                                                                                WR-83,996-01
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                 Transmitted 10/9/2015 7:00:35 PM
                                                                  Accepted 10/12/2015 3:54:51 PM
                                                                                   ABEL ACOSTA
                          No.___________________________                                   CLERK

                              IN THE COURT OF                        RECEIVED
                                                              COURT OF CRIMINAL APPEALS
                             CRIMINAL APPEALS                       10/12/2015
                                                                ABEL ACOSTA, CLERK
                               AUSTIN, TEXAS



                            IN RE SYLVIA MARTINEZ

                            (STATE OF TEXAS, Realtor)



                           From the Fourth Court of Appeals
                                 San Antonio, Texas
                                 No. 04-15-00348-CR



               PETITION FOR WRIT OF MANDAMUS


NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
Assistant Criminal District Attorney

Lauren A. Scott
Bexar County, Texas
Paul Elizondo Tower
101 W. Nueva, 7th Floor
San Antonio, Texas 78205-3030
Telephone No. (210) 335-2885
State Bar No. 24066843
Email: lscott@bexar.org

Attorneys for the State
                                          ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
  1. Realtor: The State of Texas

     Represented by:
     Nicholas “Nico” LaHood
     Bexar County Criminal District Attorney

     Lauren A. Scott
     Assistant Criminal District Attorney
     State Bar No. 24066843
     101 W. Nueva
     San Antonio, Texas 78205
     210-335-2885
     Email: lscott@bexar.org

  2. Respondent: The Fourth Court of Appeals

     The Honorable Chief Justice Sandee Bryan Marion
     The Honorable Justice Jason Pulliam
     The Honorable Justice Patricia O. Alvarez
     Fourth Court of Appeals
     300 Dolorosa, 4th Floor, San Antonio, Texas 78205

  3. Real Party in Interest: Sylvia Martinez

     Represented by:
     Chad P. Van Brunt
     State Bar No. 24070784
     Angela Moore
     State Bar No. 14320110
     310 S. St. Mary’s Street, Suite 1830
     San Antonio, Texas 78205

  4. Trial Court Judge: The Honorable Steve Hilbig
     187th Judicial District Court, Bexar County, Texas
                                          TABLE OF CONTENTS
Identity of Parties .......................................................................................................2

Table of Contents                                                                                                          3

Table of Authorities                                                                                                       4

Introduction ................................................................................................................5

Statement of the Case.................................................................................................5

The Fourth Court’s Opinion.......................................................................................6

Standard of Review ....................................................................................................6

The Trial Court Performed a Discretionary Act ........................................................7

There was an Adequate Remedy................................................................................9

PRAYER ...............................................................................................................104

CERTIFICATE OF SERVICE ..............................................................................126
                                        TABLE OF AUTHORITIES

Cases
Ex parte Carter, 849 S.W.2d 410 (Tex. App.—San Antonio 1993) .................... 8, 9
Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991) .............................. 8, 12
Ex parte McCullough, 966 S.W.2d 529 (Tex. Crim. App. 1998) ............................ 8
Ex parte Okere, 56 S.W.3d 846 (Tex. App.—Fort Worth 2001) .......................... 12
Ex parte Rodriguez, 980 S.W.2d 475 (Tex. Crim. App. 1998) ............................. 12
Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645
(Tex. Crim. App. 2005) ............................................................................................ 7
In re Altschul, 236 S.W.3d 453 (Tex. App.—Waco 2007) ................................... 13
In re Piper, 105 S.W.3d 107 (Tex. App.—Waco 2003) ........................................ 13
Nichlos v. State, 255 S.W.2d 522 (Tex. Crim. App. 1952) ..................................... 8
State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) ........ 10
State v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924 (Tex. Crim. App.
2001) ........................................................................................................................ 7
Villanueva v. State, 252 S.W.3d 391 (Tex. Crim. App. 2008) ........................ 10, 12
Von Kolb v. Koehler, 609 S.W.2d 654 (Tex. App.—El Paso 1980) ..................... 12

Statutes
Tex. Code Crim. Proc. Ann. art. 11.14 (West) ........................................................ 9
Tex. Penal Code Ann. § 43.02 (West) ................................................................. 5, 6
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:



      Now comes the State of Texas, Realtor, by and through the Bexar County

Criminal District Attorney, Texas, and files this Petition for Writ of Mandamus,

and respectfully shows the Court the following:



Introduction
      The Fourth Court’s opinion forces trial courts to create an appealable order

on the eve of trial. Its ruling takes away the discretion of the trial court to refuse to

issue a pre-trial writ of habeas corpus, a discretion the courts have had for as long

as the Texas district courts have existed. This Court should order the court of

appeals to withdraw its order and affirm the well-established rule of law giving

trial courts discretion over issuing pre-trial writs.



