Opinion
NO. 12-17-00296-CR
10-11-2017
EX PARTE: MICHAEL KENNEDY, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Michael Kennedy, acting pro se, appears to seek habeas corpus relief on grounds that he was convicted without a charging instrument.
A copy of Relator's indictment in trial court cause number 29326 is attached to this opinion as Appendix "A."
The appropriate method for collaterally attacking a final felony conviction is by a petition for writ of habeas corpus under Article 11.07 of the code of criminal procedure. TEX. CODE. CRIM. PROC. ANN. art. 11.07 § 5 (West 2005) ("After conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner."). This Court has no jurisdiction over complaints that may be raised only by postconviction habeas corpus proceedings brought under Article 11.07. See id . arts. 11.05, 11.07 (West 2005). Only the convicting court and the court of criminal appeals have any role to play in attempts to raise postconviction challenges to final felony convictions. In re McAfee , 53 S.W.3d 715, 717 (Tex. App.-Houston [1st Dist.] 2001, orig. proceeding). For that reason, we may not grant a writ of mandamus, a writ of injunction, or any other writ of any kind that would result in vacating a judgment of conviction. In re Cain , No. 12-15-00143-CR, 2016 WL 4379475, at *1 (Tex. App.—Tyler Aug. 17, 2016, orig. proceeding) (mem. op., not designated for publication); see Ater v . Eighth Court of Appeals , 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (holding that in granting writ of mandamus to vacate conviction appellate court found void, court of appeals usurped exclusive authority of court of criminal appeals to grant postconviction relief). Accordingly, we dismiss this application for writ of habeas corpus for want of jurisdiction . All pending motions are overruled as moot. Opinion delivered October 11, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
APPENDIX "A"
THEFT $1500-$20,000
Third Degree Felony - Enhanced to Second Degree
CAUSE NO. 29326
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS
The Grand Jurors for the County of Anderson, State of Texas, duly selected, impaneled, sworn, charged and organized as such as the December Term, A.D. 2007, of the Third Judicial District Court of said County, upon their oaths present in and to said Court, that MICHAEL ALLYN KENNEDY, on or about the 9th day of October, A.D., 2007, and before the presentment of this indictment, in said County and State, did then and there unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $1,500 or more but less than $20,000, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. On or about the 22nd day of October, 2007, unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $500 or more but less than $1,500, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. on or about the 30th day of October, 2007, unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $1,500 or more but less than $20,000, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. On or about the 31st day of October, 2007, unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $500 or more but less than $1,500, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. On or about the 6th day of November, 2007 unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $1,500 or more but less than $20,000, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. On or about the 15th day of November, 2007 unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $1,500 or more but less than $20,000, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. On or about the 16th day of November, 2007, unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $500 or more but less than $1,500, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. On or about the 19th day of November, 2007 unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $1,500 or more but less than $20,000, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. On or about the 3rd day of December, 2007, unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: money, of the value of $500 or more but less than $1,500, from Forrest Bradberry Sr., the owner thereof, who was then and there an elderly individual, without the effective consent of the owner, namely, by deception or coercion, and with intent to deprive the owner of the property. And it is further presented in and to said Court that all of the said amounts were obtained pursuant to one scheme or continuing course of conduct, and the aggregate value of the property obtained was $1,500 or more but less than $20,000" OR "$20,000 or more but less than $100,000. And it is further presented in and to said Court that, prior to the commission of the aforesaid offense, on the 16th day of September, 1986, in cause number 19061 in the 3rd Judicial District Court of Anderson County, Texas, the defendant was convicted of the felony offense of Burglary of a Building.
AGAINST THE PEACE AND DIGNITY OF THE STATE.
/s/_________
FOREPERSON OF THE GRAND JURY BOND: $100,000
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
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. 29326, pending on the docket of the 3rd Judicial District Court of Anderson County, Texas. Said petition for writ of mandamus having been filed herein on October 2, 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.