In re State

• Decision Date: 05 October 2018
• Docket Number: NO. 03-18-00351-CV,03-18-00351-CV
• Citation: 561 S.W.3d 711
• Parties: IN RE STATE of Texas EX REL. David ESCAMILLA, Travis County Attorney
• Court: Texas Court of Appeals

561 S.W.3d 711

IN RE STATE of Texas EX REL. David ESCAMILLA, Travis County Attorney

NO. 03-18-00351-CV

Court of Appeals of Texas, Austin.

Filed: October 5, 2018

Mr. Gary E. Prust, Mr. Adam Reposa, Austin, Ms. Carissa Beene, for Real party in interest.

Ms. Giselle Horton, Austin, The Honorable Stacey M. Soule, for Relator.

Before Justices Puryear, Goodwin, and Bourland

OPINION

Melissa Goodwin, Justice

Relator, the State of Texas, acting by and through the County Attorney for Travis County, Texas, David Escamilla, has filed a petition for writs of prohibition and mandamus with this Court alleging that Respondent, the Honorable Daniel H. Mills, sitting by assignment in the County Court at Law No. 3 of Travis County, Texas, and the 403rd District Court of Travis County, Texas, lacks jurisdiction to conduct proceedings in trial cause number C-1-CR-12-209490, The State of Texas v. David Delacruz , because the State has appealed the trial court’s order granting a new trial in that cause. The State asks this Court to direct Respondent to conduct no further proceedings and take no further action until the State’s appeal has concluded by issuance of a mandate from this Court. For the reasons that follow, we conditionally grant the petition for writ of prohibition and deny the petition for writ of mandamus.

BACKGROUND

On March 5, 2018, in the County Court at Law No. 3 of Travis County, Texas, with the Honorable John Lipscombe presiding, David Delacruz, defendant below and real party in interest here, was convicted by a jury of driving while intoxicated in trial cause number C-1-CR-12-209490, and the trial judge sentenced him to serve 90 days in jail. This prohibition/mandamus proceeding relates to events that occurred post trial. We provide an overview of the relevant events below.

On March 9, 2018, Delacruz filed a post-trial motion to set aside the verdict, which asserted prosecutorial misconduct during trial. Delacruz asked the trial judge to "declare a mistrial with prejudice." After conducting an evidentiary hearing on the motion that same day, the trial judge orally granted the motion, declaring a mistrial "without prejudice." On March 21, 2018, the State sent a letter to the trial judge asking the court to memorialize its March 9th order to written form and to enter findings of fact.

On March 27, Delacruz filed a pretrial application for writ of habeas corpus in County Court at Law No. 3 in trial cause number C-1-CR-12-209490, asserting that retrial was jeopardy barred.

On March 28, 2018, the State made its second request for the trial judge to reduce its order granting a new trial to written form. On March 29, 2018, the State filed its notice of appeal of the trial judge’s order granting a new trial.

On April 4, 2018, Delacruz filed a motion for new trial in trial cause number C-1-CR-12-209490, asserting prosecutorial misconduct during trial and asking that the conviction "be set aside and the case dismissed with prejudice."

On April 5, 2018, the trial judge’s signed written order granting Delacruz a new trial was filed in trial cause number C-1-CR-12-209490. The notation of "entered on record on March 9th" appeared as the signature date.

On April 17, 2018, in trial cause number C-1-CR-12-209490, Delacruz filed a motion to recuse the Travis County County Attorney’s office from the case.

On May 1, 2018, Delacruz filed a subsequent pretrial application for writ of habeas corpus in the 403rd Judicial District Court under cause number D-1-DC-18-100087, asserting that retrial was jeopardy barred.

The trial court scheduled a hearing for May 21, 2018, on the motion for new trial, both pretrial applications for writ of habeas corpus, and the motion to disqualify the Travis County County Attorney’s office.¹

On May 21, 2018, relator, the State of Texas, acting by and through the County Attorney for Travis County, Texas, David Escamilla, filed a petition for writs of prohibition and mandamus in this Court, requesting that we direct Respondent to refrain from conducting any further proceedings or taking any further action relating to trial cause number C-1-CR-12-209490 until the court receives the mandate from this Court resolving the State’s appeal.² The State asserts that the trial court lacks jurisdiction to conduct further proceedings or take further action in that cause because of the pending State’s appeal in appellate cause number 03-18-00196-CR.

STANDARDS OF REVIEW

To be entitled to mandamus relief in a criminal case, the relator must show that (1) he has no adequate remedy at law to redress the harm he alleges and (2) what he seeks to compel is a ministerial act. In re State ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) ; In re State ex rel. Tharp , 393 S.W.3d 751, 754 (Tex. Crim. App. 2012). A writ of prohibition must meet the same standards as a writ of mandamus. In re Medina , 475 S.W.3d 291, 297 (Tex. Crim. App. 2015). "The essential difference between the writ of prohibition and the writ of mandamus is that the former issues to prevent the commission of a future act whereas the latter operates to undo or nullify an act already performed; the former will not be granted when the act sought to be prevented is already done, but will lie when such act is not a full, complete and accomplished judicial act." State ex rel. Wade v. Mays , 689 S.W.2d 893, 897 (Tex. Crim. App. 1985) ; see In re Medina , 475 S.W.3d at 297.

