Opinion
WR-94,538-01
02-08-2023
In re STATE OF TEXAS ex rel. RANDALL SIMS, Relator
Do Not Publish
ON MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF MANDAMUS IN CAUSE NO. 39532-D IN THE 320TH JUDICIAL DISTRICT COURT POTTER COUNTY
Slaughter, J., concurred.
OPINION
PER CURIAM.
We have before us the State's Motion for Leave to File Petition for Writ of Mandamus and the accompanying Petition with exhibits.
Relator - the State; Respondent - the Honorable Steven Denny, judge of the 320th Judicial District Court of Potter County; Real Party in Interest and defendant below - John Lezell Balentine. For readability, we refer to the parties as "the State," "the trial court," and "Balentine."
In April 1999, a jury found Balentine guilty of the offense 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 Balentine's punishment at death.
Unless otherwise indicated, all references to Articles in this order refer to the Code of Criminal Procedure.
This Court affirmed Balentine's conviction and sentence on direct appeal. Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002). This Court denied relief on Balentine's initial post-conviction application for a writ of habeas corpus, dismissed his first and second subsequent applications, and denied a request to reconsider his initial application. Ex parte Balentine, No. WR-54,071-01 (Tex. Crim. App. Dec. 4, 2002) (not designated for publication); Ex parte Balentine, Nos. WR-54,071-01 and WR-54,071-02 (Tex. Crim. App. Sept. 22, 2009) (not designated for publication); Ex parte Balentine, No. WR-54,071-03 (Tex. Crim. App. June 14, 2011) (not designated for publication). On September 1, 2022, the trial court set Balentine's execution for February 8, 2023. On January 19, 2023, just weeks before the scheduled execution, Balentine filed in the trial court a motion to recall the order setting the execution date and the warrant of execution.
In Balentine's motion to recall the order and warrant, Balentine asserted that:
(1) The warrant violated Article 43.15 because (a) it was not sent to Balentine's counsel or the Office of Capital and Forensic Writs at the time it issued (emphasis added); and (b) when it was sent, it was sent by someone else and not the clerk as required. And,
(2) The warrant violated Article 43.16 because (a) the sheriff did not immediately deliver it to the Texas Department of Criminal Justice; and (b) the sheriff did not timely return the receipt to the clerk.
Presumably based upon Balentine's arguments, the trial court recalled the order and warrant, finding that, "Defendant's last known counsel was not properly notified of the warrant of execution and execution date 'Not later than the second business day. . .' by the District Clerk '. . . by first-class mail, e-mail, or fax. . .' as required by Article 43.15 of the Texas Code of Criminal Procedure ." (Emphasis added.) The court continued that, in "accordance" with the finding "and in compliance with . . . Article 43.141(b-2) this Court directs the State to reset the execution date as soon as practical with proper notice[.]" In light of the ruling, the court found it unnecessary to determine whether the sheriff complied with Article 43.16.
This ruling conflates the requirements of Articles 43.141 and 43.15, and misstates the law. As such, it fails to provide a valid reason to recall the execution order and warrant. Accordingly, we grant mandamus relief and reinstate the execution order and warrant.
Yeary, J., filed dissenting opinion.
Real Party in Interest, John Lezell Balentine, filed a motion in the convicting court contending that the clerk of the court failed to comply with the notice requirements established in Article 43.15(b) of our Code of Criminal Procedure. TEX. CODE CRIM. PROC. art. 43.15(b). In response to that motion, the convicting court entered an order purporting to "recall" the warrant of execution and the order setting the execution date in Balentine's case. The State has sought mandamus relief in this Court from the convicting court's order recalling the warrant and execution date. And this Court grants relief, reinstating the execution order and warrant. This Court's order explains that the convicting court's "ruling conflates the requirements of Articles 43.141 and 43.15, and misstates the law." It also explains that the convicting court's order "fails to provide a valid reason to recall the execution order and warrant."
The convicting court's order also directs “the state” to “reset the execution date as soon as practical with proper notice” to the attorney representing the Applicant. (Emphasis added.) Our code does not permit “the state” to unilaterally set an execution date, even if ordered to do so by a court. Pursuant to Article 43.141(b), it is the “convicting court” that enters an order setting an execution date. TEX. CODE CRIM. PROC. art. 43.141(b). Moreover, Article 43.15(b) requires “the clerk” to give notice of the issuance of the warrant to an Applicant's counsel “at the time the warrant is issued.” Nothing in either Article 43.141 or in Article 43.15 authorizes the convicting court to order the State to give the required notice of either the order setting the execution date or the issuance of the warrant.
I am not as sure as the Court that the convicting court's confusion about the reasons listed in its order has anything to do with the validity of its order recalling the warrant and execution date. It also seems to me to be a mistake to conclude that the convicting court was required to "provide a valid reason" at all for its order withdrawing the execution date and warrant of execution. Our statutes do not seem to require that. While undoubtedly a convicting court must have a valid reason for withdrawing an order setting an execution date and a warrant of execution, nothing in our statutory scheme seems to require a convicting court to articulate such a valid reason, and I see no clear authority for this Court to reverse a convicting court's order recalling an order setting an execution date and warrant merely for providing invalid explanations of its reasons-which explanations were not required in the first place.
The State also does not seem to make an argument that Article 43.15(b) was complied with. Instead, it seems to argue that the notice requirement was at least substantially complied with. It does not appear that this Court has ever said that substantial compliance with Article 43.15 is sufficient. I am also not convinced that the convicting court lacked the authority to fashion an appropriate remedy for the apparent violation of Article 43.15, such that it could be said that Relator has shown a "clear entitlement" to mandamus relief. E.g., In re Daniel, 396 S.W.3d 545, 549 (Tex. Crim. App. 2013).
For these reasons, I dissent to the Court's order granting mandamus relief.
Newell, J. filed a dissenting opinion.
I wrote a concurring statement to a show cause order in In re State ex rel. Risinger. The Court issued the show cause order in that case because the attorneys representing Raphael Deon Holiday filed an untimely motion to withdraw the warrant of execution in their client's death penalty case. In my concurring statement, I expressed my view that the State would have been entitled to mandamus relief if the decision were based solely upon the issue of a trial court's failure to comply with the requirements of Article 43.141 of the Code of Criminal Procedure.
479 S.W.3d 250, 255 (Tex. Crim. App. 2015) (Newell, J. concurring).
Id.
Id. at 260.
However, I also explained why I had ultimately voted to deny mandamus relief in the underlying case. It is at least unsettled whether trial courts have inherent authority that is independent of statutes and which allows trial courts to modify or rescind their own orders. Under the Texas Constitution, district courts are invested with inherent authority to execute their own judgments. And, 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.
Id. at 262.
See Kelly v. State, 676 S.W.2d 104, 107 (Tex. Crim. App. 1984).
See State v. Patrick, 86 S.W.3d 592, 601 (Tex. Crim. App. 2002) (Cochran, J., dissenting); see also Tex. Gov't. Code § 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.").
I believe that reasoning applies equally in this case even though the Court is considering the application of a different statute related to the setting of an execution date. I vote to deny mandamus relief and I respectfully dissent.