Bazan, Jose Luis

• Court: Court of Appeals of Texas
• Decided: March 26, 2015
• Docket: WR-83,067-01
• Status: Published

Opinion

' . March 19,2015

Mr. Abel Acosta, Clerk Court of Criminal Appeals P.O. Box 12308 Austin, Texas 78711-2308

Re: Ex parte Jose Luis Bazan, Case No. 1250348 (In the 248 1h Judicial District Court of Harris County, Texas).

);> Motion for Leave to file Original Application for Writ of Mandamus

Dear Clerk:

Enclosed please find the original copy of Applicant Bazan's Motion for Leave to File His Original Application for Writ of Mandamus, to be filed among the papers in the above- styled and numbered cause.

Thank you for your kind attention to this matter.

RECE;VED~N Huntsville, Texas 77349 COURT OF CRIMIN*'L APPEALS Enclosure MAR 26 2015 Cc: File

Bazan Writ of Mandamus Case Number: 1250348

JOSE BAZAN, § IN TDCJ-CID#01700615, Relator, Pro se, § § THE v. § § COURT OF CRIMINAL APPEALS THE HONRABLE KATHERINE, § CABINISS ACTING IN HER OFFICIAL§ AUSTIN, TEXAS CAPACITY AS JUDGE OF THE § 248TH JUDICIAL DISTRICT COURT § OF HARRIS COUNTY TEXAS, § Respondent §

APPLICANT BAZAN'S MOTION FOR LEAVE TO FILE ORIGINAL WRIT OF MANDAMUS WITH BRIEF IN SUPPORT

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Jose Bazan, Relator, prose, in the above-styled and numbered

cause and files this, his Motion for Leave of the Court to File His Original Application

for Writ of Mandamus, as he has no other relief available by law and would respectfully

show the Court as follows:

I. Relator

1.· Jose Bazan, TDCJ-CID#Ol700615, is an offender incarcerated in the Texas

Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"), is

appearing prose, and can be located at: Jose Bazan, TDCJ-CID#Ol700615, Wynne Unit,

810 FM 2821, Huntsville, Texas, 77349.

2. Relator has exhausted all his remedies and has no other adequate remedy at law.

Bazan Writ of Mandamus 2 3. Relator filed his original Application for Writ of Habeas Corpus with the Harris

County District Clerk on or about June 23, 2014, clerk of the convicting court in Case

/ Number 1250348-A. The trial court originally designated ineffective assistance of trial

counsel as a previously uncontroverted issue on July 14, 2014, and subsequently ordered

trial counsel to file an affidavit in response to the ineffective assistance of counsel

allegations contained in the instant habeas corpus application on November 13, 2014,

ordering the clerk of the court not to transmit the Relator's application to this Court until

after the attorney had filed the requisite affidavit. However, to date, said attorney has not

filed the affidavit in question and the trial court refuses to act.

4. The act sought to be compelled is ministerial, not discretionary in nature. The

Texas Code of Criminal Procedure, Art. 11.07 Section 3(c) requires Respondent to

immediately transmit to the Court of Criminal Appeals a copy of the application for writ

of habeas corpus, any answers filed, and a certificate reciting the date upon which that

finding was made, if the convicting court decides that there are no issues to be resolved.

No copy of the application for writ of habeas corpus, any answers filed, and a certificate

reciting the date upon which that finding was made and transmitted to the Court of

Criminal Appeals. Had Respondent directed such documents be transmitted to the Court

of Criminal Appeals as required statute, Relator would have received notice from this

Court. Petitioner avers that while the trial court did in fact designate issues requiring

resolution, the writ of habeas corpus application has been pending in the trial court for

approximately nine 99) months with no relief in sight, which is inherently unreasonable.

