In re State ex rel. Risinger (479 S.W.3d 250, 2015)

ORDER

Per curiam.

In June 2002, a jury convicted Raphael Deon Holiday of three capital murders. 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. 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). The Court also denied relief on Holiday’s initial applications for writs of habeas corpus. 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).

After Holiday was denied federal habeas relief, the trial court held a hearing on August 14, 2015, to set Holiday’s execution date. Trial and appellate counsel Frank Blazek and William Carter attended the hearing, as did federal-court-appointed counsel Seth Kretzer. The trial court set Holiday’s execution for Wednesday, November 18, 2015.

In a letter dated September 10, 2015, Holiday asked the federal district court whether any motions had been filed on his behalf by Kretzer or Holiday’s other federally-appointed counsel James Volberding. Holiday intimated that he thought counsel had abandoned him. Kretzer responded with a letter to the court stating that' he and Volberding still represented Holiday and that they had’interviewed a potential witness about a possible claim for a successor state writ, but the information they obtained was insufficient. Holiday then wrote again to the federal district ■ court stating that Kretzer and Volberding had indicated that they did not believe that there were any further claims they could file on his behalf. Holiday, therefore, asked the district court to appoint, new counsel. Kretzer responded to Holiday’s request by setting out some of the work he and Volberding had done on Holiday’s behalf and noting that he, Blazek, and Carter had visited with Holiday for nearly two hours after the August hearing: Based upon Kretzer’s-representations, the federal court denied Holiday’s' pro se request for new counsel.

On October 21, 2015, another lawyer, Gretchen Sims Sween, appealed the denial of the appointment of new counsel and filed a motipn to stay Holiday’s execution. Kretzer and Volberding responded by filing a motion to substitute Sween as Holiday’s counsel or, alternatively, to allow them to withdraw as counsel. However, because Kretzer identified no defect in the relationship with Holiday, because Sween wanted to limit her'involvement in the case to the appeal' of the denial order, and because no one had named another attorney willing to represent Holiday for all purposes, the federal court denied the motion to substitute counsel. The court subsequently denied a motion for reconsideration, and Sween filed an amended notice of appeal on October 26.

. On November 10, '2015, Kretzer and Sween both represented to this Court that they did not intend to file any pleadings in state court on Holiday’s behalf before his November 18, 2015, scheduled execution. On November 12, the Fifth Circuit affirmed the district court’s orders denying the motion for the appointment of new counsel, denied Holiday’s motion for a stay of execution, .denied Kretzer’s and Vol-berding’s motion to dismiss the appeal as frivolous, and denied Sween’s motion to strike Kretzer’s and Volberding’s appearances. The Court further “wam[ed] the attorney here [Sween] that subsequent attempts in this case to displace counsel will be viewed with skepticism.” Holiday v. Stephens, 806 F.3d 334 (5th Cir.2015). On November 16, 2015, the Board of Pardons and Parole voted not to recommend reprieve or commutation in Holiday’s case, and the United States Supreme Court denied certiorari in the attorney appointment matter two days later. Holiday v. Stephens, — U.S. -, 136 S.Ct. 387, 193 L.Ed.2d 418 (2015).

On the day.of the execution, this Court received word that trial counsel would file some pleading in the state trial court to stop the execution. Around 11:00 a.m., trial counsel Blazek and Carter filed in the trial court a motion to withdraw or modify the execution date. The trial court set the matter for a 1:00 p.m. hearing.. Shortly after 2:00 p.m., the trial court withdrew the execution date. The State immediately advised this Court, that it would challenge the ruling. Shortly after 4:00 p.m., the State filed in this Court a motion for leave to file a writ of mandamus.

This Court’s Miscellaneous Rule 11-003 provides in pertinent part:

A motion for stay of execution, or :any other pleading relating to a death sentence, must be filed in the proper court at least seven days before the date of the scheduled execution date (exclusive of the scheduled execution date). A pleading shall be deemed untimely if it -is filed in the proper court fewer than seven days before the scheduled execution date.

. ⅜ ⅜ ⅜ ■

Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely pleading requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found -it physically, legally, or factually impossible to file a timely request, motion, or other pleading. Counsel is required to show good cause for the untimely filing.

⅜ ‡ ‡

Counsel who fails to attach a sworn detailed explanation to an untimely filing or who fails to adequately justify the necessity for an untimely filing shall be sanctioned.

Pleadings filed on the day of an execution are clearly untimely under this rule. Thus, all parties in this case filed Miscellaneous Rule 11-003 statements with’ their pleadings.

We find that the State filed its .pleadings in direct response to the execution-day pleadings filed by Blazek and Carter, Consequently, we find good cause for the State’s -untimely filing.. But. we cannot say the same for-the pleadings filed by Blazek and Carter. In the Miscellaneous Rule 11-003 statement filed by Blazek, Blazek stated that he represented Holiday at trial and on direct appeal ,and that he was contacted from time to time by Holiday’s “writ attorneys” for information about his representation. Blazek noted that he was present at the hearing in which the’trial court set Holiday’s execution date and that he visited with Kretzer and Holiday. Blazek further noted that Kretzer said they would do everything they could to save Holiday’s life, but they did not think anything else could be done. Blazek stated that Holiday told him • that “he wanted everything to be done to save his life.”

Blazek noted' that, on November 12 or 13, he learned that the Fifth Circuit had affirmed the federal district court’s order denying Holiday’s motion for the appointment of new counsel. Blazek stated that he emailed Sween, thanked her for her efforts, and mentioned his thoughts that expert testimony admitted during Holiday’s trial might not be admissible today. Blazek stated that on November 17, 201S, he was contacted by attorney Dick Burr who advised him that the trial court might have the authority to withdraw the execution date. According to Blazek, Burr indicated that he had spoken to Holiday and that Holiday wanted such relief pursued. Nowhere in his statement does Blazek explain why he found it “physically, legally, or factually impossible to file a timely request, motion, or other pleading.”

Carter’s Rule 11-003 .statement is equally devoid of explanation. In his statement, Carter noted that he represented Holiday at trial and on appeal. He stated that he was present in the courtroom when the trial judge set Holiday’s execution date and that, when he visited with Holiday, Holiday “told [him] he wanted everything to be done to save his life.” Carter stated that, on the morning of November 18, 2015, he learned that Blazek was filing a motion to withdraw the execution date, and he requested to join him in that motion. Carter signed the motion and filed it the same date. Nothing in Carter’s statement explains why he found it “physically, legally, or factually impossible to file a timely request, motion, or other pleading.”

