COURT OF CRIMINAL APPEALS 

CLERK, ABEL ACOSTA 

P.O.Box 12308 

AUSTIN ,TX 78711 

~~ /87 -()2 

RANDY J. KAIZER # 1730604 

C.T.TERRELL UNIT 

. 1300 P.M. 655 

ROSHARON, TX 77583 

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 ~ 1730604 

C.T.TERRELL UNIT 

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 ASSISTANCE 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 STRICKLANDS 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 ALLEGations, 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: -.IL...:=--..L.....L...f,-...J...~------- rto AR/ I 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 A Y 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