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                     IN       THE   COURT    OF    CRIMINAL      APPEALS           AUG 0? 2015
                         WR   83,127-01       Ca.No.lO-CR-2388A
EX   PARTA                                        §
                                                       IN THE    28th   DISTRI
RANDY    J.KAIZER                                 §
                                                       COURT    OF   NUECES
Applicant
                                                       COUNTY,TEXAS           MOTOOINI DEEDED
                                                  §                           DATE: <P~fZ-lZ
               SUGGESTION FOR THE COURT OF CRIMINAL APPEJfj&                          ^^         =„=««
                    TO   DENY       TRIAL    COURTS      RECOMMONDATION

      TO THE   HONORABLE JUDGES             OF THE      COURT OF      CRIM.APP.;   now comes

,Randy J.Kaizer,Applicant pro se,in the above writ and cause nols
      The Applicant respectfully ask this Court,to hot consider
trial courts recommondation to deny Applicant's state writ of
habeas corpus.The Applicant ask this Court to take it's own ini
tiative de novo in reviewing Applicant's 11.07.Trial court's Fact
Finding and Conclusions does not comply with the Courts instruc-                                  —
tions.The Applicant will show that the trial court left unresolve
issues and that an evidentiary hearing is needed to satisfy this
Courts   order.


                                                  r.

         This Court order trial counsel to respond to Applicant's
claims of ineffective assistance of counsel,(I,A,C).Trial counsel
replied with a vague response, answers that left the claim unresol
ved. Infact counsel only compels Applicant's claim.
     (a).In Mr.Garcia's first response,"At no time,throughout the
entire scope of representing Mr.Kaizer,was he prevented from tes
tifying or instructed by me or co-counsel to "sit down"and "shut
up."Applicant asserts that nowhere in his claim did Applicant
accused counsel of saying such a remark!This is a fabricated acc
usation on counsels part and should not be considered.
     )b).Counsel claims that several discussings were held about
Applicant testifying on his own behalf.Applicant will show two
statements by counsel           that   does not collaborate with his account
of what occured;l)in a disscussion about Applicant testifying
counsel admits telling Applicant,"that the manner the trial was




                                              (1)
 preceeding was favorable unto him."By such a statement it would
 seem as though counsel wanted Applicant to believe the trial was
 going   good for him and there was no need to testify^Atty.Aff.p.'
 1-2.,and (b)J. Applicant believes counsel is under the assuption
 that Applicant was free on bond during his trial.Counsel states,
 he and Applicant had "a brief conversation in the hallway outside
 the presence of the jury,the defendant again was asked if he
 wanted to take the stand to testify."
    As the record will show,Applicant was incarcerated during tri
 al and it would of beeni&convenientto ALL parties for counsel to
 speak with Applicant out of the presence of the jury each time
 counsel or Applicant wished.In order for this to happen,trial
 court would of had to excuse the jury,then a sheiff's deputy had
 to unshackle the Applicant and escort him to the hallway,then
 repeat this each time.This is unreallistic and unlikely to occur.
fAtty. Aff.p. 2.^
    (c).Nowhere in the record can counsel support that he asked
 Applicant if he wished to take the stand to testify.The record •
 does support that counsel was preparing the jury that Applicant
 would not testify by invoking his 5th Amendment,during the voir
 dire.

    (d).There was no reason for Applicant not to want speak for
 himself.Applicant has no acts of moral turpitude that would dis
 credit his testimony.As Mr.Garcia was aware,the Applicant wanted
 the jury to know that there was another theory into the alleged
 offense.Applicant stated to counsel that the alleged offense may
 have been caused by the victim's father.{k. C. APP, Aff. Exh. 4) Appli
 cant also express to counsel    that if   a time line was developed,
 the victim's allegation would not collaborate with the time that
 the victim alleges events occured.The victims,victim's mother
 (Maria Medrano),and Applicant's schedules did not present the
 opporutunity for the alleged offese to have occured.(H.C. Gr. 13-14^
 Counsel did not respond to this portion of Applicant's claim,
 these facts not presented during trial would have supported the
 Applicant,s innocent claim.Yet,counsel failed to aknowledge these
 claims as he does again in his affidavit.




                                   (2)
    (e).Trial counsel stated co-counsel,Lisa Greenberg,also
never heard any statements concerning lead counsel telling Appli^:
cant to "shut up and sit down"or"Applicant stating during his
time to testify,"Ready when you are".As trial counsel knows,this
is hearsay on his part.If counsel wanted to use co-counsel to
collaborate his statement,Mr.Garcia should of requested for Ms.
Greenberg to make her own affidavit.
     (f).Applicant is adamant that he wished to testify on his own
behalf.Counsel's only defense strategy was to show that the vic
tim was lying.A time line would of helped in this defense and
yet it is not presented.Applicant was willing to testify to show
the jury by evidence of work,school,and other evidence of scedul-
ing ,that there was no means of opporutunity to have commited the
alleged of fense. Therefore, counsel was ineffective for not allow-.!
ing Applicant to testify in his own defense,h.C.Gr.14 Exh's.


