in Re: Michael Kennedy ( 2011 )

NO. 12-11-00217-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
MICHAEL A. KENNEDY, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
Relator Michael A. Kennedy alleges in this original proceeding that the trial court has
“denied and prevented [him] a right to challenge [his] conviction and to remove excessive
punishment and sentence and a right to counsel.” We deny the petition.
BACKGROUND
Relator was charged with theft of property worth more than $1,500 and less than
$20,000. The indictment alleged that the victim was elderly, which elevated the punishment
range from that of a state jail felony to that of a third degree felony. The indictment also
contained a single enhancement paragraph alleging that Relator had previously been convicted of
a felony offense. At trial, the State was permitted to seek an enhanced sentence based on
Relator’s previous convictions for two felony offenses, instead of one as alleged in the
indictment. The jury found Relator guilty and assessed punishment at imprisonment for sixty-
two years and a fine of $10,000. See Kennedy v. State, No. 12-08-00246-CR, 2009 WL 4829989,
at *1 (Tex. App.–Tyler Dec. 16, 2009, pet. stricken) (mem. op., not designated for publication).
On appeal, Relator argued, and this court held, that one of the convictions used to
enhance Relator’s sentence was not shown to be a final conviction. Accordingly, this court
reversed the trial court’s judgment with respect to the punishment imposed and remanded the
case to the trial court for a new punishment hearing. See id., at *4. On remand, the trial court
conducted a new punishment hearing, and the jury assessed Relator’s punishment at ninety-nine
years of imprisonment. The trial court sentenced Relator in accordance with the jury’s
punishment verdict. Relator filed a notice of appeal from the trial court’s judgment, and that
appeal is now pending in this court’s cause number 12-11-00041-CR.
PREREQUISITES TO MANDAMUS
To obtain mandamus relief in a criminal case, a relator must demonstrate that he does
not have an adequate remedy at law to redress his alleged harm and that 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 aspect of this two part test, mandamus relief
should be denied. Id. Additionally, a relator must furnish a record sufficient to support his claim
for mandamus relief. See TEX. R. APP. P. 52.7(a).
AVAILABILITY OF MANDAMUS
In his mandamus petition, Relator first complains that his sentence is “legally void in
violation of [the] indictment and without legal authorities.” The courts of appeals have limited
mandamus jurisdiction over criminal law matters. Dickens v. Second Court of Appeals, 727
S.W.2d 542, 548 (Tex. Crim. App. 1987). A claim of illegal sentence for a felony conviction is
not an appropriate basis for mandamus relief, but instead is a matter for habeas relief. See TEX.
CODE CRIM. PROC. ANN. arts. 11.01 (Vernon 2005), 11.07 (Vernon Supp. 2010); see also Ex
parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006) (holding that a claim of illegal
sentence is cognizable on a postconviction writ of habeas corpus). In this case, however, Relator
has not filed a brief in his pending appeal. Therefore, he can challenge the legality of his
sentence in that proceeding. See, e.g., Baker v. State, 278 S.W.3d 923, 924-25 (Tex. App.–
Houston [14th Dist.] 2009, pet. ref’d) (addressing claim of illegal sentence by direct appeal).
Relator next attempts to challenge his conviction asserting that he “has no rights or
remedies to challenge his conviction by ways of habeas corpus or any legal authorities that
insufficient evidence can be raised by ways of habeas corpus. . . .” This court has affirmed his
conviction. See Kennedy, 2009 WL 4829989, at *4. Our mandate issued on April 30, 2010, and
the judgment is final. Relator cannot collaterally attack a final felony conviction by mandamus.
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See, e.g., In re Green, No. 14-10-00452-CR, 2010 WL 2195435, at *1 (Tex. App.–Houston
[14th Dist.] June 3, 2010, orig. proceeding) (mem. op., not designated for publication); In re
Harrison, No. 06-08-00098-CV, 2008 WL 4147325, at *1 (Tex. App.–Texarkana Sept. 10,
2008, orig. proceeding [mandamus denied]) (mem. op., not designated for publication).
Finally, Relator informs us that on June 4, 2011, he filed a motion informing the trial
court that he “may need help by a standby counsel or a right to his Sixth Amendment rights to
counsel.” He requests this assistance only if he is unable to complete his appeal or file an
appellate brief due to his indigence or the State refuses to provide any indigent supplies. He
asserts further that “the [trial] court should grant a hearing to appoint counsel if prison official[s]
will not provide [Relator] indigent supplies.” Relator’s request for counsel is prospective only
and is contingent on events that may not occur. Therefore, even without the record required by
Rule 52.7(a), we can conclude that the trial court has not violated a ministerial duty regarding
appointment of counsel for Relator.
DISPOSITION
For the reasons explained above, Relator has failed to show that he is entitled to
mandamus relief. Accordingly, his petition for writ of mandamus is denied.
BRIAN HOYLE
Justice
Opinion delivered July 29, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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