in Re Sylvia Martinez ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
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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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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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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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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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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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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