in Re Sylvia Martinez

WR-83,996-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/9/2015 7:05:56 PM Accepted 10/12/2015 3:55:24 PM ABEL ACOSTA NO. ________________________ CLERK § IN THE COURT OF RECEIVED COURT OF CRIMINAL APPEALS § 10/12/2015 IN RE § ABEL ACOSTA, CLERK SYLVIA MARTINEZ § CRIMINAL APPEALS § § AUSTIN, TEXAS MOTION FOR LEAVE TO FILE AN ORIGINAL PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: NOW COMES, the Bexar County District Attorney’s office and, pursuant to Rule 72.1 of the Texas Rules of Appellate Procedure, files this motion for leave to file an original petition for writ of mandamus and in support thereof would respectfully show the Court as follows: I. The underlying action is the trial court’s refusal to issue a pre-trial writ of habeas corpus application, collaterally attacking State of Texas v. Sylvia Martinez, Cause Number 2014CR1384, from the 187th District Court of Bexar County. The writ application was heard by the trial court on June 8, 2015, the same day the case was set for trial. After the trial court refused to issue the writ, Martinez filed a 1 petition for writ of mandamus in the Fourth Court of Appeals arguing that the trial court had a ministerial duty to issue the writ. On August 26, 2015, in an opinion authored by the Honorable Justice Jason Pulliam, a three judge panel of the Fourth Court of Appeals conditionally granted the writ of mandamus concluding that Judge Hilbig had a ministerial duty to rule on Martinez’s writ application and that she did not have an adequate remedy at law. See In re Martinez, No. 04-15-00348-CR at *5 (Tex. App.—San Antonio, August 26, 2015) (orig. proceeding). In a separate order, the Fourth Court of Appeals gave Judge Hilbig 14 days in which to rule on the writ or provide Martinez enough time to file her application in another court. The State of Texas now seeks mandamus review of that opinion and order. II. The issue in the instant matter involves the Fourth Court’s failing to follow its prior precedent and essentially forcing the trial court to create an appealable order on the eve of trial. 2 WHEREFORE, PREMISES CONSIDERED, the Bexar County Criminal District Attorney’s Office requests that this Court grant leave for the filing and consideration of its Petition for Wirt of Mandamus. Respectfully submitted, NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas /S/ LAUREN SCOTT ___________________________ Lauren A. Scott Assistant District Attorney State Bar No. 24066843 101 W. Nueva San Antonio, Texas 78205 210-335-2885 Email: lscott@bexar.org 3 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing instrument has been served on the counsel of record by electronic mail on October 9, 2015. Chad P. Van Brunt State Bar No. 24070784 Angela Moore State Bar No. 14320110 310 S. St. Mary’s Street, Suite 1830 San Antonio, Texas 78205 /s/ Lauren A. Scott ______________________________ Lauren A. Scott 4