                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                               '

                                               '              No. 08-13-00147-CR
 IN RE: THE STATE OF TEXAS,
                                               '        AN ORIGINAL PROCEEDING
                              Relator.
                                               '               IN MANDAMUS
                                               '

                                         OPINION

       The State of Texas, Relator, has filed a petition for writ of mandamus against the

Honorable Alma Trejo, Judge of the County Criminal Court at Law No. 1 of El Paso County,

Texas (hereinafter referred to as Respondent or the trial court) requesting that we order

Respondent to set aside a written order prohibiting the State from speaking with the complaining

witness. We conditionally grant mandamus relief.

                                   FACTUAL SUMMARY

       This mandamus proceeding arises out of a family violence assault criminal case pending

in the County Criminal Court at Law No. 1. The defendant is represented by Theresa Caballero.

The case was set for jury trial on May 7, 2013. During a pretrial hearing on the morning trial

was scheduled to begin, the complaining witness, Alejandra Guzman, told Respondent she did

not want to talk to the District Attorney’s Office. Respondent stated: “Okay. And the District

Attorney’s Office will not speak to you then. Thank you.” The court began voir dire, but a jury
could not be seated because they “ran the panel” and an insufficient number of jurors remained.

Respondent asked Guzman to come into the courtroom and advised her that the case had been re-

set for trial on May 14, 2013 and she was still under subpoena. Respondent requested Guzman

to remain in the courtroom until she was served with a new subpoena. Caballero informed the

trial court that Guzman did not want to talk to the prosecutors and added that one of the

prosecutors was harassing Guzman and following her outside of the courtroom. Respondent

instructed the prosecutors that they could not talk to Guzman or follow her, and they could only

serve her with the new subpoena.

       On the day of trial, Respondent addressed the prosecutors and defense counsel about a

conversation she had with Guzman after the May 7, 2013 hearing. After defense counsel left,

Guzman approached her and said she wanted to talk to the District Attorney’s Office.

Respondent told her not to contact the District Attorney’s Office because defense counsel was

not present.

       Respondent then administered the oath to Guzman and asked her whether she wanted to

talk to the District Attorney’s Office. Guzman replied that she did not. Respondent instructed

Guzman to not approach them or go near them if she did not want to talk to them. One of the

prosecutors, Aaron Shnider, told the court that Guzman had telephoned the Victim Assistance

telephone and he asked permission to speak with Guzman about those conversations. Defense

counsel objected. Guzman then asked the court if she could speak with defense counsel. After

speaking with Caballero, Guzman told the court she did not want to speak to the prosecutor.

Shnider reiterated that he needed to speak with Guzman, but Respondent told the prosecutors to

“…not get near her.”

       After a recess, the State made defense counsel and the trial court aware that on May 8,



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2013, Guzman telephoned the Victim Assistance line at the District Attorney’s Office at

approximately 9:00 a.m. and told Ignacio Frausto that she wanted to drop charges.                            The

prosecutor stated that Guzman told Frausto she had made a false report. The State did not,

however, have access to Frausto’s notes because the computer system containing those notes was

down. While waiting for Frausto to come to the courtroom and testify about his conversation

with Guzman, the State requested that the trial court enter a written order regarding its ruling that

the prosecutors could not speak with Guzman. Respondent entered an order which states: “This

Court hereby ORDERS the State of Texas not to communicate with the complaining witness in

this case, Alejandra Guzman, as per Ms. Guzman’s request on the record.”

        Frausto testified about his conversations with Guzman. He recalled that Guzman had

asked him to explain the process of dropping charges. Frausto explained that it was up to the

State, not her, whether charges would be dropped. She also stated that she had reported the

incident “out of anger” and he explained to her that there are legal repercussions for filing a false

police report. Guzman told him she understood. Guzman stated that no one had allowed her to

talk or give her input and she did not want to prosecute the case. The conversation concluded,

but Guzman immediately called back and told Frausto that an attorney was not permitting her to

talk. He asked which side, the State or the defense, and Guzman told him it was the defense

attorney. After Frausto testified, the computer system became available again and the trial court

reviewed Frausto’s notes about the conversations. His notes reflect that Guzman told him that

the police report was not accurate because the defendant was trying to leave and he pushed her

out of the way.1

        After speaking with Guzman privately, Caballero reported that Guzman denied making


1
  The indictment alleges that the defendant intentionally, knowingly, or recklessly caused bodily injury to Guzman
by pushing her with his hands causing her to fall and strike the ground.

