Bazan, Jose Luis ( 2015 )

' .
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