IN THE TENTH COURT OF APPEALS

No. 10-13-00256-CR IN RE MELISSA ADLER

Original Proceeding

CONCURRING OPINION

Adler chose to file a motion for emergency relief to stay the trial in a petition for writ of mandamus proceeding when it could have been filed in connection with an appeal of the denial of a pretrial application for writ of habeas corpus. Adler’s documents indicate an intent to file an appeal of the denial of the application. In fact, the motion itself could be considered a notice of appeal since “it shows the party’s desire to appeal from [an] … appealable order….” TEX. R. APP. P. 25.2(c)(2).

And given the exigencies of the circumstances, I would not, at this time, have questioned the vehicle chosen but would have requested the State to respond to the motion within 24 hours of its filing.

As noted by Adler, the failure to immediately stay the trial will make the issue moot. Because, due to the passage of time and the apparent progress of the trial, including the swearing in of the jury, the question of whether we should grant a mandamus to order the trial court to stay the proceeding until the appeal of the denial of the application for writ of habeas corpus can be decided is moot. Thus, I concur in the dismissal of the emergency motion to stay the trial filed in this mandamus proceeding. Because a petition for writ of mandamus has not been filed, I am not in a position to rule on such at this time.

TOM GRAY Chief Justice Concurring opinion issued and filed August 7, 2013

In re Adler Page 2