Before we take any action pursuant to Miscellaneous Rule 11-003, we want .to hear from counsel in person. Therefore, we order Frank Blazek and William F. Carter to appear before this Court at 9:00 a.m. on Wednesday, January 13, 2016, to offer further explanation and address any questions propounded by the Court about the matter.

It is further ordered by this Court that the Clerk of this Court shall issue Notice to Appear and Show Cause commanding Frank Blazek and William F. Carter to appear and show cause, in the manner, and within the time specified in this order, why counsel should not be sanctioned by this Court for failing to adequately justify the untimely filings. A copy of this Order shall accompany the Notice.

IT IS SO ORDERED THIS THE 16th DAY OF DECEMBER, 2015.

Newell, J., filed a concurring statement. Alcala, J., filed a dissenting statement. •

Attachment

THE STATE OF TEXAS NOTICE TO APPEAR AND SHOW CAUSE

TO: Frank Blazek and William F. Carter;

GREETINGS:

•WHEREAS, the Court of Criminal Appeals on December 16, 2015, made and entered the order to appear and show cause. A correct and complete copy of the Order is attached to this Notice and fully incorporated for all purposes.

NOW, THEREFORE, Frank Blazek and William F. Carter are. hereby commanded to appear and show cause, in the manner and within the period specified in the Order of December 16, 2015, why counsel should not be sanctioned by the Court of Criminal Appeals for failing to adequately justify the untimely filings.

WITNESS MY HAND and Seal of the Court of Criminal Appeals, at the City of Austin, Texas, on this 16th day of December, 2015.

ABEL ACOSTA, CLERK

COURT OF CRIMINAL APPEALS STATE OF TEXAS

TO: The Sheriff of any County or any Constable of any County, Texas Ranger, Texas Highway Patrolman, or any Peace Officer within the State of Texas.

GREETINGS:

YOU ARE HEREBY COMMANDED that you serve upon Frank Blazek of Walker County and William F. Carter of Walker County the accompanying ORDER TO APPEAR AND SHOW CAUSE issued from the Court of Criminal Appeals of the State of Texas on December 16, 2015.

HEREIN FAIL NOT, but of this writ and notice made due return, under the penalty prescribed by law, with your endorsement showing how you executed the same.

WITNESS MY HAND and Seal of the Court of Criminal Appeals of the State of Texas affixed at the City of Austin, Texas, on this the 16 th day of December, 2015.

ABEL ACOSTA, CLERK

COURT OF CRIMINAL APPEALS

STATE OF TEXAS

P.O. BOX 12308, CAPITOL STATION

AUSTIN, TX 78711

OFFICER’S RETURN

■ In re State of .Texas ex rel, Brian Risinger

WR-84,212-01

Came to hand on this the__ day of _, 20, at_o’clock,_M., and executed at Walker County, Texas, on the_day of_, 20, by delivering to Frank Blazek, the original ORDER TO APPEAR AND SHOW CAUSE which accompanied this writ.

To certify which witness my hand officially. •'

(Signature)

(Print or type name)

(Title)

of Walker County, Texas

OFFICER’S RETURN

In re State of Texas ex rel. Brian Risinger WR-84,212-01

Came to hand on this the_day of _, 20, at p o’clock,_M., and executed at Walker County, Texas, on the __1 day of_:_, 20, by delivering to William F. Carter, the original ORDER TO APPEAR AND SHOW CAUSE which accompanied this writ. To certify which witness my hand officially-

(Signature)

(Print or type name)

(Title)

of Walker County, Texas

. The State charged Holiday in three separate indictments, each of which alleged the capital murder of a different individual. The cases were tried together, but the jury received a separate charge for each case, and the trial court entered three separate judgments and sentences.

. References to Articles refer to the Texas Code of Criminal Procedure, unless otherwise noted.

. Attorney Alex Calhoun was counsel appointed to represent Holiday on his .initial state writs of habeas corpus.

. Kretzer and Volberding filed a request for clemency.

. It is unclear whether Blazek is referring to Volberding and Kretzer, Calhoun, or someone else.

Newell, J.,

filed a concurring statement.

I join the Court’s order for counsel Frank Blazek and William F. Carter to appear before this Court to explain why they filed an untimely motion to withdraw the warrant of execution for their client Raphael Deon Holiday. As the other judge who dissented to this Court’s denial of mandamus relief regarding Holiday’s motion to withdraw his warrant of execution, I now feel it incumbent upon me to write separately to explain why I voted against mandamus relief and why I agree with the Court’s order to show cause;

Counsel Filed a Motion to Withdraw the Order of Execution Not a Subsequent Writ

The Court’s show cause order sets out in detail the timeline of events leading up to the day of Raphael Holiday’s execution. It is worth repeating that even though Holiday had four different attorneys purporting to act on Holiday’s behalf (as well as a fifth one attempting to intervene to provide assistance), none of these attorneys filed a subsequent application for a writ of habeas corpus pursuant to Article 11.071, Section 5 of the Code of Criminal Procedure prior to their client’s execution. As early as August 14, 2015, these attorneys were aware of not only the pending execution date, but also their client’s repeated attempts to secure legal help to advance his case in various venues. ;

The only motion filed in state court was a motion to withdraw the warrant of execution pursuant to Article 43.141(d)(1). Tex.Code Cbim. Proc. ANN.art. 43.141(d)(1) (West 2013). There is simply no other way to characterize the motion at issue in this case. Under its own terms, the motion to withdraw acknowledged that a subsequent application for a writ of habeas corpus had yet to be filed. It requested the warrant be withdrawn in order to afford Holiday an opportunity to file one, perhaps with the assistance of Blazek and Carter, or perhaps with help by another, as-yet-unknown attorney. As further justification for the motion to withdraw the warrant, the attorneys listed two possible claims they sought to raise in a to-he-filed application for a subsequent writ of habeas corpus: the use of unreliable expert testimony as to future dangerousness in Holiday’s trial, and a complaint that one of his three capital murder convictions was barred by double jeopardy.

