

NO. 12-10-00297-CR
 
IN THE COURT OF APPEALS          
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
IN RE:                                                              
§       
 
MICHAEL KENNEDY,                                  
§                   ORIGINAL PROCEEDING
            
RELATOR                                                       
§                   



MEMORANDUM
OPINION
PER
CURIAM
            In this original proceeding,
Relator Michael Kennedy complains of various actions of the trial court related
to his criminal trial and conviction.  We dismiss the petition in part and deny
it in part.
 
Background
            Relator
was charged with theft, and the case was tried to a jury.  Relator was allowed
to represent himself at trial, but with standby counsel.  He was convicted,
sentenced to sixty-two years of imprisonment, and fined ten thousand dollars. 
Relator immediately informed the trial court that he wanted to represent himself
on appeal.  The trial court denied his request and appointed appellate
counsel.  This court affirmed Relator’s conviction, but remanded for a new
sentencing hearing.  See Kennedy v. State, No. 12-08-00246-CR,
2009 WL 4829989, at *4 (Tex. App.–Tyler Dec. 16, 2009, pet. stricken) (mem.
op., not designated for publication).
 
Availability of Mandamus
            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). 
            Relator
first complains that he was prevented from asserting in his trial for felony
theft, and on appeal from his conviction, that no crime had been committed. 
Thus, he contends, his due process rights were violated because he was
convicted on no evidence.  On April 30, 2010, this court issued its mandate in
Relator’s appeal.  See Tex. R.
App. P. 18.1(a).  Therefore, Relator has exhausted his appeals and is
now, in substance, seeking habeas relief.  See Tex. Code Crim. Proc. Ann. art. 11.07 § 1 (Vernon Supp.
2010).   We are not authorized to act on a petition for writ of habeas corpus
seeking relief from a final felony conviction.  See Tex. Gov’t Code Ann. § 22.221(d)
(Vernon 2004).  The Texas Court of Criminal Appeals has exclusive jurisdiction
over postconviction writs of habeas corpus in felony cases.  Tex. Code Crim. Proc. Ann. art. 11.07
§ 3 (Vernon Supp. 2010).  Therefore, we are without jurisdiction to
consider Relator’s complaints pertaining to his theft conviction.
            Relator
further complains that the trial court has not issued a capias for him to be
brought back to Anderson County to await his new sentencing hearing.  The
information furnished to this court indicates that the new sentencing hearing
is scheduled for October 26, 2010.  Relator has not cited any authority, nor are
we aware of any, supporting his position that the trial court had a ministerial
duty to issue the capias upon receipt of this court’s mandate in the appeal. 
Therefore, Relator has not satisfied the second prerequisite to mandamus. 
Because Relator has not shown that he seeks to compel an act that is
ministerial, we need not address whether he has an adequate remedy at law.
 
Disposition
            Based
upon the foregoing analysis, we (1) dismiss the portion of
Relator’s petition relating to his complaint about his theft conviction and (2)
deny the portion relating to his complaint about the trial
court’s failure to issue a capias.
Opinion delivered September 30, 2010.
Panel consisted of
Worthen, C.J., Griffith, J. and Hoyle, J.
 
(DO
NOT PUBLISH)

