in Re Zahir Querishi ( 2015 )

14- iff- )M^cv
FILED IN
WRIT NUMBER 14th COURT OF APPEALS
HOUSTON, TEXAS 1
FEB 18 2015
IN THE COURT OF APPEALS
FOR THE
CHRISTOPHER A. PRINE
0L6AK
FIRST DISTCICT
AT HOUSTON, TEXAS
IN RE ZAHIR OUERISHI, RELATOR
V.
CHRIS DANItfL-RESPONDENT
HARRIS COUNTY DISTRICT CLERK
ORIGINAL PROCEEDING
PETITION FOR WRIT OF MANDAMUS
MR.ZAHIR QUERISHI
INMATE # 801000
RAMSEY UNIT
1100 FM 655
ROSHARON, TEXAS
77583
PRO SE
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES (ii)
INDEX OF AUTHORITIES (ii)
STATEMENT OF THE CASE (1)
STATEMENT OF JURISDICTION (1)
STATEMENT OF THE FACTS (1)
ARGUMENT (2)
PRAYER (41
UNSWORN DECLARATION (4)
APPENDIX
EXHIBIT "A"
EXHIBIT "B"
INDEX OF AUTHORITIES
STATE CASES:
AGUILAR V. STONE 901 S.W.2d955(Tex.App.-Houston 1st Dist. 1995) (1)(3)
Boyattia V. Hinojosa 18 S.W.3d 729(Tex.App.-Dallas 2000) (2)
Broom V. McMasters 992 S.W.2d 659(Tex.App.-Sallas 1999) (3)
In Re Chavez ^2 S.W-3d 225(Tex.App.-Amarillo 2001) (2)
TAC Americas Inc. ,V.Boot-he 94 S.W.3d 315(Tex.Ann.-Austin 2002) (2)
CODES:
V.E.C.A.., GOVERNMENT CODE §22.221(a) (1)
V.T.C.A., FAMILY CODE §56.01(o) (1)
RULES:
TEX.R.APP.P. 52 (1)
TEX.R.CIV.P. 99 (D(2)(3)
TEX.R.CIV.P.106(a)(2) (2)(3)
TEXAS CONSTITUTION:
ART.1§12 (3)
ART.5§8 (1)
IDENTIFICATION OF PARTIES
RELATOR: ZAHIR OUERISHI RESPONDENT: CHRIS DANIEE
INMATE*801000 HARRIS COUNTY DISTRICT
RAMSEY UNIT CLERK
1100 FM 655 P.O.BOX 4651
ROSHARON, TEXAS HOUSTON , TEXAS
77583 77210-4651
(ii)
IN RE ZAHIR QUERISHI/ RELATOR § IN THE COURT OF APPEAT.S
V. § FIRST DISTRICT
CHRIS DANIEL - HARRIS COUNTY DISTRICT § . HOUSTON, mc"YAS
CLERK §
WRIT OF MANDAMUS
TO THE HONORABLE FIRST COURT OP A^EALS:
Comes now relator Zahir Querishi, acting pro se, in the above styled
cause and files this petition for writ of mandamus with attached exhibits
pursuant to Tex.R.APP.P. 52 and V.T.C.A., Government Code §22.221(a)- and
presents Hie fol i<~>wi n^ in sun^rt thereof:
STATEMENT OF THE CASE
On January 05, 2015, relator properly filed a petition for writ of habeas
corpus pursuant to Article 5§8 of the Texas Constitution and V.T.C.A., Family
Code §56.01(o) with attached motions with the respondent. The petition was
filed in the 315th District Court under the cause number 86707 stvled "IN
THE MATTER OF ZAHIR QUERISHI V. THE STATE OF TEXAS."
STATEMENT OF JURISDICTION
Jurisdiction is based in the First Court of AnDeals in Houston, Texas.
See Aquilar V. Stone 901 S.W.2d 955(Tex.App.-Houston[1st Dist.] 1995).
STATEMENT OF THE FACTS
Accompanying the properly filed petition for writ of habeas corpus was
a formal request for issuance of citation. See exhibit "A". Due to the rules
of the habeas proceedinq being governed by the Tex.R.Civ,P. the Delator made
a formal request for issuance of citation pursuant to Tex.R.Civ.P. 99 and
106(a)(2). See Exhibit "A." On January 14, 2015, relator mailed the respon
dent another letter inquiring about the issuance of citation. See Exhibit
"B." To the day of this writing the respondent has failed to fulfill his
duty and issue the reauested citation upon the respondent cited in the habeas
petition.
