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Montano, Ex Parte Joseph
PD-1630-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/17/2015 4:52:07 PM Accepted 2/19/2015 11:30:27 AM ABEL ACOSTA TO THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
NO. PD-1630-14
MOTION FOR REHEARING ON DENIAL OF PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS TEXAS
FIRST DISTRICT HOUSTON
EX PARTE JOSEPH MONTANO
COURT OF APPEALS CAUSE No. 01-13-01081-CR
APPELLANT MONTANO’S MOTION FOR REHEARING ON DENIAL OF PETITION FOR DISCRETIONARY REVIEW
Raymond Coldren Texas Bar No. 24045678 Attorney for Petitioner Calderon Law Firm 1028 Edgebrook Drive Houston, TX 77034 February 19, 2015 (713)732-0237 ercjr@hotmail.com
IDENTITY OF PARTIES AND COUNSEL
Trial Court Judge The Honorable Marc Carter 228th District Court Harris County, Texas
State of Texas Ms. Devon Anderson District Attorney for Harris County 1201 Franklin Street Houston, TX 77002
Mr. Alan Curry Assistant District Attorney 1201 Franklin Street Houston, TX 77002
Ms. Amy McCauley Assistant District Attorney 1201 Franklin Street Houston, TX 77002
State Prosecuting Attorney P.O. Box 13046 Capitol Station Austin, TX 78711
Mr. Joseph Montano Mr. Raymond Coldren Petitioner Attorney for Petitioner 11006 Golden Fern Court Calderon Law Firm Houston, TX 77075 Bar No. 24045678 1028 Edgebrook Drive Houston, Texas 77034 (713) 732-0237 (voice) ercjr@hotmail.com
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .......................................................... 2 TABLE OF CONTENTS ......................................................................................... 3 INDEX OF AUTHORITIES .................................................................................... 4 GROUNDS FOR REHEARING ............................................................................. 5 ARGUMENT ....................................................................................................... 5-6 PRAYER FOR RELIEF .......................................................................................... 8 CERTIFICATE OF SERVICE ................................................................................ 9 CERTIFICATE OF COMPLIANCE ..................................................................... 10
INDEX OF AUTHORITIES
Laws and Statutes United States Constitution, Amendment V ...............................................................6
Cases Arizona v. Washington, 434 U.S. 497 (1978) ...........................................................6 Brown v. State, 907 S.W.3d 835 (Tex. Crim. App. 1995) ....................................... 6 Harrison v. State, 772 S.W.2d 556 (Tex. App.—Dallas 1989) ............................... 5 Torres v. State, 614 S.W.2d 436 (Tex. Crim. App. 1981) ....................................... 6 *5 TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW, Petitioner Montano, and urges the Court to grant his Motion for Rehearing of a denial of petition for discretionary review for the reasons stated herein:
GROUNDS FOR REHEARING
Petitioner states the following reasons for granting motion for rehearing:
1. The Court of Appeals’ decision conflicts with another court of appeals’ decision on the same issue; and
2. The Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States; and
3. The Court of Appeals was erroneous in its decision and calls for a decision in the exercise of The Court of Criminal Appeals’ power of supervision
ARGUMENT
In Harrison v. State, the Dallas Court of Appeals held that the appellant in the case was not given an adequate opportunity to object since the trial court declared a mistrial almost immediately after first announcing its intention. Harrison v. State, 772 S.W.2d 556 (Tex. App.—Dallas 1989), rev’d on other grounds, 788 S.W.2d 18 (Tex. Crim. App. 1990). While the Court of Appeals in this case attempted to distinguish these facts from those in Harrison, they are too similar to ignore. In Harrison, the trial court announced it intended to declare a *6 mistrial after a hearing. In this case, the trial court announced it was declaring a mistrial after a hearing. Both situations are analogous, and differing opinions would constitute conflicting rulings on the same issue.
The United States Constitution prohibits a defendant from twice being put in jeopardy for the same offense. U.S. CONST. amend. V. If, after jeopardy attaches, the jury is discharged without having reached a verdict, double jeopardy will bar retrial. Brown v. State, 907 S.W.3d 835, 839 (Tex. Crim. App. 1995); Arizona v. Washington, 434 U.S. 497 (1978). A defendant must be given an adequate opportunity to object to the court’s action. Torres v. State, 614 S.W.2d 436, 441-42 (Tex. Crim. App. 1981). Here, the trial court began its statement about the mistrial with “I’m going to declare a mistrial.” Petitioner was not given an adequate opportunity to object, and the Court of Appeals’ decision conflicts with well settled case law.
Since conflicting Court of Appeals’ decisions are one of the paramount reasons for the Court of Criminal Appeals granting Petition for Discretionary Review, this Motion for Rehearing should be granted in order for the Court to review the underlying case.
I CERTIFY THAT THE FOREGOING MOTION IS SO GROUNDED
AND THAT THE MOTION IS MADE IN GOOD FAITH AND NOT FOR
DELAY.
February 17, 2015 /s/ Raymond F. Coldren Date Raymond F. Coldren Texas Bar. No. 24045678 Attorney for Petitioner Calderon Law Firm 1028 Edgebrook Drive Houston, TX 77034 (713) 732-0237 (voice) ercjr@hotmail.com
PRAYER FOR RELIEF
The Petitioner respectfully request that this Court grant this motion for rehearing, and then grant petition for discretionary review in this case.
February 17, 2015 /s/ Raymond F. Coldren Date Raymond F. Coldren Texas Bar. No. 24045678 Attorney for Petitioner Calderon Law Firm 1028 Edgebrook Drive Houston, TX 77034 (713) 732-0237 ercjr@hotmail.com
CERTIFICATE OF SERVICE
I certify that on February 17, 2015, I served a copy of this document including any appendices by regular first class mail to:
Ms. Devon Anderson District Attorney for Harris County 1201 Franklin Street Houston, TX 77002
Mr. Alan Curry Assistant District Attorney 1201 Franklin Street Houston, TX 77002
Ms. Amy McCauley Assistant District Attorney 1201 Franklin Street Houston, TX 77002
State Prosecuting Attorney P.O. Box 13046 Capitol Station Austin, TX 78711
/s/ Raymond F. Coldren Raymond F. Coldren
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document is 421 words long and complies with Texas Rules of Appellate Procedure 9.4(i).
/s/ Raymond F. Coldren Raymond F. Coldren