The legal basis for the motion was primarily statutory. The attorneys relied explicitly upon their interpretation that Article 43.141 allowed a trial court to withdraw , an order of execution even where no subsequent writ 'of habeas corpus had been filed or was pending before the trial court. They provided'examples of district courts that had signed orders withdrawing or modifying warrants of execution to grant more time to-file' a subsequent 'application for writ of habeas corpus. They also in-eluded an equitable argument that the warrant of execution should be withdrawn so that Holiday could continue litigating his requests for representation in federal court as well as have state habeas counsel appointed to assist with a subsequent writ. The order itself ordered the execution date to be withdrawn “to permit those proceedings to be filed and adjudicated.”

It is true that we look to the substance of pleadings in extraordinary matters to determine their character. In re Daniel, 396 S.W.3d 545, 549 (Tex.Crim.App.2013). However, even the substance of the pleadings from the body of the motion to the proposed order reveals this was exactly what it claimed to be-a motion to withdraw or modify the execution date. It was not intended as á subsequent application for a writ of habeas corpus. If it were, there would be no reason for the litigants to argue that they needed more time in order to file a subsequent application for writ of habeas corpus. Suggesting that the trial court could-'have reasonably regarded this unverified motion as a subsequent application for a writ of habeas corpus blinks reality.

The Motion to Withdraw was not A Motion in Arrest of Judgment

If construing the motion in this case as a subsequent writ blinks reality, suggesting it should be treated like a motion in arrest of judgment alters reality entirely. A motion in arrest, of judgment is a defendant’s oral or .written suggestion that, for reasons stated in the motion, the judgment rendered against the defendant was contrary to law. . Tex.R.Apr .P. 22.1. The rules of appellate procedure provide that a motion in arrest of judgment can be granted on any of the following grounds: (a) that the indictment or information is subject to an exception on substantive grounds; (b) that in relation to the indictment or information a verdict is substantively defective; or (c) that the judgment is inválid for some other reason. Tex.R.App. P. 22.2. It is, in effect, a post-trial motion to quash'the indictment limited to any complaints about the indictment made by timely objection prior to trial. See e.g. Crittendon v. State, 923 S.W.2d 632, 634 (Tex.App.-Houston [1st Dist.] 1995, no pet.).

Additionally, a motion in arrest of judgment must be filed no later than 30 days after the date when the trial court imposes or suspends sentence in open court. Tex. R.Afp. P. 22.3. Like a motion for new trial, the trial court has seventy-five days to rule upon the motion, and it is deemed denied if the trial court does not rule upon the motion within that time period. Tex. R.App. P. 22.4. Tellingly, the effect of a trial court’s grant of a motion in arrest of judgment is to restore the defendant to the position he or she was in before the indictment or- information was presented. Tex.R.App. P. 22.6.

_ The motion at issue in this case did not ask to place Holiday in the position he was before the indictment was presented. It was not based upon arguments he had raised prior to trial. And it was presented at least a decade after sentence was imposed in open court. Arguing that this was an arrest of judgment that the State could have appealed has no basis in law or fact. I can only assume that is why Holiday’s attorneys did not make that argument in their response to the State’s petition for mandamus relief.

Article 48.141(d)(1) Explicitly Requires a Pending Writ Application

After the trial court granted the motion, the State sought mandamus relief with this Court. In the reply to the State’s petition, Holiday averred through his counsel that “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.” Thus, unlike many “last-minute” death-penalty filings, in this case, the Court was faced with a relatively discrete issue of law: Does Article 43.141 allow a trial court to withdraw a warrant for execution when no application for a writ of habeas corpus is pending? A plain reading of the statute reveals that it does not.

Article 43.16 of the Code of Criminal Procedure explicitly authorizes a trial court to enter an order setting a date for an execution. Tex.Code Ceim. PRoc. Ann. art. 43.15 (West 2013). Article 43.141 addresses scheduling of the execution date, and the trial court’s authority to withdraw or modify the order of execution. Tex. Code Ceim. Proo. Ann. art. 43.141. Article 43.141(d) reads as follows:

(d) The convicting court may modify or withdraw the- order of the court setting a date for execution in a death penalty case if the court determines that additional proceedings are necessary on:

(1) a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071; or

(2) a motion for forensic testing of DNA evidence, submitted under Chapter 64.

Id. Notably, subsection (d) authorizes the trial court to modify or -withdraw an order setting a date for execution if additional proceedings are necessary. Tex.Code Ceim, PROc. Ann. art. 43.141(d) (West 2013). However, that subsection presupposes that the underlying document that requires additional proceedings has already been filed or submitted. Id. -This limitation of the trial court’s authority may appear to be harsh in its application, particularly in the context of this case, but the language could not be more clear.

This Court has not published any opinions addressing whether a trial court can nevertheless withdraw or modify an order for execution despite the language of the statute, but we have weighed in on the issue twice. In In re Roach, the trial court withdrew an order setting the execution of Charles Dean Hood even though there were no active pleadings before it. No. WR-4116-08, 2008 WL 2486229 at *1 (Tex.Crim.App. June 17, 2008) (not designated for publication). The trial court then recused itself, thereby transferring authority to the regional presiding judge. Id. The State subsequently filed an application for a writ of mandamus to order the regional presiding judge to rescind the order withdrawing the death warrant. Id. We granted mandamus relief explaining that the trial court- lacked authority to withdraw the order setting the execution date because the plain text of the statute required a pending or active pleading to justify the modification or withdrawal. Id. at *2.

Similarly, Ex parte Cannady, this Court considered a third subsequent application for a writ of habeas corpus in the capital murder case of Rogelio Cannady. No. WR-25462-07, 2010 WL 2006763 at *1 (Tex.Crim.App. May 17, 2010) (not designated for publication). This Court first determined that Cannady’s third subsequent application for writ of habeas corpus failed to satisfy the dictates of Article 11.071, § 5, and,we therefore dismissed the application and denied his motion to stay his execution. Id. We went on to address the fact that Cannady had filed a motion to withdraw the order of execution prior to filing his third subsequent habeas application. Id. We observed:

This 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. However, in .denying the motion, the trial court declared that it was treating the motion as a subsequent application, and it opined that it was not authorized to modify or withdraw its previous order until this.Court determined whether the requirements of Article 11.071, § 5, had been met.

Applicant’s motion standing - alone is not, and will not be construed by this Court to be,'a'subsequent writ application subject to Article 11.071 review.