                                      II.

"i   Mr.Garcia state's that     one   of    his   staff   initiated       a   visit

with Applicant.Applicant does not claim that he did not get any
visits from counsels staff,Applicant's claim that counsel himself
only visit 4 times through out his representation.One visit that
counsel   referes   to,is counsel's    mother.At        the   time   it   was   unclaer

to the nature of the visit and left Applicant more confused than
confident.A visit from any counsel's mother would of left anyone
baffled and question his counsel's ability to represent him/her.
     The Applicant claim is that counsel was not diligent in his
communication.Applicant presented counsel with alibis,that when
counsel visit^Applicant question counsel on his progress of the
investigation to which counsel would reply with a vague answer.
The record supports Applicant's sufficient claim that counsel did
not investigate any of Applicant's alibi's.No questions towards
John Medrano's involvment in the alleged offense in any kind were
conducted.Nor does    counsel   state that        he   informed the       State of

Applicant's statement or any law enforcement as so they could
conduct their own investigation {h.C.Gr.13-14)Nor is there a time
line presented in any of the record.




                                      (3)
                                     Ill
   Trial counsel's statement that Applicant's claim that counsel
was ineffective for advising Applicant to chose the trial court
for sentencing is also not in any of Applicant's claims and
should not be considered by the Court.

                                      IV

   Applicant stands firmly that trial counsel failed to conduct
his own investigation.Counsel's affidavit supports this claim.As
stated above,no questions of any sort towards Mr.Medrano con
cerning the victim and his relationship,other than,the father and
daughter.Counsel never states if he informed the State or law
enforcement of what Applicant told'counsel about Mr.Medrano.
   Applicant told trial counsel a time line would benefit the
defense.The time the victim stated the alleged offense had occur,
would not   collaborate with schedules of the victim,victim's moth
er (Maria Medrano),or the Appl icant I During the middle of trial,"..


ten counts of the indictment were dismissed by the State due to
insufficient evidence through testimony of the victim^St.Supp.An.
Exh.F.)Applicant assured counsel that a time line would of bene-'
fited   before trial    had   started.Nowhere in the record does    it
show counsel developed a time 1ine.Applicant presented this claim
in his 11 .07. (H.C.Gr. 13-14. )also see (Exh .A. )Applicant gave'.a list
of employers to help create a time to establish an alibi.
   Counsel's affidavit collaborates with applicant's claim of no
independent investigation outside of what the State furnished.
Counsel relied on what the State investigated(Atty,Aff.p.2-3).
                                      V

   Trial    counsel   states that   he maintained   communication with
Applicant through phone calls initiated from jail by Applicant.
Mr.Garcia further states,through these phone calls and conversa-i
tions with Applicant's mother,A defense was prepared.(Atty.Aff,p.
2).It is well known.,phone calls coming from inmates in jailed
facilities are monitored and recorded.According to counsel's
affidavit,in preparing Applicant's defense,the confidentially
betwwen client-attorney,may have been violated.




                                     (94)
                                   VI

    Counsel states that he contacted Applicant's daughter to tes
tify at the punishment phase.Applicant presented a list of a few
other witnesses that would of testify on Applicant's behalf.Coun
sel did not take into consideration that Applicant's daughter may
have been distrait from the decision of guilt of her father?Coun-
sel's choice in witnesses was not one of strategic measures.lt
is one of a easier choice.It is well known one's family,in most
instances,will give a positive oppion concerning a family.The
best practice,would to be to use someone outside the family.For
instance     ,an ex-wife would of been a neutral character witness.
Applicant informed counsel that his ex-wife was willing to test-'
ify(H.C.APP.AFF^.Applicant is a Honorable discharged,decorated
wartime vet of the U.S.Navy^see exh Ba
    Counsel    felt it was in Applicant's favor only to call one
character witness,Applicant's son to testify as to character of
theApplicant.
    Applicant,in his claim for character witnesses,admits he is
in error.The witnesses Applicant was refering to are witnesses to
his innocences.Why were there not more witnesses to account for
Applicant'a alibi, such as his former employers or former wifeti
who wase willing to testify.This is due to counsel lack of inves
tigation .
                                   VII

