in Re State of Texas Ex Rel. Brian Risinger, Relator ( 2015 )

WR-84,212-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
November 18, 2015 Transmitted 11/18/2015 4:04:21 PM
Accepted 11/18/2015 4:17:29 PM
ABEL ACOSTA
No. ___________ CLERK
IN THE
Court of Criminal Appeals
In re STATE OF TEXAS ex rel. BRIAN RISINGER,
Relator,
v.
The Honorable HAL RIDLEY,
278th Judicial District Court of Madison County, Texas
Respondent.
MOTION FOR LEAVE TO FILE WRIT OF MANDAMUS
AND
PETITION FOR A WRIT OF MANDAMUS
AND
REQUEST TO FILE ON EMERGENCY BASIS
Brian Risinger
District Attorney
For Madison County, TX
Ellen Stewart-Klein
Assistant Attorney General
Special Prosecutor for Madison County
Texas Bar No. 24018011
P.O. Box 12548, Capitol Station
Austin, Texas 78711
ATTORNEYS FOR THE RELATOR
MOTION FOR LEAVE TO FILE
PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
Relator, Brian Risinger, Criminal District Attorney of Madison
County, through Ellen Stewart-Klein, Assistant Attorney General and
Special Prosecutor to Madison County, moves for leave to file a writ of
mandamus. Relator seeks to compel Respondent, the Honorable Judge
Hal Ridley of the 278th Judicial District Court of Madison County, Texas,
to vacate the trial court order withdrawing the November 18, 2015
execution of Raphael Holiday and reinstate the execution date. Because
this petition addresses an execution scheduled for today, November 18,
2015, the State requests that it be reviewed on an emergency basis.
STATEMENT OF THE CASE
Holiday was charged and convicted of capital murder three times
over for the burning deaths of three children, including his own daughter.
Pursuant to the jury’s answers to the special issues, the trial judge
sentenced Holiday to death. 1 CR (10,423/7446) 9 (Tierra Shinea Lynch);
5 CR 642-45; 1 CR (10,425/7447) 2, 18-21 (Jasmine Rockell Dupaul); 1 CR
(10,427/7448) 2, 18-21 (Justice Nicole Holiday).
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Direct appeal to the Texas Court of Criminal Appeals is automatic
and Holiday’s three convictions and sentences were affirmed. Holiday v.
State, AP-74,446; AP-74,447; AP-74,448, 2006 Tex. Crim. App. Unpub.
LEXIS 737 (Tex. Crim. App. Feb. 8, 2006). Holiday petitioned the
Supreme Court for review but certiorari was denied. Holiday v. Texas,
549 U.S. 1033 (2006).
While his direct appeal was pending, Holiday filed three state
habeas applications, one for each conviction. 1 SHCR 1. The state court
adopted the State’s Proposed Findings of Fact. SHCR 21-62, 82-83. The
Court of Criminal Appeals adopted the findings of the state habeas court
and denied relief. SHCR at cover; Ex parte Holiday, Order No. WR-
73,623-01, -02, -03 (Tex. Crim App. May 5, 2010). Holiday’s federal
petition was filed on May 3, 2011. Holiday filed his amended petition on
March, 2, 2012. Pet., ECF No. 1; Amend. Pet. ECF No. 12. The district
court denied Holiday relief and denied him a COA. Mem. Op. & Ord.,
ECF No. 23; F.J., ECF No. 24. The Fifth Circuit also refused to grant
Holiday a COA and denied his motion for rehearing. Holiday v. Stephens,
No. 13-70022 (5th Cir. Oct. 14, 2014), Or. (5th Cir. Dec. 29, 2014). Holiday
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sought certiorari from the denial of a COA. The Supreme Court denied
the petition on June 29, 2015.
On the day of his execution, Holiday filed a motion to withdraw or
modify execution date.
PETITION FOR WRIT OF MANDAMUS
To be entitled to a writ of mandamus, it must be demonstrated that:
(1) the relator has no other adequate remedy at law, and (2) he is clearly
entitled to the relief sought. See, e.g., State ex rel. Watkins v. Creuzot, 352
S.W.3d 493, 499 (Tex. Crim. App. 2011). A “clear right to relief sought”
means that the act relator seeks to prohibit is “ministerial.” State ex rel.
Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992). An act is
ministerial “‘when 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) (quoting Texas Dep’t of Corr. v. Dalehite, 623 S.W.2d
420, 424 (Tex. Crim. App. 1981)). Relator seeks an order compelling the
Respondent to vacate any order interfering with Holiday’s execution
date.
