Kaizer, Randy

Opinion

^3,077-0' wm

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:

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

Loq-Out Main Menu City of Corpus Christi Account Search Parks and Recreation Department Latchkey >Child List

Children

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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 -

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

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Maria Medrano 361-980-0365

Special Needs City of Corpus Christi - Park arJ Recreation Department - Latchkey Page 4 of 4 ( (

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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.

.s~ Usf-W t'^f f 0 rib, ,v «, 2 DEPARTMENT COMPONENT AND BRANCH 3 SOCIAL SECURITY NO KAI4ER-, RANDY,JOHN JOSEPH USN-NAVY 43£s |%? \tf3H 4 a GRADE. RATE OR RANK 4.b "PAY^GRADE 5 DATE OF BIRTH (YYMMDD) 6 RESERVE OBJ TEB DATE HM3 r : >' ' ' . - E4 LbAPtfUL Mont1in Day' 7 a PLACE OF ENTRY INTO ACTIVE DUTY 7 b HOME OF RECORD AT TIME OF ENTRY (City and state or complete address if known) T^-,7 SYCAMORE PINES !<]> - ilEPS NEul ORLEANS CARRIERE ("IS Bltbt, 8 a LAST DUTY ASSIGNMENT AND MAJOR COMMAND 8 b STATION WHERE SEPARATED

NAVAL HOSPITAL GUAM PEKSUPP J>ET NAVAL STATION 9 COMMAND TO WHICH TRANSFERRED 10 SGLI COVERAGE IL I None NAVAL RESERVE PERSONNEL CENTER N£U ORLEANS LA Amount sLUU-ilJLljir.ULj 11 PRIMARY SPECIALTY (Lot number, title and years and months in 12 RECORD OF SERVICE Year(s) Month(s) Day(s) specialty Listadditional specialty numbers and titles involving a Date Entered AD This Period 6lar- TTOT TJ5 periods of one or mat* years) ITT b Separation Date This Period TTAir Hfl - GDrjO/QDDD TJ5- TJS- TJtT" c Net Active Service This Period X, X, XX, -onr -tjtx irtr d Total Prior Active Service X, vx, tjit TJX e Total Prior Inactive Service X f Foreign Service TJir Titr "tTLT % g Sea Service "inr TJD- iiur h Effective Date of Pay Grade "7JT -JTJN" vx 13 DECORATIONS MEDALS. BADGES. CITATIONS AND CAMPAIGN RIBBONS AWARDED OR AUTHORIZED1 (All perods of service) COOD CONDUCT SERVICE ilEDAL (1ST)-, NATIONAL DEFENSE SERVICE I.CDAL UST)-. OVERSEAS SERVICE RIBtON (1ST)-. IIAKKSflAN HlbAE RIBBON (1ST). X, 14 MILITARY EDUCATION (Course title, number of weeks and month and year completed) HI! SCHOOL-, 1QWKS-, i)7riAR- X„ Xu X, % 'x,X.

Yes 16 DAYS ACCRUED LEAVE PAID 15 D HICH SCHOOL GRAOUflE OR IS a MEMBER CONTRIBUTED TO POST VICTNAM ERA XX EQUIVALENT XX VETERANS EOUCATIOUAL EDUCATIOMAL ASSISTANCE PRUliKAM PROGRAM "" | "• I I i . „ •JCU«.IM,« -OWtte, C^mnt DENTAL EXAM.NAnON AND ALL APPROPRIATE DENTAL SERVICES AND TREATMENT WITHIN ,0 DAVS PRIOR TO SEPARATION! E3 '"eS^TME^T'OR^-CTWE SERVICE'" TERM EXTENDED FROM m NONTH^ON^U N0V;0^ ' IXT^NSiIn OF SERVICERS At THE REflUEST AND FOR JrlE CONVENIENCE Or THE< GOVERNMENT- , ' - „ y x v X, X' ..- X„ - , ', - *v *x *XX 19b NEAREST RELATIVE (Name and'address%- inc/ude.Zip.Code) "19 a MAILING.ADDRESS AFTER SEPARATION (Include Zip Code) RICHARD L- KAIZER 3M3 JOHNSON ^RD- | •- - '- ' lODDfl ADAMS ST BAY ST LOUIS MS 3^57b ASAtrfA HTS'^UAfl ^b^ RTSED TO^SIGN (Typed name grade.'tttle and j^wrBEBg&BKfesTscgrr DIR. OFVFT AFFAIRS K

'JiTsT [^HILPlRSAjPVBYD£R' SPtaALrADDITIONAL-'INFORMATION (For, use by.authomed agencies onlyVx 24 CHARACTER OF SERVICE (Include;upgrades) 23 TYPE OF KM«MWM<4 LE"A'jS EV' I- K0 PI/ AL I 1 y L DUTY A!ND ^R'AN'St&RRED TO NAVAL^RESERVE HONORABLE 26 SEPARATION CODE 25 SEPARATIOBAUTHOMTV " ' H ' MILRERSfflAN 3fc.gD15Dl.ie lb'k f SOTS?, "tm*klW?™^- ««*• *H» T.ANSr-F. TO NAVAL RESER.VE 29.DATES OF TB*E LOST^DURWG ,T](«S' PtWOU, <. 't l«, N,0NE**..^--'^« ^ - ERV1CE baFormi214,

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 4F- /CJ I $~&-OZU- (styes i - i p j _; - c it u i c e - ' r r i *& A ^prtified^S^TExpr^^lSiT D Registered I Return Receipt for Merchandise D Insured Mail • C.O.D, 4. Restricted Delivery? (Beta Fee) D Yes 2. Article Number (Transfer from service label) 7Q13 Eb3D DDD1 1^53 DUO | J _ PS Form 3811, February 2004 Domestic Return Receipt '_—•

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