NO. 12-10-00321-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
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IN RE: MICHAEL KENNEDY,
RELATOR ' ORIGINAL PROCEEDING
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MEMORANDUM OPINION
PER CURIAM
Relator Michael Kennedy has filed a petition for writ of mandamus in which he
relies on three grounds for the requested relief.
RELATOR’S COMPLAINTS
Relator first urges that there is no evidence to support his conviction for theft and
complains that the trial court has refused to address his appeals or his motion for new
trial. When a conviction has been affirmed on appeal and the mandate has issued,
general jurisdiction is not restored in the trial court. State v. Patrick, 86 S.W.3d 592, 594
(Tex. Crim. App. 2002). Instead, the trial court has special or limited jurisdiction to
ensure that the higher court’s mandate is carried out and to perform other functions
specified by statute, such as finding facts in a habeas corpus setting or determining
entitlement to DNA testing. Id. In December 2009, we affirmed Relator’s theft
conviction, reversed the trial court’s judgment as it related to his punishment, and
remanded the case to the trial court for a new punishment 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). Consequently, the trial court’s
jurisdiction now is statutorily limited to punishment issues. See TEX. CODE CRIM. PROC.
ANN. art. 44.29(b) (Vernon 2010) (addressing effect of remand when reversible error
pertains to punishment only). Therefore, the trial court has no jurisdiction to address
issues relating to Relator’s conviction. See id.
Relator next alleges that the trial court has failed to issue a capias requiring his
immediate transfer to the Anderson County jail where he would remain until after his
October 26, 2010 punishment hearing. Specifically, Relator asserts that he filed a motion
for the issuance of a capias and the trial court was required to “comply with” the motion
within ninety days. As authority, he cites Texas Rule of Appellate Procedure 51.2.
However, rule 51.2 relates to the issuance of a capias when the judgment contains a
sentence of confinement or imprisonment that has not been suspended and the defendant
is not in custody. See TEX. R. APP. P. 51.2(b)(1). Rule 51.2 does not apply to the facts
presented here.
Finally, Relator maintains that the trial court has refused to rule on Relator’s
motion to represent himself at the upcoming punishment hearing. Relator has furnished
this court a copy of the notice of setting provided to him by the trial court. The notice
specifically states that “[a]ny pre-trial matters set out in Article 28.01 of the Texas Code
of Criminal Procedure must be raised by pleadings filed seven days before the pre-
trial hearing, and will not thereafter be allowed to be raised or filed except by
permission of the Court for good cause shown.” Relator has not alleged anything in his
petition that causes us to believe the trial court will not address all pretrial motions prior
to the hearing.
CONCLUSION
This court has authority to issue a writ of mandamus in a criminal case only if the
relator shows (1) he has no adequate remedy at law and (2) the act sought to be
compelled is ministerial. Ater v. Eighth Court of Appeals, 82 S.W.2d 241, 243 (Tex.
Crim. App. 1991). Based upon our review of the record and the foregoing analysis, we
conclude that Relator has not made the required showing and therefore has not
established that he is entitled to mandamus relief. Accordingly, we deny Relator's
petition for writ of mandamus.
Opinion delivered October 20, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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