                                     NUMBER 13-07-607-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI – EDINBURG


                                  IN RE: ULYSSES SANCHEZ


                             On Petition for Writ of Mandamus


                                          OPINION
                  Before Justices Yañez, Rodriguez and Benavides
                           Opinion by Justice Benavides

        Relator, Ulysses Sanchez, requests this Court to issue a writ of mandamus ordering

the Respondent, the Honorable Homer Salinas,1 to reverse his order denying Sanchez’s

motion to dismiss for Brady2 violations. Finding Sanchez has an adequate remedy by

ordinary appeal, we deny Sanchez’s petition.




        1
          The Honorable Hom er Salinas is the presiding judge of the Crim inal Auxiliary Court A, sitting for the
93rd District Court of Hidalgo County, Texas.

        2
            See Brady v. Maryland, 373 U.S. 83, 86-91 (1963).
                                              I. Background

        On February 13, 2007, gunfire occurred outside Sanchez’s home. It is undisputed

that Sanchez fired upon a vehicle containing five students, four of whom were self-

identified as gang-members. Samuel Mendez was the driver of the vehicle. Immediately

following the shooting, Mendez drove to the Pharr Police Department. At the department,

the front-seat passenger was pronounced dead from a gunshot wound to the head, and

two back-seat passengers were examined and found to have gunshot wounds.

        While the occupants of the vehicle were at the police station, Sanchez was being

detained by an officer conducting an investigation at the scene of the shooting. Based on

radio communications, the officer arrested Sanchez and transported him to the police

station, where he was identified by the surviving occupants of the vehicle. Sanchez claims

that the vehicle’s occupants possessed firearms and fired first. He claims that he fired in

self-defense.

        Police secured the vehicle, which was immediately processed by crime-scene

technicians. The technicians collected blood samples and a bullet “slug” and took over 100

photos of the vehicle. The technicians then released the vehicle to the Pharr Police

Department.

        The Police Department impounded the vehicle. Two days later, on February 15,

department officials released the car to Dulce Amelia Mendez. It was reported that

Mendez was the mother of the driver. However, according to her driver’s license, Mendez

is only seven years older than the driver of the vehicle, Samuel Mendez.3

        3
          Dulce A. Mendez presented her driver’s license, which has the sam e address as that of Josefina
Mendez, presum ptive owner of the vehicle. Dulce Mendez signed the property release form for the vehicle,
acting as agent of the owner. The Pharr police did not com pletely fill out the form , particularly the nam e of

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        Sanchez’s family retained attorney William Maxwell on or about February 20. That

same day, Maxwell contacted the Pharr Police Department, requesting to see the vehicle

and have it made available for testing. In what can only be described as a repeated “failure

to communicate,” the Pharr Police Department misinformed Sanchez’s counsel, as well as

the prosecutors, about the location of the vehicle. The department reported the car had

been sent for forensic testing, when, in fact, it had been released to Mendez five days

earlier. The car was subsequently repossessed for nonpayment and is evidently no longer

available for the defense to examine.

        On May 1, 2007, Sanchez was indicted for one count of murder and four counts of

attempted murder. Sanchez moved to dismiss the case under Brady because the State

had failed to produce the vehicle and the clothing worn by the vehicle’s occupants. The

trial court held hearings on September 10, 2007 and October 1, 2007. The trial court

denied the motion to dismiss, finding that it “attribute[d] no fault to the State for [the release

of the vehicle] occurring.” On October 9, 2007, Sanchez filed a petition for writ of

mandamus and a motion for an emergency stay of the proceedings below. On October

10, 2007, we granted Sanchez’s motion for an emergency stay and requested a response

from the State.

                                        II. Discussion

        To establish an entitlement to mandamus relief in the criminal context, the relator

must show: (1) there is no other adequate remedy at law; and (2) the act the relator seeks

to compel is ministerial, rather than discretionary. Dickens v. Second Court of Appeals,

727 S.W.2d 542, 548 (Tex. Crim. App. 1987). Sanchez argues that his remedy by appeal

the owner of the vehicle.

