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

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,212-01
IN RE STATE OF TEXAS EX REL. BRIAN RISINGER, Relator
ON APPLICATION FOR WRIT OF MANDAMUS IN CAUSE NOS. 10,423,
10,425, and 10,427
IN THE 278 TH JUDICIAL DISTRICT COURT
MADISON COUNTY
Per curiam. A LCALA, J., filed a dissenting statement.
ORDER
We have before us a motion for leave to file a petition for a writ of mandamus
filed by the criminal district attorney of Madison County asking us to order the trial judge
to vacate his order withdrawing the death warrant and to reinstate the previously ordered
death warrant.
In June 2002, a jury found Holiday guilty of three separate offenses of capital
Holiday - 2
murder.1 The jury answered the special issues submitted pursuant to Texas Code of
Criminal Procedure Article 37.071, and the trial court, accordingly, set Holiday’s
punishment at death in each case.2
This Court affirmed Holiday’s convictions and sentences on direct appeal.
Holiday v. State, Nos. AP-74,446, AP-74,447, and AP-74,448 (Tex. Crim. App. Feb. 8,
2006)(not designated for publication). Holiday timely filed initial applications for writs
of habeas corpus in each case, and this Court denied relief. Ex parte Holiday, Nos. WR-
73,623-01, WR-73,623-02, and WR-73,623-03 (Tex. Crim. App. May 5, 2010)(not
designated for publication).
Today, November 18, 2015, the day of Holiday’s execution, Holiday’s trial
counsel filed in the convicting court pursuant to Article 43.141 a motion to withdraw or
modify the execution date. With no active pleadings before the trial court, the trial judge
withdrew the death warrant. A trial judge has the authority to withdraw or modify a death
warrant “if the court determines that additional proceedings are necessary on . . . a
subsequent or untimely application for a writ of habeas corpus filed under Article
11.071.” (Emphasis added.) Art. 43.141(d). As we have previously held, a judge has no
power to consider the merits of any claims that might be raised in possible future
1
Holiday was charged in three separate indictments, each alleging capital murder of a
different named individual. The cases were tried together, but the jury was submitted a separate
charge for each case, and three separate judgments were rendered.
2
Unless otherwise indicated all references to Articles refer to the Code of Criminal
Procedure.
Holiday - 3
applications without the permission of this Court. See Art. 11.071 § 5 and In re John R.
Roach, No. WR-41,168-08 (Tex. Crim. App. June 17, 2008)(not designated for
publication). The trial judge was, therefore, without the authority to act.
Leave to file the application is granted. Having granted leave to file, we would
normally order the respondent, the Honorable Hal Ridley, to immediately rescind the
order of November 18, 2015, withdrawing the death warrant in cause numbers 10423,
10425, and 10427 and to immediately reinstate the death warrant entered in this cause by
the Honorable Hal Ridley on August 14, 2015. However, because of the time sensitive
nature of these pleadings, we hold that the trial court’s November 18, 2015 order
withdrawing the death warrant is void, and the death warrant is still valid. No motions for
rehearing this matter will be entertained.
IT IS SO ORDERED THIS THE 18th DAY OF NOVEMBER, 2015.
Do Not Publish