                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   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.
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                                                 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.

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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
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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
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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
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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
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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




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