COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: THE STATE OF TEXAS,

 Relator.

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No. 08-13-00147-CR

AN ORIGINAL PROCEEDING

IN MANDAMUS

O P I N I O N

The State of Texas, Relator, has filed a petition for writ of mandamus against the 

Honorable Alma Trejo, Judge of the County Criminal Court at Law No. 1 of El Paso County, 

Texas (hereinafter referred to as Respondent or the trial court) requesting that we order 

Respondent to set aside a written order prohibiting the State from speaking with the complaining 

witness. We conditionally grant mandamus relief.

FACTUAL SUMMARY

This mandamus proceeding arises out of a family violence assault criminal case pending 

in the County Criminal Court at Law No. 1. The defendant is represented by Theresa Caballero. 

The case was set for jury trial on May 7, 2013. During a pretrial hearing on the morning trial 

was scheduled to begin, the complaining witness, Alejandra Guzman, told Respondent she did 

not want to talk to the District Attorney’s Office. Respondent stated: “Okay. And the District

Attorney’s Office will not speak to you then. Thank you.” The court began voir dire, but a jury 
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could not be seated because they “ran the panel” and an insufficient number of jurors remained. 

Respondent asked Guzman to come into the courtroom and advised her that the case had been reset for trial on May 14, 2013 and she was still under subpoena. Respondent requested Guzman 

to remain in the courtroom until she was served with a new subpoena. Caballero informed the 

trial court that Guzman did not want to talk to the prosecutors and added that one of the 

prosecutors was harassing Guzman and following her outside of the courtroom. Respondent 

instructed the prosecutors that they could not talk to Guzman or follow her, and they could only 

serve her with the new subpoena. 

On the day of trial, Respondent addressed the prosecutors and defense counsel about a 

conversation she had with Guzman after the May 7, 2013 hearing. After defense counsel left, 

Guzman approached her and said she wanted to talk to the District Attorney’s Office. 

Respondent told her not to contact the District Attorney’s Office because defense counsel was 

not present. 

Respondent then administered the oath to Guzman and asked her whether she wanted to 

talk to the District Attorney’s Office. Guzman replied that she did not. Respondent instructed 

Guzman to not approach them or go near them if she did not want to talk to them. One of the 

prosecutors, Aaron Shnider, told the court that Guzman had telephoned the Victim Assistance 

telephone and he asked permission to speak with Guzman about those conversations. Defense 

counsel objected. Guzman then asked the court if she could speak with defense counsel. After 

speaking with Caballero, Guzman told the court she did not want to speak to the prosecutor. 

Shnider reiterated that he needed to speak with Guzman, but Respondent told the prosecutors to 

“...not get near her.” 

After a recess, the State made defense counsel and the trial court aware that on May 8, 
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2013, Guzman telephoned the Victim Assistance line at the District Attorney’s Office at 

approximately 9:00 a.m. and told Ignacio Frausto that she wanted to drop charges. The 

prosecutor stated that Guzman told Frausto she had made a false report. The State did not, 

however, have access to Frausto’s notes because the computer system containing those notes was 

down. While waiting for Frausto to come to the courtroom and testify about his conversation 

with Guzman, the State requested that the trial court enter a written order regarding its ruling that 

the prosecutors could not speak with Guzman. Respondent entered an order which states: “This 

Court hereby ORDERS the State of Texas not to communicate with the complaining witness in 

this case, Alejandra Guzman, as per Ms. Guzman’s request on the record.” 

Frausto testified about his conversations with Guzman. He recalled that Guzman had 

asked him to explain the process of dropping charges. Frausto explained that it was up to the 

State, not her, whether charges would be dropped. She also stated that she had reported the 

incident “out of anger” and he explained to her that there are legal repercussions for filing a false 

police report. Guzman told him she understood. Guzman stated that no one had allowed her to 

talk or give her input and she did not want to prosecute the case. The conversation concluded, 

but Guzman immediately called back and told Frausto that an attorney was not permitting her to 

talk. He asked which side, the State or the defense, and Guzman told him it was the defense 

attorney. After Frausto testified, the computer system became available again and the trial court 

reviewed Frausto’s notes about the conversations. His notes reflect that Guzman told him that 

the police report was not accurate because the defendant was trying to leave and he pushed her 

out of the way.1 

After speaking with Guzman privately, Caballero reported that Guzman denied making 

 

1

 The indictment alleges that the defendant intentionally, knowingly, or recklessly caused bodily injury to Guzman 

by pushing her with his hands causing her to fall and strike the ground. 
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some of the statements attributed to her by Frausto. Caballero also related that Guzman called to 

tell the District Attorney’s Office that she had not been pushed, but had instead fallen, and 

Frausto told her she could be charged with filing a false police report. Respondent appointed 

Ralph Garcia from the Public Defender’s Office to represent Guzman and he advised her

regarding her Fifth Amendment rights, perjury, and filing a false police report. Garcia informed 

the trial court that Guzman intended to testify and would not invoke her right to remain silent, so 

the trial proceeded. When the State called Guzman as a witness later in the trial, however, she 

immediately indicated she did want to answer any questions. Garcia conferred with Guzman,

and based on his advice, she stated that she was invoking her Fifth Amendment right to remain 

silent. 

