~~ /87 -()2
RANDY J. KAIZER # 1730604
C.T.TERRELL UNIT
. 1300 P.M. 655
ROSHARON, TX 77583
COURT OF CRIMINAL APPEALS
CLERK, ABEL ACOSTA
P.O.Box 12308
AUSTIN ,TX 78711
RE: RANDY J. KAIZER V. THE STATE OF TEXAS CAUSE NO: 10-CR-2388A
DEAR CLERK
PLEASE FIND ENCLOSED FOR FILING PURPOSE THE FOLLOWING:
WRIT OF MANDAMUS . PLEASE BRING IT TO THE COURTS ATTENTION
THANK YOU VERY MUCH FOR YOUR KIND ATTENTION IN THIS MATTER.
RESPECTFULLL
R~ER ~
C.T.TERRELL UNIT
1730604
1300 F,M. 655
ROSHARON, TX 77583
RECE\VE\0 IN
COURT Of CRIMINAL APPEALS
APR 23 2015
IN THE COURT OF CRIMINAL APEALS
IN RELATOR ~ IN THE 28th JUDICIAL DISTRICT
RANDY J. KAIZER ~.
~ COURT OF
~
~ NUECES COUNTY, TEXAS
WRIT OF MANDAMUS
TO THE HONORABLE JUDGES JJF THE COURT OF CRIMINAL APPEALS:
COMES NOW 1 RANDY J. KAIZE, RELATOR, PRO-SE, IN THE ABOVE STYLED CAUSED
NUMBER AND FILES A WRIT OF MANDAMUS TO BE GRANTED FOR THE FOLLOWING
REASONS TO WIT:
I.
THE WRIT OF MANDAMUS IS AVAILABLE IN EXTRAORDINARY SITUATIONS TO CORRECT
A CLEAR ABUSE OF DISCRETION OR IF A TRIAL COURT VIOLATES A LEGAL DUTY
AND THE PARTY HAS NO ADEQUATE REMENDY BY APPEAL. SEE IN RE PARNHAM, 263
S.W.3d 97(TEX-APP.-HOUSTON[1st DIST. [(2006)
RELATOR SEEKING MANDAMUS MUST ESTABLISH THAT TRIAL JUDGE (a) COULD
REASONABLLY HAVE REACHED ONLY ONE DECISION IN RULING ON FACT ISSUE OR
MATTER COMMITTED TO TRIAL COURTS DISCRETION AND FAILED TO DO SO OR (b)
FAILED TO CORRECTLY DETERMINE W!HAT LAW IS OR APPLY IT TO FACTS. SEE IN
RESTATE FARM MOT. AUTO. INS. CO., 932 S.W.2d 21(TEX-APP.HOUSTON(1st DIST]
1998)
II.
APPLICANT FILED HIS WRIT OF HABEAS CORPUS PURSUANT TO 11.07, CODE OF
CRIMINAL PROCEDURE, TO THE 28th DISITRICT COURT ON 2/17/15, BUT DUE TO
PRISON MAILROOM OR U.S.POSTAL SERVICE APPLICANT'S CERTIFIED MAIL WAS NOT
RECEIVED BY THE 28th DISTRICT CLERK UNTIL 3/10/15.APPLICANT NOTIFIED THE
COURT THAT HIS MEMORANDUM OF LAW WAS BEING TYPIED AND WOULD BE MAILED IN
A SEPARATE ENVELOP. APPLICANT BY CERTIFIED MAIL MAILED HIS MEMO OF LAW
ON 3/6/15, BUT AGAIN WAS MISPLACED BY THE PRISON MAILROOM OR U.S.POSTAL
1.
an INVESTIGATION BY THE TEXAS POST MASTER GENE~AL IN CASE NO: CA 122195204
AND THE U.S.POST MASTER GENERAL IN CASE NO: CA 122243429. THE DISTRICT
PINALLY RECEIVED AND STAMPED FILED THE MEMO OF LAW ON 3/25/15.
APPLICANT THEN FILED ON 4/8/15 APPiiCANT'S PROPOSAL OF DESIGNATED
ISSUES AND ORDER, MOTION FOR AN EVIDENTIARY HEARING AND INTE~ROGATORY
QUESTIONS TO TRIAL COUNSEL LUIS.GARCIA, BV.CE~TIFIED MAIL AGAIN THE PRISON
MAILROOM OR U.S.POSTAL SERVICE HAVE MISPLACED AND FAILED TO DELIVER THIS
TO THE COURT. AN INVESTIGATION IS BEING CONDUCTED BY THE TEXAS POST MASTER
GENERAL IN CASE NO: CA 122624272 AND THE U.S.POST MASTER GENERAL INTE~NAL
AFFAIRS IN CASE NO: CA 122682988.
