                                Fourth Court of Appeals
                                                                                             RECEIVED
                                                                                      COURT OF CRIMINAL APPEALS
                                                                                            10/12/2015
                                        San Antonio, Texas                              ABEL ACOSTA, CLERK


                                   MEMORANDUM OPINION
                                            No. 04-15-00348-CR

                                        IN RE Sylvia MARTINEZ

                                     Original Mandamus Proceeding 1

Opinion by:       Jason Pulliam, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: August 26, 2015

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART AND
DENIED IN PART

           On June 8, 2015, relator Sylvia Martinez filed a petition for writ of mandamus and an

emergency motion to stay proceedings in the underlying criminal cause. Martinez complained of

the trial court’s (1) denial of her request to issue a writ of habeas corpus, and (2) refusal to entertain

the merits of her habeas application. We granted a stay of the jury trial set to proceed in the criminal

cause, and requested a response to the petition for writ of mandamus. Having reviewed the petition,

record and response filed on behalf of the respondent judge, we conclude that Martinez is entitled

to mandamus relief because the trial court refused to rule on the habeas application. Accordingly,

we grant the petition for writ of mandamus in part and deny it in part.




1
 This proceeding arises out of Cause No. 2014CR1384, styled The State of Texas v. Sylvia Martinez, pending in the
187th Judicial District Court, Bexar County, Texas, the Honorable Steve Hilbig presiding.
                                                                                                    04-15-00348-CR


                                                 BACKGROUND

           Martinez was indicted by a Bexar County grand jury on February 26, 2014, and charged

with the state jail felony offense of prostitution. 1 See TEX. PENAL CODE ANN. § 43.02(c)(2) (West

Supp. 2014) (misdemeanor offense becomes state jail felony if accused has three or more prior

convictions for the same offense). After two re-sets, jury selection was scheduled to begin on June

8, 2015. On June 5, Martinez filed a pre-trial petition for writ of habeas corpus seeking protection

from double jeopardy. Martinez alleged that she plead no contest to the Class C misdemeanor

offense of loitering for prostitution in San Antonio Municipal Court on May 23, 2014, in Cause

No. B1523240-01. See SAN ANTONIO, TEX., CODE                     OF   ORDINANCES, ch. 21, art. I, § 21-25(c)

(1998). Martinez contended that the prosecution in state court for a similar offense arising out of

the same criminal transaction was barred by her prior conviction in municipal court as a violation

of her constitutional right to be free from double jeopardy. See U.S. CONST. amend. V, XIV; TEX.

CONST. art. I, §§ 10, 13, 14.

           Before trial began on June 8, and with the veniremen waiting outside the courtroom,

respondent denied the issuance of the writ, signing a hand-written order stating only, “Request for

issuance of writ denied.” Respondent refused to rule on or consider the merits of Martinez’s

application for habeas, advising counsel, “we’re going to go forward with the trial.” After defense

counsel presented a handwritten motion for continuance, the trial court heard argument of counsel,

and granted a two-week continuance of the trial setting. The record does not reflect that Martinez

presented her habeas application to any other court. Instead, Martinez immediately filed this

petition for writ of mandamus and requested a stay of the trial pending determination of the




1
    We note that Martinez was not arrested until March 2015, at which time she was assigned appointed trial counsel.

                                                          -2-
                                                                                       04-15-00348-CR


mandamus. This court granted a stay of the trial and requested a response, which was filed on June

29, 2015.

                                            ANALYSIS

       Mandamus is an extraordinary remedy available in criminal cases only when the relator

can demonstrate, “a clear right to the relief sought.” Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex.

Crim. App. 1995) (orig. proceeding). A relator must demonstrate that the act sought to be

compelled is purely ministerial and that relator has no other adequate legal remedy. State ex rel.

Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003) (orig. proceeding). Generally, the

absence of a right of appeal satisfies the mandamus requirement that relator has no adequate legal

remedy. Id. at 203. This court has authority to issue mandamus to direct a trial court to proceed to

judgment in a habeas corpus proceeding, though we may not direct the trial court to enter a

particular judgment on the application. Crofts v. Court of Civil Appeals for Eighth Supreme

Judicial Dist., 362 S.W.2d 101, 105 (Tex. 1962) (orig. proceeding); Von Kolb v. Koehler, 609

S.W.2d 654, 655-56 (Tex. Civ. App.—El Paso 1980, orig. proceeding).

       A writ of habeas corpus is the proper procedural mechanism for a person charged with a

felony to challenge the restraint of her liberty on the basis of double jeopardy. See Ex parte Denton,

399 S.W.3d 540, 545 (Tex. Crim. App. 2013) (orig. proceeding); Ex parte Robinson, 641 S.W.2d

552, 553-54 (Tex. Crim. App. 1982).

       Martinez contends the trial court has a ministerial duty to both issue the writ and to consider

the merits of her habeas application before she is put to trial on the pending felony charge. Because

no appeal is available from either the refusal to issue a writ or the failure to take action on the

merits of her habeas application, Martinez contends mandamus is her only available remedy.

       Respondent argues that Martinez is not entitled to mandamus relief because the decision to

issue a writ and grant a hearing on a pre-trial application for writ of habeas corpus is within the
                                                 -3-
                                                                                       04-15-00348-CR


court’s discretion, citing this court’s opinion in Ex parte Carter, 849 S.W.2d 410 (Tex. App.—San

Antonio 1993, pet. ref’d). Further, Respondent contends the ability to present her habeas

application to another district judge having jurisdiction provides Martinez with an adequate legal

remedy precluding mandamus relief. See In re Altschul, 236 S.W.3d 453, 456 (Tex. App.—Waco

2007, orig. proceeding); In re Piper, 105 S.W.3d 107, 110 (Tex. App.—Waco 2003, orig.

proceeding).

        Respondent relies in part on Ex parte Carter in asserting that Martinez is not entitled to

mandamus relief. Carter, 849 S.W.2d at 412 (trial court has no duty to grant hearing on habeas

application). In Carter, this court dismissed Carter’s attempted appeal “from an order denying an

application for a pre-trial writ of habeas corpus in which the appellant claimed violations of the

double jeopardy provisions of the federal and state constitutions.” Id. at 411. The trial court denied

Carter’s request to issue the writ of habeas corpus. Id. at 412. Carter appealed only from the trial

court’s refusal to issue the writ, not from an order denying habeas relief based on the merits of the

habeas application. Id. Because the trial court had only denied Carter’s request to issue a writ and

never reached the merits of the application, there was no appealable order. Id. at 413. This court

concluded that it lacked jurisdiction over Carter’s attempted appeal because no appeal is available

from the refusal to issue the writ. Id.

        Ex parte Carter highlights the distinction between the decision to issue the writ and the

decision to grant or deny habeas relief. Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App.

1991). Where an application for habeas relief is presented, the judge must decide whether to issue

the writ and whether to grant or deny habeas relief. See Nichols v. State, 255 S.W.2d 522, 526

(Tex. Crim. App. 1952). No appeal is available from the court’s decision not to issue the writ. Ex

parte Villanueva, 252 S.W.3d 391, 395 (Tex. Crim. App. 2008); Hargett, 819 S.W.2d at 868;

Carter, 849 S.W.2d at 412. There is also no appeal available where the judge refuses to take any
                                                 -4-
                                                                                       04-15-00348-CR


action on the application. Nichols, 255 S.W.2d at 526. However, where the judge denies habeas

relief, either with or without issuing the writ, the applicant has the right to appeal. Greenwell v.

Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 650 (Tex. Crim. App. 2005)

(orig. proceeding); Hargett, 819 S.W.2d at 868; Nichols, 255 S.W.2d at 526; Carter, 849 S.W.2d

at 413; Williams v. Harmon, 788 S.W.2d 192, 193 (Tex. App.—Houston [1st Dist.] 1990, orig.

proceeding). Sometimes, it is difficult to determine whether the judge has granted the writ and

denied habeas relief, or merely refused to issue the writ. Nichols, 255 S.W.2d at 526. It is clear

from the record in this case that the judge not only denied issuance of the writ, but also refused to

rule on or consider the merits of Martinez’s application. When a trial court declines to rule on or

consider the application for habeas relief itself, the Court of Criminal Appeals has suggested two

possible remedies: present the application to another judge with jurisdiction; or seek mandamus

relief. Villanueva, 252 S.W.2d at 394 (citing Hargett, 819 S.W.2d at 868).

       The primary issue we must decide in this proceeding is not whether the trial court has a

ministerial duty to issue the writ, but whether the judge had a ministerial duty to provide a ruling

on the habeas application itself before requiring the parties to proceed to trial. If there is such a

duty, we must also determine whether Martinez had an adequate remedy other than mandamus for

the trial court’s failure to do so. We recognize that Martinez did not file her application for habeas

relief until trial was imminent. The record reflects that on June 8 with Martinez present in open

court, the judge denied issuance of the writ, stated that he would not conduct a hearing on the

application, and that the case would proceed to trial immediately.

       Generally, a party is entitled to a ruling on motions within a reasonable time, giving

consideration to the type of proceeding involved. See In re Shaw, 175 S.W.3d 901, 905 (Tex.

App.—Texarkana 2005, orig. proceeding); In re Greenwell, 160 S.W.3d 286, 288 (Tex. App.—

Texarkana 2005, orig. proceeding) (party entitled to ruling on pretrial motion rather than being
                                                 -5-
                                                                                       04-15-00348-CR


required to wait until trial). The protection from double jeopardy encompasses both protection

against multiple punishments and protection from multiple trials for the same offense. See Ex parte

Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015) (double jeopardy protects against multiple

punishments); Robinson, 641 S.W.2d at 554 (Double Jeopardy Clause protects against double

punishments and “against being twice put to trial for the same offense.”) (quoting Price v. George,

398 U.S. 323, 326 (1970)). We conclude that where the habeas application is based on a double

jeopardy claim, the applicant is entitled to a ruling on the application before proceeding to trial.

       As to the adequacy of the possible remedy of presenting her application to another judge,

we conclude that in this instance, it was not adequate because trial was to begin immediately. See

Altschul, 236 S.W.3d at 456 (technically available remedy of presenting application to another

court will not defeat entitlement to mandamus relief when remedy is so uncertain, inappropriate

or ineffective as to be deemed inadequate); see also Hargett, 819 S.W.2d at 868 (under proper

circumstances, applicant may pursue mandamus when trial court refuses to consider habeas

application). We note again that we cannot direct the trial court to enter a particular judgment on

the application, only that Martinez is entitled to a ruling on the habeas application. Crofts, 362

S.W.2d at 105; Shaw, 175 S.W.3d at 904.

       Respondent also contends that Martinez’s application is deficient on its face. We do not

address the sufficiency of the application in this opinion. While such deficiencies may provide the

court with a basis for refusing to issue the writ or for denying the application, we conclude they

do not relieve the court of its obligation to rule upon the application prior to trial. See TEX. CODE

CRIM. PROC. ANN. art. 11.15 (West 2015) (writ shall be granted without delay unless it is manifest

from the petition “that the party is entitled to no relief whatever.”); see, e.g., Ex parte Crawford,

506 S.W.2d 920, 922 (Tex. App.—Tyler 1974, orig. proceeding) (denying application for habeas

based on deficiencies); see also Ex parte Martell, 901 S.W.2d 754, 757 (Tex. App.—San Antonio
                                                 -6-
                                                                                       04-15-00348-CR


1995, no pet.) (dismissing appeal for lack of jurisdiction after concluding trial court’s denial of

habeas petition as frivolous did not constitute a ruling on the merits of appellant’s claims).

                                          CONCLUSION

        Martinez is entitled to a ruling on her application for habeas relief before being put to trial

on the currently pending state jail felony charge of prostitution. The trial court’s failure to provide

a ruling on the application and insistence on proceeding immediately to trial violated Martinez’s

protection from double jeopardy. The possibility of presenting her application to another judge

was not a viable alternative given the circumstances. Consequently, although that may in some

situations present an adequate legal remedy preventing mandamus relief, it does not in this

instance. Accordingly, we conditionally grant mandamus relief in part. The trial court is directed

to provide a ruling on Martinez’s application for habeas relief, or allow an adequate time for her

to obtain a ruling from another district judge, prior to proceeding to trial on the pending charge.

We are confident the trial court will do as directed. The writ will issue only if we are advised the

trial court has failed to do so.


                                                   Jason Pulliam, Justice

DO NOT PUBLISH




                                                 -7-
                                Fourth Court of Appeals
                                        San Antonio, Texas
                                              August 26, 2015

                                            No. 04-15-00348-CR

                                        IN RE Sylvia MARTINEZ

                                     Original Mandamus Proceeding 1

                                                   ORDER

         On June 8, 2015, relator Sylvia Martinez filed a petition for writ of mandamus complaining
of the trial court’s denial of her request for issuance of a writ of habeas corpus and failure to
consider the merits of her habeas application. This court requested a response to the petition for
writ of mandamus on June 17, 2015. A response was filed on behalf of the respondent on June 29,
2015. The court has considered relator’s petition and the response and has determined that relator
is entitled to only a part of the relief requested. Accordingly, the petition for writ of mandamus is
CONDITIONALLY GRANTED IN PART. TEX. R. APP. P. 52.8(c).

        The Honorable Steven Hilbig is ORDERED to provide a ruling on Martinez’s application
for writ of habeas corpus, or allow an adequate time for her to obtain a ruling from another district
judge, before proceeding to trial in the underlying criminal proceeding. The writ will issue only if
we are notified that Judge Hilbig has not done as directed within fourteen days from the date of
this order.

        With the petition for writ of mandamus filed in this court, relator also filed a motion for
leave to file the petition for writ of mandamus. No leave is required to file a petition for writ of
mandamus in this court. TEX. R. APP. P. 52. Therefore, relator’s motion for leave to file is DENIED
AS MOOT. The temporary stay of trial previously granted by this court is LIFTED with trial to
proceed in accordance with this court’s opinion.

        It is so ORDERED on August 26, 2015.



                                                                     _____________________________
                                                                     Jason Pulliam, Justice


1
 This proceeding arises out of Cause No. 2014CR1384, styled The State of Texas v. Sylvia Martinez, pending in the
187th Judicial District Court, Bexar County, Texas, the Honorable Steve Hilbig presiding.
                                                                          04-15-00348-CR


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 26th day of August, 2015.


                                                     _____________________________
                                                     Keith E. Hottle, Clerk




                                         -2-
                                                                   1



 1                          REPORTER'S RECORD

 2                  TRIAL COURT CAUSE NO. 2014-CR-1384

 3           COURT OF APPEALS CAUSE NO. 04-15-00348-CR

 4

 5   THE STATE OF TEXAS            *     IN THE DISTRICT COURT

 6

 7   VS         .                  *     187TH JUDICIAL DISTRICT

 8

 9   SYLVIA G. MARTINEZ            *     BEXAR COUNTY, TEXAS

10                               -----

11           PRETRIAL WRIT OF HABEAS CORPUS SEEKING

12                    RELIEF FROM DOUBLE JEOPARDY

13                               -----

14

15                     On the 8th day of June, 2015, the

16   following proceedings came on to be heard in the

17   above-mentioned and numbered cause before the Honorable

18   Steven C. Hilbig, Judge Presiding, held in San Antonio,

19   Bexar County, Texas:

20

21                     Proceedings reported by computerized

22   stenotype machine; Reporter's Record produced by

23   computer-assisted transcription.

