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

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.

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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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