ARGUMENT
1. The respondent has refused to issue the reauested citation.
" ...Had a legal duty to perform a nondiscretionaryaact, (2) was asked
to nerform the act, (3) and failed or refused to do so." In Re Chavez
62 S.W.3d 225,228(Tex.App.-Amdrillo 2001).
Pursuant to Tex.R.Civ.P. 99(a): "Upon filina of the petiton, the clerk,
when requested, shall forthwith issue a citation and deliver the citation
as directed by the requestina party. The paqt?stequesting citation shall
be responsible for obtaininq service of the citation and a copy of the pet
ition.
Tt is well settled that, " generally, purpose of --itation is to qive
court jurisdiction over Darties and to provide notice to defendant that it
has been sued by particular party, assertina a particular claim, in order
to satisfy due process and allow defendant oppertunity to appear and defend
action." TAC Americas, Inc. V.Boothe 94 S-W.3d 315,318(Tex.App.-Austin 2002)
"Under rule 99 of the Texas Rules of Civil Procedure, it is the duty
of the clerk both to issue citation and deliver them as directed by the
party rewauesting cisstance. See Tex.R.Civ.P.99(a). The clerk does not com
plete his duty under the rule until he delivers the citation as directed."
Rovattia V. Hinojosa 18 S.W3d 729,733-34(Tex.Apr..-Dallas 2000).
(2)
The respondent has a legal dutv to perform a nondiscretion^ry act pur
suant to Tex.R.Civ.P. 99(a) which the relator requested of him and he failed
to Derform.
Relator has satisfied prong one.
II
" the courts look to whether the plaintiff had, at the time suit was
filed, a "bona fide intention" to hase process issued and Served." Broom
v. McMaster 992 S.W.2d 659,664(Tex.App.-Dallas 1999). In exhibits "A" and
"B" attached to this petition illustrate relator's demand for the perform
ance of the issuance of citation pursuant to Tex.R.Civ.P. 99 and 106(a)(2).
Relator has satisfied pronq two.
Ill
Relatoer has exercised diliqence in this matter to have citation issued.
The relator has clearly presented constitutional claims in his habeas pet
ition that warrant the respondeat in his habeas petition to be called to
answer. Tt should be remembered that the relator has a constitut.i.onal right
to a writ of habeas corpus. See Art.l§12 of the Texas Constitution. The
district clerk has refused to perform his legal and nondiscretionary act.
In Aquilar V. Stone 901 S.W.2d 955(Tex.App.-Houston[1st Dist]1995) this
court held that, "Had relator requested the district clerk to serve citation
by registered or certified mail pursuant to Tex,R.Civ.P.103 & 106(a) (?) and
the clerk has refused to doso, mandamus would be an appropriate remdey."
The relator has requested citation pursuant to Tex.R.Civ-P. 106(a)(2) add
therefore mandamus is the appropriate remedy in this matter.
Relator has satisfied pronq three.
(3)
PRAYER
Relator prays that this Honorable Court issue a mandamus to compel the
respondent to issue the citation as he had requested.
UNSWORN DECLARATION
Pursuant to V.t.c.a., CIVIL Practices & Remedies Code §132.001-5132.003,
"I, Zahir Querishi #803)000, being presently incarcerated in the Texas Depar
tment of Criminal Justice - Institutional Division, Ramsey Unit in Brazoria
County, Texas , declare under the penalty of periurv that the foregoing is
true and correct." Executed on tELR^WH 9 ;, ?Q(O
Mr.Zahir Querishi
Inmate #801000
Ramsey Unit
1100 FM 655
Rosharon, Texas
77583
(4)
X I „ >'
Mr-Zahir Querishi
#801000
Ramsey Unit
1100 FM 655
Rosharon, Texas
77583
— * ir>
6) >- *—
December 17, 2014
H go ^
a
Mr-Chris Daniels
«•= '
Harris County District Clerk Uq
P.O.Box 4651
k£.; Cav6e uo: 2&707
O
Houston, Texas
E
F £
77210-4651
Dearest Clerk,
Peace and blessings to you. Enclosed please find four (4)
copies of writ of habeas corpus with attached motions. All these documents
are to be filed in the 315th District Court of Harris County for ruling
as soon as the business of the court permits. Since the Family Code has
no provision for habeas writs the rules default to the Tex.R-Civ.P.For this
reason it is imperative that citation must be issued upon the Harris County
District Attorney.