24

25




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                          2



 1   APPEARANCES:

 2

 3              HON. STEPHANIE LEWIS, ESQUIRE

 4              SBN:   24086675

 5              HON. ALFRED RAMIREZ, ESQUIRE

 6              SBN:   24081885

 7              Assistant District Attorneys

 8              Paul Elizondo Tower

 9              San Antonio, Texas    78205

10                        APPEARING FOR THE STATE

11

12

13

14

15              HON. CHAD P. VAN BRUNT, ESQUIRE

16              SBN: 24070784

17              Attorney-at-Law

18              310 South St. Mary's Street

19              San Antonio, Texas    78205

20                        APPEARING FOR THE DEFENDANT

21

22

23

24
25




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                      3



 1                        P-R-O-C-E-E-D-I-N-G-S

 2

 3              WHEREUPON, the following proceedings were held

 4   in Open Court, with the Defendant appearing in person and

 5   being represented by counsel, and the State being

 6   represented by its Assistant District Attorneys.       The

 7   following proceedings were held before the Court, to-wit:

 8

 9                  THE COURT:   In the matter of 2014-CR-1384,

10   styled, Ex Parte: Sylvia Martinez.

11                  MR. VAN BRUNT:    Yes, Your Honor?

12                  THE COURT:   I wanted to let you know I

13   read over your request for writ of habeas corpus.       I'm

14   going to deny the issuance of the writ.

15                  MR. VAN BRUNT:    Okay.

16                  THE COURT:   Okay?

17                  MR. VAN BRUNT:    I would like to direct the

18   Court's attention to, I guess, 11.08, I believe, of the

19   Code of Criminal Procedure that says the issuance of the

20   writ -- the writ operates the issues, as a matter of law,

21   that it operates automatically to an issuance.       And I can

22   provide you -- just provide that statutory language.

23                  THE COURT:   Okay.    That's fine, but it's

24   not applicable in this situation.

25                  MR. VAN BRUNT:    Okay.




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                      4



 1                    THE COURT:   Okay?   That's dealing with

 2   bond issues, bail issues regarding writ.         And this is a

 3   different type of writ, if you will, according to my

 4   research.   And so --

 5                    MS. LEWIS:   And according to the Judge's

 6   research, I'm sure Your Honor found Ex Parte: Benson, the

 7   Court of Criminal Appeals case regarding DWI-3rd and

 8   intox-assault.    That case cite, just for the record,

 9   Judge, is 2015 Tex. Crim. App. Lexis 429.         So, I just

10   wanted to make a record of this.

11                    THE COURT:   You did.    Why?    None of it

12   matters.

13                    All right.   Anyway, I'm denying the

14   issuance of the writ --

15                    MR. VAN BRUNT:   I would just like to

16   object under the Code of Criminal Procedure, if you'll

17   give me one second to cite the proper Code, Your Honor,

18   just for preservation purposes.

19                    THE COURT:   Well, I'm aware of the issue

20   that you raised and I'm overruling your objection by

21   denying the writ.    Okay?

22                    MR. VAN BRUNT:   Okay.    So, it's not

23   issued?

24                    THE COURT:   No, sir.

25                    MR. VAN BRUNT:   Okay.




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                             5



 1                     THE COURT:     The writ did not issue because

 2   I'm denying the issuance of the writ.           Okay?

 3                     MS. LEWIS:     Thank you, Judge.

 4                     COURT REPORTER:        Judge, is the defendant

 5   present?

 6                     THE COURT:     I don't think she was.     Is the

 7   Defendant present, Sylvia?

 8                     MR. VAN BRUNT:        She's right there, Your

 9   Honor.

10                     THE COURT:     All right.     The defendant was

11   present in open Court.        Not at the bench, but in presence

12   in open court.

13                     Y'all step back.

14                     (Recess.)

15                     MS. LEWIS:     Judge, can we approach?

16                     THE COURT:     Do y'all want to approach?        Is

17   that what you're asking?

18                     MR. VAN BRUNT:        Yes, please, Your Honor.

19                     MS. LEWIS:     Yes.

20                     THE COURT:     Y'all may approach.

21                     MR. VAN BRUNT:        Thank you, Your Honor.

22                     This is in regard to our pretrial writ.

23   Your Honor.     I just want to put some authority in front

24   of you considering the issuance of the writ for your

25   review, considering how under the Code of Criminal




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                         6



 1   Procedure in 11.08 and Code of Criminal Procedure, 11.10

 2   provide that the issuance is a ministerial act.         I

 3   believe that your argument to me was that a double

 4   jeopardy issue is not cognizable and so could not be

 5   issued, so the issuance doesn't take place.

 6                     THE COURT:   No, that's not what I said.

 7                     MR. VAN BRUNT:   Okay.   I'm just trying to

 8   understand what the -- why we cannot get the issuance of

 9   the writ, Your Honor.

10                     THE COURT:   I don't have to explain it.

11                     MR. VAN BRUNT:   Okay.   Just for the

12   record, I'd like to cite to -- and we are on Cause Number

13   2014-CR --     I believe the writ was given the same number

14   as the case.

15                     THE COURT:   I'll tell you what.   Why don't

16   you go ahead and file those cases with the clerk and let

17   me go about my business here.

18                     MR. VAN BRUNT:   Absolutely, Your Honor.

19                     THE COURT:   How about that?

20                     MR. VAN BRUNT:   That sounds great.       Thank

21   you, Your Honor.

22                     MS. LEWIS:   Thank you, Your Honor.

23                     (Recess.)

24                     THE COURT:   Where are we at on our two

25   remaining cases?     Mr. Kagan's case and Mr. Van Brunt,




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                       7



 1   your case?

 2                     MR. VAN BRUNT:    Your Honor, we were still

 3   insisting upon having our pretrial writ heard.          Did you

 4   get the authorities I provided you concerning

 5   cognizability?

 6                     THE COURT:    No, I haven't had a chance to

 7   look at those, but I'll give you a chance to look at

 8   those.

 9                     (Proffered to counsel.)

10                     MR. VAN BRUNT:    Thank you, Your Honor.

11   I'll take a look at this.

12                     THE COURT:    Yeah.   And we're not going to

13   have a hearing on your writ, so we're going to go forward

14   with the trial.     And if you want me to put you number

15   one, I'll be happy to.       We've got somebody else thinking

16   right now.

17                     (Pause.)

18                     THE COURT:    It looks like your case may be

19   going.

20                     MR. VAN BRUNT:    Your Honor, at the time I

21   would move for a continuance to give me time to file my

22   writ in another Court.       Your Honor, I believe this case

23   is jeopardy barred, and I cannot proceed and I cannot

24   waive that issue.

25                     THE COURT:    You're not going to waive it




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                    8



 1   by proceeding to trial.

 2                  MR. VAN BRUNT:      Well, I believe that if

 3   it's jeopardy barred, the trial itself and the

 4   proceedings themselves are what we are attacking, the

 5   fact of the proceedings and the harm of presenting the

 6   trial itself, more or less the jurisdictional issues,

 7   will be weighed.   And if we can show later that maybe on

 8   a relief that it's jeopardy barred, Your Honor, that is

 9   not an adequate remedy.

10                  THE COURT:   Well, again, we're not going

11   to delay this Court, we're not going to delay the

12   proceedings.   Somebody is ahead of you, but if they look

13   like they're resolving the case and I've got a jury out

14   there, then we're going to go forward on this case.

15                  MR. VAN BRUNT:      Well, I still move for my

16   continuance on that matter, Your Honor.

17                  THE COURT:   Feel free to do whatever you

18   need to do and I'll do whatever I need to do.

19                  MR. VAN BRUNT:      Thank you, Your Honor.

20                  THE COURT:   Yes.

21                  (Recess.)

22                  THE COURT:   We're on the record.     This is

23   Cause Number 2014-CR-1384, styled The State of Texas

24   versus Sylvia Martinez.

25                  Mr. Van Brunt, the Court's not happy.




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                       9



 1                     MR. VAN BRUNT:    I understand, Your Honor.

 2   I apologize.

 3                     THE COURT:   Well, I mean, look, we can

 4   disagree on the law and everything, but I can't have you

 5   boycott the Court.      We've had a jury out there now for a

 6   couple of hours and that's the problem the Court has.

 7                     MR. VAN BRUNT:    I understand the problem,

 8   Your Honor.     I am just trying to fight like I can -- best

 9   I can to prevent my client's right under the Constitution

10   to not to be put twice in jeopardy.       I don't believe we

11   are making a frivolous claim.       I think we have a strong

12   claim.

13                     Your Honor, at this time I will be

14   moving -- and if I can have a notarized document, I would

15   like to file a motion for continuance.

16                     THE COURT:   Okay.

17                     MR. VAN BRUNT:    We'll be currently -- if I

18   can just have a moment to swear to this, so I can

19   properly file it, Your Honor.       Just five seconds.     I'll

20   stay in the courtroom.

21                     THE COURT:   Why don't you do it at counsel

22   table, if you will.

23                     MR. VAN BRUNT:    Okay, thanks, Judge.

24                     (Pause.)

25                     MR. VAN BRUNT:    Your Honor, would you like




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                        10



 1   me to file stamp this first?

 2                     THE COURT:   Yes, if you intend for the

 3   Court to consider it.

 4                     MR. VAN BRUNT:    Absolutely.    And I'll be

 5   right back.

 6                     THE COURT:   No, sir.     You can do it right

 7   here.

 8                     (Pause.)

 9                     (Proffered to the Court.)

10                     THE COURT:   You want the Court to consider

11   this?

12                     MR. VAN BRUNT:    Yes, Your Honor.     At this

13   time --

14                     THE COURT:   Hang on.     I have in front of

15   me a motion for continuance.

16                     Sylvia Martinez present in the courtroom,

17   ma'am?    Would you please come forward.

18                     (Defendant comes forward.)

19                     THE COURT:   Thank you, ma'am.

20                     State, make your announcement, please.

21                     MS. LEWIS:   Stephanie Lewis for the State.

22                     THE COURT:   Thank you.

23                     MR. VAN BRUNT:    Chad Van Brunt for

24   Ms. Martinez.

25                     THE COURT:   Thank you.




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                       11



 1                     Ms. Martinez, your attorney has filed a

 2   motion for continuance alleging that he has filed the

 3   motion for -- filed a writ of habeas corpus -- that he

 4   has focused his defense strategy on litigating the writ.

 5   That he is not adequately prepared for trial, in essence.

 6   You say, not prepared and asks for a continuance to have

 7   the writ heard and to properly prepare a defense.           And

 8   the motion is not for the purpose of delay.        Have I

 9   correctly asserted --

10                     MR. VAN BRUNT:     That is the clip notes

11   version; yes, Your Honor.

12                     THE COURT:   Okay.    Not much different.

13   All right.     And, counsel -- let's see.     For the record

14   this is the third trial setting of this matter, I

15   believe.     Is that correct, sir?

16                     MR. VAN BRUNT:     Your Honor, I believe that

17   what we've had is -- yes, according to the docket

18   schedule we've had three settings.        This is the third

19   setting.     That is correct, Your Honor.     That is true.

20                     THE COURT:   And I think I had previously

21   made announcements in this Court that if it is the third

22   setting or more, that you're expected to be ready for

23   trial.     If not, with a written motion for continuance;

24   correct?

25                     MR. VAN BRUNT:     Yes, Your Honor.




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                    12



 1                   THE COURT:   And I think I was just keeping

 2   the policy set by my predecessor in this Court.        Were you

 3   aware of his policy, as well, or not?

 4                   MR. VAN BRUNT:    No, I was not aware of the

 5   policy, Your Honor.

 6                   THE COURT:   Of his policy?

 7                   MR. VAN BRUNT:    Of his policy, I was not

 8   aware of that, Your Honor.

 9                   THE COURT:   Okay.

10                   MR. VAN BRUNT:    I did -- I mean, there's

11   really not much to it.   We were focusing and expecting to

12   get this hearing, instead of the trial, and so --

13                   THE COURT:   Well, let's see.    I think you

14   presented the writ on Friday?

15                   MR. VAN BRUNT:    Yes, Your Honor.

16                   THE COURT:   And I believe on Friday we had

17   a short discussion at the bench that it was something

18   that I need not rule on, especially if I found that it

19   was getting close to the trial.      And I think that you

20   made some sort of an acknowledgement that that might be

21   the case.   Do you recall that or am I misremembering our

22   conversation?

23                   MR. VAN BRUNT:    I acknowledge your

24   position that you believed -- I think what you were

25   saying is, considering, like, generally like a 28.01




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                     13



 1   issue.    Is that what you were saying --

 2                     THE COURT:   I don't know what a 28.01 is.

 3                     MR. VAN BRUNT:    Okay.   The Code of

 4   Criminal Procedure about timely filing pretrial motions.

 5   This is a pretrial writ of habeas corpus that's

 6   collaterally attacking the case.       There is no deadline to

 7   that, Your Honor.      A lot of what, just to be frank, with

 8   the delay in the case was getting ahold and making sure

 9   that Ms. Martinez was already convicted of the prior

10   statutes in order to file the writ.

11                     THE COURT:   I understand.    But I guess

12   what I was saying is that I think I gave an indication to

13   you on Friday that we would not be hearing the writ.

14   Now, you may not have taken that as the final word, and I

15   understand that, but I think the Court gave you at least

16   an indication that we would probably not be hearing the

17   writ.    Is that a fair --

18                     MR. VAN BRUNT:    That is a fair -- you did

19   give me an indication that you were not intending to hear

20   the writ.     That is correct, Your Honor.     However, we do

21   have disagreements, and my disagreement concerning that

22   matter is under the works, as we speak.

23                     THE COURT:   I understand.    And of course

24   I've provided you a couple of cases today.        I think one

25   Ex Parte: Carter, out of the Fourth Court in '93, that as




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                         14



 1   far as my research shows is still current law.          And I did

 2   provide that case to you, and I think another, Williams

 3   versus someone.

 4                     MR. VAN BRUNT:     Yes, Your Honor.     And for

 5   the record, and I've read those cases.        They do talk

 6   about whether or not the appeal ability of issuance of

 7   the writ and that the alternative means may be to file

 8   the writ in another Court.

 9                     THE COURT:   I understand that.

10                     MR. VAN BRUNT:     We are working on all

11   fronts at this very second.        That is my situation, Your

12   Honor.    And in an abundance of caution and in trying to

13   uphold my client's Constitutional rights, as well as the

14   right -- just the Sixth Amendment right to ineffective

15   assistance of counsel, Your Honor, that I am asking for

16   this continuance.      I have focused very hard on this

17   issue.    I think we're right on the issue.      And I'm just

18   simply -- I've put my weekend focus towards getting ready

19   to try to find a way around this.        And I have not

20   sufficiently reviewed the record to my liking or even

21   gone out and had an investigator contact witnesses at

22   this point.

23                     THE COURT:   Well, okay.    Which gets to the

24   other issue, and that's where I was trying to go with

25   this, and that is that, generally speaking, if there were




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                   15



 1   matters regarding discovery or other issues, then a due

 2   diligence issue comes up when it comes time for a

 3   continuance.

 4                   MR. VAN BRUNT:    And I will admit, Your

 5   Honor, that I have -- that I extensively, due to the

 6   resulting situation, that the due diligence method would

 7   have been to have properly vetted these issues well prior

 8   to the State.   And I will agreed with the Court that I

 9   have made a mistake in that.     It doesn't change the fact

10   that I'm ill-prepared at this point.

11                   THE COURT:   Well, but, again, in terms of

12   the motion for continuance, if you had adequate time to

13   prepare and chose not to prepare, that's the issue that I

14   have to look at for the existing motion for continuance.

15   Because the problem I would have is any time someone

16   wanted a continuance, they would just come up and say,

17   "Well, Judge, I'm not ready.     Well, I didn't get ready."