Id. The trial court apparently denied the motion — as it was required to — under Article 43.141 because no subsequent writ application was pending.' Id. This Court’s observation in Cannady — that the trial court’s statéd reason for denying the motion was incorrect because a motion under Article 43.141 is not a subsequent application for a writ of habeas corpus and should not be construed as such — did nothing to suggest that a trial court can withdraw an order of execution when no subsequent habeas application is pending. A defendant is authorized to file a motion to withdraw under Article 43.141, but a trial court must deny it (under the dictates of the statute) if there are no active pleadings. Even assuming precedential' status for these two cases, I see no inconsistency between our holdings in Roach and Can-nady or between our holdings in those cases and the express terms of the statute.

Additionally, Holiday’s attorneys cited (and provided) several trial court orders withdrawing an execution date as proof that a trial court has the authority to do so even when no application for a writ of habeas corpus is pending. However, these orders were not brought before this Court on a petition for writ of mandamus, and indeed, at least one was entered by agreement of the parties, Consequently, these orders do not support the proposition that the trial court could properly construe Article 43.141(d)(1) to authorize withdrawal of an execution order when there is no pending application for a writ of habeas corpus on file.

The State’s Petition for Writ of Mandamus Was Not Procedurally Barred

It is true that the current rules of appellate procedure do not specifically require that this Court request a response from the trial court before granting relief on a petition for a writ of mandamus. But it is not at all clear that the rules of appellate procedure governing.the Texas Supreme Court and the courts of appeals do so either. Rule 52.2 designates three different parties to an original proceeding. ’ Tex R.App. P. 52.2. The party seeking relief is the relator, the State in this case, while the person against whom relief is sought is the respondent, in this case the trial court. Id. Rule 52.2 also designates the person whose interest would be directly affected by the' relief sought as a real party in interest and a party to the case. Id. In this matter, Raphael Holiday was the real party in interest and, by virtue of his interest in his own case, a party.

Rule 52.4 of the Rules of Appellate Procedure governs responses in original proceedings in the Texas.Supreme Court and the court of appeals. Th.e rule, allows that “any party may file a response to the petition, but it is not mandatory,” Tex. R.App. P. 52.4. The rule also states “The court must not grant relief — other than temporary relief — before a response has been filed or requested by the court.” Id.

On its face, Rule,52.4 does not require a response, or a request for a response, from all parties before the court can grant relief. Id. As long as a response , has been filed from the most interested party, a court may grant relief. Id. See e.g. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 140 (Tex.2004) (granting mandamus relief where respondent was trial court, but the real party in interest filed response to petition for mandamus rather than the respondent); In re Living Centers of Texas, Inc.,. 175 S.W.3d 253 (Tex.2005) (same), Courts of appeals routinely request a response from the real party in interest and proceed with only that response rather than insisting upon an response from the trial court because, understandably, the real party in interest has far more interest and .investment in the case. See e.g. In re Victor Enterprises, Inc., 308 S.W.3d 455, 457 (Tex.App.-Dallas 2010, original proceedings); In re Living Centers of Texas, Inc., 228 S.W.3d 678 (Tex.App.-Corpus Christi 2004, original proceedings), mand. granted, 175 S.W.3d 253 (Tex.2005); In re Patricia Gist, 974 S.W.2d 843 (Tex.App.-San Antonio 1998, original proceedings). If granting mandamus relief without requesting a response from the trial court — as opposed to the interested parties — violates a civil litigant’s right to dué process, the Texas Supreme Court has yet to say so.

This need for a response from the trial court is a red herring because the real party in interest filed a response in this case. Holiday ’ did- not - argue that the States petition for ' writ of mandamus should be rejected on procedural grounds based upon the lack of a request for a response from the trial court or-that the failure to do’ so violated due process. And this Court did not grant the State’s petition without receiving Holiday’s response and considering it; I acknowledge that time for consideration was necessarily condensed, but that, was a direct result.of the timing of the motion to withdraw itself. I could not find any cases from the Texas Supreme Court interpreting the scope of Rule 52.4 as requiring a request - for a response from the trial court even after the real party in interest has responded.

Admittedly, the Rules of Appellate Procedure could be clarified to further explain the scope of Rule 52.4 as -well as make it explicitly applicable to original proceedings in this Court. However, I do not think that the Rules Advisory Committees for either this Court or the Texas Supreme Court should be faulted for an oversight that would have had no impact on this case. Focusing upon the alleged shortcomings of the Rules of Appellate Procedure needlessly distracts from the real candidate for correction, Article 43.141. Amending Article 43.141 to expand the trial court’s authority or grant the State a right to appeal such a withdrawal order would do more to avoid the circumstances presented here than requiring a request for a response from the trial court even after receiving a response from the real party in interest.

Mandamus Relief Would Have Been Warranted On a Pure Article 43.141(d)(1) Withdrawal Order

On the merits, of the State’s petition for writ of mandamus, I agree with the Court that the trial court was not allowed to withdraw the order of execution under the terms of Article.43.141(d)(1). In order to be entitled to relief, the State was required to show: 1) that it had no adequate remedy at law, and 2) that it sought to compel a ministerial act. In re State ex rel. Weeks, 391 S.W.3d 117, 121-22 (Tex.Crim.App. 2013). This ministerial act requirement is satisfied if the relator can show a clear right to the relief sought. In re Bonilla, 424 S.W.3d 528, 533 (Tex.Crim.App.2014). A clear right to relief is shown when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles. Weeks, 391 S.W.3d at 122.

Additionally, with respect to the “no ad-equaté remedy at law” requirement, we have explained that a remedy at ■ law, though'it technically exists, may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate. Greenwell v. Court of Appeals for the Thirteenth Jvdicial Dist., 159 S.W.3d 645, 648-49 (Tex.Crim.App.2005), Article 43.141 provides no avenue for appeal for the State to review "the trial court’s order withdrawing an order of execution. State v. ex rel. Lykos v. Fine, 330 S.W.3d 904, 916 (Tex.Crim.App.2011) (holding that the State had no adequate remedy at law to prevent hearing on constitutionality of the death penalty' prior to trial where the State lacked the ability to appeal á trial court’s order preventing it from pursuing a capital-murder conviction and a sentence of death); I do not see any other adequate remedy at law for the State to seek review of the tnal court’s order that is not “too uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective to be deemed inadequate.” Greenwell, 159 5.W.3d at 648-49. Acquiescing to the new execution date or trying to shoehorn the issue into review of the as-yet-unfiled subsequent writ application would still not provide review of the underlying issue, the propriety of the order to withdraw. See In re McCann, 422 S.W.3d 701, 710-11 (Tex.Crim.App.2013) (noting that. relator had no adequate remedy at law even though he could seek relief from his order for contempt through a writ of habeas corpus because it would not. resolve the underlying issue in the case); see also Ex parte Henderson, 246 S.W.3d 690, 692 (Tex.Crim.App.2007) (addressing application for subsequent writ of habeas corpus without addressing propriety of trial court’s order withdrawing execution date). Holiday’s counsel did not argue that the State had an adequate rémedy at law because the State simply did not.

