Montano, Ex Parte Joseph
PD-1630-14
| Tex. App. | Feb 19, 2015Background
- Petitioner Joseph Montano seeks rehearing of the denial of his petition for discretionary review after the First Court of Appeals (Houston) affirmed a ruling that permits retrial following a trial court announcement of a mistrial.
- At trial, after a hearing the trial judge stated (beginning) that he was going to declare a mistrial and then declared a mistrial; Montano alleges he was not given an adequate opportunity to object before the jury was discharged.
- Montano contends the abrupt mistrial declaration occurred after jeopardy had attached, so a retrial is barred by double jeopardy principles.
- He argues the Court of Appeals’ decision conflicts with Dallas Court of Appeals’ precedent in Harrison v. State and with Texas and U.S. Supreme Court double jeopardy authorities.
- Montano requests that the Court of Criminal Appeals grant rehearing and then grant discretionary review to resolve the conflict and correct the error.
Issues
| Issue | Plaintiff's Argument (Montano) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether an immediate or near-immediate mistrial declaration deprives a defendant of an adequate opportunity to object and thus bars retrial under double jeopardy | The trial court announced it was going to declare a mistrial (and then did) without giving Montano a meaningful chance to object; retrial is barred | The Court of Appeals treated the mistrial as valid and allowed retrial (implying the opportunity to object was adequate or the mistrial was justified) | The Court of Appeals decision (the subject of the rehearing motion) upheld retrial; Montano asks the CCA to rehear because that conflicts with precedent |
| Whether the First Court of Appeals’ ruling conflicts with Harrison v. State | Harrison holds a nearly immediate mistrial announcement deprived defendant of chance to object; Montano says facts are analogous and require reversal | The State distinguishes Harrison and relies on the Court of Appeals’ different factual assessment | Montano contends the appellate rulings conflict and necessitate CCA review |
| Whether double jeopardy principles (federal and state) bar retrial after discharge of a jury post-jeopardy attachment | Jeopardy attached; discharging the jury without a valid, non-abrupt basis triggers double jeopardy protection against retrial | The State contends retrial is permissible under the circumstances (as per Court of Appeals) | Montano urges CCA to follow controlling double jeopardy authorities and grant review |
| Whether conflicting appellate decisions on this point warrant supervisory review by the Court of Criminal Appeals | Conflicting appellate authority is a principal ground for discretionary review; rehearing should be granted | The State implicitly opposes further review by CCA (Court of Appeals decision stands) | Montano requests CCA exercise supervisory power to resolve the conflict |
Key Cases Cited
- Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (double jeopardy bars retrial when jury is discharged after jeopardy attaches absent manifest necessity)
- Brown v. State, 907 S.W.2d 835 (Tex. Crim. App. 1995) (double jeopardy principles concerning retrial after discharge)
- Harrison v. State, 772 S.W.2d 556 (Tex. App.—Dallas 1989) (trial court’s immediate mistrial announcement deprived defendant of adequate opportunity to object)
- Torres v. State, 614 S.W.2d 436 (Tex. Crim. App. 1981) (defendant must be given adequate opportunity to object to court’s action affecting jeopardy)