The trial continued with the State calling witnesses other than Guzman. In the meantime, 

the State filed a motion for emergency relief with this Court and provided Respondent with a 

copy of the motion. In an effort to avoid the trial being stayed, Respondent called Guzman to the 

bench and stated: 

I had told you earlier that you were not to communicate with the District 

Attorney’s Office. I’m making it perfectly clear right now that it is your option 

whether you want to communicate with them or not. They can try and ask you 

questions and if they keep harassing you or something, feel free to file a police 

report. It’s up to you whether you wish to communicate with the District 

Attorney’s Office. I am not preventing you from communicating with the District 

Attorney’s Office. 

The prosecutor asked Respondent if she was lifting her prior order, and Respondent 

replied: “I’m not lifting anything.” 

The State subsequently called Guzman as a witness to establish preliminary facts, 

including her relationship with the defendant, but the prosecutor did not ask her any questions 

about the alleged assault because Guzman had indicated outside of the jury’s presence she was 
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going to invoke her right to remain silent. We stayed the proceedings in the trial court pending 

our review of the mandamus petition.

INTERFERENCE WITH PROSECUTORIAL FUNCTION

In its sole issue, the State contends that Respondent clearly abused her discretion by 

prohibiting the prosecutors from speaking to the complaining witness in a criminal case because 

the order exceeds the trial court’s constitutional and statutory authority and interferes with the 

District Attorney’s prosecutorial function. The real party in interest, Defendant Garcia, responds 

that the trial court merely prohibited the State from harassing the complainant. 

Mandamus Standard of Review

A party seeking a writ of mandamus in a criminal case must make two showings: (1) that 

there is no adequate remedy at law to redress the alleged harm; and (2) that the act the relator 

seeks to compel must be ministerial rather than discretionary in nature. See e.g. Board of 

Pardons and Paroles ex rel. Keene v. Court of Appeals for the Eighth District, 910 S.W.2d 481, 

483 (Tex.Crim.App. 1995)(orig. proceeding); In re State of Texas, 390 S.W.3d 439, 442

(Tex.App.--El Paso 2012, orig. proceeding); In re State of Texas, 304 S.W.3d 581, 583

(Tex.App.--El Paso 2010, orig. proceeding). A matter is ministerial in nature if the law clearly 

spells out the duty to be performed with such certainty that nothing is left to the exercise of 

discretion or judgment. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App. 

1994)(orig. proceeding); In re State, 390 S.W.3d at 442. It is undisputed that the State cannot 

appeal the ruling. The only issue is whether Respondent had discretion to prohibit the State from 

speaking with the complaining witness.

It has been often stated that an attorney has a duty to his client to interview potential 

witnesses. See e.g., Stearnes v. Clinton, 780 S.W.2d 216, 217-18 (Tex.Crim.App. 1989)(holding 
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that attorney has duty to interview potential witnesses and trial judge lacked authority to remove 

defense counsel from case for interviewing witness without permission of the DA’s Office); 

Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986)(in context of reviewing ineffective 

assistance of counsel claim, court stated that defense counsel has duty to seek out and interview 

potential witnesses). In criminal cases, this duty is almost always discussed in terms of defense 

counsel’s duty to the accused. The primary function of a district or county attorney is to 

prosecute the pleas of the State in criminal cases. Meshell v. State, 739 S.W.2d 246, 254 

(Tex.Crim.App. 1987). All prosecuting attorneys have a duty to see that justice is done and they 

are prohibited from suppressing facts or secreting witnesses capable of establishing the 

innocence of the accused. TEX.CODE CRIM.PROC.ANN. arts. 2.01, 2.02 (West 2005). Implicit in 

these duties is the requirement that a prosecutor interview witnesses who are willing to speak to

him. A prosecutor who is prohibited by a trial court from interviewing or attempting to 

interview a witness cannot carry out the obligations of his office. We conclude that the trial 

court did not have the authority or discretion to prohibit the State from speaking with or

attempting to speak with the complainant. We conditionally grant mandamus relief and order 

Respondent to set aside her written order and any verbal orders prohibiting the State from 

interviewing the complaining witness. The writ of mandamus will issue only if Respondent fails 

to comply within a reasonable period of time.

May 30, 2014

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior Judge)

Chew, C.J. (Senior Judge), sitting by assignment

(Do Not Publish)