                                                                             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




                                                   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

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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




                           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




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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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