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is inadequate because the discovery of the crime scene vehicle goes to the heart of his

case, citing civil cases from the Texas Supreme Court. See In re Allstate County Mut. Ins.

Co., 85 S.W.3d 193, 196 (Tex. 2002) (orig. proceeding). Sanchez argues that the effect

of the trial court’s denial of his Brady Motion is that evidence from the car obtained by the

State may be offered at trial, but he will not be able to adequately address this evidence

because he was precluded from examining the car himself.

       Sanchez’s reliance on Texas Supreme Court authority in the civil context is

misplaced—in a criminal case, we are bound to follow the pronouncements of the Texas

Court of Criminal Appeals. Dickens, 727 S.W.2d at 546 (holding that Texas Court of

Criminal Appeals has authority to review, through original mandamus proceeding,

mandamus decisions of the courts of appeals in criminal matters); see Villarreal v. State,

No. 13-05-123-CR, 2008 Tex. App. LEXIS 5132, at *10 (Tex. App.–Corpus Christi July 3,

2008, no pet. h.) (holding court of appeals is duty bound to follow Texas Court of Criminal

Appeals decisions in criminal matters).

       In Dickens, the Texas Court of Criminal Appeals considered whether the court of

appeals below improperly granted a mandamus to require the trial court to vacate a pre-

trial order denying discovery by the defendant. 727 S.W.2d at 550-52. The court of

criminal appeals held that the normal avenue for a defendant to challenge a pre-trial order

is through an ordinary appeal. Id. at 550. The court expressly rejected the relator’s

attempted reliance on discovery cases in the civil context, noting that “If this Court allowed

mandamus to be substituted for appellate review in discovery situations, the trial of cases

would be slowed to a crawl, and eventually, mandamus would be substituted for the



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appellate process in all pretrial matters.” Id. at 551. While the court of criminal appeals

recognized that in civil cases, mandamus is available to review discovery orders, the court

determined that in criminal cases, the need to avoid constant interruption of criminal trials

was greater than in the civil context. Id. at 551-52 & n.12. Accordingly, the court of

criminal appeals held that the court of appeals below improperly issued a writ of

mandamus to compel discovery. Id. at 552. Sanchez has not cited, nor have we located,

any cases that hold differently in the context of an alleged Brady violation. In fact, the only

case to address this specific issue has recognized that mandamus is not available to

review Brady determinations. See Walding v. Ables, No. 04-95-00361-CV, 1995 WL

612400, at *3 (Tex. App.–San Antonio Oct. 18, 1995, orig. proceeding) (not designated for

publication) (explaining that mandamus relief is available to force trial court to review Brady

material and to make a determination, but not to review decisions made after reviewing the

alleged Brady material because appellate remedy is adequate).

       In this case, we hold that the same principles apply. An objection made timely

during trial would allow the court to rule on the admissibility of the State’s evidence and

preserve Sanchez’s right to appeal that ruling, should he choose to do so. Id. at 551. In

fact, in the pre-trial hearing, the trial court instructed counsel for the defense to make the

appropriate objections during the upcoming trial, should the need arise. Should evidence

be offered during trial that defense counsel finds objectionable, he can object at that point,

potentially preventing the evidence from being admitted, or at the very least, preserving the

issue for appeal. Sanchez’s appellate remedy will be adequate to review the alleged Brady

violation.



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                                     III. Conclusion

       Because Sanchez has not demonstrated that his appellate remedy is inadequate,

we deny his petition for writ of mandamus. We lift the stay of the trial court’s proceedings

previously ordered by this Court.



                                                        __________________________
                                                        GINA M. BENAVIDES
                                                        Justice
Publish.
See TEX . R. APP. P. 47.2(b).

Opinion delivered and filed this
the 21st day of August, 2008.




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