    In preparing for Applicant's habeas corpus,Applicant reques
ted trial counsel's work product.With the help of the,Client-
Attorney Assistance program (CAAP) ,Applicant was able in obtain^- \
ing some of counsel's work product/h.C. exh.l^By viewing counsel's
notes,it seems that an investigation on behalf of Applicant was
at a minimum.According to notes taken by counsel's mother,during
a six month period,counsel visited Applicant only one time^H.C.
exh.2.jalso see exh.C.)
                                  VIII

   Applicant submitted to the habeas court a proposed,"Contro-
vered Previously Unresolved Facts,Interrogatory Questions to



                                   (5)
... Attorney, Luis Garcia" .These questions were to assist                 in develo
ping facts to determine counsel's effectiveness.Counsel failed to
answer any of the questions.The State did not propose any questi
ons to assist to develope an adequate record for this court.Coun
sel 's responses were unconclusive.The only facts presented to the
Court are;l) through counsel's mother and an assistant,counsel
maintained communication with Applicant,with the benefit of four
visits from counsel himself;2)Through the use of a jailhouse pho
ne and Applicant's mother,a defense was prepared,and by using the
jailhouse phone,client-attorney confidentially may have been vio
lated; 3 )There was no investigation into John Medrano or the App-•
licant's alibi of a time line to show the jury that there was no
means of opporutunity to have committed the alleged offense;and4)
Counsel did not consider other witnesses that would of benefitted
the Applicant.,(see exh.D.)

                                         IX

      In the'State's Supplemental Answer',State is claiming that the
Applicant's claim is contrary to what he wrote in his application.
The State is attempting to discredit Applicant by it's misconst
rued accusation by stating          'Applicant admitted in his application
that he elected not to testify in his behalf. "|st. Supp. p. 4/The
State is refering to ground seven.The State ,During closing argu
ments at trial made impermissible comments on Applicant's not
taking the stand to tell his side,"nobody else knows what happen-
ed,the State could have called 100 witnesses but nobody else kno
ws what except for [victim] and Randy Kaizer. '(RR4, p. 86}ln his
claim,Applicant used this statement as a third party to show what
the prosecution wanted the jury to believe.The record will supp- •
ort    this   claim.

      With the issue of the times that counsel visited with Applic- •
ant,the State wants to discredit Applicant.The state indicates it
was only one month and Applicant indicates two months it took
counsel to visit Applicant after being appointed as counsel.As
the     court will see both parties are wrong,the time was inbetween
one and two months.This may be a small error,yet the State wishes
to discredited Applicant with the Court.Applicant ask the Court
to not    consider     the miscalculation... H. C. Gr . 13-14   exh   2.




                                         (6)
     The State claims that Applicant offers no theory of harm for
counsel not being prompt in contacting Applicant upon being appoi
nted. Applicant was arrested for the allege offense after being
separated from the victim's mother for over two years.Therefore
the arrest was a surprise and without an indictment until Nov.19,
2010,three months after being arrested.The Applicant was at the
mercy of his attorney and his knofededge of the law.
   Applicant's bond was set at 100,000.00.With prompt represent
ation ,counsel could have submitted^ motion for bond reduction on
behalf" ofApplicant,therefore allowing Applicant to utilize his
resources upon arrest.
     Counsel could have immeditaly file motion for discovery and
take the proper procedures in obtaining an order from the Court
for the defense to conduct it's own disposition of the victim.
This would of allowed counsel 2 recordings of what the victim
alleges occurred.Ten of the fourteen counts in the indictment had
been dismissed due to insufficient evidence because of ina^eqafefee
testimony of the victim.This also would help incase a party atte
mpted to influence the victim into stating some other allegations
in    her   statement.

      This case is based on an OUTCRY that allegely occurred two
years before applicant's arrest.No physical evidence was presen
ted during trial.Any help in preparing the victim for testimony
was detramental to the Applicant.lt is well known that the prac
tice of the State is to prepare the witness to testify in what to
say and what to expect from the defense.
      Applicant was harmed because counsel was not prompt in his
representation.Applicant was accused of a hideous offense,one
that many would be bias too,including family,friends and assoc
iates .Support from those resources may of been lost through the
passege of time.
                                  XI

      The State claims that a defense was made by using the discove
ry provided by the State.The Applicant is not indispute with what



                                  (7)
.'..the State claims here. Applicant is in agreement that counsel
did not do it's own independent investigation.The State claims.
Applicant presents no proof to his accusation of the victims
father as the one who committed the assult.In convicting Appli
cant,the State presented no physical proof,no witne|seAo the
allege offense other than the victim,nor were there any circum
stantial evidence.Applicant was found guilty because the State
told the jury that no evidence was needed to convict Applicant
other than the OUTCRY of the victim.The State wants Applicant to
present evidence after being incarcerated for five years.
   Applicant's alibi,of no window of time or opporutunity to
commit the offense has not been discuss by the State or trial
counsel in State's Supplemental Answer or counsel's affidavit.
Applicant submitted the victim's mother (Maria Medrano),work
schedule in his. habeas corpus .(h. C. Gr .13>ounsel or State failed
to aknowledge this claim thereby ,failing to deveople all the
facts order by this court.
                                 XII