The terms of Article 43.141’ are clear; a trial court cannot withdraw an order setting the execution for additional proceedings unless a-subsequent or an untimely application writ of habeas corpus.-has already been filed. Tex.Code Ceim, Peoo. ANN. art. 43.141 ;(West 2013). In Weeks, we acknowledged that, statutory provisions could be the basis -for-.a showing of .a clear right of relief. Weeks, 391 S.W.3d at 124-26. The Court was reasonable in determining that the statutory provision in this case was clear, and that our own prior actions (even though they were unpublished opinions) did not contradict the text of Article 43.141(d)(1). I cannot fault the majority of this Court for granting the State’s petition for mandamus relief on this basis.

Mandamus was Inappropriate Because the Trial Court Retained Inherent Authority to Withdraw or Modify its Orders

But the attorneys in this case also based their motion to withdraw on a claim that Holiday’s federal writ counsel had effectively abandoned him. To me, that is the heart of the matter. As both this Court’s show cause order and the dissenting statement detail, Holiday had repeatedly requested assistance from Seth Kretzer and James Volberding, Holiday’s federally-appointed writ counsel. After having exhausted his direct appeal and his first application for a writ of habeas corpus in this State and litigated his federal writ' of habe-as corpus through to the United States Supreme Court, Volberding informed Holiday that he would not be filing additional appeals or seeking clemency because neither presented a realistic chance of sparing Holiday’s life. See Brandi Grissom, Condemed Mans’ Lawyers Stop Helping, Citing 'False Hope,” Dallas Moening News, Nov. 16, 2015 (available at http:// www. dqllasnews. com/news/'state/headlines/ 20151116-condemneé-wians-lqwyer-stop-helping-cite-false~hope.ece ). Attorneys Blazek and Carter were aware of these developments and filed the motion to withdraw the execution date pending the filing of a subsequent writ after an-attorney with no connection to the case suggested filing a motion to withdraw the order of execution. While they were unclear as to whether they might be filing the subsequent writ application, ’they raised equitable concerns based upon federal writ counsel’s failures as a basis for the trial court’s order independent of Article 43.141.

’ In their response to the State’s petition for writ of mandamus, they observed that Article 43.141 was not the only source of authority for the trial court to act. Relying upon the trial court’s “plenary power” to alter its own orders, they argued that the trial court could modify or rescind its orders through authority independent of the statute. And they also cited to Ex parte Henderson, where a trial court had recalled the defendant’s death warrant “in the interest of justice” so that the defendant could have sufficient time to gather additional material for a subsequent writ application. Ex parte Henderson, 246 S.W.3d 690, 692 n. 1 (Tex.Crim.App.2007). This argument properly focused on what I felt was the central concern of the case: whether a trial court could-in the interest of justice-withdraw a warrant of execution where the defendant represents that the defendant’s counsel had effectively stopped representing him and he needs new counsel. Given that the issue is at least unsettled, I voted to deny mandamus relief.

Under the Texas Constitution, district courts are invested with inherent authority to execute their own judgments. Kelly v. State, 676 S.W.2d 104, 107 (Tex.Crim.App.1984). In addition to express grants of power conferred by constitution, statute, or common law, courts have inherent and implied powers that provide a much broader foundation upon, which to act. State v. Patrick, 86 S.W.3d 692, 601 (Tex.Crim. App.2002) (Cochran, J,, dissenting); See also Tex. Gov’t.Code Ann. § 21.001(a) (setting out that a court has “all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including the authority to issue the writs and orders necessary or proper in aid of its jurisdiction”). In Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.1979), our sister court recognized this inherent authority of a trial court to aid in the exer cise of its jurisdiction, in the administration of justice, or in the preservation of its independence and integrity. See also State v. Johnson, 821 S.W.2d 609, 612 (Tex.Crim.App.1991) (citing Eichelberger). As Judge Cochran observed in her dissenting opinion’ in Patrick, there are essentially two contradictory views of a trial court’s authority: whatever is not forbidden is permitted, and whatever is not explicitly authorized is forbidden. Patrick, 86 S.W.3d at 601. Because I view the trial court’s authority under the former principle, I would have held that the trial court properly relied upon its inherent authority by withdrawing its order setting an execution date in light of the equitable claims raised in Holiday’s motion.

However, I- fully acknowledge that taking this position is almost completely undermined by Staley v. State, 420 S.W.3d 785 (Tex.Crim.App.2013). There, this Court was faced with the difficult question of whether federal or state law prohibited the involuntary medication of a mentally ill inmate for the purpose of carrying out an order of execution. Id. at' 786. Rather than decide the issue on constitutional grounds, we held that Article 46.05 of the Code of Criminal Procedure, which governs a defendant’s competency to be executed, did not authorize the trial court to involuntarily medicate a mentally ill inmate. Id. at 796. In doing so, we rejected an argument that such action was justified under a trial court’s inherent authority. Id. In effect, we took the position that the trial court could not act unless statute specifically authorized the trial court’s actions even though it had jurisdiction to rule upon the issue of competency. Id. Returning to Judge Cochran’s dissent in Patrick, the Court took the “whatever is not explicitly authorized is forbidden” view of inherent authority, and I disagree with that view. I would have reached the same result in Staley, but on different grounds.