18   And, therefore, the Court could never then try a case.

19   You understand that situation?

20                   MR. VAN BRUNT:    I understand.

21                   THE COURT:   And I'm not trying to be

22   difficult to you.   I am equally trying to enforce the

23   laws as I understand the law, and I understand that we

24   have disagreements and I can be wrong.     And a higher

25   Court has said many times that my opinions, that I have




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                    16



 1   been wrong at times, so I'm not trying to profess to

 2   being fallible, but the problem I have is that we've had

 3   a jury out there, ready to go, and I know of no

 4   sufficient reason at the present time to grant the motion

 5   for continuance.

 6                     MS. LEWIS:   Judge, if I may.    The State

 7   does not oppose Defense counsel's motion for continuance.

 8   And if I may suggest, Mr. Van Brunt -- if you're not

 9   inclined to grant the motion for a continuance, we could

10   just come back tomorrow to give Mr. Van Brunt at least a

11   night to go over some stuff and prepare a little bit

12   more.

13                     THE COURT:   Well, the only thing we're

14   going to do right now will be to pick the jury and it's

15   getting later and later in the day to do that, so in

16   terms of --

17                     MS. LEWIS:   And they're upset and stuff

18   like that, so --

19                     THE COURT:   I don't know if they're upset.

20   Counsel, do you have some reason to believe they're

21   upset?

22                     MS. LEWIS:   Just the dirty looks they're

23   giving me in the hallway when I walk by, Judge, for the

24   delay, but that's all.

25                     THE COURT:   So I take it that is a surmise




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                            17



 1   on your part?

 2                     MS. LEWIS:   Yes, absolutely, that's the

 3   only representation that I can make.

 4                     THE COURT:   But, again, the only thing

 5   that will change is two hours to work on your defense.

 6   And you say you haven't even done an investigation.              You

 7   haven't sent an investigator out.       Is there some

 8   investigation that you intended to do that you have not

 9   done in this time period?

10                     MR. VAN BRUNT:    Yes, Your Honor.      She's

11   been incarcerated since -- just for the record I believe

12   she's been incarcerated since March 17th.        The case was

13   an at-large case.

14                     THE COURT:   Well, this case has been --

15   this case was indicted on February 26th of 2014.           And do

16   I have the date of your appointment or do you know the

17   approximate date of your appointment?

18                     MR. VAN BRUNT:    Yes, I can get that for

19   the Court, Your Honor.      It was in March of this year.          We

20   were appointed on March 18th at 8:18 p.m.        And this case,

21   as I understand it, the date on the indictment reads

22   2014; however, the case was an at-large case.           It was

23   filed at-large on the client.       And it wasn't until she

24   was picked up collaterally that this case was set to the

25   Court.




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                         18



 1                     THE COURT:   I understand.     I'm just

 2   indicating the date of indictment shows that date and

 3   your date of appointment was March of this year?

 4                     MR. VAN BRUNT:    That's correct, Your

 5   Honor.

 6                     THE COURT:   And so, again, I'm trying to

 7   understand what had prevented you from engaging in an

 8   investigation of the facts of this case.         Because even if

 9   you were looking at double jeopardy issues, you still

10   would have been looking at some of those facts in order

11   to prove the double jeopardy; correct?         You would have to

12   prove the same offense and everything.

13                     MR. VAN BRUNT:    That is true.    There has

14   been review of the police reports in this matter.           There

15   was going to be -- I did have an anticipation to seek

16   audio recordings and there was some discovery given of a

17   video recording that turned out not to be the right one.

18   The issue did get settled this morning on the audio

19   recordings.     There were none.

20                     Another thing -- and I always have to do

21   and I like to do on these kinds of cases, is have

22   photographs taken out at the scene.

23                     Your Honor, I mean, simply put, in

24   managing my time on this case, I've focused on an issue

25   and not focused on other issues as the preparation for




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                      19



 1   the trial.     However, it is a matter of judicial -- not

 2   judicial, but efficiency with my time in this case, as I

 3   do juggle other cases and have been in other hearings and

 4   matters.     I just had oral argument last week in the 3rd

 5   Court of Appeals.      I have been prepping for numerous

 6   different matters and it has been a bit chaotic with the

 7   schedule.     I simply ask for a short continuance to

 8   prepare for this.      I think that a couple of days would be

 9   fine, even just to make sure I review.        I always come to

10   trial, generally speaking, with my voir dire PowerPoint

11   ready to go or at least written.       I don't have that

12   today.     There's numerous things that I need to

13   cross-reference as well and verify; about the location of

14   the arrest, about the statements made by the officers in

15   the case --

16                     THE COURT:   All right.    But, again, all of

17   that, we've had plenty of time to do all of that and

18   that's all I'm getting to, Mr. Van Brunt.        And I

19   appreciate your frankness with the Court, I do; but,

20   again, the Court is of the opinion that all of those

21   matters could have been addressed previous to this time.

22   You kind of made a choice to put all your eggs in one

23   basket over the weekend, you've told me -- when I

24   indicated that that basket may not be there, even though

25   I had not made a final ruling.       So, again, it comes down




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                           20



 1   to those sorts of judgment issues.

 2                     MR. VAN BRUNT:    Yes, Your Honor.     I

 3   appreciate that.     Just simply for the weekend purposes,

 4   Your Honor, I had to be out of town dealing with a real

 5   estate matter that's kind of carrying itself pretty

 6   heavily.   I know that's not a proper excuse, Your Honor,

 7   but it was a very important matter for my family.

 8                     (Discussion off-the-record.)

 9                     THE COURT:   Against my better judgment, I

10   will give you two weeks.       This case is back on the trial

11   docket two weeks from today.       The docket call will be the

12   Friday before.     And Mr. Van Brunt, I suggest to you that

13   the Court will not show you any additional leniency on

14   the same issues that you have raised here.

15                     MR. VAN BRUNT:    Thank you, Your Honor.        I

16   appreciate that.

17                     THE COURT:   Ms. Martinez.

18                     THE DEFENDANT:    Yes, sir.

19                     THE COURT:   We've been talking around you.

20   Do you have any objection if I grant your attorney's

21   request that I put this case off for two weeks?          Do you

22   object to that?     Do you want to go to trial today?        I

23   know I asked you two different questions.        Do you want to

24   go to trial today?

25                     You're shaking your head "no."       Can you




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                       21



 1   say yes or no?

 2                     THE DEFENDANT:    No.   I'm sorry.    No.

 3                     THE COURT:   And do you have any objection

 4   that I reset this matter for two weeks?

 5                     THE DEFENDANT:    No, sir.

 6                     THE COURT:   All right.      That will be the

 7   order of the Court.      I'll reset this matter for January

 8   -- I mean, June 19th docket call.         Trial to begin on June

 9   22nd.

10                     MR. VAN BRUNT:    Thank you very much, Your

11   Honor.

12                     THE COURT:   Y'all may be excused.

13                     (Jury dismissed.)

14                     (Court Adjourned.)

15                     *-*-*-*-*-*-*-
16

17

18

19

20

21

22

23

24

25




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                22



 1   STATE OF TEXAS)

 2   COUNTY OF BEXAR)

 3

 4          I, BETTINA WILLIAMS, Official Court Reporter in and

 5   for the 187th District Court, Bexar County, State of

 6   Texas, do hereby certify that the foregoing contains a

 7   true and correct transcription of all portions of

 8   evidence and other proceedings requested in writing by

 9   counsel for the parties to be included in this volume of

10   the Reporter's Record, in the above-entitled and numbered

11   cause, all of which occurred in open court or in chambers

12   and were reported by me.

13          I further certify that this Reporter's Record of

14   the proceedings truly and correctly reflects the

15   exhibits, if any, admitted by the respective parties.

16          I further certify that the total cost for the
     preparation of this Reporter's Record is $___________ and
17   will be paid by Bexar County.

18
           WITNESS MY OFFICIAL HAND, this ________ day of
19   June, A.D., 2015.

20

21    /s/Bettina J. Williams
      BETTINA J. WILLIAMS, Texas CSR #2003
22    EXPIRATION DATE: 12-31-16
      Official Court Reporter, 187th District Court
23    Bexar County, Texas
      300 Dolorosa, Suite 2129
24    San Antonio, Texas 78205
      (210) 335-2517
25




           BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
           187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                    23



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     BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
     187TH JUDICIAL DISTRICT COURT (210-335-2517)
                         CLERK’S RECORD
                            VOLUME _1__ OF _1__

                     TRIAL COURT CAUSE NO. 2014CR1384

                     IN THE _187TH___ DISTRICT COURT

                        OF BEXAR COUNTY, TEXAS,

                   HONORABLE STEVEN HILBIG PRESIDING




                            SYLVIA G MARTINEZ
                                    VS
                              STATE OF TEXAS




DELIVERED TO THE COURT OF APPEALS FOR THE 4TH DISTRICT OF TEXAS,
SAN ANTONIO, TEXAS ON Monday, June 29, 2015.


ATTORNEY FOR APPELLANT:

CHAD VAN BRUNT
310 S ST. MARYS ST
1840
SAN ANTONIO, TX 78205
PHONE: 210/399-8669 FAX: 210/568-4927

DONNA KAY MCKINNEY
DISTRICT CLERK
BEXAR COUNTY



BY:   /s/   Jamie L. Osio
    Jamie L. Osio
    APPEALS CLERK




1
                                                        NO. 2014CR1384



SYLVIA G MARTINEZ
DEFENDANT                                                                                   IN THE DISTRICT COURT

VS.                                                                                       187TH JUDICIAL DISTRICT

THE STATE OF TEXAS                                                                          BEXAR COUNTY, TEXAS



                                                      INDEX
CLERK’S RECORD COVER SHEET.......................................................................... 1

INDEX............................................................................................................................... 2

TRUE BILL OF INDICTMENT ................................................................................. 3-4
FILE STAMPED ON 02-26-2014 PG 3*******

DEFENDANT’S TIMELY REQUEST FOR DISCOVERY, NOTICE,
AND INVESTIGATION OF BRADY MATERIAL ............................................... 5-25
FILE STAMPED ON 03-20-2015 PG 5*******

MOTION TO QUASH INDICTMENT .................................................................. 26-29
FILE STAMPED ON 04-06-2015 PG 26*******

MOTION TO QUASH AND SEVER ..................................................................... 30-33
FILE STAMPED ON 04-06-2015 PG 30*******

PRETRIAL WRIT OF HABEAS CORPUS SEEKING RELIEF FROM
DOUBLE JEOPARDY ............................................................................................. 34-43
FILE STAMPED ON 06-05-2015 PG 34*******

MOTION FOR CONTINUANCE ........................................................................... 44-47
SIGNED ON 06-19-2015 PG 47*******

RESPONSE TO PETITION FOR WRIT OF MANDAMUS ............................... 48-60
FILE STAMPED ON 06-26-2015 PG 48*******

CRIMINAL DOCKET SHEET .................................................................................... 61

CERTIFICATE .............................................................................................................. 62



2
                                     I
                                    I
Defendant: SYLVIA G MARTINEZ
JN #:      1613644-1
CLERK'S ORIGINAL                                                                                 FILED
Address: 219 ORIENTAL AVE, SAN ANTONIO, TX 78204-2065                                            O'CLOCK         M
                                                                                    ,___,.FE""'B.--2& 2o1-;r-
Complainant: R. Lopez
                                                                                         DONNA KAY MQKINNEY
                                                                                            DISTRICT CLERK
CoDefendants:                                                                            BEXAR COUN];Y TEXAS
                                                                              t,-L1'                 (!,      "
Offense Code/Charge: 400408- PROSTITUTION- 3 OR MORE PRIORS"'                    r I r/ttiAJ flJLe ~;d:7:'11.1 i(\..i
                                                                                             1

                                                                                                       DEPUTY
GJ: 586587                     PH Court:
Court#:     )~                                 SID #:216016           Cause#:
Witness: State's Attorney                                                       .2014 CRI384
                                            TRUE BILL OF INDICTMENT

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS, the Grand Jury of Bexar County, State of
Texas, duly organized, em panelled and sworn as such at the January term, A.D., 2014, of the               ~<=t<i

Judicial District Court of said County, in said Court, at said term, do present in and to said Court that in the
County and State aforesaid, and anterior to the presentment of this indictment:


 on or about the 13th Day of December, 2013, SYLVIA G MARTINEZ, hereinafter called defendant, did
knowingly OFFER TO ENGAGE in sexual conduct, namely: DEVIATE SEXUAL INTERCOURSE with R. Lopez,
in return for a fee;

and that prior to the commission of the aforesaid offense, the said defendant, SYLVIA G MARTINEZ, had been
previously convicted of the offense of PROSTITUTION - 3 OR MORE PRIORS (HABITUAL), on or about the
24TH day of FEBRUARY, 2003, in the 399th District Court, of Bexar County, Texas, in Cause No. 2002CR8251;

and that prior to the commission of the aforesaid offense, the said defendant, SYLVIA G MARTINEZ, had been
previously convicted of the offense of PROSTITUTION - 3 OR MORE PRIORS (HABITUAL), on or about the
30TH day of JUNE, 2006, in the 399th District Court, of Bexar County, Texas, in Cause No. 2006CR0231;

and that prior to the commission of the aforesaid offense, the said defendant, SYLVIA G MARTINEZ, had been
previously convicted of the offense of PROSTITUTION - 3 OR MORE PRIORS (HABITUAL), on or about the
30TH day of JUNE, 2006, in the 399th District Court, of Bexar County, Texas, in Cause No. 2006CR0232;

                                         ENHANCEMENT ALLEGATION

And it is further presented in and to said Court, that before the commission of the offense alleged above,
hereafter styled the primary offense, on the 14TH of AUGUST, A.D., 1989, in Cause No. 89CR2594, in Bexar
County, Texas, the defendant was convicted of the felony of POSSESSION OF HEROIN UNDER 28 GRAMS
(REPEAT FELONY OFFENDER);

Before the commission of the primary offense, and after the conviction in Cause No. 89CR2594 was final, the
defendant committed the felony of DEL HEROIN UNDER 28 GRAMS and was convicted on the 26TH day of
MAY, A.D., 1992, in Cause No. 92-CR-1350, in Bexar County, Texas;


                              INDICTMENT- CLERK'S ORIGINAL
      3
Defendant: SYLVIA G MAR,   .Bz
JN #:      1613644-1


AGAINST THE PEACE AND DIGNITY OF THE STATE.




    4
                                                                                                 i.   !




                                        CAUSE NO. 2014-CR-1384

      STATE OF TEXAS

      vs.

      SYLVIA G. MARTINEZ

              DEFENDANT'S TIMELY REQUEST FOR DISCOVERY, NOTICE, AND
                        INVESTIGATION OF BRADY MATERIAL

    TO THE PROSECUTING ATTORNEY FOR THE STATE OF TEXAS:

            COMES NOW SYLVIA G ..MARTINEZ, Defendant in the above-entitled and numbered

    cause, by and tbrough undersigned counsel, and pursuant to Article 39.14 of the Texas Code of

    Criminal Procedure, the Texas Rules of Evidence, and Brady v. Maryland, 373 U.S. 83, 87 (1963)

makes this self-executing request to the attorney for the State of Texas to give, in proper form, to

Defendant the following:

                                           I.
                                     ARTICLE 39.14(a):
                           ELECTRONIC DUPLICATES OF DISCOVERY

            Pursuant to Article 39.14 of the Texas Code of Criminal Procedure, the Defendant requests

the state to produce and provide an electronic duplicate of:

            1. Any and all offense reports regarding the incident that forms the basis for this prosecution
               of the Defendant;

            2. All documents and papers, including but not limited to electronic communications, that
               constitute or contain evidence material to any matter involved in this action;

            3. All written or recorded statements of the Defendant;

            4. All written or recorded statements of any witness;

            5. All books, accounts, letters (including electronic mail and text messages) which constitute
               or contain evidence material to any matter involved in this action; and

            6. All photographs, videos, and recordings which constitute or contain evidence material to
               any matter involved in this action;




5
                                                  II.
                                      ARTICLE 39.14(a):
                                 INSPECTION OF DISCOVERY

        Pursuant to Article 39.14 of the Texas Code of Criminal Procedure, the Defendant requests

the State to produce and permit for inspection:

        I. Any and all objects or other tangible things that constitute or contain evidence material to
           any matter involved in the action. In particular, the Defense requests the opportunity to
           inspect any scales, measurement systems, computer programs, or other means used to
           calculate the physical properties of any evidence used in this case.

