Summary
granting mandamus relief to the State on basis that trial judge lacked authority under Code of Criminal Procedure Article 43.141 to withdraw scheduled execution date in the absence of active habeas pleadings, and ordering scheduled execution to proceed
Summary of this case from In re MastersonOpinion
NO. WR-84,212-01
11-18-2015
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 278TH 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 murder. 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.
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.
Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure. --------
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 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