitted) reduces aggregate below statutory threshold; many disputes were civil/noncriminal	Evidence insufficient to support second-degree aggregated theft (>= $100,000) once Bledsoe excluded
Whether reformation to a lesser-included aggregated-theft offense is appropriate	Reformation is permissible if evidence supports the lesser-included offense and no unremedied harm exists	Reformation would violate Double Jeopardy or unanimity if Bledsoe's itemization affected jury calculus	Judgment reformed to third-degree aggregated theft ($20,000–$100,000); case remanded for new punishment hearing

Key Cases Cited

Smith v. Massachusetts, 543 U.S. 462 (U.S. 2005) (court-decreed midtrial acquittals are final and generally cannot be reopened)
Smalis v. Pennsylvania, 476 U.S. 140 (U.S. 1986) (Double Jeopardy bars post-acquittal factfinding that would resolve elements of the acquitted offense)
United States v. Martin Linen Supply Co., 430 U.S. 564 (U.S. 1977) (form of judge's action is not dispositive; examine whether ruling resolved factual elements of offense)
Moreno v. State, 294 S.W.3d 594 (Tex. Crim. App. 2009) (directed verdict in jury case can constitute an acquittal for double jeopardy purposes)
Phillips v. State, 640 S.W.2d 293 (Tex. Crim. App. 1982) (failure to perform contract alone is insufficient to prove criminal deception)
Ex parte Goodman, 152 S.W.3d 67 (Tex. Crim. App. 2004) (Double Jeopardy prevents use of facts underlying a dismissed or acquitted theft to prove aggregated-theft constituent offences)
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) (doctrine of chances may be used to prove intent from repeated unusual events)
Plante v. State, 692 S.W.2d 487 (Tex. Crim. App. 1985) (extraneous similar misconduct can be admissible under doctrine of chances to show intent)