Yet, the fact remains that Staley is binding authority that sharply limits a trial court’s inherent authority to the terms of the statute governing the proceedings. Arguably, the scope of the rationale we announced in Staley may not extend to orders under Article 43.141, and the unsettled nature of the scope of the holding in Staley could justify a denial of the State’s petition for mandamus relief in Holiday’s case. Simon v. Levario, 306 S.W.3d 318, 322 (Tex.Crim.App.2009). But I cannot fault a majority of the Court for reading Staley as a limitation of a trial court’s authority in this case any more that I could fault Judge Alcala for authoring Sta-ley in the first place.

A Show Cause Hearing Guarantees More Information Not a Particular Outcome

This Court’s Miscellaneous Rule 11-003 is important to the proper consideration of pleadings relating to an impending execution. In re Dow, 460 S.W.3d 151, 157 (Tex.Crim.App.2015) (Alcala, J., dissenting). The purpose of the rule is to ensure both that a defendant has an opportunity to raise any issues pertinent to the impending execution and that this Court has an adequate opportunity to consider those pleadings. Id. Violations of this rule could harm a defendant if a judge cannot adequately consider a defendant’s pleadings, but it can also harm society through an unmeritorious stay of execution merely because of the compressed time a -judge has to consider the pleadings. Id. The concerns are weighty, indeed.

The dissent advocates passionately that this Court did not have adequate time to consider the pleadings in this case. But the timing of Holiday’s motion dictated the compressed time frame'.- The accompanying statement from the attorneys merely states that they decided to- file the motion to withdraw the execution order the day before the execution date after being informed by another - attorney that they could do so. Contrary to the dissent’s factual ’ assertions, nothing in Blazek’s or Carter’s statements establishes that these two attorneys “did not know Holiday needed counsel until the day before the scheduled execution.” The only reference to the day before the scheduled execution appears in Blazek’s statement, and it recites that Blazek was contacted by an attorney regarding the possibility of filing á motion to ’withdraw the order of execution. This information was preceded by acknowledgments that Kretzer had told Holiday in August that he did not'think anything else could be done in Holiday’s’ case, and that anothér attorney had considered representing Holiday on October 9, 2015.' It may very well be that Blazek and Carter were unaware that Holiday needed counsel, but that is not what the good ’cause certificate says. I am more than willing to commend 'Blazek and Carter for stepping into the breach when no one else would if that is the appropriate response after the hearing, but I have not pre-judged the issue and would rather hear what they have to say before I decide. And the hearing itself could provide valuable insight for handling future cases. That is why I join the Court’s order to show cause.

With these thoughts, I concur.

. Attorney Blazek represented Holiday on direct appeal, raising forty-nine points of error related to eighteen different aspects of the trial. Holiday v. State, AP-74,446, AP-74,-447, AP-74448 (Tex.Crim.App. Feb. 8, 2006) (not designated for publication). He did not raise a challenge based upon double jeopardy even though such a claim was clearly available prior to trial and on direct appeal. He dict challenge the’ admissibility of unreliable expert testimony on direct appeal, but this Court has already rejected that argument with only one judge dissenting on that basis. Holiday v. State, AP-74,446, AP-74,447, AP-74,-448, 2006 WL 288661 at ⅜1 (Tex.Crim.App. Feb. 8, 2006) (Womack, J., dissenting) (not designated for publication)

. Subsection (c) does not expand the scope of the grounds for a motion in arrest of judgment beyond those set out in former Article 41.03 of the Texas Code of Criminal Procedure because the legislative grant of rulemak-ing authority to this Court does not allow any rules that abridge, enlarge, or modify substantive rights of a litigant. Tex. Gov’t.Code Ann. § 22.018(a) (West 2013); Flowers v. State, 935 S.W.2d 131, 132-34 (Tex.Crim.App.l996). Former Article 41.03 limited the grounds for a motion in arrest of judgment to exceptions to the indictment or information. Crittendon, 923 S.W.2d at 634 n. 1.

. It is worth noting that this statutory provision was passed in 1995 as part of a larger effort to streamline review of death penalty cases. Included as one of many rationales for passage of the statute was the need to decrease the delay between a capital murder conviction and the imposition of a death sentence. House Comm, on Criminal Jurisprudence, Bill Analysis, C.S.S.B 440, 74th Leg., R.S. (April 27, 1995) ("1995 Bill Analysis”) (available at: http://www.legis.state.tx.us/ tlodocs/74R/analysis/html/SB00440H.htm). And allowing the trial court authority to withdraw a valid execution order without a showing of active pleadings would necessarily allow a trial court to delay an execution indefinitely. While the legislative history is not ; necessary to clarify any ambiguity in the statute, it does reinforce the observation that the limitation of a trial court’s ability to withdraw an execution unless one of two types of filings are pending is due to a legislative design to decrease delay in .post-conviction proceedings.

. I acknowledge that these cases are unpublished and lacking in precedential value. Tex, R.App. P. 47.7. I discuss them because they were-cited by the parties in the underlying case. Even if they had precedential value, they.: do not support the trial court’s order in this case.

. The Dallas Court of Appeals has held Rule 52.4 prohibited granting mandamus relief where the relator was not afforded an opportunity to , respond. In re Victor Enterprises, Inc., 304 S.W.3d 669 (Tex.App.-Dallas 2010, no writ). While the court of appeals opined that failing' to' afford the relator an opportunity to respond violated due process, the sole support for that holding was the rule itself. Id. More importantly, the opinion was not concerned with a claim that due process requires a request for a response from the trial court even where -the, interested parties have responded.

. As head of the Court of Criminal'Appeals Rules Advisory Committee, ‘Judge Alcala is well-positioned to suggest these changes going forward.

. It is worth noting that the United States Supreme Court denied the request for a stay of execution despite this attorney-abandonment theory. Holiday v. Stephens, 577 U.S. - at 1, 136 S.Ct. 387, 193- L.Ed.2d 418 (2015). Even Justice Sotomayor, who wrote a concurring statement to opine that the trial court should have allowed the substitution of counsel, ultimately agreed with the Court to deny the stay because counsel had ultimately ■ filed a clemency petition. Id.-388, 2015 WL 7282622 at *2. • ■

. In Henderson this Court evaluated the propriety of the subsequent writ application, not the propriety of the trial court’s order, which was necessarily a moot issue at that point, 246 S.W.3d at 691. Even so, the trial court did not base its withdrawal order on Article 43.141(d)(1); -it justified the withdrawal as being "in .the interests of justice” suggesting reliance upon the trial court’s inherent authority.

Alcala, J.,

filed a dissenting statement.

