in Re Sylvia Martinez

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.

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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

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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

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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

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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

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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

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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

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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 *-*-*-*-*-*-*-

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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)

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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

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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.

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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).

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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

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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

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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").

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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

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