Statement of the Case
      Real party in interest, Sylvia Martinez, is charged with committing

prostitution. See Tex. Penal Code § 43.02. She was indicted on February 26, 2015

and on March 18, 2015, she was arraigned and defense counsel was appointed.

The case was set for trial on June 5, 2015, and Martinez filed a pre-trial application

for writ of habeas corpus on the same day the case was set for trial. On Monday

June 8, 2015, the trial court denied Martinez’s request to issue a writ. On the same
day, Martinez filed a petition for writ of mandamus with the Respondent, the

Fourth Court of Appeals, and on June 15, 2015, she filed a supplemental

memorandum for the petition for mandamus. On August 26, 2015, the Respondent

conditionally granted the petition of mandamus and ordered the trial court to rule

on Martinez’s habeas application or provide her enough time to file her application

in another court.



The Fourth Court’s Opinion
      The Respondent decided the trial court had a ministerial duty to rule on a

double jeopardy pre-trial writ of habeas corpus. In re Martinez, No. 04-15-00348-

CR at *5 (Tex. App.—San Antonio, August 26, 2015) (orig. proceeding). The

court asserted that a trial court must decide to issue the writ and to grant or deny

the relief requested. Id. at *4. Noting that generally parties are entitled to rulings

on their motions within a reasonable time and recognizing that double jeopardy

protects individuals from multiple trials; the court held the trial court has to rule on

the writ application even if deficiencies would cause the trial court to refuse to

issue or deny the application. Id. at *5-6.



Standard of Review
      This writ of mandamus requests an order finding the Fourth Court of

Appeals should rescind its writ of mandamus in In re Sylvia Martinez. On review,
the realtor will show that Respondent clearly abused its discretion in issuing the

writ and there is no other adequate remedy at law. State ex re. Hill v. Court of

Appeals for the Fifth District, 34 S.W.3d 924, 926 (Tex. Crim. App. 2001). Since

a writ of mandamus to this Court is the only remedy from the Fourth Court’s

adverse ruling, there is no other adequate remedy at law in this case. Id. at 927.

The Fourth Court abused its discretion in granting the writ of mandamus because

Martinez had an adequate legal remedy in the ability to present her application to

another district court and the trial court exercised its discretion in refusing to issue

the writ—it was not a ministerial duty. Id.



The Trial Court Performed a Discretionary Act
      The habeas proceeding is considered a separate criminal action and the trial

court’s decision to issue the writ is what triggers the court’s jurisdiction to hear the

application. See Greenwell v. Court of Appeals for the Thirteenth Judicial Dist.,

159 S.W.3d 645, 650 (Tex. Crim. App. 2005). Much like this Court declining to

exercise its original habeas jurisdiction in certain instances; the trial court may

decline to issue a pre-trial writ and choose not to exercise its original jurisdiction

over the pre-trial habeas application. See Ex parte McCullough, 966 S.W.2d 529,

531 (Tex. Crim. App. 1998).

      The articles under 11.07 cover post-conviction writs of habeas corpus. In

post-conviction procedures, the writ issues by operation of law. See Tex. Code
Crim. Pro. art. 11.07 Sec. 3(b) and art. 11.072 Sec. 4(a). There is no such mandate

for pre-trial writs, leaving the trial court with the discretion to issue or refuse to

issue the writ. See Hargett, 819 S.W.2d at 869. It has been a long-standing part of

Texas writ law that a trial court can refuse to issue a writ. See Nichlos v. State,

255 S.W.2d 522, 526 (Tex. Crim. App. 1952). When the legislature codified

Chapter 11, they took some of that discretion away when dealing with post-

conviction writs, but there is no such provision in Chapter 11 for pre-trial writs of

habeas corpus stating that the writ will issue by operation of law.

      The Fourth Court previously recognized the discretionary nature of the

decision to issue a writ of habeas corpus. Ex parte Carter, 849 S.W.2d 410, 412

(Tex. App.—San Antonio 1993, pet ref’d). Curiously, the court glosses over its

holding in Carter by changing the question in Martinez from whether the trial

court had discretion to refuse to issue the writ to whether the trial court had

discretion to refuse to rule on the writ. In re Martinez, No. 04-15-00348-CR at *5.

