In Re: Michael Kennedy Appeal from 3rd District Court of Anderson County (memorandum opinion per curiam)
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NO. 12-17-00287-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § MICHAEL KENNEDY, § RELATOR § ORIGINAL PROCEEDING MEMORANDUM OPINION PER CURIAM Michael Kennedy has filed a petition for writ of mandamus, in which he raises various post-conviction complaints regarding his felony conviction in trial court cause number 18,349. We dismiss the petition for want of jurisdiction. Article 11.07 is the exclusive procedure available to an applicant seeking relief from a felony judgment imposing a penalty other than death. See TEX. CODE CRIM. PROC. ANN. art. 11.07 §§ 1, 5 (West 2005). This Court does not have authority to issue a writ as to complaints, such as those asserted by Relator, that may only be presented by a post-conviction habeas corpus proceeding. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also 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).1 Accordingly, we dismiss Relator’s petition for writ of mandamus for want of jurisdiction. 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). We also note that the filing of frivolous proceedings wastes scarce judicial and fiscal resources. See Opinion delivered September 29, 2017. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) Ex parte Jones, 97 S.W.3d 586, 588 (Tex. Crim. App. 2003); see also In re Lucas, No. 09-14-00106-CR, 2014 WL 1285396 (Tex. App.—Beaumont Mar. 26, 2014, orig. proceeding) (mem. op., not designated for publication). 2 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT SEPTEMBER 29, 2017 NO. 12-17-00287-CR IN RE: MICHAEL KENNEDY, Relator ORIGINAL PROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus filed by Michael Kennedy; who is the relator in Cause No. 18349. Said petition for writ of mandamus having been filed herein on September 21, 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. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J. 3
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