                                                                           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


                                     3
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




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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:

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