This changing of the question ignores the court’s previous finding that the writ

issuance is a necessary step for the trial court to hear the substantive allegations of

the application. Carter, 849 S.W.2d at 413. The Respondent does not overrule or

distinguish its opinion in Carter, but simply mentions it and then moves on without

explanation. The court abuses its discretion in failing to follow its prior precedent

and by failing to find the trial court had the discretion to refuse the writ.
      Not only did the trial judge have the discretion to refuse to the issue the writ,

but he properly refused to issue the writ because the application was insufficient on

its face.   (C.R. at 34-42). Martinez’s application failed to comply with the

requirements of article 11.14.     Tex. Code Crim. Proc. art. 11.14. Martinez’s

application did not contain the court order that creates the confinement she is under

as required by article 11.14(2), and she does not allege that she could not get a

copy of the order. In addition she fails to swear an oath in the application stating

that the allegations are true as required by article 11.14(3). Importantly, she

provided no proof of her underlying allegation that she was charged with a

violation of a municipal ordinance.



There was an Adequate Remedy
      When a trial court refuses to issue a pre-trial writ of habeas corpus, the

proper and preferred remedy is the applicant should present her writ application to

another trial court. See Tex. Code Crim. Pro art. 11.05. The available remedy of

finding another district court to consider the application is well established. This

Court has found that in the event a trial court refuses to issue a writ or denies a

hearing on the application’s merits, an applicant may present the application to

another trial court with jurisdiction. Villanueva v. State, 252 S.W.3d 391, 394

(Tex. Crim. App. 2008). In Villanueva, however, this Court also noted, in dicta,

the use of a writ of mandamus when a trial court refuses to issue a writ. Id. While,
technically, the writ of mandamus is always available as a possible remedy, it is a

drastic remedy that should only be invoked in “extraordinary situations.” State ex

rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994). This case

is not an extraordinary situation, Martinez had an adequate remedy, and the Fourth

Court of Appeals abused its discretion in finding otherwise.

      After the trial court refused to issue the writ, trial counsel requested a

continuance for time to file in another court. (R.R. at 7). Trial counsel also

asserted he was not ready for trial even though there had been three previous court

settings. (R.R. at 11). In response to the motion for continuance, the trial court

reset the case for two weeks. (R.R. at 20). In addition to the three previous settings

and the two week continuance, the record shows the trial court had given trial

counsel previous notification on the Friday prior to the trial setting that the court

did not intend to hear the writ and that trial counsel knew he could present the writ

application to another court. (R.R. at 13-14). The record clearly shows Martinez

had an adequate remedy, but she simply chose not to pursue it, instead she filed a

writ of mandamus with the Fourth Court of Appeals.         (appendix ?) The Fourth

Court, without explanation, found that Martinez did not have an adequate remedy

because the case was set for trial. But the court did not take into account or even

mention in its opinion the two-week reset the trial court granted, the prior notice

given to trial counsel, or the fact that Martinez created her own time frame. In re
Martinez, No. 04-15-00348-CR at *6.                      The court’s reasoning is counterintuitive

that the two week continuance is not adequate when Martinez presented and

expected the trial court to hear her application on the day of trial. If one day is

adequate for one court, then two weeks is more than adequate for Martinez to

present her application to another court. The Respondent’s finding that she had an

inadequate remedy because the case was set for trial allows Martinez to benefit

from her own delay. Furthermore, Martinez created her own time frame by filing

her writ application on the day of trial.

        There could be times when a writ of mandamus would be the proper remedy

after a trial court refused to issue a writ, but those cases should contain

extraordinary facts which would make the remedy of presenting the writ to another

trial court inadequate. For example, in Ex parte Rodriguez, the concurring opinion

noted that even though the Court denied the applicant’s writ application, the

applicant potentially had an appropriate writ of mandamus because the applicant

had presented his writ of habeas corpus to every district judge in Williamson

County and at least four judges in adjacent counties, with each judge refusing to

issue the writ and rule on the merits. Ex parte Rodriguez, 980 S.W.2d 475 (Tex.

Crim. App. 1998) (Bair, J., concurring).1                          Unfortunately, the language of

Villanueva and Ex parte Hargett give the impression that the writ of mandamus is
1
  According the State’s research, Rodriguez did not follow the suggestion of Justice Baird and file a writ of
mandamus, so there is no resolution on whether the trial courts should have issued Rodriguez’s writ and addressed
the merits of his request to withdraw his guilty plea.
an equally appropriate remedy to filing the writ application with another judge.

Villanueva, 252 S.W.3d at 394; Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.

