                                   NO. 12-10-00445-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 complains in this original mandamus proceeding that the
trial court’s failure to conduct his new sentencing hearing has violated his right to a speedy trial.
See generally Kennedy v. State, No. 12-08-00246-CR, 2009 WL 4829989 (Tex. App.–Tyler
Dec. 16, 2009, pet. stricken) (affirming theft conviction, but reversing judgment as to sentencing
and remanding for new sentencing hearing). Specifically, Relator states that the October 26,
2010 sentencing hearing was postponed and that one or more witnesses he planned to call for the
October 26, 2010 hearing have died. Consequently, he argues, the trial court’s postponement of
the hearing violated his due process rights to call witnesses that would “refute and dispute” the
prior felony convictions alleged as enhancements in his original trial. Finally, he requests an
order directing the trial court (1) to conduct the new sentencing hearing in ten days and (2) to not
allow any prior felony convictions to be used for enhancement purposes. We construe these
statements as a complaint that the trial court has violated his right to a speedy trial, that he has
been prejudiced thereby, and that the relief he seeks is the appropriate remedy for the trial court’s
conduct.
       The traditional test for determining whether mandamus is appropriate in a criminal case
requires the relator to establish two things. Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim.
App. 2009). First, he must show that he has no adequate remedy at law. See id. Second, he
must show that the act he seeks to compel does not involve a discretionary or judicial decision.
Id. In other words, the act must be ministerial. See id. Relator presents no argument or
authority relating to either of these prerequisites to mandamus. See TEX. R. APP. P. 52.3(h).
Moreover, the Texas Court of Criminal Appeals has held that appeal is available “to test any
asserted denial of his right to a speedy trial, both on a statutory and constitutional basis.”
Ordunez v. Bean, 579 S.W.2d 911, 913-14 (Tex. Crim. App. 1979). Therefore, mandamus is not
available for that purpose.           See id.     Accordingly, we deny Relator’s petition for writ of
mandamus.


                                                                   BRIAN HOYLE
                                                                       Justice


Opinion delivered January 19, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



                                                           2
