Case Information

*1 WRIT NUMBER

IN THE COURT OF APPEALS FOR THE

FIRST DISTCICT AT HJUSTON, TEXAS

IN RE ZAHIR QUERISHI, RELATOR V.

CHRIS DANIEL-RESPONDENT HARRIS COUNYY DISTRICT CLERK

ORIGINAL PROCEEDING PETITION FOR WRIT OF MANDAMUS

MR. ZAHIR QUERISHI INMATE # 801000 RAMSEY UNIT 1100 FM 655 ROSHARON, TEXAS 77583 PRO SE

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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 ..... (4) UNSWORN DECLARATION ..... (4) APPENDIX EXHIBIT "A" EXHIBIT "B"

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INDEX OF AUTHORITIES

STATE CASES: AGUILAR V. STONE 901 S.W.2d955(Tex.App.-Houston lst 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.-Ballas 1999) ..... (3) In Re Chavez 62 S.W.3d 225(Tex.App.-Amarillo 2001) ..... (2) TAC Americas Inc.,V.Boothe 94 S.W.3d 315(Tex.Ann.-Austin 2002) ..... (2) CODES: V.E.E.A., GOVERNMENT CODE $22.221(a) ..... (1) V.T.C.A., FAMILY CODE $\$56.01$ (c) ..... (1) RULES: TEX.R.APP.P. 52 ..... (1) TEX.R.CIV.P. 99 ..... $(1)(2)(3)$ TEX.R.CIV.P.106(2)(2) ..... $(2)(3)$ TEXAS CONSTITUTION: ART. $1\$12$ ..... (3) ART. $5\$9$ ..... (1)

IDENTIFICATION OF PARTIES

RELATOR: ZAHIR OUERISHI INMATE#801000 RANSEY UNIT 1100 FM 655 ROSHARON, TEXAS 77583

RESPONDENT: CHRIS DANIEE HARRIS COUNTY DISTRICT CLERK P.O.BOX 4651

HOUSTON, TEXAS $77210-4651$

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IN RE ZAHIR QUERISHI, RELATOR v.

CHRIS DANIEL - HARRIS COUNTY DISTRICT CLERK

IN THE COURT OF APPEALS

§ FIRST DISTRICT § HOUSTON, NEVAS §

WRIT OF MANDAMUS

TO THE HONORABLE FIRST COURT OF ANNEALS:

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 the following in sumort 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 Anceals in Houston, Texas. See Aguilar 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 proceedina being governed by the Tex.R.Civ.P. the relator made a formal request for issuance of citation pursuant to Tex.R.Civ.P. 99 and

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106(a)(2). See Exhibit "A." On January 14, 2015, relator mailed the respondent 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 requested citation upon the respondent cited in the habeas petition.

ARGUMENT

1. The respondent has refused to issue the requested citation. " ...Had a legal duty to perform a nondiscretionarysact, (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.-Amarillo 2001).

I

Pursuant to Tex.R.Civ.P. 99(a): "Upon filina of the petiton, the clerk, when requester, shall forthwith issue a citation and deliver the citation as directed by the requestina party. The partystrequestina citation shall be responsible for obtaining servire of the citation and a copy of the petition. t t is well settled that, " generally, purpose of ritation is to give court jurisdiction over parties and to provide notire to defendant that it has been sued by partirular party, assertina a particular claim, in order to satisfy due proress and allow defendant oppertunity to appear and defend artion." 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 cibstance. See Tex.R.Civ.P.99(a). The clerk does not complete his duty under the rule until he delivers the citation as directed." Royattia V. Hinojosa 18 S.W3d 729,733-34(Tex.Apn.-Dallas 2000).

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The respondent has a legal dutv to perform a nondiscretionary act pursuant to Tex. W.Civ.P. 99(a) which the relator requested of him and he failed to perform.

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 have 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 performance of the issuance of citation rursuant to Tex.R.Civ.P. 99 and 106(a)(2).

Relator has satisfied prona two.

III

Relatoer has exercised diligence in this matter to have citation issued. The relator has clearly presented constitutional claims in his habeas petition that warrant the respondent in his habeas petition to be called to answer. It should be remembered that the relator has a constitutional right to a writ of habeas corpus. See Art.1$12 of the Texas Constitution. The district clerk has refused to perform his legal and nondiscretionary act.

In Aguilar V. Stone 901 S.W.2d 955(Tex.App.-Houston[1st Dtist]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. $103\&106(a)(2)$ and the clerk has refused to doss, mandamus would be an appropriate remdey." The relator has requested citation pursuant to Tex.R.Civ.P. 106(a)(2) and therefore mandamus is the appropriate remedy in this matter.

Relator has satisfied prona three.

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Relator orays 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-$132.003, "I, Zahir Querishi #80$000, being presentlv incarcerated in the Texas Department of Criminal Justice - Institutional Division, Ramsey Unit in Brazoria Onunty, Texas, declare under the penalty of per jury that the foregoing is true and correct." Executed on FEBRUARY 9, 7015 .