Also in this envelope is a self-addressed stamped envelope that has a
copy of every document that has to be filed. Please place a filed mark upon
the face of the habeas application, each motion, citation request, and a
copy of the letter.
Should there be any questions or concerns please do not hesitate to Jg
contact me at the address above.
Sincerely,
XUAciU^ yi(Jcuol((
CAUSE NO: 86707
IN THE MATTER OF ZAHIR QUERISHI, § IN THE 315TH DISTRICT COURT
PETITIONER § OF HARRIS COUNTY, TEXAS
V. §
THE STATE OF TEXAS § — £
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His >>
c
to o
u
I
REQUEST FOR ISSUANCE OF CITATION
Pursuant to Tex.R.Civ.P. 99 I am hereby formally requesting thatTTSiis
clerk issue a citatiion upon the respondent who is the District Attorney M m>•
F
of Harris County, Texas, at 120^ Franklin, Houston, Texas, 77002.
Please issue the citation pursuant to Tex.R.Civ.P. 106(a)(2) or in a
manner similar to the procedure announced in Article 11.07 of the Code of
Criminal Procedure. In essence, the District Attorney must be served with
a copy of the writ and attached motions along with the citation.
Sincerely,
Mr.Zahir Querish1' '
#801000
Ramsey Unit
1100 FM 655
Rosharon, Texas
77583
CAUSE NO: 86707
IN THE MATTER OF ZAHIR QUERISHI, § IN THE 315TH DISTRICT COURTf
' _.*£ LO
PETITIONER § OF HARRIS COUNTY, TEXAS E,3 ••= • 5 >;
THE STATE OF TEXAS, RESPONDENT §
Oq <
fe .
WRIT OF HABEAS CORPUS g
F ft
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now petitioner Zahir Querishi, acting pro se, in the above styled
and numbered cause and files this APPLICATION FOR WRIT OF HABEAS CORPUS
pursuant to Article 5§8 of the Texas Constitution and V.T.C.A., Family Code
56-01(o) with attached MOTION TO UNSEAL THE RECORD and a MOTION FOR A HEAR
ING, and presents the following in support thereof:
HISTORY OF THE CASE
On September 30, 1994, the 315th District Court of Harris County, Texas,
found the petitioner to have engaged in delinquent conduct for the offences
of capital murder and attempted capital murder. The court assessed a deter-
miate sentence of forty years and transferred the petitioner to the custody
of the Texas Youth Commission.:On October 14, 1997, the trial court conduc
ted a hearing pursuant to V.T-C-A-, Family Code §54.11 to determine whether
to transfer the petitioner to the custody of the Texas Department of Criminal
Justice. The court determined that the petitioner be transferred.
STATEMENT OF JURISDICTION
Jurisdiction is based in the 315th District Court of Harris County, r
Texas, which found the petitioner to have engaged in delinquent conduct.
See Ex Parte Valle 104 S-W.3d 888(Tex-Crim.App.2003).
CONSTITUTIONAL CLAIM
CLAIM ONE: THE RESPONDENT VIOLATED THE PETITIONER'S GUARANTEE TO' BE 'CON
FRONTED WITH THE WITNESS AGAINST HIM' SECURED BY THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND EXTENDED UPON
THE STATES THROUGH THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
SUPPORTING FACTS AND ARGUMENT
"TheDConfrontation Clause of the Sixth Amendment guarantees the
right of a criminal defendant "to be confronted with the witness
against him." That guarantee, extended against the States by the
Fourteenth Amendment, includes the right to cross-examine witnesses.
See Pointer V. Texas 85 S.Ct.1065,1068(1968). Where two defendants
are tried jointly, therefore, the pretrial confession of one of
-;•• them that implicates the otheriis not admissable against the other
unless the confessing defendant waives his Fifth Amendment right
so as to permit cross-examination." Cruz V New York 107 S-Ct.1714,
1717(1987).
