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. -2-  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 -3-  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 -4-  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 -5-  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 -6-  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 -7-  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 -2-  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 *-*-*-*-*-*-*- 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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  ,, ao <± qq. 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