                                                             14- iff- )M^cv

                                                               FILED IN
                    WRIT NUMBER                          14th COURT OF APPEALS
                                                             HOUSTON, TEXAS      1
                                                             FEB 18 2015
                            IN THE COURT OF APPEALS

                                       FOR THE
                                                         CHRISTOPHER A. PRINE
                                                                0L6AK
                                   FIRST DISTCICT

                                  AT HOUSTON,   TEXAS




                         IN RE ZAHIR OUERISHI, RELATOR

                                         V.

                            CHRIS DANItfL-RESPONDENT

                         HARRIS COUNTY DISTRICT CLERK




                             ORIGINAL PROCEEDING

                        PETITION FOR WRIT OF MANDAMUS




MR.ZAHIR QUERISHI

INMATE # 801000

RAMSEY UNIT

1100 FM 655

ROSHARON,   TEXAS

77583

PRO SE
                            TABLE OF CONTENTS



IDENTIFICATION OF PARTIES                       (ii)

INDEX OF AUTHORITIES                            (ii)

STATEMENT OF THE CASE                            (1)

STATEMENT OF JURISDICTION                        (1)

STATEMENT OF THE FACTS                           (1)

ARGUMENT                                         (2)

PRAYER                                           (41

UNSWORN DECLARATION                             (4)

APPENDIX


    EXHIBIT "A"


    EXHIBIT "B"
                                 INDEX OF AUTHORITIES



STATE CASES:

AGUILAR V. STONE 901 S.W.2d955(Tex.App.-Houston 1st Dist. 1995)                   (1)(3)
Boyattia V. Hinojosa 18 S.W.3d 729(Tex.App.-Dallas 2000)                          (2)
Broom V. McMasters 992 S.W.2d 659(Tex.App.-Sallas 1999)                           (3)
In Re Chavez ^2 S.W-3d 225(Tex.App.-Amarillo 2001)                                (2)

TAC Americas Inc. ,V.Boot-he 94 S.W.3d 315(Tex.Ann.-Austin 2002)                  (2)


CODES:

V.E.C.A.., GOVERNMENT CODE §22.221(a)                                              (1)
V.T.C.A., FAMILY CODE §56.01(o)                                                    (1)

RULES:

TEX.R.APP.P.   52                                                                  (1)
TEX.R.CIV.P.   99                                                             (D(2)(3)
TEX.R.CIV.P.106(a)(2)                                                             (2)(3)


TEXAS CONSTITUTION:

ART.1§12                                                                          (3)
ART.5§8                                                                           (1)



                               IDENTIFICATION OF PARTIES



RELATOR:   ZAHIR OUERISHI                       RESPONDENT:   CHRIS DANIEE

           INMATE*801000                                      HARRIS COUNTY DISTRICT

           RAMSEY UNIT                                        CLERK

           1100 FM 655                                        P.O.BOX 4651

           ROSHARON,   TEXAS                                  HOUSTON   , TEXAS

           77583                                              77210-4651




                                         (ii)
IN RE ZAHIR QUERISHI/ RELATOR               §     IN THE COURT OF APPEAT.S
V.                                          §     FIRST DISTRICT
CHRIS DANIEL - HARRIS COUNTY DISTRICT       §   . HOUSTON, mc"YAS
CLERK                                       §



                                 WRIT OF MANDAMUS




TO THE HONORABLE FIRST COURT OP A^EALS:


     Comes now relator Zahir Querishi, acting pro se, in the above styled

cause and files this petition for writ of mandamus with attached exhibits

pursuant to Tex.R.APP.P. 52 and V.T.C.A., Government Code §22.221(a)- and
presents Hie fol i<~>wi n^ in sun^rt thereof:



                              STATEMENT OF THE CASE



     On January 05, 2015, relator properly filed a petition for writ of habeas

corpus pursuant to Article 5§8 of the Texas Constitution and V.T.C.A., Family

Code §56.01(o) with attached motions with the respondent. The petition was

filed in the 315th District Court under the cause number 86707 stvled "IN

THE MATTER OF ZAHIR QUERISHI V. THE STATE OF TEXAS."


                            STATEMENT OF JURISDICTION



     Jurisdiction is based in the First Court of AnDeals in Houston, Texas.

See Aquilar V. Stone 901 S.W.2d 955(Tex.App.-Houston[1st Dist.] 1995).


                              STATEMENT OF THE FACTS



     Accompanying the properly filed petition for writ of habeas corpus was

a formal request for issuance of citation. See exhibit "A". Due to the rules

of the habeas proceedinq being governed by the Tex.R.Civ,P. the Delator made


a formal request for issuance of citation pursuant to Tex.R.Civ.P. 99 and
106(a)(2). See Exhibit "A."      On January 14, 2015, relator mailed the respon

dent another letter inquiring about the issuance of citation. See Exhibit

"B."     To the day of this writing the respondent has failed to fulfill his

duty and issue the reauested citation upon the respondent cited in the habeas

petition.



