In Re: Michael Kennedy--Appeal from 3rd District Court of Anderson County

NO. 12-07-00021-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MICHAEL KENNEDY, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Michael Kennedy seeks a writ of mandamus requiring the trial court to set an examining trial, reduce the amount of his bond to $500, or show cause why Kennedy is being held in the Anderson County Jail.

To obtain mandamus in a criminal matter, the relator must establish that the act sought to be compelled is ministerial rather than discretionary in nature and there is no adequate remedy at law. Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987). After these prerequisites are met, we have jurisdiction to direct the trial court to consider and rule on pending matters, but we may not tell the trial court what ruling it should make. In re Hearn, 137 S.W.3d 681, 685 (Tex. App. San Antonio 2004, orig. proceeding).

Kennedy previously complained by petition for writ of mandamus that the trial court had not ruled on his motion for examining trial, his application for writ of habeas corpus for bond reduction, or his motion to dismiss the criminal charges against him. We denied relief because the record did not show that Kennedy had called these documents to the trial court s attention or requested hearings on them to determine their merit. In re Kennedy, No. 12-06-00433-CR, 2007 WL _______ (Tex. App. Tyler Jan. 24, 2007, orig. proceeding). In this proceeding, Kennedy asks that we issue mandamus requiring a particular ruling on his motion for an examining trial and his application for writ of habeas corpus for bond reduction. We cannot tell the trial court what ruling it should make on these matters. See In re Hearn, 137 S.W.3d at 685. Moreover, the purpose of mandamus is to compel a ministerial act where there is no adequate remedy at law. Dickens, 727 S.W.2d at 548. Mandamus jurisdiction does not include the authority to issue a show cause order under the facts presented here. Further, by seeking a show cause order, Kennedy attempts to secure a ruling from this court on his motion to dismiss the criminal charges against him. Such a ruling would be a decision on the merits of the case. 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).

The petition of writ of mandamus is denied.

SAM GRIFFITH

Justice

Opinion delivered January 24, 2007.

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

(DO NOT PUBLISH)