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
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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
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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
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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
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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.
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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
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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
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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
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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
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