About a month ago, on November 18, 2015, the State of Texas executed Raphael Deon Holiday for capital murder. Holiday’s execution occurred despite three factors that should have allowed him to remain alive to pursue habeas relief and to file a new .clemency petition: (1) the trial-court judge withdrew Holiday’s execution date based on his conclusion that Holiday had presented claims for habeas relief that warranted further litigation, (2) as I noted i,n my previous dissenting statement in this case, this Court’s majority should have denied the State’s last-minute petition for mandamus relief because the State failed to show that the trial court’s order withdrawing Holiday’s execution date was ministerial in nature and that there was no adequate remedy at law, and (3) as Supreme, Court Justice Sotomayor stated in her,concurring statement on the night of Holiday’s execution, Holiday should have been permitted to ¡obtain new counsel to replace his federally appointed counsel who had failed to zealously represent him in his clemency proceedings and who abandoned him at the last moment, thus leaving Holiday without effective counsel in the few short days before his execution. See Holiday v. Stephens, — U.S. -, 136 S.Ct. 387, 193 L.Ed.2d 418 (2015) (mem. op.) (Sotomayor, J„ concurring). Now, after having erroneously permitted the State to execute Holiday a month ago, this Court’s majority compounds the mistake by issuing a show-cause order against Holiday’s pro bono counsel, Frank Blazek and William F. Carter, who stepped in at the very last minute to fill .the void left by Holiday’s federally appointed attorneys. Rather than commend Blazek and Carter for attempting to ensure that a death-row inmate was represented by counsel in his last days of life, this Court’s majority instead orders Blazek and Carter to appear before this Court to show cause to explain why they should not be sanctioned by this Court. Because my review of the totality of the pleadings and eircümstances reveals that Blazek and Carter did not violate the spirit of this Court’s Miscellaneous Rule 11-003 by filing the motion to withdraw Holiday’s execution date on the day of Holiday’s execution, I -dissent to this Court’s instant show-cause order. To explain my reasoning, .(1) I detail the background facts leading up to Holiday’s execution, (2) I explain, as I did in my dissenting statement issued on! the night of Holiday’s execution, why the' State’s petition for a writ of mandamus that resulted in the reinstatement óf thé execution warrant by this Court’s majority was decided in a procedurally flawed manner and was substantively unmeritorious, and (3) I conclude that the underlying facts before us are facially inadequate to even issue this show-cause order and that the issuance of this order will detrimentally affect the legal representation of all death-row inmates facing imminent execution. I believe that publishing this dissenting statement is appropriate because it is extremely likely that this situation — a trial court seeking to withdraw its order of execution based on a last-minute motion by pro bono counsel and a resulting show-cause order related to a late filing — will occur again in the future and that this opinion will provide guidance to future litigants.

I. Background

The State brought three charges of capital murder, in three separate indictments, for the deaths of each of the three children killed on September 5, 2000 in a fire started by Holiday. See Holiday v. State, Nos. AP-74,447, AP-74,448, 2006 Tex. Crim. App. Unpub. LEXIS 737 (Tex. Crim. App. Feb. 8, 2006) (not designated for publication). One indictment charged Holiday with murdering more than one person during the same criminal transaction, and each of the other two indictments charged him with the murder of an individual under the age of six. Id. At trial and on direct appeal, Holiday was represented by appointed attorneys William. F. Carter and Frank Blazek, the same two attorneys who are the subject, of the current show-cause order.

Holiday’s conviction was challenged in state court on direct appeal and in an initial state habeas application. After his conviction, this Court affirmed his conviction on direct appeal in 2006. Id. Holiday’s motions for rehearing were denied later that same year. Id. Also that year, the Supreme Court denied his petition for a writ of certiorari. Holiday v. Texas, 549 U.S. 1033, 127 S.Ct. 580, 166 L.Ed.2d 434 (2006) (mem. op.). While his direct appeal was pending, Holiday filed an application for state habeas corpus relief. Ex parte Holiday, Nos.WR-73,623-01, WR-73,628-02, WR-73,623-03, 2010 WL 1797258 (Tex. Crim. App. May 5, 2010). Holiday was represented by attorneys Gerald Bierbaum and Alex Calhoun. Without an evidentiary hearing as to Holiday’s claims, .this Court adopted the trial court’s proposed findings of fact and conclusions of law, and it denied relief. Id.

Holiday’s conviction was also challenged in federal habeas corpus proceedings. In 2013, Holiday filed a petition for a writ of habeas corpus in the federal district court. See Holiday v. Stephens, No. H-11-1696, 2013 WL 3480384, at *40, 2013 U.S. Dist. LEXIS 98004, at *125-26 (S.D.Tex. July 10, 2013), At that time, Holiday was represented by federally appointed attorneys Seth Kretzer. and James W. Volberding. The district court denied relief and rejected a petition for rehearing. Id. In October 2014, the United States Court of Appeals for the Fifth Circuit denied a certificate of appealability as to numerous claims on which the district court had denied habeas relief. Holiday v. Stephens, 587 Fed. Appx. 767, 788 (5th Cir.2014). The court also denied his petition for rehearing. Id. The Supreme Court then denied Holiday’s petition for writ of certiorari at the end of June 2015. Holiday v, Stephens,-U.S. -, 135 S.Ct. 2893, 192 L.Ed.2d 930 (2015) (mem.op.)..

After the culmination of the direct appeal and state and federal habeas litigation, the trial court scheduled Holiday’s execution. On August 14, which was about six weeks, after the'Supreme Court’s ruling, the trial-court judge set Holiday’s execution to Occur about three months later, on November 18. .The judge issued a death warrant for that date. Holiday was represented by Kretzer at the hearing, but Blazek and Carter also attended the hearing.

The following month, Holiday filed a pro se motion in the federal district court over a dispute that had .arisen that summer between Holiday and counsel Kretzer and Volberding, which resulted in Holiday’s belief that he had been abandoned by counsel. Holiday desired further litigation to challenge his death sentence, but counsel believed that the litigation should cease. According to the record of the proceedings in -the federal district .court, Volberding wrote a letter to Holiday stating that the Supreme Court had denied .Holiday’s appeal and that the ruling “marks the end of work for your appeals.” Volberding represented in the letter that neither he nor Kretzer would file any further appeals for Holiday because they did not believe that “any further appeals .[would] have: any chance of- success.’,’. ■. Volberding’s . letter also said that .they would n.ot seek; clemency for Holiday due to . the unlikelihood of success. Volberding’s letter told Holiday that an execution date would soon be set. The letter concluded that the attorneys did not believe that any successor writ had even a remote chance of success, but they agreed to cooperate ..with any . new counsel that Holiday might obtain.