       2. Any evidence subject to the restrictions provided by Section 264.408 of the Texas Family
          Code;

        3. Any evidence subject to the restrictions provided by Article 39.15 of the Code of Criminal
           Procedure; and

       4. Review of Defendant's criminal history through NCIC and TCIC.



                                                  m.
                                  ARTICLE 39.14(c):
                               REQUEST FOR NOTICE OF
                          WITHHELD OR REDACTED DISCOVERY
                                  (PRIVILEGE LOG)

       Pursuant to Article 39 .14(c) of the Texas Code of Criminal Procedure, the Defendant requests

that the State provide written notice of any pmtion of any document, item or information withheld

from discovery or redacted by the State or its agents. The State's notice should include the description

of the document, item or information has been withheld or redacted and the legal justification for why

the information is being withheld or redacted. See Exhibit A: State's Privilege Log.




6
                                       IV.
                                 ARTICLE 39.14(h):
                     REQUEST FOR EXCULPATORY, IMPEACHMENT
                          AND MITIGATING INFORMATION

       Pursuant to Article 39.14(h) of the Texas Code of Criminal Procedure, the Defendant requests

the disclosure of any exculpatory, impeachment or mitigating document or item in the possession,

custody, or control of the state that tends to negate the guilt of the defendant, impeach a witnesses'

credibility, or would tend to reduce the puuishment for the offense charged. The Defendant also

requests the disclosure of any exculpatory, impeachment, or mitigating information known by the

State or any member of the prosecution team. A prosecutor has an affirmative duty to tnrn over to the

accused all material, exculpatory evidence, irrespective of the good faith or bad faith of the

prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecutor's constitutional duty to

provide exculpatory evidence to the defense is not limited to cases in which the defense makes a

request for such evidence. United States v. Agurs, 427 U.S. 97 (1976).



    A. SPECIFIC REQUESTS FOR THE PROSECUTOR TO INQUIRE ABOUT
       EXCULPATORY, IMPEACHMENT AND MITIGATING INFORMATION

       The obligation to disclose favorable evidence to the accused is that of the government and

failure to disclose such information is not excused merely because the prosecutor did not have actual

knowledge of such favorable evidence. United States v. Auten, 632 F. 2d 478 (5th Cir. 1980);

Rhinebartv. Rhay, 440 F. 2d 725 (9th Cir 1971), cert. den. 404 U.S. 825. The State's suppression of

exculpatory evidence violates due process if the evidence is material to either guilt or punishment,

irrespective of the good or bad faith of the prosecution. Brady at 87. "The duty of disclosure affects

not only the prosecutor, but the government as a whole, including its investigative agencies." United

States v. Bryant, 439 F. 2d 642,658 (D.C. Cir. 1971).




7
       In many cases exculpatory information in the possession of the prosecution team may be

unknown to the prosecutor that handles the case at trial. In order to prevent an inadvertent or

unintentional Brady violation, counsel requests the prosecutor to do the following:


1. Speak to all members of the "prosecution team." It is likely that many other people have worked
on the case, either in your office or in an investigative capacity. I am requesting that you speak with
anyone who has worked on the case and determine whether they possess any information or have
made any promises that constitute Brady or Giglio material. People you would speak to include:

       • All employees of the BEXAR County or District Attorney's Offices involved with the
       case. If any attorney in your office has knowledge of Brady or Giglio material, that knowledge
       will be attributed to the entire office. See Giglio v. United States, 405 U.S. 150, 154 (1972)
       ("The prosecutor's office is an entity and as such it is the spokesman for the Government.")

       • All investigators who handled the case. See Kyles v. Whitley, 115 S. Ct. 1555, 1568 (1995)
       ("[N]o one doubts that police investigators sometimes fail to inform a prosecutor of all they
       know. But neither is there any serious doubt that 'procedures and regulations can be
       established to carry [the prosecutor's] burden and to insure communication of all relevant
       information on each case to every lawyer who deals with it.'" (citing Giglio))

       • All federal, state and local law enforcement agents who worked on the case. If the Texas
       State Securities Board, the San Antonio Police Department, Homeland Security, ICE, TSA,
       airport police, FBI, ATF, or any other law enforcement agencies participated in the
       investigation of this case, those agents are part of the prosecution team. See United States v.
       Antone, 603 F.2d 566, 570 (5th Cir. 1979) ("extensive cooperation between the investigative
       agencies convinces us that the knowledge of the state team that [witness]' s lawyer was paid
       from state funds must be imputed to the federal team."); United States v. Spagnoulo, 960 F.2d
       990 (11th Cir. 1992); Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984) ("[J]oint state-
       federal drug investigations are quite common, and prosecutors should give some thought to
       these potential problems of coordination. Being forewarned, they should not simply assume
       that they have no responsibility for keeping abreast of decisions made by other members of
       the team."); United States v. Safavian 233 F.R.D. 12, 15 (D.D.C. 2005) ("In the course of their
       investigation, and in collecting and reviewing evidence, the prosecutors must ensure that any
       information relevant to this case that comes into the possession, control, or custody of the
       Justice Department remains available for disclosure.") ; United States v. Jennings, 960 F .2d.
       1488, 1490 (9th Cir. 1992) ("There is no question that the AUSA prosecuting a case is
       responsible for compliance with the dictates of Brady and its progeny. This personal
       responsibility cannot be evaded by claiming lack of control over the files or procedures of
       other executive branch agencies."(citations omitted)).


2. Review all case files maintained by your office and any law enforcement agencies to ensure
that all Brady material is disclosed to the defense. Sometimes police officers or law enforcement




8
agents will not provide the prosecution with all of the information collected during their investigation.
Nonetheless, you are responsible for reviewing all of the information in their investigative ftles, and
you must make sure that all exculpatory material is turned over to the defense. See, e.g., Jamison v.
Collins, 291 F.3d 380, 385 (6th Cir. 2002).

3. Investigate your witnesses. Material that impeaches a government witness must be disclosed to
the defense, and any impeachment material that you possess or can access easily. There are a few
things you must do to guarantee that you meet your Brady and Giglio obligations:

        • Examine the personnel files of all investigating agents who may testifY at trial. If there
        is impeachment evidence regarding any officers involved with the investigation of the case,
        especially those who may testifY at hearings or at trial, it must be disclosed to the defense.
        See, e.g., Nuckols v. Gibson, 233 F.3d 1261 (101h Cir. 2000); United States v. Muse, 708 F.2d
        513 10thCir. 1983); UnitedStatesv. Broob, 966 F.2d 1500 (D.C. Cir. 1992). Thus, you should
        search the personnel files of all officers involved with the case for such evidence.

        • Examine the personnel files of all prosecution witnesses who work for the government.
       If any prosecution witnesses work for other branches of the government, you should search
       their personnel files for impeachment evidence, as with the files oflaw enforcement officers.
       See, e.g., United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973), overruled on other grounds by
       United States
       v. Henry, 749 F.2d 203 (5th Cir. 1984) (holding that contents of postal worker's personnel ftle,
       if they could be used for impeachment, would constitute Brady material).

        Further, pursuant to United States v. Bagley, 473 U.S. 667,676 (1985), any evidence that can
        be used to impeach a prosecution witness's credibility should be disclosed to the defense.
        This type of evidence includes but is not limited to the following:

                    Contrary, conflicting statements;
                    False Reports;
                    Inaccurate statements and reports;
                    Other evidence contradicting prosecution witness statements and/or reports;
                    Promises or offers ofleniency, or other inducements, express or implied;
                    Felony convictions;
                    Misconduct involving moral turpitude;
                    Misdemeanor convictions involving moral turpitude;
                    Pending criminal charges;
                    Parole or Probation status;
                    Reputation for untruthfulness;
                    Alcohol and/or drug use;
                    Gang membership;
                    Bias toward the defendant.


        • Search all criminal record databases to which you have access for criminal records of
        potential prosecution witnesses. I presume that you have checked both local and national




9
        databases for any criminal convictions of government witnesses. See United States v.
        Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (holding that failure to search a local criminal
        database for informant's criminal convictions is Brady violation); United States v. Auten, 632
        F.2d 478,481 (5th Cir. 1980) (holding that failure to run FBI or NCIC checks on a prosecution
        witness constitutes a Brady violation).

       • Ask the BEXAR County Sheriff's Office and the San Antonio police department and
       other regional law enforcement agencies if they have files on any of your witnesses. Even
       if you are unaware of deals that your witnesses have made with law enforcement agencies,
       such deals are Brady material and must be disclosed to the defense. See, e.g., In re Sealed
       Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 896 (D.C. Cir. 1999). I presume that
       you have spoken with all of these agencies to ensure that they have not made any deals with
       or payments to any of your witnesses.

       • Examine the pre-sentence reports and probation files of all witnesses.

               o Exculpatory information in a witness's probation file, including the witness's
               criminal record or personal infom1ation that could be used for impeachment, should
               be released to the defense. See, e.g., United States v. Strifler, 851 F.2d 1197, 1202 (9tl'
               Cir. 1988).

               o Pre-sentence reports (PSis) of any government witnesses should be provided to the
               trial court for in camera examination to determine whether they contain Brady or
               Giglio material. See, e.g., United States v. Jackson, 978 F.2d 903,909 (5th Cir. 1992),
               cert. denied, 113 S. Ct. 2429 (1993).

       • If any government witnesses have been incarcerated, examine their department of
       corrections and/or bureau of prisons files. See, e.g., Carriger v. Stewart, 132 F.3d 463,479-
       80 (9th Cir. 1997) (en bane) ("The state had an obligation, before putting [a career burglar and
       six-time felon] on the stand, to obtain and review [his] corrections file, and to treat its contents
       in accordance with the requirements of Brady and Giglio.")

4. Speak with any victim witness coordinators involved with the case. Commonwealth v. Liang,
434Mass.l31, 747N.E.2d 112(2001).

5. If another government agency investigated the alleged offense, examine the files from that
investigation or have the court examine them. See Pennsylvania v. Ritchie, 480 U.S. 39, 57-60.
(holding that defendant was entitled to have court conduct in camera examination of Child andY outh
Services (CYS) file investigating defendant's alleged rape of his daughter to determine if it contained
Brady material).



     B. SPECIFIC REQUESTS: EXCULPATORY INFORMATION




10
        When the prosecutor receives a specific and relevant request, the failure to make any response

is seldom, if ever, excusable. See Bagley, supra. The Defendant specifically requests the prosecution

to provide defense counsel with any information or material that is exculpatory, favorable to the

accused or which acts to impeach any witness for the State, including but not limited to the following:

     1. Any evidence or statement which would tend to show that the Defendant did not commit the
        offense alleged in this cause.

     2. The existence of a witness who would provide testimony favorable to the defense, even if
        learned from the witness during trial.

     3. Any evidence or statement which is inconsistent with another witnesses' statement.

     4. Any evidence or statement which would support the defense of necessity, provocation, or
        duress.

     5. A list of other suspects and unindicted co-conspirators who were also under investigation for
        the present offense.

     6. Any evidence or statement which would indicate that a person other than the
        Defendant committed or is criminally responsible for the offense alleged.

     7. All statements made by any party or witness to this alleged offense in the possession of or
        within the knowledge of the State or any of his agents, including any law enforcement agency,
        whether such statements were written or oral, which might in any manner be material to the
        innocence of the Defendant or to the punishment, if any, to be set in this case.


     C. SPECIFIC REQUESTS: IMPEACHMENT INFORMATION

     1. Information regarding State witnesses

            a. Any information tending to show a State's witness's bias in favor of the State or
               against the Defendant or which otherwise impeaches a witness's testimony
               (inclnding pending complaints against police officers and closed administrative
               or civil cases, whether resolved for or against the officer, that involve facts similar
               to those of this case). See United States v. Bagley, 473 U.S. 667 (1985);

            b. Any information indicating a witness's hostility towards or dislike of the
               Defendant. United States v. Sipe, 388 FJd 471 (5th Cir. 2004) (witness's dislike of
               defendant); United States v. Sperling, 726 F.2d 69 (2nd Cir. 1984) (tape of pre-trial
               conversation indicating that government witness was motivated by revenge).




11
     c. All "consideration" or promises of"consideration" given to or on behalf of all State's
        witnesses or expected or hoped for by said State witnesses. See Giglio v. United
        States, 405 U.S. 150 (1972); Banks v. Dretke, 540 U.S. 668 (2004). Defendant
        requests all documents, records, memoranda, notes, or other records in any form
        reflecting "consideration" as set forth below. By "consideration," the Defendant refers
        to absolutely anything, whether bargained for or not, which arguably could be of value
        or use to a witness or to persons of concern to the witness, including, but not limited
        to, formal or informal, direct or indirect; leniency, favorable treatment or
        recommendations or other assistance with respect to any pending or potential criminal
        action, parole, probation, commutation of sentence, pardon, clemency, civil or
        administrative dispute; criminal, civil, or tax immunity grants of letters of non-
        prosecution; relief from forfeitures; payments of money, rewards or fees, witness fees
        and special witness fees; provision of food, clothing, shelter, or housing arrangements,
        transportation, legal services, employment or other benefits; placement in a "witness
        protection program"; informer status of the witness; and anything else which arguably
        could reveal an interest, motive, or bias in the witness in favor of the State or against
        the defense or act as an inducement to testifY or to color testimony. This
        consideration also includes:

             1.   Favors from prosecution such as telephone calls, conjugal visits, etc.
                  United States v. Salem, 578 F.3d 682 (7th Cir. 2009)(witnesses' involvement
                  in uncharged murder should have been disclosed as motive to testifY to avoid
                  murder charges); See El Rukn cases, United States v. Andrews, 824 F. Supp.
                  1273 (N.D. Ill. 1993); United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill.
                  1993); United States v. Boyd, 883 F. Supp. 1227 (N.D. Ill. 1993).

             n. Promises as to witness' civil tax or administrative liability. United States
                v. Shaffer, 789 F.2d 682 (9th Cir. 1986); United States v. Wolfson, 437 F.2d
                (2d Cir. 1970); United States v. Dawes, 1990 US Dist. LEXIS (D. Kan. Oct.
                15).

            iii. Help in forfeiture proceedings. United States v. Parness, 408 F. Supp. 440
                 (S.D.N.Y. 1975).

     d. Any and all threats, express or implied, direct or indirect, or other coercion made
        or directed against any witness, criminal prosecutions, investigations, or potential
        prosecutions pending or which could be brought against any witness, any
        probationary, parole, deferred prosecution or custodial status of any witness, and any
        civil, tax court, court of claims, administrative, or other pending or potential legal
        disputes or transactions with the State or over which the State has real, apparent or
        perceived influence.

     e. All information in the possession of the goverrunent indicating that any State witness
        has had a pending juvenile or criminal case on or since the offense in this case; any
        State witness has had an arrest, guilty plea, trial, or sentencing on or since the date of
        the offense in the present case; any State witness has been on juvenile or criminal