    The Habeas court in their "Supplemental Findings,Conclusion,
and Recommendation",has adopted the Starts findings without con
ducting it's own hearing.lt is well known that the practice of
the Habeas Court is to adopt the State's findings,as it did here.
Without a proper hearing the Applicant is not afforded a fair
hearing in accords with the Texas and United States Constitution.
Applicant's right of due process of law have been violated in the
 coarse of the hearing at the habeas court level.
    This Court once order the habeas court that additional facts
 were needed.Though the habeas court adopted the State's findings
 and trial counsel's affidavit,these Statements were inadequate to
 comply with this court instructions,and the habeas court recomme
 ndation should not be considered.Applicant suggest for tjis.Court
 to take it's own initiative and order an evidentiary hearing be
 held to develope the facts needed so this Court could decide that


                                  (.8)
...the Applicant be recommended for a new trial.

                             CONCLUSION    AND   PRAYER

    For the foregoing reason,the Applicant respectfully suggest
to this Court to findrthe habeas court did not complywith this                    -n
Court's instructions;2$further expansion of the record ,by an
evidentiary hearing,is needed to afford the Applicant with a full
and fair hearing,3)the summeries of trial counsel and the State
are inadequate to develope           the facts needed to fullfill a proper
record    that    would be sufficient     to let   this   Court   make a   fair
decision.

   Therefore the Applicant suggest that this Court deny the
habeas    court    recommendation.




                                                 Respectfully Submitted,




RAWDY J.KAIZER       #1730604

C.T.TERRELL       UNIT

1300~FM   655

ROSHARON,TEXAS       77583




                                        (9)
                               Unsworn   Declaration

     I,RANDY J.KAIZER,DO       HEREBY DECLARE     UNDER   THE   PENALTY     OF   PERJURY
THAT THE FOREGOING SUGGESTION TO DENY TRIAL COURTS RECOMMONDATION
IS   TRUE   AND    CORRECT.



EXCUTED ON:(J)Y^r/^                         RANDY         KAIZER




                              CERTIFICATE   OF    SERVICE
 I,RANDY J. KAIZER DO CERTIFY THAT A TRUE AND CORRECT COPY OF THE
FOREGOING SUGGESTION TO DENY TRIAL COURTS RECOMMONDATION WAS
PLACED IN THE PRISON MAIL BOX WITH PRE PAID POSTAGE ON THIS
DAY OF      JULY,2015-

EXCUTED      ON   :Ot/\iS«Al                RAN                 R    #1730604
                                            C.T.Terrell     Unit
                                            1300 FM 655
                                            Rosharon,Texas          77583




                                         (10)
EXHIBIT   A.
                        Gregory-Portland Independent School District
                                       Gregory-Portland Junior High School

Marye Lou Landrum                                    Xavier Barrera                                  Ross A. Wilmeth
Assistant Principal                                     Principal                                 Assistant Principal




      Wednesday, February 2, 2011

     Luis P. Garcia, ESQ.
     500 N. Water St., Suite 510
     Corpus Christi, Texas 78401


     Dear Mr. Garcia:


     As an item of information, Victoria Medrano is no longer a student at Gregory-Portland Junior High
     School. She is now in grade 9 and all of her records were transferred from this campus to Gregory-
     Portland High School at the end of the school year last year. What is enclosed is what we have available
     at this time. Please feel free to contact me should you have any questions.

     Thank you.




        rer Barrera
     XaYier
     'Principal




                  4600 Wildcat Drive    Portland,Texas78374 • 361/643-2552 'Fax361/643-3187
                                         "An Equal Opportunity Employer"
  State of Texas
  County of San Patricio

  My name is Xavier Barrera. I am the Principal of Gregory-Portland Junior High School in the
  Gregory-Portland Independent School District, and am the official custodian of student records
  at that school campus. On this the 2nd day ofFebruary, 2011,1 hereby certify the attached
  documents are t^ue, exact, complete, and unaltered photocopies of the studentrecords of Victoria
  MedrsuioiTareyB.: 08/24/96).

                       sy$0tf—
  Xavier Barrera
           /

  Sworn to and subscribed before me onthe cZ.            day of February, 2011.


