I am working up a serious felony in which we would like to get a pretrial ruling on the admissibility of a piece of evidence. I anticipate drafting the motion in terms of ensuring efficient use of time at trial. I would like the opportunity to seek a mandamus if the evidence is not admitted, without interrupting the trial. Has anybody ever drafted a motion for this purpose or under similar circumstances?

Mandamus seems out of the question since a ruling on the admissibility of evidence is discretionary: The traditional test for determining whether mandamus relief is appropriate requires the relator to establish (a) that he has no adequate remedy at law to redress his alleged harm, and (b) that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. In re State ex. rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App.2007) (original proceeding)


You might be able to do a State's appeal.

previous discussion of Medrano

State v. Medrano, 67 S.W.3d 892, 901(Tex. Crim. App. 2002)

Since evidentiary rulings are a matter of trial court discretion, it wouldn't be appropriate for mandamus. But you have a remedy at law (the right to appeal) if the judge suppresses the evidence before jeopardy attaches and it is of substantial importance to the case. CCP 44.01(a)(5). I've never seen it done, but I don't see why you couldn't force the issue before trial if D won't move to suppress.

Careful what you ask for. The state has a right to appeal a motion to suppress. Do you really want to create the ability of either party to file a motion and seek a pretrial ruling on the admissibility of evidence (not the same as a motion to suppress)?

That might seem to save some time in your case, but defendants would love to convert a trial into a series of pretrial hearings that are nothing more than exploratory depositions.

What if the defense doesn't file a pre-trial motion to suppress and, instead, argues the admissibility at trial and the judge rules in his favor?

Then a prosecutor made a poor judgment about the legality of the search or seizure of the evidence (assuming no issues with the judge). We structure our cases to minimize wasting time on such pretrial hearings. Our judges hold nearly all motions to suppress hearings after the jury has been selected.

But, we also very carefully screen such issues and try very hard to avoid litigating close questions on search and seizure. Sometimes it is unavoidable.