Faced with the appointment of lawyers who were refusing to seek clemency and declining to pursue any further litigation, Holiday sought' the appointment of new counsel in the federal district court. In his letter to the court requesting the appointment of new counsel, Holiday asserted that he effectively had “no attorneys representing” him. He requested that the court appoint him new counsel “for clemency and a possible state or federal successor petition, .possibly based on the Martinez v. Ryan case.” He observed that Kretzer and Volberding had “refused to argue clemency, [.] which is a common formality if nothing more, in all death row cases where an execution warrant had been issued,” and he sought a stay of execution to pursue additional litigation with the assistance of new counsel. After counsel Kret-zer and Volberding opposed Holiday’s request for new counsel, the federal district court denied it.

On October’ 19, which was less than á month before the scheduled execution, Holiday obtained pro bono coünsel, Gretchen Sims Swéen with Beck Redden LLP, for her assistance in obtaining new federally appointed counsel to replace Kretzer and Volberding. Sween filed both a notice of appeal and a motion to reconsider, in which she asked the federal district court to reassess its previous denial of Holiday’s request for-'new counsel under 18 U.S.C. § 3599. The federal - district court denied Sween’s- motion. In response to Sween’s filing of a notice of appeal, Kretzer filed a motion asking the district court to substitute counsel and permit him and Volberd-ing to withdraw, but Kretzer specified that pro bono counsel Sween should be Holiday’s new counsel of record. Sween, however, had signed on as appellate counsel for the limited purpose of representing Holiday in his efforts to obtain substitute counsel, and she-was unable to serve as appointed counsel under § 3599. Other than his agreement to the appointment of Sween, Kretzer continued to oppose Holiday’s, request for substitute counsel under § 3599. The district court denied Sween’s motion.

In response to the allegation that they had abandoned Holiday, counsel Kretzer and Volberding filed a last-minute application on October 28 for commutation of sentence, dr alternatively, reprieve from execution of death sentence with the Texas Board of Pardons and Paroles. The application largely repeated the contents of the federal writ of habeas corpus, and it was denied by the board two days before Holiday was executed.

Dissatisfied with the last-minute clemency petition filed by' Kretzer and Volberd-ing, Sween filed an appeal in the United States Court of Appeals for the Fifth Circuit challenging the district court’s orders permitting their continued appointment, and she pursued a motion to stay the execution. See Holiday v. Stephens, 806 F.3d 334 (5th Oir.2015) (per curiam). In response, Kretzer and Volberding, who remained Holiday’s counsel of record, moved to dismiss Holiday’s appeal as frivolous. Id. In her November 10 pleadings to the Fifth Circuit, Sween explained that, with an execution date looming, Holiday was being forced to litigate against both - the State and his own appointed counsel, Kret-zer and Volberding. Sween noted that the record plainly showed that a conflict emerged by at least June 30, 2015, when Kretzer and Volberding informed Holiday of “their decision to cease working for him, invited him to ñnd pro bono counsel to take over, then, once he turned to the district court for help, actively resisted his efforts to obtain substitute appointed counsel in time to seek various forms of relief still available to him.” Sween concluded that the “conflict between client and counsel has continued to escalate and is now playing out before this Court.” Describing the extreme conflict between Holiday and appointed counsel, Sween stated,

[Counsel] aligned themselves against their client before the district court-and now align themselves against their client and join arms with the State while suggesting that the only attorney authorized to undertake this appeal on Mr. Holiday’s behalf is somehow a rogue- interloper. This Kafkaesque scenario is what breeds cynicism about the representational rights that Congress enacted and the procedural safegards that the Supreme Court has developed specifically for the capital context.

Sween additionally, contended that Holiday was entitled to the appointment of “appointed counsel who are not conflicted by self-interest and thus will zealously pursue clemency proceedings and all other available post-conviction relief’ on-his behalf. She asserted that a “central argument in Mr. Holiday’s Opening Brief is that he still has preserved claims that could be pursued in a second, but not successive, federal habeas petition, which [Kretzer and Volberding] simply abandoned.” Sween additionally asserted that Holiday had habeas' claims that Kretzer and Volberding preserved but failed to pursue.

On November 12, which was six days before Holiday’s scheduled execution, the Fifth Circuit rejected Holiday’s appeal. See Holiday, 806 F.3d at 335 (concluding that the district court “did not abuse its discretion in denying Holiday’s motion for the appointment of new counsel,” affirming its orders denying the motion for appointment of new counsel, and denying Holiday’s motion for a stay of execution). Although it declined to dismiss the appeal as frivolous, as Kretzer and Volberding had sought, the Court warned Sween that subsequent attempts to displace Volberding and Kretzer would be “viewed with skepticism.” Id, at 335 n.l.

In the late morning on November 18, 2015, the day of Holiday’s scheduled execution, which was four work days after the Fifth Circuit refused to appoint new federal counsel for Holiday, Blazék and Carter, who had represented Holiday at trial, filed a “motion to .withdraw or modify” the order scheduling his execution because “additional proceedings [were] necessary on a subsequent application for a writ of habeas corpus and to afford [him] an opportunity to have meaningful access to clemency proceedings.” Furthermore, the motion asserted that Holiday “has at least two claims he seeks to raise in subsequent state habeas applications: (1) the trial court’s admission of unreliable expert testimony as to Mr. Holiday’s future dangerousness by psychiatrist Edward Gripon violated the Texas and United States Constitutions; and (2) that Mr. Holiday’s right to be free from double jeopardy was violated when he was charged, convicted, and. sentenced to death twice for causing the same individual’s death.” Holiday argued that both “claims [were] procedurally viable under Tex.Code Crim. Proc. art. 11.071 § 5.” The motion presented specific facts supporting each of these arguments.

■ After determining that Holiday’s motion was meritorious, the trial court granted it, withdrew the previous order that had set Holiday’s execution to occur that night, and recalled the warrant of execution so that the execution would, not occur that night.-. The order explained that the trial court found that