                                            Notary Public, State of Texas

  (SEAL)

         sss^^^ssssssss^ssss
                                            PrintName: M <a r<to reX Saldiyg y
#t^^ MARGARET SALD1VAR
         -| Notary Public, State of Texas
             Commission Exp. 03-22-2014
                                            My Commission Expires:      3 ~^- ~ <^fl/f
^ff.5^
     SwOJssss
City of Corpus Christi - Park ar4 Recreation Department - Latchkey                                             Page 1 of4


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>Child List


                                                       Children

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[        Print Child's Registration Form       ]


     Required Fields                                                                                   Last Modified by:



                          Personal Info    Site Info   Tuition Info   Pick-Up Info and Special Needs




    Personal Information

    * Date of Birth                        :08/24/1996


    * Sex                                   Female     -


 * Child's First Name                      Victoria



 * Child's Last Name                       ; Medrano


    Parent/Guardian                        Maria Medrano

                                           Currently (5)! 5
 * Grade
                                               or



 * School                                  ". Wilson


 *Child"s Physician                        Attending physician


 *Physician Address                        3435 S. Alameda



 *Physician City                           Corpus Christi


*Physician State                            Texas


*Physician Phone                           361-694-5000




 Latchkey After School Information
City of Corpus Christi - Park apA Recreation Department - Latchkey                                Page 2 of4



 * Latchkey Site                      Wilson
                                                               -




 Is child currently attending?        \ Yes       ?       No


 Last Day Attended



 Vacation Station Information
                                                  .•:"'
Vacation Station Site

 Days Attending
  •   November 23         •   December 20                          EH December 28

  •   November 24         •   December 21                          •   December 29

  Ej December 18          •   December 22                          E3 January 01

 •    December 19         H December 27                            •   January 02



Summer Latchkey Information

Summer Site

Weeks Attending
 •    June 14                     •     July 05                                     •   July 26

 •    June 21                     m July 12                                         0 August 02

 •    June 28                     ED July 19

Off Campus Field Trips            O Yes         (?) No

Off Campus Water Activities       O Yes         (?)       No

Field Trip Transportation               v
                                                          No
(Bus)                                     Yes


Tuition Information

* Tuition Type                     Full
                                                           -




Caseworker                        Select                                   or


TWC amount                        0.0000
(Use "0" for "npf)
City of Corpus Christi - Park zpa Recreation Department - Latchkey   Page 3 of4



 TWC Auth/Term #


 TWC Notified Date


 TWC Original Begin Date

 TWC Begin Date

 TWC End Date


 Days Authorized                   Select                  or



 TWC Termination Number

 TWC Comments




 Delmar Begin Date

 Delmar End Date


 Scholarship Number



 Pick-up List

 Pickup Names                     Phone

 Maria Medrano                    361-980-0365




Special Needs
City of Corpus Christi - Park arJ Recreation Department - Latchkey       Page 4 of 4
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City of Corpus Christi - Park ar J Recreation Department - Latchkey     Page 1 of2


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                      Parent's Name           Maria Medrano (1141)


                      Child's Name            School Attending
                      Victoria Medrano       Wilson


                      Account Balance:        $0.00


                      Transaction History (all)

                       Date              Amount

                       04/30/2007        ($89.00)

                       04/25/2007          $89.00

                       04/02/2007        ($89.00)

                       03/25/2007          $89.00

                       03/01/2007        ($89.00)

                       02/25/2007          $89.00

                       02/02/2007        ($89.00)

                       01/25/2007          $89.00

                       01/09/2007        ($77.00)

                       01/03/2007          $77.00

                       11/30/2006        ($77.00)

                       11/25/2006          $77.00

                       11/02/2006        ($77.00)

                       10/25/2006          $77.00

                       09/29/2006        ($89.00)

                       09/25/2006          $89.00
City of Corpus Christi - Park zrA RecreationDepartment - Latchkey       Page 2 of 2
   . i f !                                                          (



                       09/01/2006      ($116.00)

                       08/25/2006        $89.00

                       08/14/2006       ($50.00)

                       08/14/2006        $77.00

                       04/27/2006       ($50.00)

                       04/25/2006        $50.00

                       04/03/2006       ($50.00)

                       03/25/2006        $50.00

                       03/02/2006       ($50.00)

                       02/25/2006        $50.00

                       02/07/2006       ($70.00)

                       02/06/2006        $20.00

                      01/25/2006         $50.00

                      01/09/2006        ($50.00)

                       12/25/2005        $50.00

                       12/05/2005       ($50.00)

                      11/28/2005         $50.00

                      11/01/2005        ($50.00)

                      10/24/2005         $50.00

                      10/03/2005        ($50.00)

                      09/27/2005         $50.00

                      09/02/2005        ($50.00)

                      08/30/2005         $50.00

                      08/18/2005        ($50.00)

                      08/18/2005         $50.00
EXHIBIT   B.


