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

WR-84,212-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/18/2015 6:18:29 PM
November 18, 2015 Accepted 11/18/2015 6:23:48 PM
ABEL ACOSTA
No. WR-84,212-01 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.
____________________________
ON MOTION FOR LEAVE TO FILE
PETITION FOR A WRIT OF MANDAMUS
____________________________
RESPONSE OF REAL PARTY IN INTEREST RAPHAEL HOLIDAY
IN OPPOSITION TO MOTION FOR LEAVE
TO FILE PETITION FOR A WRIT OF MANDAMUS
Raphael Deon Holiday opposes the State’s motion for leave to file
a petition for writ of mandamus directed to Judge Had Ridley of the
278th Judicial District Court of Madison County, Texas, and ordering
him to vacate the order he entered withdrawing the order setting Mr.
Holiday’s execution date for November 18, 2015, and recalling the
warrant of execution. Relator contends that the trial court lacked
authority under Tex. Code Crim. Proc. art. 43.141 to enter the order.
The trial court’s acts, however, do not violate the language of the
statute and no published decision interpreting the statute exists.
Additionally, other sources of power for the court’s actions exist besides
Article 43.141. Because arguments to support the positions of both
relator and Mr. Holiday exist, it cannot be said that the trial court had
a ministerial duty to refrain from withdrawing the order setting Mr.
Holiday’s execution.
I. Background
On November 18, 2015, Mr. Holiday filed a motion in the 278th
District Court asking the court to withdraw the order it previously
entered setting Mr. Holiday’s execution date for November 18, 2015.
The motion was predicated on the existence of at least two
constitutional claims that Holiday seeks to raise in a subsequent habeas
corpus application, both of which may meet the requirements of Texas
Code of Criminal Procedure Article 11.071 § 5. Today, the trial court
entered an order withdrawing the order setting the execution date and
recalling the warrant of execution.
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II. Legal Principles of Mandamus
A writ of mandamus “operates to undo or nullify an act already
performed . . . .” State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex.
Crim. App. 1985). To merit relief through a writ of mandamus, an
applicant must first show that the act he wishes the higher court to
nullify “does not involve a discretionary or judicial decision.” Simon v.
Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009). Second, an
applicant must show that he has no adequate remedy at law. State ex
rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007). 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. In re Bonilla, 424
S.W.3d 528, 533 (Tex. Crim. App. 2014). This Court has discussed the
ministerial duty in terms of the respondent’s authority or jurisdiction.
In re Medina, --- S.W.3d ---, 2015 WL 6722175, at *4 (“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
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already taken it”) (quoting 43B GEORGE E. DIX & JOHN M. SCHMOLESKY,
TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE § 61.29 (3d
ed. 2011)).
Mandamus generally will not lie as to an issue of first impression.
State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 928
(Tex. Crim. App. 2001) (a “clear legal right” cannot exist for issue of
first impression because the law is necessarily “equivocal or unsettled”).
An exception exists, however, where the “principle of law” being applied
“has been clearly established.” Medina, 2015 WL 6722175 at *4 (citing
In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013)).
Nevertheless, where arguments exist supporting both the relator and
the respondent (or real party in interest), it cannot be said that a
ministerial duty exists, and mandamus will not lie. Id. at 1.
II. No Clearly Established Law Prohibits the Court from
Withdrawing an Order Setting an Execution Date Under the
Circumstances Present Here
The State argues that the trial court lacked authority to withdraw
its order setting an execution date and recalling the warrant of
execution. The only authority offered by the State is an unpublished
order from this Court in In re Roach, No. WR-41,168-08, 2008 WL
4
2486229 (Tex. Crim. App. June 17, 2008) (not designated for
publication). In Roach, this Court ruled that a trial judge was without
authority under Tex. Code Crim. Proc. art. 43.141(d) to withdraw or
modify a death warrant to allow for additional proceedings on a
subsequent habeas corpus application where this Court had already
dismissed the application. Id. Roach cannot afford the State a basis for
mandamus relief for three reasons.
First, the present case presents circumstances different from
Roach. The trial court’s withdrawal of the execution date in Roach
occurred after this Court had already dismissed the defendant’s
subsequent habeas corpus applications. There was thus no possible way
that any “additional proceedings” could occur on such applications. In
the present case, the trial judge acted before a subsequent application
was filed in view of the need for additional proceedings once it is filed.
As the facts are different from Roach, Roach does not “dictate but one
rational decision under unequivocal, well-settled, and clearly controlling
legal principles.”
Second, Roach is not a published decision. “Unpublished opinions
have no precedential value and must not be cited as legal authority by
5
counsel or by a court.” Tex. R. App. P. 77.3. Thus, Roach cannot be
relied upon by the State as “authority” that establishes any legal
principle at all. Indeed, there is not any published decision from this
Court or any other Texas court interpreting Article 43.141 at all.