                                       ARGUMENT




1. The respondent has refused to issue the reauested citation.


       " ...Had a legal duty to perform a nondiscretionaryaact, (2) was asked
         to nerform the act,   (3) and failed or refused to do so." In Re Chavez
         62 S.W.3d 225,228(Tex.App.-Amdrillo 2001).




    Pursuant to Tex.R.Civ.P. 99(a): "Upon filina of the petiton, the clerk,

when requested, shall forthwith issue a citation and deliver the citation

as directed by the requestina party. The paqt?stequesting citation shall

be responsible for obtaininq service of the citation and a copy of the pet

ition.


    Tt is well settled that, " generally, purpose of --itation is to qive

court jurisdiction over Darties and to provide notice to defendant that it

has been sued by particular party, assertina a particular claim, in order

to satisfy due process and allow defendant oppertunity to appear and defend

action." TAC Americas, Inc. V.Boothe 94 S-W.3d 315,318(Tex.App.-Austin 2002)

    "Under rule 99 of the Texas Rules of Civil Procedure,      it is the duty

of the clerk both to issue citation and deliver them as directed by the

party rewauesting cisstance. See Tex.R.Civ.P.99(a). The clerk does not com

plete his duty under the rule until he delivers the citation as directed."

Rovattia V. Hinojosa 18 S.W3d 729,733-34(Tex.Apr..-Dallas 2000).



                                          (2)
    The respondent has a legal dutv to perform a nondiscretion^ry act pur

suant to Tex.R.Civ.P. 99(a) which the relator requested of him and he failed

to Derform.


    Relator has satisfied prong one.


                                       II




    "   the courts look to whether the plaintiff had, at the time suit was

filed, a "bona fide intention" to hase process issued and Served." Broom

v. McMaster 992 S.W.2d 659,664(Tex.App.-Dallas 1999). In exhibits "A" and

"B" attached to this petition illustrate relator's demand for the perform

ance of the issuance of citation pursuant to Tex.R.Civ.P. 99 and 106(a)(2).

    Relator has satisfied pronq two.


                                       Ill




    Relatoer has exercised diliqence in this matter to have citation issued.

The relator has clearly presented constitutional claims in his habeas pet

ition that warrant the respondeat in his habeas petition to be called to

answer. Tt should be remembered that the relator has a constitut.i.onal right

to a writ of habeas corpus. See Art.l§12 of the Texas Constitution. The

district clerk has refused to perform his legal and nondiscretionary act.

    In Aquilar V. Stone 901 S.W.2d 955(Tex.App.-Houston[1st Dist]1995) this

court held that, "Had relator requested the district clerk to serve citation

by registered or certified mail pursuant to Tex,R.Civ.P.103 & 106(a) (?) and

the clerk has refused to doso, mandamus would be an appropriate remdey."

The relator has requested citation pursuant to Tex.R.Civ-P. 106(a)(2) add

therefore mandamus is the appropriate remedy in this matter.

Relator has satisfied pronq three.




                                       (3)
                                    PRAYER




    Relator prays that this Honorable Court issue a mandamus to compel the

respondent to issue the citation as he had requested.


                             UNSWORN DECLARATION




    Pursuant to V.t.c.a., CIVIL Practices & Remedies Code §132.001-5132.003,

"I, Zahir Querishi #803)000, being presently incarcerated in the Texas Depar

tment of Criminal Justice - Institutional Division, Ramsey Unit in Brazoria

County, Texas , declare under the penalty of periurv that the foregoing is

true and correct." Executed on tELR^WH 9 ;, ?Q(O


Mr.Zahir Querishi
Inmate #801000
Ramsey Unit
1100 FM 655
Rosharon,   Texas
77583




                                      (4)
X I   „   >'
                                                        Mr-Zahir Querishi
                                                        #801000

                                                        Ramsey Unit
                                                        1100 FM 655

                                                        Rosharon,   Texas

                                                        77583


                                                                       — *      ir>
                                                                        6) >-   *—
December 17,   2014
                                                                    H go ^
                                                                                              a

Mr-Chris Daniels
                                                                        «•=      '
Harris County District Clerk                                           Uq
P.O.Box 4651
                                    k£.; Cav6e uo: 2&707
                                                                                      O
Houston,   Texas
                                                                                      E
                                                                                      F   £
77210-4651


Dearest Clerk,

              Peace and blessings to you. Enclosed please find four (4)
copies of writ of habeas corpus with attached motions. All these documents
are to be filed in the 315th District Court of Harris County for ruling
as soon as the business of the court permits. Since the Family Code has
no provision for habeas writs the rules default to the Tex.R-Civ.P.For this
reason it is imperative that citation must be issued upon the Harris County
District Attorney.
    Also in this envelope is a self-addressed stamped envelope that has a
copy of every document that has to be filed. Please place a filed mark upon
the face of the habeas application, each motion, citation request, and a
copy of the letter.
    Should there be any questions or concerns please do not hesitate to Jg
contact me at the address above.

