Montanez, Anibal AKA Montilla-Pena, Ivan ( 2006 )

COURT OF CRIMINAL APPEALS OF TEXAS

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PD-0894-04

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ANABAL MONTANEZ, Appellant

v.

THE STATE OF TEXAS

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ON DISCRETIONARY REVIEW OF CASE 10-02274-CR OF THE TENTH COURT OF APPEALS ANGELINA COUNTY

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Womack, J., filed a dissenting opinion.

The Court decides, "on [its] own initiative, [to] review whether the court of appeals correctly decided that an implied adverse ruling on Montanez's motion to suppress was made by the trial court." Ante, at 5.

I believe that the Court should give the parties notice of this decision and an opportunity to brief the issue. That "the State briefed and Montanez had an opportunity to brief in the court of appeals" (ibid.) is not satisfactory. First, the issue in the Court of Appeals was whether the trial court's ruling was erroneous, while the issue in this court is the Court of Appeals' decision. It could not have been briefed before the Court of Appeals rendered its decision.

More important is the principle, which is a rudiment of due process, that a party should have notice that a court will consider an issue and an opportunity to be heard.

I respectfully dissent to the decision of the issue without notice.

Delivered: APRIL 26, 2006

Publish.