Whether Article 43.141 not only permits—but also operates to
prohibit—a court from withdrawing an order setting an execution date
is therefore an issue of first impression, for which mandamus will not
lie in the absence of a “clearly established” legal principle operating in
the background. The State points to no such clearly established legal
principle being applied by the trial court.
Third, and notwithstanding the above, other authority subsequent
in time to Roach reflects that a trial court is empowered to consider and
rule on a motion to withdraw an order setting an executing date that is
filed in advance of a subsequent habeas corpus application. See Ex
parte Cannady, WR-25,462-07, 2010 WL 2006763 (Tex. Crim. App. May
17, 2010) (not designated for publication). In Cannady, “prior to filing
his subsequent habeas application in the trial court, applicant filed a
motion to withdraw the order of the court setting applicant’s execution
date.” Id. The trial court denied the motion, opining that it was not
6
authorized to modify or withdraw its previous order until the CCA had
determined whether the requirements of Texas Code of Criminal
Procedure Article 11.071, § 5 had been met. This Court observed,
however, that the withdrawal “motion was authorized under Texas
Code of Criminal Procedure article 43.141, and may be ruled upon by
the trial court under the dictates of that statute.” Id. Likewise, in Ex
parte Henderson, this Court, while remanding a subsequent
application, favorably noted that “[the trial court] was sufficiently
troubled by the initial scientific evidence presented to him [in the
motion to withdraw or modify date] that, on April 4, 2007, he recalled
applicant’s original death warrant and rescheduled her execution for
June 13, 2007, to give her sufficient time to gather additional material
for this subsequent writ application.” Ex parte Henderson, 246 S.W.3d
690, 691-92 (Tex. Crim. App. 2007) (per curiam). Moreover, trial courts
across the State have interpreted Article 43.141 to permit them to
withdraw orders setting execution dates in precisely such circumstances
and for precisely the same reasons as here. See e.g., State v. Brown, No.
636535 (351st Judicial Dist. Ct. Oct. 12, 2013) (unpublished) (attached
as Exhibit 1) (withdrawing execution date in advance of the filing of a
7
successive habeas application); State v. Avila, No. 20000D01242 (41st
Judicial Dist. Ct. June 18, 2013) (unpublished) (attached as Exhibit 2)
(modifying execution date to allow the applicant to file a successive
habeas application); State v. McCarthy, No. F97-34795-V (292nd Judicial
Dist. Ct. Jan. 29, 2013) (unpublished) (attached as Exhibit 3) (modifying
an execution date upon a finding that additional proceedings were
necessary on a yet-to-be filed subsequent habeas application and
additional time was necessary to prepare the application). Thus,
arguments to support the positions of both relator and Mr. Holiday exist
and mandamus will not lie.
Finally, Article 43.141 is not the only source of authority for trial
court’s act complained about by the State. Trial courts have “plenary
power” to alter their own orders. State v. Bates, 889 S.W.2d 306, 309
(Tex. Crim. App. 1994); Ex parte Donaldson, 86 S.W.3d 231, 233-34
(Tex. Crim. App. 2002) (en banc); State ex rel. Sistrunk, 142 S.W.3d
497, 500-501 (Tex. App.-Houston [14th Dist.] 2004 (per curiam). In
Bates, this Court held that former Texas Rules of Appellate Procedure
30, 33, and 36 permitted a trial court “to modify, correct or set aside
judgments and orders through motions for new trial, motions to arrest
8
judgment and motions for judgment nunc pro tunc” and the like. Bates
at 309; Donaldson at 234. In Awadelkariem v. State, 974 S.W.2d 721,
728 (Tex. Crim. App. 1998), this Court held that a judge may “freely
rescind” its ruling on a motion for a new trial as long as he acts within
the 75-day time limit provided by the Rules of Appellate Procedure.
CONCLUSION
For the foregoing reasons, leave to file should be denied.
Respectfully submitted,
/s/William F. Carter
WILLIAM F. CARTER
108 E. William J. Bryan
Parkway
Bryan, Texas 77803-5334
Telephone: 979-779-0712
Telecopier: 979-779-9243
Email: wfcarter73@yahoo.com
State Bar No. 03932800
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SMITHER, MARTIN,
HENDERSON & BLAZEK, P.C.
1414 11th Street
Huntsville, Texas 77340
(936) 295-2624
(936) 294-9784 [Telecopier]
Email:
frankblazek@smithermartin.com
By: /s/ Frank Blazek
Frank Blazek
State Bar No. 02475500
10
CERTIFICATE OF SERVICE
I hereby certify that on the 18th of November, 2015, this pleading was
sent by electronic service to counsel listed below:
Ellen Stewart Klein
Assistant Attorney General
Criminal Appeals Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711
Ellen.Stewart-Klein@texasattorneygeneral.gov
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
Judge Hal Ridley
278th Judcial District
Madison County
hridley@co.walker.tx.us
By: s/ Frank Blazek
Frank Blazek
State Bar No. 02475500
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Exhibit 1
Exhibit 2
Exhibit 3