                                                Sincerely,




                                                XUAciU^ yi(Jcuol((
                                CAUSE NO:   86707



IN THE MATTER OF ZAHIR QUERISHI,       §    IN THE 315TH DISTRICT COURT

PETITIONER                             §    OF HARRIS COUNTY,   TEXAS

V.                                     §
THE STATE OF TEXAS                     §                                   —      £
                                                                                <D >-   £>
                                                                          His                    >>
                                                                                                 c

                                                                                        to       o
                                                                                                 u
                                                                                        I
                        REQUEST FOR ISSUANCE OF CITATION


     Pursuant to Tex.R.Civ.P. 99 I am hereby formally requesting thatTTSiis
clerk issue a citatiion upon the respondent who is the District Attorney                     M m>•
                                                                                             F
of Harris County, Texas, at 120^ Franklin, Houston, Texas, 77002.

     Please issue the citation pursuant to Tex.R.Civ.P. 106(a)(2) or in a

manner similar to the procedure announced in Article 11.07 of the Code of

Criminal Procedure. In essence, the District Attorney must be served with

a copy of the writ and attached motions along with the citation.

                                                           Sincerely,



                                                           Mr.Zahir Querish1' '
                                                           #801000
                                                           Ramsey Unit
                                                           1100 FM 655
                                                           Rosharon,    Texas
                                                           77583
                                 CAUSE NO:   86707




IN THE MATTER OF ZAHIR QUERISHI,        §    IN THE 315TH DISTRICT COURTf
                                                                            ' _.*£   LO
PETITIONER                              §    OF HARRIS COUNTY, TEXAS    E,3 ••= • 5           >;


THE STATE OF TEXAS, RESPONDENT          §
                                                                             Oq      <

                                                                        fe                .




                            WRIT OF HABEAS CORPUS                                         g
                                                                                          F ft
TO THE HONORABLE JUDGE OF SAID COURT:


    Comes now petitioner Zahir Querishi, acting pro se, in the above styled

and numbered cause and files this APPLICATION FOR WRIT OF HABEAS CORPUS

pursuant to Article 5§8 of the Texas Constitution and V.T.C.A., Family Code

56-01(o) with attached MOTION TO UNSEAL THE RECORD and a MOTION FOR A HEAR

ING, and presents the following in support thereof:


                             HISTORY OF THE CASE




    On September 30, 1994, the 315th District Court of Harris County, Texas,

found the petitioner to have engaged in delinquent conduct for the offences

of capital murder and attempted capital murder. The court assessed a deter-

miate sentence of forty years and transferred the petitioner to the custody

of the Texas Youth Commission.:On October 14, 1997,    the trial court conduc

ted a hearing pursuant to V.T-C-A-, Family Code §54.11 to determine whether

to transfer the petitioner to the custody of the Texas Department of Criminal

Justice. The court determined that the petitioner be transferred.
                             STATEMENT OF JURISDICTION



       Jurisdiction is based in the 315th District Court of Harris County, r

Texas, which found the petitioner to have engaged in delinquent conduct.

See Ex Parte Valle 104 S-W.3d 888(Tex-Crim.App.2003).


                                CONSTITUTIONAL CLAIM



CLAIM ONE:     THE RESPONDENT VIOLATED THE PETITIONER'S GUARANTEE TO' BE 'CON
               FRONTED WITH THE WITNESS AGAINST HIM' SECURED BY THE SIXTH
               AMENDMENT TO THE UNITED STATES CONSTITUTION AND EXTENDED UPON
               THE STATES THROUGH THE FOURTEENTH AMENDMENT TO THE UNITED
               STATES CONSTITUTION.




                           SUPPORTING FACTS AND ARGUMENT




           "TheDConfrontation Clause of the Sixth Amendment guarantees the
            right of a criminal defendant "to be confronted with the witness
            against him." That guarantee, extended against the States by the
            Fourteenth Amendment, includes the right to cross-examine witnesses.
            See Pointer V. Texas 85 S.Ct.1065,1068(1968). Where two defendants
           are tried jointly, therefore, the pretrial confession of one of
-;••       them that implicates the otheriis not admissable against the other
           unless the confessing defendant waives his Fifth Amendment right
           so as to permit cross-examination." Cruz V New York 107 S-Ct.1714,
            1717(1987).