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some of the statements attributed to her by Frausto. Caballero also related that Guzman called to

tell the District Attorney’s Office that she had not been pushed, but had instead fallen, and

Frausto told her she could be charged with filing a false police report. Respondent appointed

Ralph Garcia from the Public Defender’s Office to represent Guzman and he advised her

regarding her Fifth Amendment rights, perjury, and filing a false police report. Garcia informed

the trial court that Guzman intended to testify and would not invoke her right to remain silent, so

the trial proceeded. When the State called Guzman as a witness later in the trial, however, she

immediately indicated she did want to answer any questions. Garcia conferred with Guzman,

and based on his advice, she stated that she was invoking her Fifth Amendment right to remain

silent.

          The trial continued with the State calling witnesses other than Guzman. In the meantime,

the State filed a motion for emergency relief with this Court and provided Respondent with a

copy of the motion. In an effort to avoid the trial being stayed, Respondent called Guzman to the

bench and stated:

          I had told you earlier that you were not to communicate with the District
          Attorney’s Office. I’m making it perfectly clear right now that it is your option
          whether you want to communicate with them or not. They can try and ask you
          questions and if they keep harassing you or something, feel free to file a police
          report. It’s up to you whether you wish to communicate with the District
          Attorney’s Office. I am not preventing you from communicating with the District
          Attorney’s Office.

          The prosecutor asked Respondent if she was lifting her prior order, and Respondent

replied: “I’m not lifting anything.”

          The State subsequently called Guzman as a witness to establish preliminary facts,

including her relationship with the defendant, but the prosecutor did not ask her any questions

about the alleged assault because Guzman had indicated outside of the jury’s presence she was



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going to invoke her right to remain silent. We stayed the proceedings in the trial court pending

our review of the mandamus petition.

                 INTERFERENCE WITH PROSECUTORIAL FUNCTION

       In its sole issue, the State contends that Respondent clearly abused her discretion by

prohibiting the prosecutors from speaking to the complaining witness in a criminal case because

the order exceeds the trial court’s constitutional and statutory authority and interferes with the

District Attorney’s prosecutorial function. The real party in interest, Defendant Garcia, responds

that the trial court merely prohibited the State from harassing the complainant.

                                 Mandamus Standard of Review

       A party seeking a writ of mandamus in a criminal case must make two showings: (1) that

there is no adequate remedy at law to redress the alleged harm; and (2) that the act the relator

seeks to compel must be ministerial rather than discretionary in nature. See e.g. Board of

Pardons and Paroles ex rel. Keene v. Court of Appeals for the Eighth District, 910 S.W.2d 481,

483 (Tex.Crim.App. 1995)(orig. proceeding); In re State of Texas, 390 S.W.3d 439, 442

(Tex.App.--El Paso 2012, orig. proceeding); In re State of Texas, 304 S.W.3d 581, 583

(Tex.App.--El Paso 2010, orig. proceeding). A matter is ministerial in nature if the law clearly

spells out the duty to be performed with such certainty that nothing is left to the exercise of

discretion or judgment. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.

1994)(orig. proceeding); In re State, 390 S.W.3d at 442. It is undisputed that the State cannot

appeal the ruling. The only issue is whether Respondent had discretion to prohibit the State from

speaking with the complaining witness.

       It has been often stated that an attorney has a duty to his client to interview potential

witnesses. See e.g., Stearnes v. Clinton, 780 S.W.2d 216, 217-18 (Tex.Crim.App. 1989)(holding



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that attorney has duty to interview potential witnesses and trial judge lacked authority to remove

defense counsel from case for interviewing witness without permission of the DA’s Office);

Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986)(in context of reviewing ineffective

assistance of counsel claim, court stated that defense counsel has duty to seek out and interview

potential witnesses). In criminal cases, this duty is almost always discussed in terms of defense

counsel’s duty to the accused. The primary function of a district or county attorney is to

prosecute the pleas of the State in criminal cases. Meshell v. State, 739 S.W.2d 246, 254

(Tex.Crim.App. 1987). All prosecuting attorneys have a duty to see that justice is done and they

are prohibited from suppressing facts or secreting witnesses capable of establishing the

innocence of the accused. TEX.CODE CRIM.PROC.ANN. arts. 2.01, 2.02 (West 2005). Implicit in

these duties is the requirement that a prosecutor interview witnesses who are willing to speak to

him.   A prosecutor who is prohibited by a trial court from interviewing or attempting to

interview a witness cannot carry out the obligations of his office. We conclude that the trial

court did not have the authority or discretion to prohibit the State from speaking with or

attempting to speak with the complainant. We conditionally grant mandamus relief and order

Respondent to set aside her written order and any verbal orders prohibiting the State from

interviewing the complaining witness. The writ of mandamus will issue only if Respondent fails

to comply within a reasonable period of time.


May 30, 2014
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior Judge)
Chew, C.J. (Senior Judge), sitting by assignment

(Do Not Publish)




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