THE STATE FILED ITS STATES ANSWER ON 3/~1/15 WHICH APPLICANT DID NOT
RECEIVE UNTIL 4/9/15, APPLICANT FILED ON 4/13/15 APPLICANT'S OBJECTION
TO THE STATES ANSWER. THE STATE IN ITS ANSWER MADE A GENERAL DENIAL (SEE
STATES ANSWER @ P. 2) AND FURTHER SUBMITTED"THAT AN AFFIDAVIT WAS NOT
REQUESTED FROM TRIAL COUNSEL BECAUSE APPLICANT"S CLAIM LACKS ME.RIT BASED
UPON AN APPLICATION OF LAW TO THE FACTS PRESENTLY CONTAINED IN THE RECORD.
THE STATE IN ITS ANSWER ON APPLICANT'S GROUND 2 & 14 INEFFECTIVE ASSIS-
TANCE OF COUNSEL @ P. 3-6 SPECIFICALLY ADDRESSING APPLICANT'S CLAIM OF
INEFFECTIVENESS. THE STATE MISCONSTRUED AND MANIPULATED APPLICANT'S CLAIM
THAT TRIAL COUNSEL FAILED TO INVESTIGATE, APPLICANT'S VERSION OF EVENTS
:~F A THIRD PARTY PERPETRATOR, CHARACTER WITNESSES AND FAILED TO CROSS
EXAMINE THE VICTIM CONCE~NING HIS ALIBI STATEMENT AND COUNSEL'S DECISION
TO MOVE FORWQRD WITH THE TRIAL WITHOUT CALLING APPLICANT TO TESTIFY NOR
ANY OF HIS CHARACTER ,WIT~ESSES. THE STATE IN ITS CONCLUSION AND PRAYER @
P.9 REQUESTED THE COURT TO FIND THAT(a) NO CONTROVERTED AND PREVIOUSLY
UNRESOLVED FACTS ISSUES MATERIAL TO THE LEGALITY OF THE APPLICANT'S CON--
FINEMENT;(2) EXPANSION OF THE RECORD BY AN EVIDENTIARY H8@RING OR OTHERWISE
IS NOT NEEDED; (3) THE ASSERTIONS CONTAINED IN THE STATE'S ANSWER ARE
CORREGT. THE STATE FILED A PROPOSAL OF FINDING OF FACTS AND CONCLUSION
2.
OF LAW AND RECOMMENDATION.
III.
THE COURT ON 4/3/15 ADOPTED THE STATE'S PROPOSAL AND RECOMMENDATION
THAT THE APPLICANT'S HABEAS CORPUS APPLICATION BE DENIED AND ORDE~
THE CLE~K TO FORWARD THE APPLICATION TO THE COURT OF CRIMINAL APPEALS.
APPLICANT DID NOT RECEIVE A COPY OF THAT ORDE:R UNTIL 4/15/15.
THE TRIAL COURT PURSUANT TO 11.07 i 3tc)-~IT SHALL BE THE DUTY OF THE
CONVICTING COURT TO DECIDE WRETHER THERE ARE CONTROVERTED, PREVIOUSLY
UNRES6LVED FACTS MATE>'iTAL TO THE LEGALITY OF THE APPLICANT'S CONFINEMENT. 11
APPLICANT CONTENDS THAT THE COURT HAD BEFORE IT CONTROVERTED, PREVIOUSLY
REsLVED ISSUES, APPLICANT'S ALLEGATION WHICH IF TRUE, WOULD ENTITLE HIM
TO RELIEF AND THE STATE'S DENIAL OF APPLICANT'S INEFFEtTIVE "ASSISTANCE OF
COUNSEL CLAIM IS THE CONTROVERTED ISSUE AT HAND. THE PREVIOUSLY UNRESOLVED
FACTS MATERIAL TO APPLICANT'S CLAIM IS THAT TRIAL COUNSEL HAS NOT BEEN
DEPOSITION CONCE~NING THE APPLICANT'S ALLEGATION THAT HE WAS INEFFECTIVE
ASSISTANCE FOR FAILING TO INVESTIGATE( SEE APPLICATION AND MEMO FOR FURTHER
ARGUMENT.)