Crim. App. 1991). However, a closer look at the case upon which Hargett relies

shows extraordinary facts and the decision is based on a statute that no longer

exists. See Von Kolb v. Koehler, 609 S.W.2d 654 (Tex. App.—El Paso 1980).

The El Paso court noted the trial judge refused to take any action on the writ

application, and found that under Article 1824 the Court of Civil Appeals had the

power to mandamus a district court to proceed to trial and judgment. Id. at 654

(emphasis added). Von Kolb hardly creates a general rule that a writ of mandamus

is an equal or preferable remedy when a trial court refuses to issue a writ. The

remedy for a court’s failure to consider a writ of habeas corpus is simply to file the

writ with another court, which is supported by the well settled rule of law that no

appeal lies from a trial court refusing to issue a writ. See Ex parte Okere, 56

S.W.3d 846, 849 (Tex. App.—Fort Worth 2001).

      Two Waco Court of Appeals’ cases illustrate when a mandamus is not

appropriate and when it might be the only adequate remedy. In one case, the court

found that a writ of mandamus was not proper after the trial court refused to issue

the writ because the remedy was to file a petition for writ of habeas corpus in the

Texas Court of Criminal Appeal, in any Texas district court, on in any Texas

county court. In re Piper, 105 S.W.3d 107, 110 (Tex. App.—Waco 2003). In
comparison, the court found mandamus was a proper remedy, but their reasoning

was based on the special circumstances of the case because the applicant was

trying to open his state court juvenile records in order to correct his federal

sentences, and the only court that could provide the documents he needed was the

court of his juvenile adjudication. In re Altschul, 236 S.W.3d 453, 456 (Tex.

App.—Waco 2007). The record in the instant case shows no extraordinary facts

that necessitate a writ of mandamus and Martinez should have filed her application

in another trial court.

       Martinez had two weeks to present her application to another court, but she

chose to file a mandamus on the day the court refused to issue the writ.

Respondent then abused its discretion in finding the mandamus as the appropriate

remedy, instead of presenting the application to another court. This Court should

find that presenting a writ application to another trial court is the proper remedy if

a trial court refuses to issue a writ.
                                    PRAYER
       WHEREFORE, PREMISES CONSIDERED, Relator respectfully request

that this Honorable Court grant this Writ of Mandamus directing the Respondent to

vacate its order or, in the alternative, to order enforcement of the order be stayed

until this issue can be resolved and for such other and further relief to which they

are justly entitled.

                                      Respectfully submitted,

                                      NICHOLAS “NICO” LAHOOD

                                      Criminal District Attorney
                                      Bexar County, Texas

                                      /s/ Lauren Scott

                                      LAUREN A. SCOTT
                                      Assistant Criminal District Attorney
                                      Bexar County, Texas
                                      Paul Elizondo Tower
                                      101 W. Nueva, 7th Floor
                                      San Antonio, Texas 78205-3030
                                      Telephone No. (210) 335-2885
                                      State Bar No. 24066843

                                      Attorneys for the State
  CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3(j)

 This certifies that the undersigned has reviewed this Petition and concluded that

every factual statement in it is supported by competent evidence included in the

appendix or record, as required by Appellate Rule 52.3(j).

                                      /s/ Lauren A. Scott

                                      ________________________

                                      Lauren A. Scott
                                      Assistant Criminal District Attorney
                                      Bexar County Texas
                                      Texas State Bar No. 24066843


   CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)

I certify that this document is approximately 2600 words.

                                      /s/ Lauren A. Scott
                                      _________________________

                                      Lauren A. Scott
                                      Assistant Criminal District Attorney
                                      Bexar County Texas
                                      Texas State Bar No. 24066843
                         CERTIFICATE OF SERVICE



       I, Lauren A. Scott, Assistant Criminal District Attorney for Bexar County,
Texas, certify that a copy of the foregoing document is being electronically mailed
to the following parties:

Respondent/Court of Appeals Justices
     Hon. Chief Justice Cathy Stone
     Hon. Justice Marilyn Bernard
     Hon. Justice Rebecca Martinez
     Fourth Court of Appeals


Real Party in Interest

      Sylvia Martinez
      Represented by:
      Chad P. Van Brunt
      State Bar No. 24070784
      Angela Moore
      State Bar No. 14320110
      310 S. St. Mary’s Street, Suite 1830
      San Antonio, Texas 78205

Trial Court Judge
      The Honorable Steve Hilbig
      187th Judicial District Court, Bexar County, Texas

                                      /s/
                                      ________________________________
                                      Lauren A. Scott

DATE:       October 9, 2015