12
          parole or probation on or since the date of the offense; and any State witness now has
          or has had any other liberty interest which the witness could believe or could have
          believed might be favorably affected by State action. With respect to this infonnation,
          I request cause numbers, dates and jurisdiction for all such cases. See Davis v. Alaska,
          415 U.S. 508 (1974);


     f.   Agreements/Deals with State witnesses. See, e.g., Giglio v. United States, 405 U.S.
          150, 154 (1972) (failure to disclose promise of immunity in exchange for testimony
          violates Brady); United States v. Bagley, 473 U.S. 667, 676, 682 (1985) (failure to
          disclose payment of$300 to two key State witnesses violates Brady); Singh v. Prunty,
          142 F.3d 1157, 1161-63 (9thCir. 1998) (failure to disclose that star witness had a very
          favorable deal with State to avoid a very serious charge is Brady violation); United
          States v. Smith, 77 F.3d 511, 513-16 (D.C. Cir. 1996) (failure to disclose a deal in
          which state charges were dismissed as part of a federal plea is Brady violation); In Re
          Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 891, 896 (D.C. Cir.
          1999) (remand to determine Brady infonnation with instruction to district court to
          require the U.S. Attorney's Office to review the records in the possession of the
          prosecution team for evidence indicating that a government infonnant who provided
          infonnation leading to the defendant's arrest had a deal with the prosecution, the D.C.
          Circuit observed that it is "irrelevant ... that the requested records may have been in
          the possession of the Metropolitan Police Department, of the FBI or DEA, rather than
          the U.S. Attomey' s Office.").

     g. Payments to investors and potential State witnesses: See, e.g., Mastracchio v. Vase,
        274 F.3d 590, 602-03 (!" Cir. 2001) (knowledge ofWitness payments or favors made
        by the Witness Protection team is Brady); In reSealed Case (Brady Obligations), 185
        F.3d 887, 894 (D.C. Cir. 1999) (failure to disclose a cooperation agreement that
        included payments to a witness is Brady infonnation).

     h. Witness's tax returns - especially for informant. See Intemal Revenue Code §
        61 03(i)(1 )(2). United States v. Lloyd, 992 F.3d 348 (D.C. Cir. 1993)(remanded for
        hearing); United States v. Wigoda, 521 F.2d 1221 (7th Cir. 1975)(in camera
        inspection); Johnson v. Sawyer, 640 F. Supp. 1126 (D. Tex. 1986)(tax returns may be
        disclosed).

     i.   Criminal history of investors and potential government witnesses: All prior
          convictions and juvenile adjudications of all State witnesses and all persons identified
          in the offense report who could likely be called as a witness for the State. These
          records should include all arrests and convictions, whether as a juvenile or as an adult,
          including, but not limited to: all felony convictions and all misdemeanor convictions
          involving moral turpitude which have occurred in the last ten (10) years; all felony
          convictions and all misdemeanor convictions involving moral turpitude which have
          resulted in a suspended sentence which has not been set aside; all pleas of guilty or
          nolo contendere which resulted in dispositions of"deferred adjudication" or "deferred
          prosecution" or "deferred disposition"; all felony and misdemeanor cases that have




13
          resulted in the witness being placed on probation, wherein the period of probation has
          not expired; all pending felony and misdemeanor offenses alleged to have been
          committed by the witness. The Defendant requests that the State be ordered to request
          the proper law enforcement authorities to obtain a full and complete criminal record
          of all such witnesses and reveal same to the Defendant, and the State should not be
          permitted to respond to this motion by advising the Court that the prosecutor does not
          have any indication in his file of any prior criminal record of such witnesses. See,
          e.g., Crivens v. Roth, 172 F.3d 991, 996-99 (7"' Cir. 1999) (failure to disclose crimes
          committed by State witness is Brady even when government witness used aliases);
          Carriger v. Stewart, 132 FJd 463, 480-82 (9"' Cir. 1997) (failure to obtain or disclose
          Department of Corrections file that would have showed lengthy criminal history, and
          history oflying to police and blaming others for his own crimes is Brady).

     J.   Misconduct by potential State witnesses: All records and information revealing
          prior misconduct or bad acts attributed to any State witness. See, e.g., United States v.
          Boyd, 55 FJd 239,243-45 (7"'Cir. 1995) (failure to disclose drug use and dealing by
          prosecution witness, and "continuous stream of unlawful favors" including phone
          privileges, presents, special visitors, provided by prosecution to witnesses is
          considered Brady material).

     k. All handle-bys for all potential State witnesses: A report called a "handle-by" is
          created whenever a person contacts the police or when the police respond to a person's
          address. Handle-bys typically do not result in an arrest, but often include a police
          narrative. These are hidden records only available to law enforcement officers and are
          often used to gather information on suspects. The defense asks for handJe-bys to be
          run on potential State witnesses as it may reveal why certain individuals are not being
          called as witnesses at trial.

     I.   Bias of State witnesses: See, e.g., Schledwitz v. United States, 169 FJd 1003, 1014-
          15 (6"' Cir. 1999) (Brady obligation for government to reveal witness portrayed as
          neutral and disinterested expert actually had been investigating defendant for years);
          United States v. Abel, 469 U.S. 45 (1984); United States v. O'Connor, 64 FJd 355,
          359-60 (8'h Cir. 1995) (failure to disclose threats by one government witness against
          another and attempts by that same government witness to influence testimony of
          another government witness is Brady); Reutter v. Solem, 888 F.2d 578, 581-82 (8'h
          Cir. 1989) (failure to inform defense that key witness had applied for commutation
          and was scheduled to appear before parole board in a few days is a Brady violation).

     m. Pecuniary or other interest of State witness: Bell v. Bell, 460 FJd 739 (6th Cir.
        2006)(disclosure required where, although no express agreement between prosecution
        and witness, prosecution koew of witness' expectation for deal and fulfilled that
        expectation); United States v. Blanco, 391 F.3d 382 (9th Cir. 2004)(fact that
        investigating agency kept evidence of informant's immigration benefits from
        prosecution did not justifY nondisclosure); United States v. Strifler, 851 F.2d 1197
        (9th Cir. 1988)(information contained in witness' probation file should have been




14
                disclosed because it related to his motives for informing as well as his tendency to
                overcompensate for problems and to lie).

            n. Kinship with person adverse to client.

            o. Character of witness. United States v. Brumel-Alvarez, 991 F.2d 1452 (9th Cir. 1992)
               (reversible error not to disclose government memorandum written to government
               agent highly critical of key government informant); United States v. Bernal-Obeso,
               989 F.2d 331 (9th Cir. 1993) (remand to determine whether government witness lied
               to DBA about his prior criminal record).

            p. Witness's use of alcohol or drugs. United States v. Robinson, 583 F.3d 1265 (lOth
               Cir. 2009)(CI's drug use was Brady based on CI's centrality to case); King v. Ponte,
               717 F .2d 635 (1st Cir. 1983)(witness under heavy medication as treatment for unstable
               mental condition); Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991)(sole eyewitness
               had been to methadone clinic within 2 hours of crime).




     2. Inconsistent Statements

            a. The existence and identification of each occasion on which a State witness has
               testified before any court, grand jury, or other tribunal or body or otherwise
               officially narrated in relation to the Defendant, the investigation, or the facts of
               this case.

            b. The existence and identification of each occasion on which each witness who
               has been or is now an informer, accomplice, co-conspirator, or expert that has
               testified before any court, grand jury, or other tribunal or body.

            c. Statements of potential witnesses not called to testify: See, e.g., United States v.
               Frost, 125 F .3d 346, 383-84 (6tl' Cir. 1997) (Brady violation when government does
               not disclose statement of potentially exculpatory witness, but instead tells defense
               that that witness would provide inculpatory information if called to testifY).

            d. Contradictory or inconsistent statements: See, e.g., Brady v. Maryland, 373 U.S.
               83, 87 (1963) (failure to tnrn over statement by co-defendant that he had planned the
               killing, and that co-defendant had performed actual killing is violation of due
               process); Kyles v. Whitley, 514 U.S. 419 (1995) (failure to disclose inconsistent
               eyewitness and informant statements, and list oflicense numbers compiled by police
               that did not show Kyles' car in supermarket parking lot); United States v. Hanna, 55
               F .3d 1456 (9th Cir. 1995)(discrepancies between law enforcement officers and
               reports and grand jury testimony); United States v. Weintraub, 871 F.2d 1257 (5th
               Cir. 1989).




15
            e. Inconsistent notes: Prosecutor and law enforcement notes from interviews with
               State witness: See, e.g., United States v. Service Deli, Inc., 151 F.3d 938, 943-44 (9111
               Cir. 1998) (Brady obligation to turn over original notes from witness interview that
               contained three key pieces of impeachment information that showed that story had
               changed, change may have been brought about by threats of imprisonment, and
               witness had claimed to have suffered a stroke); United States v. Pelullo, 105 F.3d
               117, 122-23 (3d Cir. 1997) (failure to disclose rough notes of FBI and IRS agents
               corroborating defendant's version of events and impeaching testimony of
               government agents).

            f.   Expert reports inconsistent with the State case or tends to support the defense
                 case: See, e.g., United States v. Fairman, 769 F.2d 386,391 (7thCir. 1985) (Brady
                 violation when government failed to disclose ballistics worksheet that showed gun
                 defendant was accused of firing was inoperable).

     3. Information regarding law enforcement and prosecution

            a. Instructions to a State's witness by the police, a prosecutor, a victim-witness
               coordinator, or any agent of the State to not speak with defense counsel or to do
               so only in the presence of the State's counsel. See, e.g., Gregory v. United States,
               369 F. 2d 185 (D.C. Cir. 1966).

            b. Instructions to a State's witness by law enforcement, a prosecutor, or any agent
               of the State to inquire about privileged communications between the Defendant
               and his lawyer.

            c. Personnel files, especially oftestifying officers: Any information on any pending or
               closed internal disciplinary investigation of police officers involved in the case,
               including, but not limited to, information regarding any administrative suspensions or
               civilian complaints. See, e.g., United States v. Brooks, 966 F.2d 1500, 1503-04 (D.C.
               Cir. 1992) (if specific request is made, prosecutor must search personnel records of
               police officer/witnesses to fulfill Brady obligations); United States v. Muse, 708 F.2d
               513, 516 (lOth Cir. 1983) (recognizing that prosecutor must produce Brady material
               in personnel files of government agents even if they are in possession of another
               agency.).

            d. Presentence Reports of testifying witnesses: See, e.g., United States v. Strifler, 851
               F.2d 1197, 1202 (9th Cir. 1988) (information in probation file relevant to government
               witness credibility must be disclosed, and could not be deemed privileged by making
               it part of probation file); United States v. Carreon, 11 F.3d 1225, 1238 (5thCir. 1994)
               (prosecution should allow trial court to conduct in camera review of presentence
               reports of government witnesses to determine whether they contain Brady/Giglio
               material).




16
            e. Police perjury in motions hearings: See. e.g., United States v. Cuffie, 80 F.3d 514,
               517-19 (D.C. Cir. 1996) (failure to disclose perjury by police officer during motion to
               seal proceeding is considered material Brady evidence relevant to impeachment ).

            f.   Knowledge of police intimidation of witnesses: See, e.g., Guerra v. Johnson, 90
                 F.3d 1075, 1078-80 (5th Cir. 1996) (failure to disclose police intimidation of key
                 witnesses and information regarding suspect seen carrying murder weapon minutes
                 after shooting is considered Brady).

            g. Facts or evidence indicating the unreliability of any State's witness. See, e.g.
               Mesarosh v. United States, 352 U.S. 1 (1956);

            h. All information indicating that the mental state of any witness for the State is
               below normal or in any way abnormal.

            1.   All information that any witness for the State was under the influence of alcohol,
                 narcotics, or any other drug, prescription or otherwise, at the time of the
                 observations about which the witness will testify, or that the witness' faculties or
                 observations were impaired in any way.

            J.   Evidence or information indicating the untruthfulness of a State's witness. See,
                 e.g. Napue v. Illinois, 360 U.S. 264 (1959);

            k. Evidence regarding any prior false accusations made by any State witness in this
               case, if any, on behalf ofthe complaining witness against the Defendant. See, e.g.
               Davis v. Alaska, 415 U.S. 308,318 (1984).

            I.   Perjury by any State witness at any time, whether or not adjudicated and
                 whether or not in connection with this case. See, e.g., Mooney v. Holohan, 294
                 U.S. 103 (1935);




     D. SPECIFIC REQUESTS: IMPEACHMENT INFORMATION

     1. All information from victims or complainants who do not want to prosecute the
        Defendant or who have asked for leniency.

     2. Mitigating evidence in aid of sentencing: See, e.g., Brady v. Maryland, 373 U.S. 83, 87
        (1963); ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, §
        3-6.2 (b) (3d Ed. 1993) Information Relevant to Sentencing ("The prosecutor should disclose
        to the defense and to the court at or prior to the sentencing all unprivileged mitigating
        information known to the prosecutor, except when the prosecutor is relieved of this
        responsibility by a protective order of the tribunal.").




17
     E. REQUEST FOR IMMEDIATE DISCLOSURE

        The Defendant requests the State to disclose any and all impeachment, exculpatory, and

mitigating information as soon as the prosecutor learns of its existence. The Texas State Bar Rules

also require a prosecutor in a criminal case to "make timely disclosure to the defense of all evidence

or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the

offense, and, in connection with sentencing, disclose to the defense and the tribunal all unprivileged

mitigating information known to the prosecutor...." Rule 3.09(d), Article 10, Section 9, State Bar

Rules (emphasis added).

                                                    v.
                                            TRERULE404

        Pursuant to Rule 404(a) of the Texas Rules of Evidence, Defendant requests the State to give

reasonable notice in advance of trial of its intent to introduce evidence of a pertinent character trait of

the accused. See Stitt v. State, 102 S.W.3d 845, 849 (Tex.App. - Texarkana 2003, pet.refd) ("A

pertinent character trait is one that relates to a trait involved in the offense charged or a defense

raised."); see also Santellan v. State, 939 S.W.2d 155, 167 (Tex.Crim.App.l997).

        Pursuant to Rule 404(b) of the Texas Rules of Evidence, Defendant requests the state to give

reasonable notice in advance of trial of its intent to introduce evidence of other crimes, wrongs, or

acts in an attempt to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

        The request for notice includes the discovery of all items that the State would be required to

produce for the trial of each prior crime, wrong, or act in order to prove the Defendant committed the

act beyond a reasonable doubt. Ex Parte Varelas, 45 S.W.3d 627, 631 (Tex.Crim.App.2001)              Gury
cannot consider extraneous act evidence unless they believe beyond a reasonable doubt that the




18
defendant committed that act);Apprendi v. New Jersey, 530 U.S. 466 (2000) (all the facts which must

exist in order to subject the Defendant to a legally prescribed punishment must be found by the jury);

Blakely v. Washington, 124 S.Ct. 2531 (2004) (reaffinning a defendant's Sixth Amendment rights

regarding burden of proving sentencing allegations).

        Specifically, Defendant requests that the notice include the following:

       -dates;
       -locations;
       -types or nature of the alleged crimes, wrongs, or acts involved;
       -names of the individuals involved; and
       -names of any courts involved.

Rodgers v. State, Ill S.W.3d 236 (Tex.App.- Texarkana, 2003).

                                                   VI.
                                           TRERULE609

       Pursuant to Rule 609(f) of the Texas Rules ofEvidence, Defendant requests that the State give

sufficient advance written notice of its intent to use evidence of a conviction to impeach the credibility

of the following witness:

        SYLVIA G. MARTINEZ




        This request includes providing the discovery of any supporting documentation regarding

such prior convictions.




                                                  VII.

                                           ARTICLE 37.07




19
        Pursuant to Article 37.07, Section 3(g) of the Texas Code of Criminal Procedure, Defendant

requests that the State give reasonable notice of intent to introduce against the Defendant evidence of

an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a

probated suspended sentence as provided for in Article 37.07 Section 3(a) of the Code of Criminal

Procedure. Defendant further requests written notice of the State's intent to introduce evidence of the

prior criminal record of the Defendant, their general reputation, their character, an opinion regarding

their character, and the circumstances of the offense for which they are being tried. Defendant also

requests written notice of any evidence pertaining to an adjudication of delinquency of the grade of a

felony or a misdemeanor punishable by confinement in jail.

