in Re: Michael Kennedy ( 2007 )

                NO. 12-06-00433-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

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IN RE: MICHAEL KENNEDY,      §          ORIGINAL PROCEEDING

RELATOR

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MEMORANDUM OPINION

            Michael Kennedy seeks a writ of prohibition requiring the trial court to dismiss trial court cause number CCL-06-W-006 or to show cause why the State is holding Kennedy without evidence that he is guilty of forgery.¹  We deny the writ. 

            A writ of prohibition is proper to restrain enforcement of a future act and not to undo an act already performed.  State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 9 (Tex. Crim. App. 1983).  The writ is issued by a superior court to control, limit, or prevent action in a court of inferior jurisdiction.  Holloway v. Fifth Court of Appeals, 787 S.W.2d 680, 682 (Tex. 1989).  The writ is typically used to protect the subject matter of an appeal or to prohibit an unlawful interference with the enforcement of a superior court’s orders and judgments.  Id. at 683.  A writ of prohibition may also be used to set aside an improper order of the trial court or to restrain a trial court where its action would violate a statute.  See Ex parte Gray, 649 S.W.2d 640, 642 (Tex. Crim. App. 1983); State v. Baize, 981 S.W.2d 204, 206 n.3 (Tex. Crim. App. 1998). As with other extraordinary writs, the relator must establish that it has no adequate remedy at law.  In re Castle Tex. Prod. Ltd. P’ship, 157 S.W.3d 524, 527-28 (Tex. App.–Tyler 2005, orig. proceeding). 

            Here, Kennedy, in substance, seeks a determination from this court that the evidence against him in the underlying proceeding is insufficient to establish his guilt beyond a reasonable doubt.  Such a determination would be a decision on the merits of the case.  However, we cannot address the merits of the case because it is not before us on appeal. See State v. Stark, 203 S.W. 371, 371 (Tex. Civ. App.–El Paso 1918, no writ).  Accordingly, the petition for writ of prohibition is denied.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered January 24, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ The respondent is the Honorable B. Jeffrey Doran, Judge of the County Court at Law, Anderson County, Texas.  The State of Texas is the real party in interest.