       Petitioner was jointly tried with codefendant S-Galloway. Codefendant
S.Galloway gave a pretrial confession that "expressly implicated" the pet
itioner. The respondent placed S.Galloway's pretrial confession on an over
head projector for the jury members to view. The pretrial confession was
unredacted and there were no limiting instructions given to the jury mem-




                                        (2)
bers.


    Codefendant S.Galloway never waived his Fifth Amendment as to permit

cross-examination. The petitioner pled not guilty and maintained his inn

ocence during the trial proceeding. Codefendant S.Galloway's pretrial
confession "expressly implicated" the petitioner, was powerfully incrimi
nating, and proved to be devastating to the petitioner's defense.

    In Bruton V- United States 88 S -Ct -1620 (1968), the Supreme Court

held that the Sixth Amendment is violated "where the powerfully incrimina

ting extrajudicial statements of a codefendant, who stands accused side by
side with the defendant, are deliberately spread before the juryin a joint

trial. Not only are the incriminations devastating to the deferidant but their
credibility is inevitably suspect---" at 1627-1628-

    The actions of the respondent stand in direct conflict with Bruton and

as a consequenceviolated the petitioner's right "bo be confronted with the
witness against him" secured by the Sixth Amendment to the Unified States

Constitution.



                                    PRAYER




    The petitioner prays that this court Order the records unsealed,(2)
make a proper determination on the merit of the constitutional claim pre
sented, (3) grant this application for writ of habeas corpus, (4) Order a
hearing in this matter,and (5) grant the petitioner a new trial-


                                               Respectfully submitted,



                                               Mr-Zahir touerishi #801000
                                               Ramsey Unit
                                               1100 FM 655
                                               Rosharon,   Texas
                                               77583




                                      (3)
                                     DECLARATION




    Pursuant to V-T-C-A., Civil Practices & Remedies Code §132.001-132.003,

" I, Zahir Querishi #801000, being presently incarcerated in the Texas Dep

artment of Criminal Justice - Institutional Division, Ramsey Unit in Brazoria

County, Texas, declare under the penalty of perjury that the foregoing is

true and correct. Executed on JJ\£jL£jT>?iIE^ |G> 7f)lM          •

                                                                                      U0   hi
                                                              Mr.Zahir\Querishi
                                                              #801000 \
                                                              Ramsey Unit
                                                              iioo fm^s
                                                             Rosharon,    Texas
                                                              77583




                               CERTIFICATE OF SERVICE



    Respondent was served with a true copy of the above and foregoing via

regular U-S.Mail on December      \ ip         2014, at Office of the District
Attorney of Harris County at 120(J) Franklin, Houston, Texas 77002.



                                                             Mr. Zahir~\QuerishiV-V
                                                              #801000 ^
                                                             Ramsey Unit
                                                             1100 FM 655
                                                             Rosharon,Texas
                                                             77583




                                         (4)
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IN RE ZAHIR QUERISHI,RELATOR                 §    IN THE COURT OF APPEALS
V.                                           §    FIRST DISTRICT
CHRIS DANIEL-HARRIS COUNTY DISTRICT          §    HOUSTON, TEXAS
CLERK, RESPONDENT                            §


                              MOTION FOR SUSPENSION OF RULES



TO THE HONORABLE FIRST COURT OF APPEALS:


     Comes now relator Zahir Querishi, acting pro se, in the above styled

cause and files this MOTION TO SUSPEND THE RULES pursuant to Tex.R.App.P.

2, and presents the following in support thereof:




     Relator requests that this Honorable Court suspend the copy rule pur

suant to Tex.R.App.P. 9.3(a)(1)(A) and Tex.R.App.P. 9.5 in this oriqinal

proceedinq. Relator is currently confined in the Texas Deoartment of Criminal

•Tustice and lacks access to a cooier machine tn fulfill tho ronn;"oments

of the copy rule and, by extension, service of documents upon the respon

dent .


     WHEREFORE PREMESES CONSIDERED       THE relator pravs that this Honorable

o-iuri- ~~"3nt this motion.

                                                     Respectfully submittec


                                                   Sj/h.luU'^ wiLiiDtc*- 2-9-/S
                                                     Mr.Zahir\ Querishi
                                                     Inmate W)1000
                                                     Ramsey Unit
                                                     1100 FM 655
                                                    Rosharon,   Texas
                                                     77583
                                            fluffs*-
                                      FIRST COURT OF APPEALS
TWgsy Cisn,                              HOUSTON. TEXAS




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