To merit relief through a writ of prohibition, the relator must show that the act he wishes the higher court to restrict "does not involve a discretionary or judicial decision." In re Medina , 475 S.W.3d at 297 (quoting Simon v. Levario , 306 S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding) ). The ministerial-act requirement is satisfied if the relator can show a clear right to the relief sought because the facts and circumstances dictate but one rational decision under unequivocal, well-settled, and clearly controlling legal principles. Id. at 298 ; In re Bonilla , 424 S.W.3d 528, 533 (Tex. Crim. App. 2014). "If a trial judge lacks authority or jurisdiction to take particular action, the judge has a ‘ministerial’ duty to refrain from taking that action, to reject or overrule requests that he take such action, and to undo the action if he has already taken it." In re Medina , 475 S.W.3d at 298 (quoting George E. Dix & John M. Schmolesky, 43B Texas Practice Series: Criminal Practice and Procedure § 61.29 (3d ed. 2011) ). The relator must further show that he has no adequate remedy at law. Id. at 297 ; State ex rel. Young v. Sixth Judicial Dist. Court of Appeals , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). "In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate." In re Medina , 475 S.W.3d at 297–98 (quoting Smith v. Flack , 728 S.W.2d 784, 792 (Tex. Crim. App. 1987) ).

DISCUSSION

The State asks this Court to direct Respondent to refrain from conducting any further proceedings or taking any further action relating to trial cause number C-1-CR-12-209490 until the State’s appeal of the trial court’s order granting a new trial has concluded by issuance of this Court’s mandate. Thus, the State seeks a writ of prohibition, not a writ of mandamus. See In re Cherry , 258 S.W.3d 328, 332 n.2 (Tex. App.—Austin 2008, orig. proceeding) ("A writ of prohibition directs a lower court to refrain from doing some act, while a writ of mandamus commands a lower court to do some act.").

A writ of prohibition is a limited-purpose remedy available to protect the subject matter of an appeal or to prohibit unlawful interference with enforcement of an appellate court’s judgment. In re Beasley , No. 05-18-00553-CV, 2018 WL 2315964, at *2 (Tex. App.—Dallas May 22, 2018, orig. proceeding) ; In re Bien , No. 08-16-00035-CV, 2016 WL 1371635, at *1 (Tex. App.—El Paso Apr. 6, 2016, orig. proceeding) ; In re State ex rel. Munk , 494 S.W.3d 370, 376–77 (Tex. App.—Eastland 2015, orig. proceeding) ; In re Khan , 454 S.W.3d 709, 710–11 (Tex. App.—Beaumont 2015, orig. proceeding) ; In re Bannwart , 439 S.W.3d 417, 422 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) ; In re Bunt , No. 14-11-00874-CV, 2011 WL 5009472, at *1 (Tex. App.—Houston [14th Dist.] Oct. 20, 2011, orig. proceeding) ; In re Barbee , No. 12-09-00165-CV, 2010 WL 3341518, at *3 (Tex. App.—Tyler Aug. 25, 2010, orig. proceeding) ; In re Lewis , 223 S.W.3d 756, 761 (Tex. App.—Texarkana 2007, orig. proceeding) ; see Holloway v. Fifth Court of Appeals , 767 S.W.2d 680, 683 (Tex. 1989) (orig. proceeding); see also Tex. Gov't Code § 22.221(a).

"This writ operates like an injunction issued by a superior court to control, limit or prevent action in a court of inferior jurisdiction." Holloway , 767 S.W.2d at 682 ; see In re Beasley , 2018 WL 2315964, at *2 ; In re Gallardo , No. 13-14-00203-CV, 2015 WL 730920, at *4 (Tex. App.—Corpus Christi Feb. 19, 2015, orig. proceeding) ; In re Cherry , 258 S.W.3d at 332 n.2 ; In re Lewis , 223 S.W.3d at 761 ; In re State , 180 S.W.3d 423, 425 (Tex. App.—Tyler 2005, orig. proceeding). The purpose of the writ is to enable a superior court to protect and enforce its jurisdiction and judgments. Holloway , 767 S.W.2d at 682 ; In re Murphy , 484 S.W.3d 655, 656 (Tex. App.—Tyler 2016, orig. proceeding) ; In re Gallardo , 2015 WL 730920, at *4. The extraordinary nature of the writ of prohibition requires caution in its use. In re Miller , 433 S.W.3d 82, 84 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) ; In re Barbee , 2010 WL 3341518, at *3 ; In re State , 180 S.W.3d at 425 ; see Guerra v. Garza , 987 S.W.2d 593, 594 (Tex. Crim. App. 1999) (prohibition is extraordinary proceeding "to be used sparingly").

Clear Right to Relief Sought

This Court may issue a writ of prohibition: (1) to prevent interference with its jurisdiction in deciding a pending appeal; (2) to prevent a lower court from...