Kaizer, Randy

~~ /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