IN RE: MICHAEL KENNEDY

Reset A A Font size: Print

Court of Appeals of Texas, Tyler.

IN RE: MICHAEL KENNEDY, RELATOR MICHAEL KENNEDY, Relator v. HON. MARK A. CALHOON, Respondent

NO. 12-17-00119-CR

Decided: April 28, 2017

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

MEMORANDUM OPINION PER CURIAM

Relator, Michael Kennedy, files this original proceeding, in which he complains that the trial court entered a false judgment in trial court cause number 29326. Relator's conviction has been final for several years, and cause number 29326 is no longer 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). Therefore, Relator's petition for writ of mandamus is an impermissible attempt to collaterally attack his conviction. This Court has no authority over post-conviction criminal complaints.1 See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also In re Briscoe, 230 S.W.3d 196, 196-97 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding); In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). “To complain about any action, or inaction, of the convicting court, the applicant may seek mandamus relief from the Court of Criminal Appeals.” In re Briscoe, 230 S.W.3d 196, 196-97 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding). Accordingly, we dismiss Relator's petition for writ of mandamus for want of jurisdiction.

JUDGMENT

ON THIS DAY came to be heard the petition for writ of mandamus filed by Michael Kennedy. Said petition for writ of mandamus having been filed herein on April 13, 2017, and the same having been duly considered, because it is the opinion of this Court that it lacks jurisdiction, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby dismissed for want of jurisdiction.

FOOTNOTES

1.   On February 15, 2017, the Texas Court of Criminal Appeals issued an abuse of writ order against Relator, in which it found that he (1) filed seven applications regarding his conviction, (2) “continues to raise issues that have been presented and rejected in previous applications or that should have been presented in previous applications[,]” and (3) “[b]ecause of his repetitive claims, ․ Applicant's claims are barred from review under Article 11.07, § 4, and are waived and abandoned by his abuse of the writ.” Ex Parte Kennedy, No. WR-75,385-24 (Tex. Crim. App. Feb. 15, 2017). Relator has continued, unsuccessfully, to seek relief in the court of criminal appeals. See Ex Parte Kennedy, No. WR-75,385-26 (Tex. Crim. App. April 12, 2017) (denying motion for leave to file application for writ of habeas corpus).

By per curiam opinion.