APPLICANT CONTENDS THAT THE TRIAL COURT ABUSED ITS DISCRETION, BY
FAILING TO DESIGNATE ISSUE, WHETHER APPLICANT WAS DENIED EFFECTIVE ASSISTAN
CE OF COUNSEL AT TRIAL AND VIOLATED ITS LEGAL DUTY UNDE~ 11. Cfr ~ 3 (d)
AND APPLICANT HAS NO ADEQUATE ~EMENDY TO APPEAL TO OBTAIN THE NECESSARY
PROCEEDING IN ·WiffiCH HE IS ABLE TO DEVELOP A RECORD CONTAING (FACTS)
DIRECT EVIDENCE OF WlHY COUNSEL FAILED TO INVESTIGATE, APPLICANT'S VERSION
OF EVENTS:OF·A THIRD PARTY PERPETRATOR AND CHARACTER W-ITNESSES AND CROSS
EXAMINE THE VICTIM CONCEk'iiNG HIS ALIBI STATEMENT AND CALL HIM TO TESTIFY.
IV.
THE COURT OF CRIMINAL APPEALS HAS HELD THAT 11
T~E IN HERENT NATURE OF
MOST INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS MEANS THAT THE ':'RIAL RECORD
WILL OFTEN FAIL TO CONTAIN THE INFORMATION NECESSARY TO SUBSTANTIATE THE
3.
CLAIM.;, AND ALsD " IT IS ESSENTIAL TO GATHERING THE FACTS NECESSARY TO ...
EVALUTE ..• THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM." SEE EX PARTE
TORRES, '94333.W.2d 469,477(T.C.A.l997)
APPLICANT REQUEST THAT HE BE G1VEN A FULL AND FAIR OPPORTUNITY TO
PROVE BY THE PREPONDE~ANCE OF THE EVIDENCE THAT HE WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL. TN ORDER FOR APPLICANT TO MEET THE BURDEN OF STRICK-
LANDS DUAL PRONG DEFICIENCY AND PREJUDICE HE WOULD ASK THIS COURT TO
GRANT THIS WRIT OF MANDAMUS AND ORDE~ THE TRIAL COURT TO PERFORM ITS DUTY
PURSUANT 11.07 ~ 3(d) AND ORDERTHE COURT TO HOLD AN EVIDENTIARY HEARING
IN WHICH TRIAL COUNSEL WILL BE DEPOSITION ACCORDING TO APPLICANT'S ALLEG-
ations, which if true would en:.tit.1e him to ndief
CONCLUSION
APPLICANT REQUEST IS BASED ON THE THE FACTS TkAT THE TRIAL COURT VIOLATE
ITS DUTY IN NOT DESIGNATING CONTROVERTED, PREVIOUSLY UNRESOLVED ISSUES.
THE APPLICANT DOES NOT HAVE ADEQUATE REMENDY TO APPEAL AND REQUEST THIS
COURT TO REMAND WITH AN ORDER TO HOLD AN EVIDENTIARY HEARING.
PRAYER
WHEREFORE, PROMISES, CONSIDERED, APPLICANT PRAYS THAT THE COURT GRANT
HIM A WRIT OF MANDAMUS.
RESPECTFULLY
~ER # 1730604
C.T.TE:RRELL UNIT
1300 F.M. 655
ROSHARN! TX 77583
4.
. '
UNSWORN DECLARATION
I, RANDY J. KATZER DO HEREBY DECLARE UNDE~ PENALTY OF .PERJURY THAT
THE FOREGOING WRIT OF MANDAMUS IS TRUE AND CORRECT.
EXCUTED ON: rto AR/ I J -
-.IL...:=--..L.....L...f,-...J...~-------
BY· ·~~
. RAND!7"~IZER # 1 7 3G 604
certificat~ of service
I, RANDY J. KATZER DO CERTIFY THAT A TRUE AND CORRECT COPY WAS MAIL
OF THE FOREGOING WRIT OF MANDAMUS BY PLACING IT IN THE PRISDN MAIL BOX
~ -tt- L1 -1
WITH PRE-PAID POST AGE ON THIS --4.1L&!..:.=...----'--',D AY OF_..-~.~:.....;.-fO~/.;__;_'-L--......:...'. 2 015
EX CUT ED ON: _ _ A?.L..llo<:~Jr-1-Hr---..a..l-'=.!
__· - - - - BY:~
R~KAIZRR # 1730604
C.T.TERRELL UNIT
1300 P.M. 655
ROSHARON, TX 77583