Ex Parte Amanda Marie Montoya

Fourth Court of Appeals San Antonio, Texas May 25, 2022

No. 04-22-00283-CR

EX PARTE Amanda Marie MONTOYA

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR11671 Honorable Kevin M. O'Connell, Judge Presiding

ORDER Appellant Amanda Marie Montoya was indicted for murder, and her case went to trial. The trial court declared a mistrial, but she has not yet been retried. On November 22, 2021, Appellant filed a pretrial application for writ of habeas corpus asserting that her retrial was prohibited by the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the Constitution. On November 30, 2021, the trial court heard the habeas application and a speedy trial motion, and it denied any relief. Subsequently, Appellant filed a notice of appeal. “Pretrial habeas corpus proceedings are separate criminal actions from criminal prosecutions,” Ex parte Sifuentes, 639 S.W.3d 842, 846 (Tex. App.—San Antonio 2022, pet. ref’d), and “[a]n order denying a pretrial writ of habeas corpus . . . is immediately appealable,” Ex Parte Lovings, 480 S.W.3d 106, 110 (Tex. App.—Houston [14th Dist.] 2015, no pet.). In a criminal appeal where the defendant is the appellant, “[t]he trial court shall enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order.” TEX. R. APP. P. 25.2(a)(2). If the record does not contain a certification for the order denying the pretrial writ of habeas corpus, “the trial court clerk must prepare, certify, and file in the appellate court a supplemental clerk’s record containing [the certification].” TEX. R. APP. P. 34.5(c)(2); accord Cortez v. State, 420 S.W.3d 803, 806 (Tex. Crim. App. 2013) (“Under subsection (c)(2), the appellate court may order the trial court to prepare and file the certification of the defendant's right of appeal, and the trial-court clerk must prepare and file in the appellate court a supplemental record containing the certification.”). Therefore, we order the presiding judge of the 227th District Court to (1) sign a completed certification indicating whether the defendant has a right of appeal and (2) forward it

to the Bexar County Clerk within twenty days of the date of this order. See Cortez, 420 S.W.3d at 806. We further order the Bexar County Clerk to file a supplemental clerk’s record containing the trial court’s certification of the defendant’s right of appeal in this court within ten days after the trial court provides the certification to the clerk. See id.

_________________________________ Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 25th day of May, 2022.

_________________________________ Michael A. Cruz, Clerk of Court