                                                          ~~     /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