Bazan Writ of Mandamus 3 II. RESPONDENT

5. Respondent, the Honorable Katherine Cabaniss, acting in her official capacity as

Judge of the 248th Judicial District Court of Harris County, Texas, has a ministerial duty . ' '

to resolve issues he designates as requiring resolution by all customary means in a timely

manner, as the Great Writ is one of expediency so as to avoid innocent citizens from

languishing in prison needlessly. Judge Katherine Cabaniss, presiding judge of the 248th

Judicial District Court of Hams County, Texas, may be served at her place of business at:

Judge Katherine Cabaniss, presiding Judge of the 263rd Judicial District Court ofHarris

County, Texas, Harris County Criminal Justice Center, 1201 Franklin, 15th Floor,

Houston, Texas, 77002. 1

III. Violation of Article 11.07 of the Texas Code of Criminal Procedure

3. The Respondent violated Article 11 07 Section 3(c) of the Texas Code of Criminal \'

Procedure by failing to provide a copy of the application for writ of habeas corpus, any

answers filed, and a certificate reciting the date upon which that finding was made to the

Court of Criminal Appeals within the time prescribed by law and within a reasonable

time from the date on which the documents were requested to be transmitted.

4. Numerous requests for the transmittal of the .application for writ of habeas corpus, any

answers filed, and a certificate reciting the date upon which that finding were made have

gone unanswered. Applicant/Relator made requests in Ex parte Jose Bazan, No.

1 (emphasis added).

Bazan Writ ·of Mandamus 4 1250348-A, to the Honorable Katherine Cabaniss, Presiding Judge of the 248th Judicial

District Court of Harris County, Texas, and to Chris Daniel, Harris County District Clerk,

by first.:.class mail requesting compliance with the statutory provisions to no avail.

5. To date, Relator has received no response from Respondent regarding Relator's request

for transmittal of a copy of the application for writ of habeas corpus, any answers filed, ( and a certificate reciting the date upon which that finding was made to the Court of

Criminal Appeals.

6. As is clear from the record before the Court, Relator has repeatedly put Respondent on

notice that Relator seeks the copy of the application for writ of habeas corpus, any

answers filed, and reciting the date upon which that finding was made to the Court of

Criminal and that such records are required by the Court of Criminal Appeals to act on

Relator's writ of habeas corpus. Relator has gone well beyond any requirement or

obligations imposed upon him by the Texas Code of Criminal Procedure. In contrast to

Relator's efforts, Respondent has wholly failed to comply with the Texas Code of

Criminal Procedure, Article 11.07 Section 3( c), are acting in bad faith, and has also failed

to· afford Relator the professional and common courtesy of any written responses to his

correspondence and requests.

7. Article 11.07 Section 3(c) clearly was promulgated to ensure the writ be one of

expedience, not to be placed on the back burner of the trial court's docket indefinitely.

Bazan Writ of Mandamus 5 IV. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Relator, Jose Bazan, TDCJ-

CID#01700615, proceeding in prose, respectfully requests a finding that the Respondent

has not resolved the issues designated for resolution or if Respondent has done so, she

has wholly failed to direct the clerk of the court to transmit documents to the Court of

Criminal Appeals within a reasonable time after the date the issues in question were

resolved and that Relator brought this litigation in good faith and has substantially

prevailed. Relator prays for an Order directing Respondent to direct the clerk of the court

to transmit a copy of the appiication for writ 6f habeas corpus, any answers filed, and a

certificate reciting the date upon which that finding was made to the Court of Criminal

Appeals as directed in Article 11.07, Section 3(c) of the Texas Code of Criminal

Procedure.

Respectfully submitted,

Wynne Unit 810 FM 2821 Huntsville, Texas 77349

Bazan Writ of Mandamus 6 ..

CERTIFICATE OF SERVICE

I, Jose Bazan, TDCJ-CID#01700615, Relator, prose, herein certify that I have

sent a true and correct copy of this instrument to the Respondent, by placing same, in a

U.S. mail box, first-class, postage paid, addressed to:

Judge Katherine Cabaniss Presiding Judge, 248 1h Judicial District Court Harris County, Texas P.O. Box 4651 Houston, Texas 77210-4651

SIGNED on this the 191h day ofMarch, 2015.

,.

Bazan Writ of Mandamus 7