Kaizer, Randy

• Court: Court of Criminal Appeals of Texas
• Decided: April 29, 2015
• Docket: WR-83,127-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,127-01

EX PARTE RANDY KAIZER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10CR2388-A IN THE 28TH DISTRICT COURT FROM NUECES COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count of

continuous sexual abuse of a child, one count of indecency with a child, and two counts of

aggravated sexual assault of a child. He was sentenced to sixty years’ imprisonment for the

continuous sexual abuse and aggravated sexual assault counts, and twenty years’ imprisonment for

the indecency with a child count, all running concurrently. The Thirteenth Court of Appeals

affirmed his conviction. Kaizer v. State, No. 13-11-00566-CR (Tex. App. — Corpus Christi– 2

Edinburg, June 13, 2013, pet. ref’d.) (not designated for publication).

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

because counsel told the trial court that Applicant would not be testifying despite Applicant’s desire

to testify on his own behalf. Applicant alleges that trial counsel did not consult with him until two

months after he had been appointed in this case. Applicant also alleges that trial counsel failed to

investigate and present evidence that Applicant lacked the opportunity to commit the offenses, and

failed to investigate Applicant’s claim that it was the complainant’s father, and not Applicant who

committed the offenses. Applicant alleges that trial counsel failed to call character witnesses to

testify at the punishment stage.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order trial counsel to respond to Applicant’s claims of ineffective assistance of counsel. The

trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall first supplement the habeas record with a copy of the indictment upon

which Applicant was tried in this case. The trial court shall make findings of fact and conclusions

of law as to whether the performance of Applicant’s trial counsel was deficient and, if so, whether

1 This Court has reviewed Applicant’s other claims and finds them to be without merit. 3

counsel’s deficient performance prejudiced Applicant. The trial court shall also make any other

findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of

Applicant’s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: April 29, 2015 Do not publish