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First, the 278th Judicial District Court set Holiday’s execution date
pursuant to this Court’s mandate issued after the conclusion of her direct
appeal. See Tex. Code Crim. Proc. art. 43.141(a). This Court “is the court
of last resort in this state in criminal matters. This being so, no other
court of this state has authority to overrule or circumvent its decisions,
or disobey its mandates.” State ex rel. Wilson v. Briggs, 351 S.W.2d 892,
894 (Tex. Crim. App. 1961). Hence, the 278th Judicial District Court does
not have authority to impede the carrying out of this Court’s mandate by
preventing Holiday’s execution.
Second, a convicting court may modify or withdraw an order setting
an execution date only in limited circumstances: (1) “if the court
determines additional proceedings are necessary on . . . a subsequent or
untimely application for writ of habeas corpus filed under Article 11.071,”
or (2) “if the court determines additional proceedings are necessary on . .
. a motion for forensic testing of DNA evidence submitted under Chapter
64.” Tex. Code Crim. Proc. art. 43.141(d). The 278th Judicial District
Court is purporting to halt Holiday’s execution because “additional
proceedings are necessary on a subsequent application for a writ of
habeas corpus under Tex. Code Crim. Proc. Art 11.071.” Holiday v.
5
Texas, Nos. 10,423; 10,425; & 10,427 (Ord. November 18, 2015). But, in
this instance, the 278th Judicial District Court lacks authority to
withdraw its order setting Holiday’s execution date. See State ex rel.
Holmes v. Third Court of Appeals, 885 S.W.2d 389, 395–96 (Tex. Crim.
App. 1994) (holding that the trial court was without jurisdiction to issue
an injunction, “[n]otwithstanding that respondent held [it] was necessary
to protect its jurisdiction over the appeal of Graham’s civil case”),
overruled on other grounds by Ex parte Elizondo, 947 S.W.2d 202 (Tex.
Crim. App. 1996).
This Court has previously held that it was improper for a trial judge
to withdraw an execution date in the absence an “active pleading.” In re
Roach, No. WR-41,168-08 (Tex. Crim. App. June 17, 2008) (per curiam).
The Court found that the trial judge was “without authority to act”
because this Court had “dismissed the subsequent application and the
judge had no power to consider the merits of any claims in those or
possible future applications.” Id. The statute contemplates that a
subsequent writ or DNA motion has been filed and is pending and
satisfies the abuse of the writ exceptions of art. 11.071 § 5. Anything less
is insufficient to authorize the trial court to modify or withdraw the date.
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Thus, interpreting the statute to encompass the mere promise of a
subsequent filing or expectation of future review would render the
guidelines of art. 43.141 meaningless.
Finally, given the last-minute nature of these proceedings, there is
no other adequate remedy available at law. The State has no right to
appeal an order modifying or withdrawing an execution date. Tex. Code
Crim. Proc. Art 44.01. As Respondent lacks authority to withdraw the
execution date, there is a clear right to relief.
CONCLUSION
Therefore, this Court should grant leave for the State to file an
emergency petition for writ of mandamus. Further, the Court should
issue a writ of mandamus directing Respondent to vacate its order
withdrawing the November 18, 2015 execution of Raphael Deon Holiday,
and to reinstate the execution date.
Respectfully submitted,
BRIAN RISINGER
District Attorney
of Madison County, Texas
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___/s/ Ellen Stewart-Klein______
*Counsel of Record *ELLEN STEWART-KLEIN
Assistant Attorney General
Criminal Appeals Division
SPECIAL PROSECUTOR TO
MADISON COUNTY
Texas Bar No. 24028011
P.O. Box 12548, Capitol Station
Austin, Texas 78711
Tel: (512) 936-1400
Fax: (512) 320-8132
ATTORNEYS FOR THE RELATOR
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CERTIFICATE OF SERVICE
I hereby certify that on the 18th of November, 2015, this pleading was
sent by electronic service to counsel listed below:
William F. Carter Judge Hal Ridley
108 E. William J. Bryan 278th Judcial District
Bryan, Texas 77803 Madison County
Wfcarter73@yahoo.com hridley@co.walker.tx.us
Frank Blazek
1414 11th Street
Huntsville, Texas 77340
frankblazek@smithermartin.com
James W. Volberding
100 E. Ferguson St., Suite 500
Tyler, TX 75702
James@jamesvolberding.com
Seth Kretzer
440 Louisiana Street, Suite 200
Houston, TX 77002
seth@kretzerfirm.com
Gretchen Sims Sween
515 Congress Avenue, Suite 1900
Austin, TX 78701
gsween@beckredden.com
___/s/ Ellen Stewart-Klein______
ELLEN STEWART-KLEIN
Assistant Attorney General
SPECIAL PROSECUTOR TO
MADISON COUNTY
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