in Re: Michael Kennedy ( 2010 )

NO. 12-10-00297-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
MICHAEL KENNEDY, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
In this original proceeding, Relator Michael Kennedy complains of various actions of the
trial court related to his criminal trial and conviction. We dismiss the petition in part and deny it
in part.
BACKGROUND
Relator was charged with theft, and the case was tried to a jury. Relator was allowed to
represent himself at trial, but with standby counsel. He was convicted, sentenced to sixty-two
years of imprisonment, and fined ten thousand dollars. Relator immediately informed the trial
court that he wanted to represent himself on appeal. The trial court denied his request and
appointed appellate counsel. This court affirmed Relator’s conviction, but remanded for a new
sentencing hearing. See Kennedy v. State, No. 12-08-00246-CR, 2009 WL 4829989, at *4 (Tex.
App.–Tyler Dec. 16, 2009, pet. stricken) (mem. op., not designated for publication).
AVAILABILITY OF MANDAMUS
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This court has authority to issue a writ of mandamus in a criminal case if two conditions
are met: (1) there is no adequate remedy at law and (2) the act sought to be compelled is
ministerial. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).
Relator first complains that he was prevented from asserting in his trial for felony theft,
and on appeal from his conviction, that no crime had been committed. Thus, he contends, his
due process rights were violated because he was convicted on no evidence. On April 30, 2010,
this court issued its mandate in Relator’s appeal. See TEX. R. APP. P. 18.1(a). Therefore, Relator
has exhausted his appeals and is now, in substance, seeking habeas relief. See TEX. CODE CRIM.
PROC. ANN. art. 11.07 § 1 (Vernon Supp. 2010). We are not authorized to act on a petition for
writ of habeas corpus seeking relief from a final felony conviction. See TEX. GOV’T CODE ANN.
§ 22.221(d) (Vernon 2004). The Texas Court of Criminal Appeals has exclusive jurisdiction
over postconviction writs of habeas corpus in felony cases. TEX. CODE CRIM. PROC. ANN. art.
11.07 § 3 (Vernon Supp. 2010). Therefore, we are without jurisdiction to consider Relator’s
complaints pertaining to his theft conviction.
Relator further complains that the trial court has not issued a capias for him to be brought
back to Anderson County to await his new sentencing hearing. The information furnished to this
court indicates that the new sentencing hearing is scheduled for October 26, 2010. Relator has
not cited any authority, nor are we aware of any, supporting his position that the trial court had a
ministerial duty to issue the capias upon receipt of this court’s mandate in the appeal. Therefore,
Relator has not satisfied the second prerequisite to mandamus. Because Relator has not shown
that he seeks to compel an act that is ministerial, we need not address whether he has an adequate
remedy at law.
DISPOSITION
Based upon the foregoing analysis, we (1) dismiss the portion of Relator’s petition
relating to his complaint about his theft conviction and (2) deny the portion relating to his
complaint about the trial court’s failure to issue a capias.
Opinion delivered September 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J. and Hoyle, J.
(DO NOT PUBLISH)
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