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                                                                                                             RICHARD L- KAIZER
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EXHIBIT   C.
                STATE BAR OF TEXAS
                                                                                /v\JL &-&- J*"" ' 1

                                                                             Client-Attorney Assistance Program
Jessica A. Bergeman                                                                             1-800-932-1900
Program Director

December 1,2014

Mr. Luis Pruneda Garcia
Attorney-at-Law
500 N. Water St., Ste. 510
Corpus Christi, TX 78401-0212

         RE:                 Mr. Randy Kaizer#01730604
         Record:             #658639


Dear Mr. Garcia,

Recently  Mr Kaizer contacted the Client-Attorney Assistance
Recently, ivir. rvd
                                                             Program (GAAP). GAAP is ac j ^ J J
                                                  objective is to facilitate communication and the transfer oi
d—lsIZZ Texls lasers andII cSnts in resolving minor concerns, disputes, or misunderstandings that
fmpaS the Attor^y CMent r7ationship. In most cases, the issues do not rise to the level ofagnevance. In others,
 CAAP is able to help resolve problems that ifneglected may become agrievance.
 Mr. Kaizer expressed concerns regarding the legal matter you were handling for him_ He^a^
 production ofhis client file. Please contact Mr. Kaizer to address his concerns:
                                             Mr. Randy Kaizer #01730604
                                                   C.T.Terrell Unit
                                                     1300 FM 655
                                                 Rosharon, TX 77583




 fadS if necessary. If Ican be of further assistance in resolving this .ssue, please contact me at (800) 204
 ext. 1777.


  Sincerely




  JAB,
  Enclosure
  cc: Mr. Randy Kaizer


                                 P.O. Box 12487, Capitol Station, Austin, Texas 78711-2487
                                       Grievance Information Hotline: 1-800-932-1900
                                               CAAP Fax: 512-427-4122
                                          CAAP E-mail: mail.caap(S>,texasbar.com
EXHIBIT   D.
                                 CAUSE NO:   10-CR-2388 A


EX PARTE        RANDY   KAIZER               V    IN THE 28th JUDICIAL DISTRICT
APPLICANT
                                             V
V.
                                             £               COURT   OF
                                             c
THE     STATE   OF   TEXAS                   c      NUECES     COUNTY,    TEXAS



                     CONTROVERTED/ PREVIOUSLY UNR:ESOVLVED FACTS:
                  INTERROGATORY QUESTION TO ATTORNEY LUES- GRACIA

I. WHETHER TRIAL COUNSEL, LUIS GARCIA MADE AN ADEQUATE INVESTIGATION
       OF THE FACTS AND CIRCUMSTANCE OF THE CASE.

       1. MR. GARCIA/ IN YOUR INVESTIGATION/ OR INTERVIEW OF THE STATE
          WITNESSES/ WHAT DID YOU DISCOVER? YOU INFERRED THAT DETECTIVE
          MOSS DID WOT ADEQUATELY INVESTIGATE THIS CASE.(SEE 2 RR 34-55,
          61-62) DID YOU INVESTIGATE/ MARIA MEDRANO'S WORK HISTORY/ VICTORIA
          MEDRANO'S SCHOOL RECORDS/ MEDICAL RECORDS/ INTERVIEW HER FRIENDS
          AND SCHOOL TEACHERS AND COUNSELORS? IF SO, WHAT DID YOU DISCOVER?
          IF NOT,    WHY?


       2- WHAT WAS YOUR TRIAL STRATEGY FOR NOT PRESENTING THE EVIDENCE OF
         MAIRA MEDRANO'S WORK HISTORY/ RANDY KAIZER'S WORK HISTORY'A.ANDvTHE
         SCHOOL RECORDS TO THE JURY TO SUPPORT YOUR THEORY THAT NO WINDOW
         OF OPPORTUNITY EXISTED FOR A CONTINUOUS SEXUAL ABUSE?             IN RETRO
         SPECT, SO YOU THINK/ THAT CREATING A TIME LINE CHART FOR THE JURY,
         WITH THE USE OF MARIA'S WORK SCHEDULE SHEETS AND RANDY'S WORK
         HISTORY AND SCHOOL RECORDS AS A VISIUAL GRAPH TO CHALLENGE THE
         STATE'S        "ON OR ABOUT" ELEMENT OF COUNTS 1/2,3,4/ OF THE INDICT
         MENT COULD HAVE CASTED DOUBT ON THE STATES CASE/ AND WOULD IT NOT
         HAVE SUPPORTED YOUR TRIAL STRATEGY BY PRESENTING EVIDENCE TO THE
         JURY TO CAST DOUBT ON THE VICTIMS UNCORROBORATED TESTIMONY.
     3. MR. GRACIA/ IN YOUR INVESTIGATION HOW MANY TIMES DID YOU CONSULT
 •-.     WITH YOUR- CLIENT? IN THAT CONSULTATION WITH YOUR CLIENT HE PROVIDE
           YOU WITH AN ALIBI STATEMENT.(SEE AFFIDAVIT)                                              IN WHICH HE NAMED

           JOHN    MEDRANO          AS    THE       ACTUAL       PERPETRATOR..


