                                                                               PD-1406-14
                      PD-1406-14                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                          Transmitted 2/5/2015 12:23:28 PM
                                                             Accepted 2/6/2015 2:50:09 PM
                                                                              ABEL ACOSTA
                   IN THE COURT OF CRIMINAL        APPEALS                            CLERK
                               OF TEXAS


JOSE RAMIRO DELAROSA                 §           CCA NO. PD-1406-14
                                     §
V.                                   §           COA NO. 05-14-01020-CR
                                     §
THE STATE OF TEXAS                   §           TC NO. F14-52888-T


 MOTION TO DISMISS THE STATE’S PETITION FOR DISCRETIONARY

               REVIEW FOR LACK OF A JUSTICIABLE ISSUE


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       Appellant, Jose Ramiro Delarosa, respectfully submits this motion for

the dismissal of the Petition for Discretionary Review in this case. In

support of this motion the Appellant would show the Court the following:

             1. The State petitioned this Court to consider the decision of the

Court of Appeals to dismiss the appeal due to the granting of the Motion for

New Trial by the trial court in this case. The Court of Appeals held that they

did not have jurisdiction in the matter since the trial court granted the

Motion for New Trial. The State questioned the ability of the trial court to

grant a Motion for New Trial when the court previously certified the case for

appeal. The State’s position is that the two acts are mutually exclusive. The



February 6, 2015

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Court of Criminal Appeals granted the Petition for Discretionary on January

28, 2015.

            2. The trial court granted the Motion for New Trial on August 6,

2014. The Court of Appeals granted the appellant’s Motion to Dismiss the

Appeal on October 2, 2014. The State filed a Petition for Discretionary

Review on October 17, 2014. This Court granted the Petition for

Discretionary Review on January 28, 2015. However, the Dallas County

District Attorney’s Office retried the case on December 17, 2014 and the

appellant was found guilty pursuant to a plea bargain agreement and

sentenced to one-year confinement. (See attached copy of judgment.)

            3. Since the State has retried the case, the issue regarding the

granting of the Motion for New Trial is moot. The State accepted the

October 2, 2014 Order of the Court of Appeals and retried the case on

December 17, 2014. There is no longer an appealable issue in this case to

be resolved in the Court of Criminal Appeals. The original jury trial

conviction, the basis for the Petition for Discretionary Review, is no longer

on appeal. The conviction as a result of the jury trial upon which the

Petition for Discretionary Review was granted, no longer exists.

            4. If the Court of Criminal Appeals addresses the issue in the

State’s Petition for Discretionary Review, the court is faced with the



                                      2
unanswered issue in Kirk v. State, PD-1197-13 (Tex. Crim. App. del’d Jan.

28, 2015) regarding possible double jeopardy violations involved in

withdrawing a previously granted Motion for New Trial after the new trial

has commenced or, as in this situation, after a new trial has been

completed 1 . Having been tried a second time and received a lesser

sentence, is the State now trying to impose the greater punishment

received in the first trial by pursing this petition? The decision of the State

to take the case to trial a second time renders the issue presented in this

petition moot.

              5. As the State chose to retry this criminal matter, the issue

regarding the granting of the Motion for New Trial is no longer a justiciable

dispute. By taking the case to trial on December 17, 2014, the State

accepted the Court of Appeals Order of October 2, 2014, negating the need

to further address the issue in a Petition for Discretionary Review. There is

no real or substantial controversy before this court and any opinion issued

by this Court will answer a hypothetical question, not a real and substantial

controversy. This Court has consistently held that it does not have the

jurisdiction to render advisory opinions. Armstrong v. State, 805 S.W.2d

791, 794 (Tex. Crim. App. 1991), Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex.

1
 The question of the court’s ability to rescind a granted Motion for New Trial during or
after a new trial occurs was not raised in the State’s Petition for Discretionary Review.


                                             3
Crim. App. 1988). Any ruling in this case affects a conviction from a jury

trial that is not longer a valid conviction. Having retried the case on

December 17, 2014, the State has waived any further appellate interest in

this matter.

               6. As there are no appealable issues, the Court of Criminal

Appeals does not have jurisdiction in this matter. To address the issues

raised in the State’s Petition for Discretionary Review would violate this

court’s holdings in Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.

App. 1991) and Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex. Crim. App.

1988).

               WHEREFORE, PREMISES CONSIDERED, the appellant in

this case respectfully requests that the State’s Petition for Discretionary

Review be dismissed.

                                          Respectfully submitted,


                                          /s/ Leslie McFarlane
                                          State Bar No. 13603500
                                          7522 Campbell Rd., Ste 113-216
                                          Dallas, TX 75248-1726
                                          (972) 934-1721
                                          lwmcfarlane@gmail.com

                                          ATTORNEY FOR APPELLANT




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                       CERTIFICATE OF SERVICE

            The undersigned attorney hereby certifies that a true and
correct copy of the foregoing motion has been placed in the United States
mail and sent to the Office of the Dallas County District Attorney, 133 N.
Riverside Blvd., LB 19, Dallas, TX 75207-4313, on the February 5, 2015.
The District Attorney was also served via electronic filing at the same time
this motion was filed with the Court of Appeals.


                                         /s/ Leslie McFarlane




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