        Specifically, Defendant requests that the notice include the following: dates; locations; types

or nature of the alleged crimes, wrongs, or acts involved; names of the individuals involved; and

names of any courts involved. Notice of that intent is reasonable only if the notice includes the date

on which and the county in which each alleged crime or bad act occurred and the name of each alleged

victim of the crime or bad act.

       The request for notice includes the discovery of all items that the State would be required to

produce for the trial of each prior crime, wrong, or act in order to prove the Defendant committed the

act beyond a reasonable doubt. This request includes providing the discovery of any supporting

documentation regarding any prior convictions.




                                                 VIII.




20
                                           WITNESS LIST

        Defendant requests that at least thirty (30) days before the conunencement of trial the State

provide the name, address and telephone number of each person whom the State intends to call as a

witness at any stage of the trial. Notice of the State's witnesses shall be given upon request. Young

v. State, 547 S.W.2d 23,27 (Tex. Crim. App. 1977); Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim.

App. 1993), cert. denied, 512 U.S. 1246 (1994) ("It is established that notice of the State's intended

witnesses should be given upon proper request.").

        This request encompasses those persons whom the State reasonably anticipates may testifY

during its case-in-chief, case-in-rebuttal, or, in the event of a conviction, at the punishment stage.

                                                   IX.

                           TIME AND MANNER FOR DISCLOSURE

        Defendant makes these requests alleging that notice and opportunity to investigate the

proposed evidence is an essential part of Defendant's right to a fair trial, effective representation by

counsel, and constitutional due process pursuant to provisions of Article I, Sections 10 and 19 of the

Constitution of the State of Texas, and the Fifth, Sixth and Fourteenth Amendments to the United

States Constitution. The request is made and "as soon as practicable" is defined for the State to

produce the requested notice and information no later than thirty (30) days upon receipt of this request.

Defendant requests that if any above-referenced materials cannot be produced within thirty (30) days

because it is not "practicable," the State should provide a description of the item and the anticipated

date of production.

        The request is made for the State to provide written notice and discovery to counsel for the

Defendant via electronic mail to:

        vanbruntlaw@live.com




21
        lawoffice 1840@gmail.com

       If at any time before, during or after trial the State discovers any additional document, item,

or information required to be disclosed pursuant to Article 39 .14(h), Defendant requests that the State

promptly disclose the existence of the document, item or information to undersigned counsel.




                                                Respectfully submitted,

                                                LAW OFFICE OF CHAD VAN BRUNT
                                                310 S. St. Mary's Street
                                                Suite 1840 -Tower Life Bldg.
                                                San Antonio, Texas 78205
                                                Tel: 210-399-8669
                                                Fax: 210-568-4927




                                                By:              ~A)~
                                                      Chad VanBruntV
                                                                        1

                                                      State Bar No. 24070784
                                                      Attorney for SYLVIA G. MARTINEZ



                            CERTIFICATE OF TIMELY REQUEST

       I hereby certifY that a copy of the above and foregoing Defendant's Request for Production

of Discovery has been served upon the Bexar County Altomey' s Office, via hand delivery, this the

20th day of March, 2015.




                                                Chad Van Brunt




22
      EXHIBIT A:
     PRIVILEGE LOG




23
                                        CAUSE NO. 2014-CR-1384

        STATE OF TEXAS                                §     IN THE DISTRICT COURT
                                                      §
        vs.                                           §     187TH JUDICIAL DISTRICT
                                                      §
        SYLVIA G . .MARTINEZ                          §     BEXAR COUNTY, TEXAS

                                        STATE'S PRIVILEGE LOG

              COMES NOW, the State of Texas, by and through the District Attorney of Bexar County,
Texas, and pursuant to Article 39.14(c) of the Texas Code of Criminal Procedure would inform the
defendant that a portion of the document, item, or information has been withheld or redacted:


                          ITEM                            INFORMATION            INFORMATION
                                                            REDACTED               WITHHELD

    OFFENSE REPORTS
    0 Offense Report(s):

               Offense Report Number:
               Number of pages:
               Date printed:

    0 CAD report:
    0 Search Warrant(s):
    0 Collision Report

    STATEMENTS
    Defendant's Statement
    0 Written
    0Video
    0Audio0nly


       Witness Statement of:


       0 Written
       0Video
       0Audio0nly

       DOCUMENTS




  24
                                                         .I




 D Medical Records
        0 Defendant's
        D Victim(s')
        Oother
 0 Business Record(s)
 0 Maintenance Record(s)
 0 Phone Record(s)
 D Text Message(s)
 0 Restitution Documentation
 D Billing Statement
 D Receipt(s)
 0 Other

 AUDIO RECORDINGS
 0 911 Call(s):
 D Jail Calls
 0 Other:

 VIDEOS
 DIn-Car
 D Surveillance
 0 Other:

 LAB TESTS
 0 Breath
 0Blood
 0 Toxicology
 0 Prints:
 Oother:

 OTHER EVIDENCE
 Oother

                               Respectfully submitted,




                               By: _ _ _ _ _ _ _ _ _ _ _ __
                                Prosecuting Attorney




25
THE STATE OF TEXAS                                                        INTHEDIST           ,'COURT

                                                                         lfLiijumc '
                                                                         BEXAR CO



                                 MOTION TO QUASH INDICTMENT



TO THE HONORABLE JUDGE OF SAID COURT:

   Come no """-..L\.Lliftilli(,L_fl~~>l.l£!C>!!.!4~----' Defendant in the above styled and
numbered cause an                             Indictment and in support of said motion would
show the Court the following:

                                                     I.

   The following reasons show cause as to why the indictment brought against Defendant in this
cause should be quashed:

     1. The indictment does not set forth the offense in plain and intelligible words, but is vague,
        indefinite and incomprehensible;
     2. The indictment does not set forth facts sufficient to constitute an offense against the laws
        of the State of Texas;
     3. The indictlnent fails to allege all the essential acts and omissions by Defendant necessary
        to constitute a violation of Section                    of the Texas Penal/Health & Safety
          Code;
     4.   The indictment does not follow statutory language;
     5.   The indictment is insufficient in law in that it is so vague and indefinite, that if Defendant
          were found guilty, a judgment based upon said indictment would not be such as could be
          used as a plea in bar of a subsequent prosecution for the same offense;
     6.   The indictment is insufficient in law for the reason the offense is charged inferentially and
          by way of recital and argument;
     7.   The indictment is insufficient in law in that it makes allegations of the offense by means
          of recital, argument and opinion, and states conclusions of law.

                                                    II.




26
     illegal arrest (See Wong Sun vs. State, 83 S Ct 407) and therefore any charges
     resulting against Defendant be dismissed.

        WHEREFORE, PREMISES CONSIDERED, Defendant prays the charges and
     cause against Defendant be dismissed with prejudice and the Defendant be
     released from custody forthwith.

                                                         Respectfully submitted,




     Attorney for Defendant                              Defendant


                               CERTIFICATE OF SERVICE

                                                         be h ,'a,O
        I, hereby certify that on this the ;]£__ day of L(\               \5, A true
     and correct copy of the above and foregoing Motion to Dismiss -Insufficient
     Evidence was transmitted to the office of the Bexar County District Attorney,
     Criminal Justice Center, 101 W. Nueva, San Antonio, Texas 78205




                                                         Defendant



                                         ORDER

       On this the      of                 , _ _,came on to be heard Defendant's
     Motion to Dismiss - Insufficient Evidence and said motion is heFeby

                              ()GRANTED            ()DENIED

     Signed this __, day of _ _ _ _ _, _ _.




                                                         Judge Presiding




27
                UNSWORN DECLARATION BY INMATE




                                       e Bexar County Adult
     Detention Center, San Antonio, Texas declare under Penalty of
     Perjury that the foregoing instrument is true and correct.

        Signed on this thec2(day    of~Cl!ic._h          , 801.5.




28
29
!




                                            ~()ttl
                                          Cause   NO.~

         THE STATE OF TEXAS                                           IN THE DISTRIC

                                                                    /j_!z_ JUDICIAL D ·
                                                                      BEXAR COUNTY!



                                       MOTION TO QUASH AND SEVER



         TO THE HONORAB E JUDGE OF SAID COURT:
                                 '\)




                                                     I.

            The trying of multiple cases at the same time or the listing of separate charges in the
         indictment would be highly prejudicial to Defendant and would deprive him of his right
         to a fair trial guaranteed to him by the United States Constitution.

                                                     II.

            The charges against Defendant arose out of two (or more) separate incidents a..11d
         have no relevance to each other.

                                                    III.

            There is no way for Defendant to adequately prepare a defense against multiple
         charges and to not be adequately prepared would deny Defendant's right to a fair trial
         on each charge.




    30
     The Court is without jurisdiction over the person or subject matter.

                                                  III.

   The indictment does:not comply with Article I, Section 10 of the Constitution of the State of
Texas or with Article 21.01 and 31.02 of the Texas Code of Criminal Procedure in that it does
not properly notizy Defendant of the nature and cause of the accusation.

    WHEREFORE, PREMISES CONSIDERED, Defendant prays the Court quash the indictment
in this cause of action and that Defendant be released from custody forthwith.

                                                         Respectfully submitted,




Attorney for Defendant



                                   CERTIFICATE OF SERVICE

   I, hereby certify that on this the ___12_ day of:-!A Oul~                ,15_,
                                                                            a true and correct
copy of the above and foregoing Motion to Quash Indictment wa~ transmitted to office of the
Bexar County District Attorney, Criminal Justice Center, 101 W. Nueva, San Antonio, Texas
78205




                                               ORDER

  On thisthe       of                 , _ _,came on to be heard Defendant's Motion to
Quash Indictment and said motion is hereby

                                 ()GRANTED                ()DENIED

Signed this _ _, day of _ _ _ _ _ _, _ _.




                                                         Judge Presiding




31
                UNSWORN DECLARATION BY INMATE




     Being pre e tly incarcerated in the , e ar County Adult
     Detention Center, San Antonio, Texas declare under Penalty of
     Perjury that the foregoing instrument is true and correct.

        Signed on this the _lf2_ day of   'M,otV!.-h , /~




32
     ---- ---·----




33
                                      No. 2otYc.R toeLJ
      EX PARTE                                         §     IN THE DISTRICT COURT
                                                       §
                                                       §      1871h JUDICIAL DISTRICT
                                                       §
      SYLVIA MARTINEZ                                  §     BEXAR COUNTY, TEXAS


                              PRETRIAL WRIT OF HABEAS CORPUS
                           SEEKING RELIEF FROM DOUBLE JEOPARDY


     TO THE HONORABLE JUDGE OF THIS COURT:

             COMES NOW, Sylvia Martinez, Applicant herein and Defendant in Cause No.

      2014CR1384 pending in this Court, by and through undersigned counsel, and respectfully

      submits this pretrial writ of habeas corpus seeking relief from double jeopardy pursuant to

      the Fifth and Four- teenth Amendments to the United States Constitution, and Article I §§

      10, 13, and 14 of the Texas Constitution. In support of the same, Applicant would show this

      Honorable Court as follows:


       I. The Instant Prosecution of Applicant is Barred by Double Jeopardy both under the
                               United States and Texas Constitutions.


             Sylvia Martinez is charged with the State Jail Felony offense of prostitution 3 or more.

     AI- though the facts and circumstances of her arrest are tangential to the arguments herein, it is

     sufficient to briefly aver to the State's allegations. According to charges, Sylvia Martinez,

     loitered near a public roadway, where she encountered an undercover vice officer working for

     the San Antonio Police Department. She entered the vice officer's vehicle. Once the vice officer

     allegedly determined that his verbal exchange with her was sufficient to make a case for

     prostitution, the officer signaled to his uniformed partner to initiate a traffic stop. Upon arrival,

     the uniformed officer separated Ms. Martinez from the undercover policeman and issued her

     citations for Loitering in a Public Roadway for the Purpose of Prostitution. Ms. Martinez was




34
     subsequently indicted by a Bexar County Grand Jury for violating § 43.02 of the Texas Penal

     Code, which was enhanced to a state jail felony baased upon her prior convictions for the same

     violation. On May 23, 2014, Ms. Martinez plead nolo contendere to the Class C offense of

     Loitering for Prostitution, San Antonio Code of Ordinances § 21-25(c), in cause number

     Bl523240-01 in the San Antonio Municipal Court. The actions for which she was convicted in

     that cause arose out of the same transaction as cause for which she is indicted in this court.




        a) Applicable Authority



             The The United States Constitution and the Texas Constitution prohibit successive

      prose-cutions and successive punishments for the same offense. U.S. Const. Amend. 5. ("Nor

      shall any person be subject for the same offense to be twice put in jeopardy of life or limb.");

      Tex. Const. Art. I, § 14 ("No person, for the same offense, shall be twice put in jeopardy of

      life or liberty."). This fundamental right assumes many different forms, but the instant case

      concerns itself only with whether a defendant suffers double jeopardy when she is

      prosecuted or con- victed of more offenses than intended by the legislature for a given act

      or transaction. Mis-souri v. Hunter, 459 U.S. 359, 366 (1983). The most commonly applied

      test for this question was established in 1932, when the Supreme Court of the United States

      handed down its deci- sion in Blockburger v. United States:


             A single act may be an offense against two statutes; and if each statute requires
             proof of an additional fact which the other does not, an acquittal or conviction




35
        under either statute does not exempt the defendant from prosecution and pun-
        ishment under th other.




 Blockburger v. United States, 284 U.S. 299, 304 (1932) (quoting Morey v. Commonwealth,

 108 Mass. 433, (MA 1871)). Were this the only guidance for courts on the subject of double

jeopardy, the clause could be effectively read out of the Fifth Amendment and Article I, § 14.

 The Legislature could circumvent the citizenry's protection from double jeopardy by simply

 criminalizing the loading of the firearm, the cocking of the revolver, the aiming ofthe firearm,

and the squeeze of the trigger; prosecuting the defendant for murder in each instance until a

conviction is obtained, citing Blockburger each time a jury is summoned to justifY the

subsequent prosecutions. Fortunately, Blockburger is not a black letter rule of law, but a tool

of statutory construction, and it is not the exclusive tool for the task:

        In the multiple punishments context, the Blockburger test is simply a rule of
        statutory construction, which is useful in attempting to ascertain legislative
        intent. Hunter, 459 U.S. at 366-368. Hence, the Supreme Court has concluded
        that the Blockburger test cannot negate a clearly expressed legislative intent to
        impose multiple punislunents ... The Blockburger test's status a a 'mere rule
        of statutory construction' raises an inverse conclusion as well: the Block-
        burger test cannot authorize two punishments where the legislature clearly
        intended only one. And, that status raises the possibility that there exist other
        rules ofstatutory construction that may be employed to help ascertain whether
        a legislature intended multiple punishments.




Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999). In Ervin, for example, the Texas

Court of Criminal Appeals addressed whether Manslaughter and Intoxication Manslaughter

were two separate offenses for double jeopardy purposes, and ultimately concluded that a




36
 conviction for one would bar prosecution for the other. ld at 815. In so holding, the Court set

 out a nonexclusive list of factors to consider:

        Whether the offenses provisions are contained within the same statutory sec-
        tion, whether the offenses are phrased in the alternative, whether the offenses
        are named similarly, whether the offenses have common punishment ranges,
        whether the offenses have a common focus (i.e. whether the "gravamen" of the
        offense is the same) and whether that common focus tends to indicate a single
        instance of conduct, whether the elements that differ between the offenses can
        be considered the 'same' under an imputed theory of liability which would result
        in the offenses being considered the same under Blockburger (i.e. a lib-
        eralized Blockburger standard utilizing imputed elements), and whether there is
        legislative history containing an articulation of an intent to treat the offenses as
        the same or different for double jeopardy purposes.




ld at 814. This approach is consistent with the Supreme Court of the United State's opinion

in Dixon v. United States, 509 U.S. 688, 704-705 (1993), for several reasons. First, although

the Ervin court attempts to limit its holding to "multiple conviction" cases arising out of the

same prosecution, the Dixon court plainly obliterated any distinction between the two for the

purposes of "same offense" analysis. Dixon, 509 U.S. at 704 ("It is embarassing to assert that

the single term "same offence" (the words of the Fifth Amendment at issue here) has two dif-

ferent meanings."). Second, the Ervin court explicitly acknowledges that Dixon overruled an

alternative test - the "same conduct" test - when it reaffirmed Blockburger; only a few para-

graphs later, the Court adopted the multi-tool approach to statutory construction Texas still

applies today. This suggests two important principles: (!) the Texas Constitution requires a

more liberated version of Blockburger than that reqnired by the Fifth Amendment and (2) that

the Supreme Court's rejection of the "same conduct" test (using previously prosecuted con-

duct to prove an essential element of the subject offense) does not mean that Blockburger




37
 should be construed only in the simplest possible terms.



        Additionally, it is well settled that a conviction for attempting to commit an offense

 cannot coexist with a conviction for a completed offense. It is also well settled that when a

 defendant violates "separate offenses" in a single, continuing act should be subsmned into

 one another, culminating in a single criminal conviction:

         It is clear that sexual exploitation of children is of great concern to the
         legislature. The offenses enmnerated by the legislature cover a range of deviant
         sexual conduct, beginning with exposure and continuing though sexual contact
         to penetration and including incest and child prostitution. The scheme
         encompasses escalation of abuse; no matter where in the range the perpetrator
         stops, the offense is complete at that point. That is not to say that every
         ofknse in the range can in all cases be prosecuted as a separate
        olknse. While it is clear from the plain language of the various statutes
        that the legislature intended harsh penalties for sexual abuse of children,
        there is nothing in the language to suggest that it intended to
         authorize "stop- action" prosecution. Just as a conviction for a completed
         offense bars prosecution for an attempt to commit the same offense, a
         conviction for an offense set out in§ 3.03 bars conviction for conductthat, on
        the facts of the case, is demonstrably part of the commission of the greater
        offense. For example, indecency by genital exposure of oneself in the
        course of manual penetration of another are separate olknses, while
        penile contact with mouth, genitals, or anus in the course of penile
      . penetration will be subsumed. Thus, indecency by exposure may or may
        not be a part of sexual assault or indecency by contact, depending on the
        facts ofthe case.



Patterson v. State, !52 S.W.3d 88, 91-92 (Tex. Crim. App. 2004) (emphasis added).




        The fact that Applicant's underlying conviction, upon which her double jeopardy

claim rests, is a municipal ordinance violation does not preclude relief. Because the power



38
 of the municipality to enact ordinances springs from the same source of authority as laws

 promul-gated by the State government - the Texas Legislature - the dual sovereignty

 exception that permits successive state and federal prosecutions for the same offense is

 inapplicable. Benard v. State, 481 S.W.2d 427, 429 (Tex. Crim. App. 1972) (citing Waller v.

Florida, 379 U.S. 387, 393 (1970)).



 a)Application and Argument.




       Applicant submits that her conviction in the municipal court of San Antonio for loiter-

ing for the purpose of prostitution bars her prosecution in the case at bar. Both offenses stem

from the same transaction, and taken together, are incidents of the same criminal act. A

careful examination of the Ervin Factors, recited supra, evidence this fact.

       First, although not contained in the same code, the offenses are strikingly similar

in their statutory structure. The Texas Penal Code prohibits anyone from offering, agreeing,

or engaging in sexual intercourse or deviant sexual intercourse for a fee. Tex. Penal Code

§ 43.02. The San Antonio city ordinance at issue here similarly criminalizes these acts,

relying on the Texas Penal Code definition to fill in the blanks. San Antonio Code of

Ordinances § 21-25(b). It then prohibits "loiter[ing] in or near any street or place open to

the public in a manner and under circumstances manifesting the purpose of inducing,

enticing, soliciting, or procuring another to commit prostitution." San Antonio Code of

Ordinances§ 21-25(c)(l). It further qualifies the offense by requiring the arresting officer to

afford the perpetrator an opportunity to explain her conduct. San Antonio Code of Ordinances

§ 21-25(c)(3). This statutory rubric is so similar to the Texas Penal Code's prohibitions as to




39
 manifest an identical legislative purpose: to arrest and punish people engaged in prostitution.

 This triggers several of the Ervin factors: Similar statutory language, similar statutory names,

 and a focus indicating a singular course of conduct.



         Second, the two statutes share a common focus. To violate the municipal ordinance, the

 actor must (1) be in a public place or near a street; (2) manifesting her intent to induce,

 entice, solicit, or procure prostitution; and (3) must fail to give an adequate explanation for

 her conduct suggesting something other than prostitution. These elements could be simplified

 to mean "communicating an 'offer' or 'agreement' to engage in prostitution". Nothing in the

 text of the Texas Penal Code requires a verbal offer or an agreement to engage in prostitution.

 Agreements in criminal law are quite often tacit in nature and inferred from the

 circumstances; this forms the body of conspiracy law, for example. If someone intent on

 working as a prostitute sees a potential customer, and steps out into the street to make a

 suggestive offer or to accept the customer's suggestive offer by means of gesture, provocative

 dress, or simply eye contact, the actor has triggered the gravamen of the offense in two

 separate statutes.



         Third, this common focus indicates that the elements of the two offenses are the same

 under an "imputed theory of liability." The language of the ordinance simply rephrases the

 same elements listed in the Texas Penal Code. "Offer" and "Entice," "Procure" and "Agree" -

these terms are virtually interchangeable. The degrees to which they differ are matters of

proof rather than alternative manner and means. Cf State v. Barbernell, 257 S. W.3d 248 (Tex.

 Crim. App. 2008) (distinguishing between alternative methods of proving one element as op-

posed to distinct manner and means for committing an offense).



40
         At best, the municipal ordinance at issue here amounts to an attempt to commit prosti-

 tution, which would similarly prove a bar to the instant prosecution. In certain cases even if

 the acts defmed as "loitering for prostitution" under the statute were not identical to the acts

 constituting an offer, agreement, or financially compensated sexual act, the conduct would

 undoubtedly amount to an act done with specific intent to commit prostitution, amounting to

 more than mere preparation, that tends to effect the commission of the offense. Tex. Penal

 Code § 15.01. Furthermore, as alleged in the case at bar, the act of loitering for prostitution

 occurred solely to get into the undercover officer's vehicle to finalize the terms of the transac-

 tion. The approach of penalizing both that act and the resulting finalization of the terms as two

 separate offenses falls squarely within the concept of a subsumed, "stop-gap" prosecution

 disparaged by the Court of Criminal Appeals in Patterson, supra.



                                                PRAYER

       WHEREFORE, PREMISES CONSIDERED, the Applicant prays that for the above

mentioned reasons, the Court grant this Writ of Habeas, find that the Applicant is charged with a

violation of double jeopardy, set aside the indictment in the above-numbered and entitled cause

and for such other relief that this Honorable Court deems just and right.


                                              Respectfully Submitted,



                                             Chad Van Brunt
                                             LAW OFFICE OF CHAD VAN BRUNT
                                             310 S. St. Mary's Street
                                             Tower Life Bldg. - Suite 1840
                                             San Antonio, TX 78205
                                             Tel: (210) 399-8669



41
                                             :: ~10)5d/41
                                                 CHAD VAN BRUNT
                                                 State Bar No. 24070784
                                                 Attorney for Sylvia Martinez




                                CERTIFICATE OF SERVICE

       This is to certifY that on _,._.,r-----1...______,, 2015 a true and correct copy of the above

and foregoing document was served on the District Attorney's Office, Bexar County, by hand

delivery.




42
        '   '   '




                         EX PARTE                                   §       IN THE DISTRICT COURT
                                                                    §
                                                                    §       1871h JUDICIAL DISTRICT
                                                                    §
                         SYLVIA MARTINEZ                            §      BEXAR COUNTY, TEXAS


                                                                ORDER
                          /'2,~-/-?-- JF!P-v~V--- (/1             /4/r>i   'f ~M:rpj

                             On the          y of                    , 2015 came on to be heard applicant's pre-
                     trial writ of habeas co us seeking relief from dou jeopardy, Having duly considered the
                     merits of the same, and the arguments and au cities of counsel, the applicant's relief is
                     hereby:




                           And it is therefore ORDE           that the indictment in cause number 2014CR1384 is
                    dismissed with prejudice.



                                                         -~-DENIED

                            To which A licant duJy excepts.




~""'~

CL




                    43
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1
                  No. 04-15-00348-CR

          IN THE COURT OF APPEALS FOR THE     1015 JUN 2b P 14: 58
              FOURTH DISTRICT OF TEXAS
                                                   DEPUT~ (}/\
     ________________ufi!Jt~vO
                 SAN ANTONIO, TEXAS                                  .



                       INRE:

                 SYLVIA MARTINEZ,

                          Relator




           FROM THE 187m DISTRICT COURT
              OF BEXAR COUNTY, TEXAS
               CAUSE NO. 2014-CR-1384


     RESPONSE TO PETITION FOR WRIT OF MANDAMUS



                                JUDGE STEVEN C. HILBIG
                                1871h District Court
                                Bexar County, Texas,

                                Respondent




48
                            IDENTITY OF PARTIES AND COUNSEL


     Respondent:

     Judge Steven C. Hilbig

     Counsel for Respondent:

     Melissa Barlow Fischer
     State Bar No. 01758200
     General Administrative Counsel
     Criminal District Court Administration
     Paul Elizondo Tower
     101 W. Nueva, Suite 301
     San Antonio, Texas 78205


     Relator:

     Sylvia Martinez

     Counsel for Relator:

     Chad P. Van Brunt
     State Bar No. 24070784
     310 S. St. Mary's Street
     Suite 1840- Tower Life
     San Antonio, Texas 78205

     Angela Moore
     State Bar No. 14320110
     310 S. St. Mary's Street
     Suite 1840- Tower Life
     San Antonio, Texas 78205




                                              11



49
                                                   INDEX OF AUTHORITIES

                                                                                                                                      PAGE
     Cases

     Blanton v. State, 369 S.W.3d 894, 903 (Tex.Crim.App.2012) ........................................... 6

     Buntion v. Harmon, 827 S.W.2d 945, 947 n. 2 (Tex.Crim.App.1992)(en bane) ................ 2

     Ex Parte Carter, 849 S.W.2d 410,412 (Tex.App.-San Antonio 1993, pet. ref d) (Onion,

        ].) ................................................................................................................................. 3, 8

     Ex parte Crawford, 506 S.W.2d 920 (Tex. Civ. App. 1974) .............................................. 8

     Ex Parte Gaither, 387 S.W.3d 643,648 (Tex. Crim. App. 2012) ...................................... 6

     Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) ....................................... 2,

     Ex parte Pipkin, 935 S.W.2d 213,215 (Tex. App. 1996) ................................................... 3

     Flores v. Flores, 116 S.W.3d 870, 876 (Tex. App. 2003) .................................................. 6

     In re Altschul, 236 S.W.3d 453, 456 (Tex. App. 2007) ...................................................... 5

     In re Davis, 990 S.W.2d 455,457 (Tex. App. 1999) .......................................................... 3

     In re Piper, 105 S.W.3d 107, 110 (Tex. App. 2003) ...................................................... 3, 5

     In re Reed, 137 S.W.3d 676, 678 (Tex. App. 2004) ................................................... 2, 5, 8

     King Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 843 (Tex. 2014)                                                        6

     Lutheran Soc. Serv., Inc. v. Meyers, 460 S.W.2d 887, 889 (Tex. 1970) ............................ 3

     Nichlos v. State, 255 S.W.2d 522, 526 (Tex. Crim. 1952) ................................................. 5

     Smith v. Flack, 728 S. W.2d 784, 792 (Tex.Crim.App.1987) .............................................. 3

     State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App.1987) ...................... 2, 4

     State ex rel. Hill v. Court ofAppeals for Fifth Dist, 67 S. W.3d 177, 181 (Tex. Crim.

       App. 2001) ...................................................................................................................... 2

     Stotts v. Wisser, 894 S.W.2d 366,367 (Tex.Crim.App.1995) (orig. proceeding) .............. 2

                                                                         iii

50
     Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) ......................................................... 3

     Williams v. Harmon, 788 S.W.2d 192, 193 (Tex. App. 1990) ........................................... 5

     Statutes

     Tex. Code Crim. Proc. Ann. art. 11.05 ............................................................................... 9

     Tex. Code Crim. Proc. Ann. art. 11.1 0 ............................................................................... 8

     Tex. Code Crim. Proc. Ann. art. 11.14 ............................................................................. II




                                                               iv

51
                                    PROCEDURAL POSTURE

             Relator, Sylvia Martinez, is charged with connnitting prostitution, in violation of

     § 43.02 of the Texas Penal Code. Relator was indicted on February 26, 2014. On March

     18, 2015, Relator was arraigned and defense counsel was appointed. There have been

     three trial settings in this case. The first occurred on Aprill7, 2015. Relator's case was

     reset. The second trial setting was on May 15, 2015. Relator's case was again reset.

     Relator's third trial setting was on June 5, 2015, and the case was sent to trial.    On this

     very same day, defense counsel filed its prej:rial application for writ of habeas corpus.

            On Monday, June 8, 2015, Respondent denied Relator's request for issuance of

     the writ of habeas corpus. Rep. R. at 3. Respondent never engaged the merits of the writ.

     Respondent denied issuance of the writ, and not relief. During that same proceeding,

     Respondent granted Relator's Motion for Continuance and reset the matter for June 22,

     2015, thereby delaying the trial's connnencement for two full weeks. On June 17, 2015,

     this Court granted Relator's Request for Emergency Relief and ordered the parties to file

     responses to the petition for writ of mandamus.




                                                   I


52
           ARGUMENTS IN RESPONSE TO RELATOR'S WRIT OF MANDAMUS


I.    The Fourth Court of Appeals Should Deny Mandamus Because Respondent Had No
      Duty to Issue the Writ of Habeas Corpus and There Are Adequate Remedies At
      Law Available to Respondent

              The Texas Court of Appeals reviews a trial court's refusal to issue an application

      for writ of habeas corpus under the abuse of discretion standard. Ex parte Peterson. 117

      S. W.3d 804, 819 (Tex.Crim.App. 2003 ). The appellate court must review the evidence in the

      light most favorable to the trial court's ruling and must uphold the trial court's ruling

      absent an abuse of discretion. Ex parte Peterson. 117 S.W.3d 804,819 (Tex.Crim.App. 2003).

              Under long-established precedent, this Court will not grant mandamus unless the

      relator proves two elements: first, that respondent failed to perform a ministerial duty

      imposed by law and, second, that there is no other adequate remedy at law available to

      him. In re Reed, 137 S.W.3d 676, 678 (Tex. App. 2004).

              In order to establish the first element, relator must show a "clear right to relief

      sought." Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex.Crim.App.1995) (orig. proceeding).