      4.   MR.GSRCIA,          WHAT       INVESTIGATION                   DID    YOU    DO    AS    TO    YOUR    CLIENT'S


           VERSION       OF    EVENTS?          DID       YOU    INTERVIEW JOHN                MEDRANO.          IF    N^T, : WHY?


           WHAT    WAS    YOUR       TRIAL          STRATEGY          FOR       NOT    INTRODUCING          A    THIRD          PARTY


           PERPETRATOR?             IN    RETROSPECT/                DO    YOU       THINK    YOU    SHOULD       HAVE          CALLED


           JOHN    MEDRANO          AS    A    WITNESS          TO    CONFRONT          HIM    WITH       YOUR    CLIENT'S


           STATEMENT?          IF    NOT,       WHY?


      5.   MR.    OSRCIA,       WHAT          WAS    YOUR       TRIAL       STRATEGY FOR             VIOR       DIRING          POTENTIAL

           JURORS AS TO YOUR CLIENT NOT TESTIFYING?(SEE 1 RR 62-198)                                                             YOUR

           CLIENT       STATED       HE       DTD    WiANT      TO .TESTIFY            AND    PRESENT       HIS       ALIBI       STATE


           MENT    AND    HIS       VERSION          OF    EVENTS.          WHAT       WAS    YOUR       TRIAL    STRATEGY          FOR


           PROCEEDING          WITH       THE       TRIAL       WITHOUT          THE    DEFENDANTS          TESTIMONY?             WHY?


      6.   MR    GSRCIA,       DID       YOU    INTERVIEW THE                   CHARACTER          WITNESSES          YOUR       CLIENT

           PROVIDED YOU?( SEE EXHIBITS) OF HIS EX-WIFE VICtfl NORMA)^ JOE
           GONZALES/          JAMES       FINNAGAN?             IF    NOT,       WHY?       WHAT    WAS    YOUR       TRIAL       STRATEGY


           FOR    NOT    CALLING          THEM       AS    CHARACTER             WITNESSES?          IN.RETROSPECT,                DO


           YOU    THINK       THAT       HAVING       THESE          CHARACTER          WITNESSES          TESTIFY          ON    BEHALF


           OF    YOUR    CLIENT          COULD       HAVE       GIVEN       THE       JURY    PROBATIVE          EVIDENCE          IN


           THEIR ASSESSMENT OF GUILT/INNOCENCE AND OR AT PUNISHMENT?


II.        WHETHER       TRIAL.COUNSEL,                   LUIS       G&RCIA,          MADE    AN    UNSOUND       TRIAL          STRATEGY

           BY    FAILING       TO    PRESENT          A    THIRD          PARTY PERPETRATOR,                AND       FAILING       TO


           CALL    THE    DEFENDANT. TO TESTIFY TO PRESENT                                    HIS    VERSION OF             THE    EVENTS

           TO    SHOW HIS       INNOCENCE.


      1.   MR.    GSRCIA,       WHAT WAS             YOUR       REASONING             FOR    NOT    DEVELOPING             YOUR    CLIENT

           VERSION       OF    EVENTS          BY    CALLING          HIM       TO    TESTIFY?       WHAT       WAS    YOUR       REASON


           ING    FOR    NOT    DEVELOPING                THIS       STRATEGY?


      2.   WHAT    WAS    YOUR       REASONING             FOR       NOT    CALLING          JOHN    MEDRANO          AS    A    WITNESS


           TO CONFRONT HIM WITH YOUR CLIENT'S ALIBI STATEMENT?


                                                                 2.
   3. WHAT WAS YOUR REASONING FOR NOT CALLING VIC§(l NORMA(/AS A CHARACTER
        WITNESS?        WHAT      WAS    YOUR    STRATEGY       ?


   4    WHAT     WAS    YOUR      RESONING       FOR    NOT    CALLING     JOE   GONZALES       AS    A   CHARACTER


        WITNESS?        WHAT      WAS    YOUR    STRATEGY?


   5.   WHAT     WAS    YOUR      RESONING       FOR    NOT    CALLING     JAMES   FINNAGAN          AS   A     CHARA


        CTER     WITNESS?         WHAT     WAS   YOUR    STRATEGY?


