Opinion
NO. 12-17-00263-CR
09-06-2017
IN RE: MICHAEL ALL YN KENNED Y, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Relator, Michael Allyn Kennedy, has filed a petition for writ of mandamus, in which he requests that this Court order the trial court judge to produce a "judgment and conviction of trial court" in cause number 18,349. In 1984, Relator was convicted of burglary of a habitation and sentenced to imprisonment for five years in cause number 18,349. We affirmed the conviction. See generally Kennedy v . State , No. 12-84-00138-CR (Tex. App.—Tyler Apr. 18, 1985, pet. denied) (not designated for publication).
The district clerk has the duty to receive and file all papers in criminal cases. See TEX. CODE CRIM. PROC. ANN. art. 2.21 (West Supp. 2016). We know of no duty imposed upon trial judges to provide copies of documents that have been filed with the district clerk. Nor has Relator presented any argument or authority to show that the trial judge has any such duty. Consequently, Relator cannot meet his burden to establish that the action he seeks to compel is a ministerial act, and cannot show himself entitled to mandamus relief. See In re Kennedy , No. 12-12-00295-CR, 2012 WL 5359196 (Tex. App.—Tyler Oct. 31, 2012, orig. proceeding).
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); see also Ex parte Kennedy , No. WR-75,385-33 (Tex. Crim. App. July 26, 2017).
Additionally, to the extent Relator's petition raises complaints that may only be asserted by a post-conviction habeas corpus proceeding, we do not have the authority to issue such a writ. 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). We deny Relator's petition for writ of mandamus. Opinion delivered September 6, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by Michael Allyn Kennedy; who is the relator in Cause No. 18,349. Said petition for writ of mandamus having been filed herein on August 23, 2017, and the same having been duly considered, because it is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.