                                                                                   WR-83,996-01
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                    Transmitted 10/9/2015 7:05:56 PM
                                                                     Accepted 10/12/2015 3:55:24 PM
                                                                                      ABEL ACOSTA
                        NO. ________________________                                          CLERK

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


                  MOTION FOR LEAVE TO FILE AN
            ORIGINAL PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

      NOW COMES, the Bexar County District Attorney’s office and, pursuant to

Rule 72.1 of the Texas Rules of Appellate Procedure, files this motion for leave to

file an original petition for writ of mandamus and in support thereof would

respectfully show the Court as follows:

                                          I.


      The underlying action is the trial court’s refusal to issue a pre-trial writ of

habeas corpus application, collaterally attacking State of Texas v. Sylvia Martinez,

Cause Number 2014CR1384, from the 187th District Court of Bexar County. The

writ application was heard by the trial court on June 8, 2015, the same day the case

was set for trial. After the trial court refused to issue the writ, Martinez filed a




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petition for writ of mandamus in the Fourth Court of Appeals arguing that the trial

court had a ministerial duty to issue the writ.

      On August 26, 2015, in an opinion authored by the Honorable Justice Jason

Pulliam, a three judge panel of the Fourth Court of Appeals conditionally granted

the writ of mandamus concluding that Judge Hilbig had a ministerial duty to rule

on Martinez’s writ application and that she did not have an adequate remedy at

law. See In re Martinez, No. 04-15-00348-CR at *5 (Tex. App.—San Antonio,

August 26, 2015) (orig. proceeding). In a separate order, the Fourth Court of

Appeals gave Judge Hilbig 14 days in which to rule on the writ or provide

Martinez enough time to file her application in another court. The State of Texas

now seeks mandamus review of that opinion and order.

                                              II.

      The issue in the instant matter involves the Fourth Court’s failing to follow

its prior precedent and essentially forcing the trial court to create an appealable

order on the eve of trial.




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      WHEREFORE, PREMISES CONSIDERED, the Bexar County Criminal

District Attorney’s Office requests that this Court grant leave for the filing and

consideration of its Petition for Wirt of Mandamus.

                                            Respectfully submitted,

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


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




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                        CERTIFICATE OF SERVICE

      I do hereby certify that a true and correct copy of the foregoing instrument
has been served on the counsel of record by electronic mail on October 9, 2015.

      Chad P. Van Brunt
      State Bar No. 24070784

      Angela Moore
      State Bar No. 14320110
      310 S. St. Mary’s Street, Suite 1830
      San Antonio, Texas 78205

                                             /s/ Lauren A. Scott
                                             ______________________________
                                             Lauren A. Scott




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