in Re: Michael Allyn Kennedy ( 2016 )

NO. 12-16-00316-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
MICHAEL ALLYN KENNEDY, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Michael Allyn Kennedy filed a petition for writ of mandamus, in which he complains of
the trial court’s failure to rule on his motion for a nunc pro tunc judgment to correct his sentence
and to “set offense charge from the indictment.” We deny the petition.
PREREQUISITES TO MANDAMUS
To obtain mandamus relief in a criminal case, the relator must show that he does not have
an adequate remedy at law and the act he seeks to compel is ministerial (not involving a
discretionary or judicial decision). State ex rel. Young v. Sixth Judicial Dist. Court of Appeals,
236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). If the relator fails to satisfy
either prong of this test, mandamus relief should be denied. Id.
AVAILABILITY OF MANDAMUS
The duty of the trial court is to see that the cases before it proceed in an appropriate
fashion. In re Cash, No. 06–04–00045–CV, 2004 WL 769473, at *1 (Tex. App.—Texarkana
Apr. 13, 2004, orig. proceeding) (mem. op.). In general, however, it does not have a duty to rule
on “free-floating motions unrelated to currently pending actions. In fact, it has no jurisdiction to
rule on a motion when it has no plenary jurisdiction coming from an associated case.” Id.
Relator alleges that his motion pertains to trial court cause number 29326. However,
Relator’s theft conviction has been final for several years, and cause number 29326 is not
currently pending in the trial court. See Kennedy v. State, No. 12–11–00041–CR, 2012 WL
3201924, at *8 (Tex. App.—Tyler Aug. 8, 2012, pet. ref’d) (mem. op., not designated for
publication) (affirming judgment on punishment); see also Kennedy v. State, No. 12–08–00246–
CR, 2009 WL 4829989, at *3–4 (Tex. App.—Tyler Dec. 16, 2009, pet. stricken) (mem. op., not
designated for publication) (affirming judgment of conviction). Because Relator’s motion is not
related to a case that is currently pending in the trial court, Relator has not shown that
Respondent has a duty to take any action on the motion. Consequently, Relator has not
established a clear right to mandamus relief.
DISPOSITION
Because Relator has not shown that he is entitled to mandamus relief, we deny his
petition for writ of mandamus.
Opinion delivered December 9, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 9, 2016
NO. 12-16-00316-CR
MICHAEL ALLYN KENNEDY,
Relator
v.
HON. MARK A. CALHOON,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
MICHAEL ALLYN KENNEDY, who is the defendant in Cause No. 29326, pending on the
docket of the 3rd Judicial District Court of Anderson County, Texas. Said petition for writ of
mandamus having been filed herein on December 7, 2016, and the same having been duly
considered, because it is the opinion of this Court that the writ should not issue, it is therefore
CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be,
and the same is, hereby DENIED.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and J., Neeley