      In criminal cases, this "clear right to relief' has been couched in terms of the Respondent

      owing a "ministerial," and not discretionary, duty. Buntion v. Harmon, 827 S. W.2d 945,

      947 n. 2 (Tex.Crim.App.1992)(en bane). A ministerial duty is one which is clearly fixed

      and required by law. State ex rel.             Curry v.     Gray,   726 S.W.2d 125, 128

      (Tex.Crim.App.1987). It is unequivocal, unconditional, and present. Id The duty must be

      one that is so clearly spelled out by law that nothing is left to the exercise of discretion or ·

      judgment. State ex rel. Hill v. Court ofAppeals for Fifth Dist., 67 S.W.3d 177, 181 (Tex.

      Crim. App. 2001).




                                                     2

 53
               In order to satisfY the second requirement, Relator must establish that he has no

     other adequate remedy short of mandamus. In re Piper, 105 S.W.3d 107, 110 (Tex. App.

     2003). The purpose of this second requirement is "[t]o assure that a relator will not

     prematurely apply for extraordinary relief via writ of mandamus." Smith v. Flack, 728

     S.W.2d 784, 792 (Tex.Crim.App.1987).

                  A. Whether a trial court issues a writ of habeas corpus is a matter of
                     discretion.

               In Ex parte Carter, this Court restated Texas black letter law concerning the

     nature of a trial court's decision on whether to issue a habeas writ. The rule is bright-line

     and unequivocal: "Whether a trial court issues a writ of habeas corpus is a matter of

     discretion. 1 The trial court has no duty to grant a hearing on an application for writ of

     habeas corpus. 2" Ex Parte Carter, 849 S.W.2d 410, 412 (Tex.App.-San Antonio 1993,

     pet. ref' d) (Onion, J.). This Court should adhere to Carter and deny mandamus.

               Carter's facts are virtually identical to those of the instant case. There, Carter

     filed an application for pretrial writ of habeas corpus, asserting that a trial on the merits

     would subject him to double jeopardy. !d. The 2901h District Court denied the application.

     !d. Carter then filed a motion to reconsider, which the 2901h District Court again denied.

     !d. Carter appealed, and this Court dismissed. !d. In its opinion, this Court emphasized

     that, although the 290"' District Court held a hearing on whether to issue the writ, the trial

     court never addressed on the writ's merits. !d. The trial court denied the writ, it did not

     deny relief. !d. Here, Relator, like Carter, filed a pretrial writ of habeas corpus, claiming a


     1
      See also Ex parte Fowler, 573 S.W.2d 241,244 (Tex.Crim.App.1978), overruled on
     other grounds, Ex parte Spaulding, 612 S.W.2d 509 (Tex.Crim.App.1981); Williams v.
     Harmon, 788 S.W.2d 192, 193 (Tex.App.-Houston [1st Dist.]l990, no pet.).
     2
         See also Williams, 788 S.W.2d at 193 (Tex.App.-Houston [1st Dist.]1990, no pet.)
                                                   3

54
     trial on the merits would subject her to double jeopardy. Respondent, like the 2901h

     District Court, declined to issue the writ. In Carter, this Court restated the

     aforementioned bright-line rule concerning the trial court's discretion to refuse issuance

     of habeas writs, and then bolstered its dismissal of Carter's appeal with another piece of

     Texas black letter law - namely, that no appeal lies from a trial court's denial of an

     application for a habeas writ. Id at 413.

             This Court should adhere to Carter in both form and substance. The rule laid

     down in Carter unquestionably controls this case, and that rule definitively precludes

     mandamus. If a relator does not seek to compel performance of a ministerial act, then

     mandamus cannot lie. In re Reed, 137 S.W.3d at 678. If there is a modicum of discretion

     attendant to an act, then that act is absolutely precluded from being characterized as

     ministerial. State ex rel. Curry, 726 S.W.2d at 128. The decision of whether to issue a

     habeas writ is left to the trial court's discretion. This Court should maintain the

     commitment to settled law that it displayed in Carter and follow the bright-line rule

     restated therein.

             Furthermore, Relator cites to Article 11.1 0, Texas Code of Criminal Procedure, as

     her authority for arguing the issuance of the writ of habeas corpus is a ministerial act. . By

     its very terms, Article 11.10 applies only to individuals under circumstances described in

     the two preceding articles: "When motion has been made to a judge under the

     circumstances set forth in the two preceding Articles ... " Tex. Code Crim. Proc. Ann.

     art. 11.1 0. Those articles deal with individuals, held in custody prior to trial, who

     challenge their incarceration under the traditional grounds of no probable cause or

     excessive bail. Neither Article, and more importantly Article 11.08 (which references



                                                   4


55
     felony cases), refers to writs of habeas corpus to complain of violations of double

     jeopardy.

                 B. The Texas Code of Criminal Procedure and Texas precedent confirm
                    there is adequate legal relief short of mandamus available to
                    respondent.

             Mandamus cannot lie where another adequate remedy at law is available. In re

     Reed, 137 S.W.3d at 678. Article 11.05 of the Texas Code of Criminal Procedure

     provides that a habeas applicant may submit her petition for writ of habeas corpus to any

     court having jurisdiction. Tex. Code Crim. Proc. Ann. art. 11.05. Texas Courts have

     recognized this as an adequate legal remedy short of mandamus." [Relator's] remedy is

     to file a petition for writ of habeas corpus in the Texas Court of Criminal Appeals, in any

     Texas district court other than the [court which refiJsed to issue the writ], or in any Texas

     county court." In re Piper, 105 S.W.3d 107, 110 (Tex. App. 2003); see also Nichlos v.

     State, 255 S.W.2d 522, 526 (Tex. Crim. 1952) ("[W]here an application alleging

     unlawful restraint is presented to a judge, and he declines to hear the prayer for relief and

     any proof which may be offered in support thereof no appeal lies... [T]he relief available

     to the applicant being to present his application to another judge having jurisdiction);

     Williams v. Harmon, 788 S.W.2d 192, 193 (Tex. App. 1990) ("[T]he only remedy for

     denial of the writ is to present the application to another judge having jurisdiction"); In re

     Altschul, 236 S. W.3d 453, 456 (Tex. App. 2007) ("Generally, an appellate court may not

     afford mandamus relief over a trial court's refusal to consider a writ of habeas corpus

     application because the applicant can present the application to another district court").




                                                   5


56
     II. Trial Court Was Justified In Refusing to Issue Writ

             A. Relator created her own emergency

             Notions of equity and justice are deeply engrained in the writ of habeas corpus. Ex

     Parte Gaither, 387 S.W.3d 643, 648 (Tex. Crim. App. 2012); Blanton v. State, 369

     S.W.3d 894, 903 (Tex.Crim.App.2012). A person seeking relief in equity must arrive in

     court with clean hands. Flores v. Flores, 116 S.W.3d 870, 876 (Tex. App. 2003). And

     whether a person has arrived in court with cleans hands is a matter left to the sound

     discretion of the trial court. Id

             In this case, Relator did not file her habeas application until her third trial setting.

     Defense counsel was appointed on March 18. From March 18 to June 4, there was no

     mention of a habeas application. Yet, on the day the case was called to trial, counsel

     demanded a hearing on the freshly filed application.

             Such tactics display the earmarks of an attempt to delay trial by way of

     subterfuge. Under Texas Law, trial courts are afforded the "inherent power to control the

     disposition of cases with economy of time and effort for itself, for counsel, and for

     litigants." King Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 843 (Tex. 2014),

     reh'g denied (Oct. 24, 2014). Consistent with his inherent power to control the disposition

     of his docket and the discretion to adjudge the equities that he is afforded by Texas Law,

     Relator refused to issue the writ.

            Relator argues that she has no adequate remedy at law short of mandamus

     because Respondent has elected to proceed to trial immediately. This is, first, inaccurate

     -a two week continuance was granted on June 8. Second, even if Relator were unable to

     seek an alternative remedy because trial was imminent, it is worth considering whose

     conduct gave rise to that emergency.

                                                    6


57
              As a matter of public policy, this Court must not allow the Great Writ to be

     refashioned into a tool for trial avoidance. Yet, such reformation would follow if trial

     courts were compelled to hold hearings on every habeas writ filed seconds after a case is

     sent to trial.

             B. Under Texas Law, Relator's habeas application was insufficient on its
                face

             Relator's application for habeas was deficient on its face. Relator failed to comply

     with three of five requirements set forth by in Chapter 11, Article 4 of the Texas Code of

     Criminal Procedure. An application for writ of habeas corpus must state that the person,

     for whose benefit the application is submitted, is illegally restrained in her liberty. Tex.

     Code Crim. Proc. Ann. art. 11.14(1). When a party is confined or restrained by virtue of

     any order, a copy of that order must be annexed to the petition, unless it is stated that a

     copy cannot be obtained. Tex. Code Crim. Proc. Ann. art. 1I .14(2). An oath must be set

     forth in the writ stating the allegations contained therein are true, according to the

     petitioner's belief. Tex. Code Crim. Proc. Ann. art. I 1.14(3).

             Relator's application contained no assertion that she is illegally restrained in her

     liberty, and the application thus violated subsection one. Relator is confined pursuant to a

     court order, yet no copy of that order is annexed to the petition, nor does the petition state

     that a copy could not be obtained. This affects a violation of subsection two.            No

     verification or oath was set forth in the application, and thus subsection three was

     violated.

             Notably, Relator never provided evidence that she was charged with a violation of

     the San Antonio Municipal Ordinance - it is simply set forth as a bald claim in the habeas

     application. Similarly unsubstantiated writs have been ruled insufficient by Texas courts.


                                                   7

58
     See Ex parte Crawford, 506 S.W.2d 920 (Tex. Civ. App. 1974) (Application for writ of

     habeas held insufficient where application claimed applicant was illegally restrained, but

     failed to show that he was in fact restrained).

            In conclusion, this Court should deny mandamus. Under Texas law, mandamus

     cannot lie unless Respondent can establish that, first, she seeks to compel performance of

     a ministerial duty, and, second, that she has no other adequate remedy at law. Both

     elements are absent in this case. In re Reed, 137 S.W.3d at 678. Under this Court's

     authority, as stated in Carter, a district court's decision on whether to issue a habeas writ

     is discretionary, and not ministerial, in nature. Furthermore, there are other adequate

     remedies at law available to Respondent - such as filing her habeas writ in any other court

     having jurisdiction. Ultimately, both the Texas Code of Criminal Procedure and

     considerations of equity fully justifY Respondent's refusal to issue Relator's application

     for habeas.

                                              PRAYER

            WHEREFORE PREMISES CONSIDERED, Respondent submits that a hearing

     should not be ordered and that this Court decline Relator's Petition for Writ of

     Mandamus.




                                                   M~SA BARLOW FISCHER
                                                   General Administrative Counsel
                                                   Paul Elizondo Tower
                                                   101 W. Nueva, Suite 301
                                                   San Antonio, Texas 78205
                                                   Attorney for Respondent




                                                   8

59
                                      CERTIFICATE OF SERVICE

             I, Melissa Barlow Fischer, attorney for the Respondent, Judge Steven C. Hilbig,
     certify that a copy of the foregoing brief is being hand delivered and/or mailed to the
     following parties:

     Chad P. Van Brunt
     Angela Moore
     310S.St.Mary's St.
     Tower Life, Suite 1840
     San Antonio, Texas 78205
     Attorneys for Sylvia Martinez

     Nicholas Lahood
     District Attorney, Bexar County
     Paul Elizondo Tower
     101 W. Nueva, 4th Floor
     San Antonio, Texas 78205




                                                Attorney for Respondent


     Date: ----'(p"+;-'--;;_,_1/!_ _ _, 2015.




                                                9

60
                                                               CRThflNALDOCKETSHEET
l____FINGERPRINT               NAME OF PARTIE"                   ATTORNEYS            COURT REPORTER                    COURT ACTIVITY                                    J


      2014-CR-1384            0187 02/26/2014                                                                 -     JUDGE PRESIDING
61




      STATE OF TEXAS vs                         sec:   0          STATE ATTORNEY                                    NO RECOMMENDATION/ NO PLEA BARGAIN

      MARTINEZ. SY LVIA G
                                                                  DEFENSE ATTORNEY
                                                                                                              =--
                                                                                                              -
                                                                                                                    PLEA BARGAIN AGREEMENT
                                                                                                                          YRS MDS DYS (TDCJ- ID)(BDADC)(STATE JAIL)
                                                                                                                    $ - - Fine$ - - - Restitution
~ROSTITUTION-       3 DR MORE PR IDRS
                                                                                                              _     Comm Supervision (Recommended)(Silent)(Opposed)
                            OFFENSE INFORMATION                   COURT REPORTER
                                                                                                              _     Def Adjudication (Recommended)(Silent)(Opposed)
                     RE [)UCED TO LESSER OFFENSE:
                                                                                                              _     Cases to Run Concurrent/Consecutively
                                                                  COURT INTERPRETER
                     s;TATE PROCEEDS ON COUNT (s)
                     p'ARAGRAPH                                                                               Cases Taken into Consideration:
                     EINHANCEMENT PARAGRAPH (s)

 RIGHT THUMBPRINT
                                                                                                              _ _ Non 'Binding Recommendations                        -
     DATE OF ENTRY                                     COURT ENTRIES                                          _ _ DYS MOS(BCADC)(STATE JAIL)(Cond ofSupcvsn)

                                             ;,~,,/~~AT'~
                                                                                                              _ _ _ _ HRS Community Service/ _ _ _ DYSELM
            .~

                            /117/Y                                         R/c-       0     /q   i;J_,,f; 4
                                                                       I                                      __ Substance Abuse Treatment Facility
                                                           I
                                                                                                              _ _ _ YRS MDS DYS (TDCJ-ID)(BCADC)(ST JAIL)
                                                                                                              - - - - - $ - - - Fine$     Restitution
                                                                                                              - - Other:

                                                                                                              COURT RULING

                                                                                                              _ _ _ YRS MOS DYS (TDCJ- (BCADC)(ST JAIL)
                                                                                                              --$            Fine$                  Restitution
                                                                                                                  Payable to:
                                                                                                              _ _ Affirmative Finding of a Deadly Weapon
                                                                                                              _ S.A.LP. (Boot Camp) _ _ Shock Supervision
                                                                                                              _ Drivers License Suspension Start Date:
                                                                                                                 End Date:
                                                                                                              _ SAFPF (Comm Supervision)(Amended Com.m Supv.)
                                                                                                              _Therapeutic Community Program
                                                                                                              _ _ _ HRS Community Service _ _ DYS ELM                 -
                                                                                                              _ _ _ DYS MOS (BCADC)(STATE JAlL)(Cond ofSupv)
                                                                                                              _ (Work)(Weekend) Release Program (Cond ofSupervsn)
                                                                                                              _ Found TRUE to Enhancement Paragraph as a Repeater
                                                                                                              _Found TRUE to Enhancement Paragraphs as a Habitual
                                                                                                              - Other:

                                                                                                                                DONNA KAY MsKINNEY
                                                                                                                            BEXAR COUNTY DISTRICT CLERK



                                                                                                              By:                                           DEPUTY
                                 CERTIFICATE



                               THE STATE OF TEXAS

                                 COUNTY OF BEXAR



      I, DONNA KAY MCKINNEY, Clerk of the District Court of Bexar County, Texas

do hereby certify that the documents contained in this record, Cause No. 2014CR1384, of

which this certification is attached are all of the documents specified by Texas Rule of

Appellate Procedure 34.5 (a) and all other documents timely requested by a party to this

proceeding under Texas Rule of Appellate Procedure 34.5 (b).

      GIVEN UNDER MY HAND AND SEAL of said Court at office in the City of

San Antonio, Bexar County, Texas this June 29, 2015.




                                        DONNA KAY MCKINNEY

                                        Clerk, _187TH___ Judicial District
                                        Court of Bexar County, Texas



                                        By: /s/   Jamie L. Osio
                                        Jamie L. Osio
                                        APPEALS CLERK

                                    **********




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