Al. Zahir Querislic 2.9 .15

Inmate #801000 Ramsey Unit 1100 FM 655 Rosharon, Texas 77583

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*9 EXHIBIT A"

*10 Mr. Zahir Querishi #801000 Ramsey Unit 1100 FM 655 Rosharon, Texas 77583

December 17, 2014 Mr. Chris Daniels Harris County District Clerk P.O.Box 4651

Houston, Texas 77210-4651

P.E: CAUSE NO: 16707

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 $\mathit{◻}$ contact me at the address above.

Sincerely,

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IN THE MATTER OF ZAHIR QUERISHI, PETITIONER V.

THE STATE OF TEXAS

IN THE 315TH DISTRICT COURT

§ OF HARRIS COUNTY, TEXAS § §

REQUEST FOR ISSUANCE OF CITATION

Pursuant to Tex.R.Civ.P. 99 I am hereby formally requesting that this clerk issue a citation upon the respondent who is the District Attorney 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 mations along with the citation.

Sincerely,

Mr.Zahăr Querish $‡$ #80100$ Ramsey Unit 1100 FM 655 Rosharon, Texas 77583

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CAUSE NO: 86707

IN THE MATTER OF ZAHIR QUERISHI, PETITIONER V.

THE STATE OF TEXAS, RESPONDENT § IN THE 315TH DISTRICT COURT § OF HARRIS COUNTY, TEXAS § §

WRIT OF HABEAS CORPUS

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 HEARING, 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 determiate sentence of forty years and transferred the petitioner to the custody of the Texas Youth Commission. On October 14, 1997, the trial court conducted 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.

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Jurisdiction is based in the 315th District Court of Harris County, 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 'CONFRONTED 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

"The Confrontation 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 other is 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 petitioner. The respondent placed S.Galloway's pretrial confession on an overhead projector for the jury members to view. The pretrial confession was unredacted and there were no limiting instructions given to the jury mem-

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bers. Codefendant S.Galloway never waived his Fifth Amendment as to permit cross-examination. The petitioner pled not guilty and maintained his innocence during the trial proceeding. Codefendant S.Galloway's pretrial confession "expressly implicated" the petitioner, was powerfully incriminating, 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 incriminating 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 defenidant 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 "to be confronted with the witness against him" secured by the Sixth Amendment to the United 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 presented, (3) grant this application for writ of habeas corpus, (4) Order a hearing in this matter, and (5) grant the petitioner a new trial.

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Pursuant to V.T.C.A., Civil Practices &; Remedies Code §132.001-132.003, " I. Zahir Querishi #801000, being presently incarcerated in the Texas Department of Criminal Justice - Institutional Division, Ramsey Unit in Brazoria County, Texas, declare under the penalty of per jury that the foregoing is true and correct. Executed on 1 August 16, 2014

CERTIFICATE OF SERVICE

Respondent was served with a true copy of the above and foregoing via regular U.S.Mail on December 16 , 2014, at Office of the District Attorney of Harris County at 120# Franklin, Houston, Texas 77002.

*16 $\therefore$ $\therefore$

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(i)

1100 1m 6ss.
Roshion, Texas
77523

January 14, 2015

Jussum, Texas 77210 - 4651

Re: In the matter of Cawd Chersons V. State of Texas - Cause U. 26707 - West of -thaeas Corous 315tu District Court

Dearest Cuerk, On December 16, 2014, I mated get a package from this-10 Pencey Unit containing (4) four applications for west of thBers corous to be fixed in the 315th District Court and cor citaries to be issued upon the respondent. I thD also enclosed a self- addressed stamped envelope for 400 to max me a copy bearing a fixed mark.

30 Dars thive now possed without any response from your office or a response from the respondent indicating citaries was not issued as requested.

*18 In the event that you did not receive the añdementioned purchase these let me know. It there are only other reasons or concerns please advise.

Thus as a civil war of a large corpus that is governed by the Family (one, 5st. 618), and the Jews who of Civil Precessive. I have enclosed a self-addressed stoned envelope for your responsor to my inquiry.

Thank you for your time and patience in this matter.

Sincerely, Wl.

*19 IN RE ZAHIR QUERISHI, RELATOR V. CHRIS DANIEL-HARRIS COUNTY DISTRICT CLERK, RESPONDENT § IN THE COURT OF APPEALS § FIRST DISTRICT § HOUSTON, TEXAS §

MOTION FOR SUSPENSION OF RULES

TO THE HONORABLE FIRST COURT OF APPEALS:

Comer 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:

I

Relator requests that this Honorable Court suspend the copy rule pursuant to Tex.R.App.P. 9.3(a)(1)(A) and Tex.R.App.P. 9.5 in this original proceeding. Relator is currently confined in the Texas Department of Criminal Justice and lacks acress to a cooier machine to fulfill the rernipaments of the copy rule and, by extension, service of documents upon the respondent.

WHEREFORE PREMESES CONSIDERED THE relator prave that this Honorable court orant this motion.

Respectfully submitted Mr. Zahir Querishi 2.9.15 Inmate 1001000 Ramsey Unit 1100 FM 655 Rosharon, Texas 77583

*20 Dearest Celer, Please filled this uRST of The Accompanions Notion for Suspension of Rules. Please rule -and form of Before the court as soon as possible for a pulm. If possible Please send me written VERIFICATION THYT you have received and filled these documents with the HRTT NUMBER ASSIGNED.

Thank you for this time, $ should there be any questions of concerns Do not hesitate to contact me.