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 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

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. 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.

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 [email protected] ATTORNEY FOR APPELLANT

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