   6.    IN RETROSPECT/            DO YOU THINK          THE    PRESENTATION OF          YOUR    CLIENT'S

         VERSION       OF   EVENTS       WOULD    HAVE    BEEN REASONABLE          FOR    THE JURY'S

         DETERMINATION OF YOUR CLIENTS GUIr-T/INNOCENE ?

   7.    IN   RETROSPECT,          DO    YOU THINK       THE    PRESENTATION       OF    JOHN    MEDRANO'.

         BEING    THE ACTUAL            PERPETRATOR       WOULD     HAVE    BEEN REASONABLE               FOR       THE

         JURY'S DETERMINATION OF YOUR CLIENTS GUILT/INNOCENCE?

   8-    IN RETROSPECT/             DO YOU THINK,         THE PRESENTATION OF THE THREE

         CHARACTER          WITNESS      WOULD     HAVE BEEN REASONABLE            FOR    THE JURY'S

         DETERMINATION OF YOUR CLIENTS GUILT/INNOCENCE OR AT THE PUNISHMENT

         PHASE    OF    THE       TRIAL?
                                                                                                                y   .


III.    WHETHER TRIAL COUNSEL/                   LUIS GARCIA FAILED TO SUBJECT THE STATE'S

        WITNESS/       TO AN ADVERSARILY CROSS-EXAMINATION AND PRESENT EVIDENCE

        TO    SUPPORT       HIS    TRIAL    STRATEGY?


   1.    WHAT EVIDENCE DID YOU DISCOVER AFTER YOUR INVESTIGATION AND                                                INTER

         VIEW OF       VICTORIA         MEDRANO?       IF YOU DID     NOT    INVESTIGATE OR               INTERVIEW

        HER,     WHY    NOT?


   2.    WHAT REASONING DID YOU EMPLOY IN THE DEVELOPMENT OF YOUR TRIAL

         STRATEGY FOR THE CROSS-EXAMINATION OF THE VICTIMS                                 INCONSISTANT

         STATEMENT GIVEN TO DETECTIVE                     MOSS,     RICARDO JIMENEZ         AS       TO THE

         ALLEGED       SEXUAL       ABUSE    AND    HER   TRIAL     TESTIMONY?

   3.    WHAT WAS YOUR REASONING FOR                      NOT CROSS-EXAMINING THE VICTIM AS TO

         THE DEFENDANTS VERSION OF EVENTS NAMING JOHN MEDRANO AS THE ACTUAL


                                                         3.
            PERPETRATOR?


  4.        WHAT    WAS   YOUR        REASONING       FOR    NOT       CROSS-EXAMINANING          VICTORIA       MEDRANO

            AS TO THE ALLEGATION (SEE AFFIDAVIT)                            THAT SHE WOULD DISPLACE THE

            BLAME,       IF THE DEFENDANT TOLD                   HER    MOTHER,    MARIA       MEDRANO?

      5-    IN RETROSPECT,             DO YOU THINK,             YOUR    CROSS-EXAMINATION OF             THE    SOLE

            EYE    WITNESS       AS    TO    THE    ALLEGE       SEXUAL    ASSAULT       THAT.OCCURED          ONCE   A

            WEEK FOR 53 WEEKS(SEE 2RR 37)                         WAS SUPPORTED WITH EVIDENCE THAT

            WAS    AVAIABLE       TO YOU SUCH AS             WORK       SCHDULES    AND SCHOOL       RECORDS,

            AND    MEDICAL       RECORDS       TO    SHOW    A    TIME    LINE    THAT    NO    WINDOW    OF


            OPPORTUNITY          EXISTED?


      6.    WHAT REASONING             DID    YOU EMPLOY IN THE             CROSS-EXAMINATION OF                THE

            STATE    WITNESS          TO DEMONSTRATE             THE    VICTIMS    UNCORROBORATED          TESTIMONY

            LACKED       EVIDENCE       OF    PHYSICAL       AND       EMOTIONAL    TRAMA?       IN RETROSPECT

            DO YOU THINK,             THAT DR.       GARCIA TESTIMONY WAS                SUFFICIENT TO SUPPORT *.

            YOUR    TRIAL    STRATEGY?




      THE    COURT ORDERS             THAT ATTORNEY          LUIS: GARCIA         SHOULD GIVE       ANSWER       TO   ,

BY AFFIDAVIT OR             AT AN EVIDENTIARY HEARING                      TO THE FOLLOWING QUESTIONS

TO RESOVLE APPICANT'S                   CONTROVERT,          PREVIOUSLY UNRESOVLVED                FACTS,       AND

THE    RESOVLATION          OF    THE       DESIGNATED       ISSUES.




      SIGNED       ON:




                                                                 PRESIDING       JUDGE
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