Montano, Ex Parte Joseph

• Court: Court of Appeals of Texas
• Decided: February 19, 2015
• Docket: PD-1630-14
• Status: Published

Opinion

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

2 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

3 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

4 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

5 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.

6 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

7 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

8 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

9 CERTIFICATE OF COMPLIANCE

I certify that the foregoing document is 421 words long and complies with

Texas Rules of Appellate Procedure 9.4(i).