Petitioner was jointly tried with codefendant S-Galloway. Codefendant
S.Galloway gave a pretrial confession that "expressly implicated" the pet
itioner. The respondent placed S.Galloway's pretrial confession on an over
head projector for the jury members to view. The pretrial confession was
unredacted and there were no limiting instructions given to the jury mem-
(2)
bers.
Codefendant S.Galloway never waived his Fifth Amendment as to permit
cross-examination. The petitioner pled not guilty and maintained his inn
ocence during the trial proceeding. Codefendant S.Galloway's pretrial
confession "expressly implicated" the petitioner, was powerfully incrimi
nating, and proved to be devastating to the petitioner's defense.
In Bruton V- United States 88 S -Ct -1620 (1968), the Supreme Court
held that the Sixth Amendment is violated "where the powerfully incrimina
ting extrajudicial statements of a codefendant, who stands accused side by
side with the defendant, are deliberately spread before the juryin a joint
trial. Not only are the incriminations devastating to the deferidant but their
credibility is inevitably suspect---" at 1627-1628-
The actions of the respondent stand in direct conflict with Bruton and
as a consequenceviolated the petitioner's right "bo be confronted with the
witness against him" secured by the Sixth Amendment to the Unified States
Constitution.
PRAYER
The petitioner prays that this court Order the records unsealed,(2)
make a proper determination on the merit of the constitutional claim pre
sented, (3) grant this application for writ of habeas corpus, (4) Order a
hearing in this matter,and (5) grant the petitioner a new trial-
Respectfully submitted,
Mr-Zahir touerishi #801000
Ramsey Unit
1100 FM 655
Rosharon, Texas
77583
(3)
DECLARATION
Pursuant to V-T-C-A., Civil Practices & Remedies Code §132.001-132.003,
" I, Zahir Querishi #801000, being presently incarcerated in the Texas Dep
artment of Criminal Justice - Institutional Division, Ramsey Unit in Brazoria
County, Texas, declare under the penalty of perjury that the foregoing is
true and correct. Executed on JJ\£jL£jT>?iIE^ |G> 7f)lM •
U0 hi
Mr.Zahir\Querishi
#801000 \
Ramsey Unit
iioo fm^s
Rosharon, Texas
77583
CERTIFICATE OF SERVICE
Respondent was served with a true copy of the above and foregoing via
regular U-S.Mail on December \ ip 2014, at Office of the District
Attorney of Harris County at 120(J) Franklin, Houston, Texas 77002.
Mr. Zahir~\QuerishiV-V
#801000 ^
Ramsey Unit
1100 FM 655
Rosharon,Texas
77583
(4)
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IN RE ZAHIR QUERISHI,RELATOR § IN THE COURT OF APPEALS
V. § FIRST DISTRICT
CHRIS DANIEL-HARRIS COUNTY DISTRICT § HOUSTON, TEXAS
CLERK, RESPONDENT §
MOTION FOR SUSPENSION OF RULES
TO THE HONORABLE FIRST COURT OF APPEALS:
Comes now relator Zahir Querishi, acting pro se, in the above styled
cause and files this MOTION TO SUSPEND THE RULES pursuant to Tex.R.App.P.
2, and presents the following in support thereof:
Relator requests that this Honorable Court suspend the copy rule pur
suant to Tex.R.App.P. 9.3(a)(1)(A) and Tex.R.App.P. 9.5 in this oriqinal
proceedinq. Relator is currently confined in the Texas Deoartment of Criminal
•Tustice and lacks access to a cooier machine tn fulfill tho ronn;"oments
of the copy rule and, by extension, service of documents upon the respon
dent .
WHEREFORE PREMESES CONSIDERED THE relator pravs that this Honorable
o-iuri- ~~"3nt this motion.
Respectfully submittec
Sj/h.luU'^ wiLiiDtc*- 2-9-/S
Mr.Zahir\ Querishi
Inmate W)1000
Ramsey Unit
1100 FM 655
Rosharon, Texas
77583
fluffs*-
FIRST COURT OF APPEALS
TWgsy Cisn, HOUSTON. TEXAS
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