

NO. 12-08-00485-CR


IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS

 

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IN RE: MICHAEL ALLYN KENNEDY,
RELATOR§
	JUDICIAL DISTRICT COURT OF


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MEMORANDUM OPINION
	In this original mandamus proceeding, Relator Michael Allyn Kennedy complains that
the trial court assessed a sentence that is outside the maximum punishment range and overruled
Kennedy's motion to represent himself on appeal.  
	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).  A
sentence that is outside the maximum or minimum range of punishment is unauthorized by law
and is therefore illegal.  Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). 
Moreover, the Sixth and Fourteenth Amendments guarantee that a person brought to trial in any
state or federal court must be afforded the right to the assistance of counsel before he can be
validly convicted and punished for any felony.  Faretta v. California, 422 U.S. 806, 807-08,
95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562 (1975).  Those amendments also guarantee that any such
defendant may waive his right to counsel and make his own defense.  Id., 422 U.S. at 818-20,
95 S.Ct. at 2533.  A waiver of counsel, to be constitutionally effective, must be made
competently, knowingly and intelligently, and voluntarily.  Collier v. State, 959 S.W.2d 621,
625-26 (Tex. Crim. App. 1997) (citing Godinez v. Moran, 509 U.S. 389, 400-01, 113 S.Ct.
2680, 2687, 125 L.Ed.2d 321 (1993)).  The decision to waive counsel and proceed pro se is
made knowingly and intelligently if it is made with a full understanding of the right to counsel
and the dangers and disadvantages of self-representation.  Faretta, 422 U.S. at 834-36, 95 S.Ct.
at 2541.  The decision is made voluntarily if it is uncoerced.  Godinez, 509 U.S. at 401 n.12,
113 S.Ct. at 2687 n.12.  This right extends beyond trial into the appellate process.  Webb v.
State, 533 S.W.2d 780,784 (Tex. Crim. App. 1976).
	A defendant may obtain relief from an illegal sentence on direct appeal or by a writ of
habeas corpus.  Mizell, 119 S.W.3d at 806.  And when a trial court overrules a defendant's
request to represent himself in a criminal trial, that ruling may be challenged on appeal.  See,
e.g., Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988).  Consequently, Kennedy
has an adequate remedy at law and cannot meet the first condition for mandamus relief. 
Accordingly, his petition for writ of mandamus is denied. 


  JAMES T. WORTHEN 
									     Chief Justice


Opinion delivered December 23, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.














(DO NOT PUBLISH)
