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)
23
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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 ~<=tl.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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