NO. 12-10-00251-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
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IN RE: MICHAEL KENNEDY, ' ORIGINAL PROCEEDING
RELATOR
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MEMORANDUM OPINION
PER CURIAM
Relator Michael Kennedy filed a petition for writ of mandamus directing the trial
court to dismiss his counsel and to order a hearing on various motions Relator has filed.
We deny the petition.
BACKGROUND
Relator was charged with theft, and the case was tried to a jury. Relator was
allowed to represent himself at trial, but with standby counsel. He was convicted,
sentenced to sixty–two years of imprisonment, and fined ten thousand dollars. Relator
immediately informed the trial court that he wanted to represent himself on appeal. The
trial court denied his request and appointed appellate counsel. This court affirmed
Relator’s conviction, but remanded for a new sentencing 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).
AVAILABILITY OF MANDAMUS
This court has authority to issue a writ of mandamus in a criminal case if two
conditions are met: (1) there is no adequate remedy at law and (2) the act sought to be
compelled is ministerial. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.
Crim. App. 1991). In addition, a relator must furnish a record sufficient to support his
claim for mandamus relief. See TEX. R. APP. P. 52.7(a).
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Motion to Dismiss Counsel
Relator first complains that the trial court has refused to rule on his motion to
dismiss his counsel. However, Relator has not furnished a copy of this motion or any
documents showing that he has called any such motion to the trial court’s attention. See
TEX. R. APP. P. 52.7(a)(1) (requiring relator to file with petition a certified or sworn copy
of every document material to relator’s claim for relief and filed in any underlying
proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig.
proceeding) (no duty to rule until movant has brought motion to trial court’s attention;
mandamus unavailable absent a showing that trial court failed or refused to rule within
reasonable time thereafter).
Moreover, Relator has not furnished a copy of the trial court’s order appointing
counsel. The order received in this court in connection with Relator’s appeal limited his
counsel’s representation to the appeal (appellate cause number 12-08-00246-CR). This
court’s mandate in the appeal was issued on April 30, 2010, and counsel’s appointment
ended. No order appointing other counsel is included among the documents attached to
Relator’s petition.
“Insanity” Motions and Motions to Recuse Trial Judge
Relator further complains that the trial court has failed to set a hearing on his
“insanity” motions and his motions to recuse the trial judge. However, he has not
furnished a copy of these motions or any documents showing that he has called the
motions to the trial court’s attention. See TEX. R. APP. P. 52.7(a)(1); In re Chavez, 62
S.W.3d at 228. Additionally, from the cause numbers that Relator refers to in his
petition, it appears that a number of these motions were filed in connection with his trial
on the merits or his appeal after those proceedings had concluded. Relator cites no
authority for the proposition that the trial court is required to address these motions.
As to any motions relating to the new sentencing hearing, the information
provided to this court indicates that the hearing is scheduled for October 26, 2010. Even
if Relator had furnished copies of the necessary documents, he has not alleged anything
in his petition that causes us to believe the trial court will not address pretrial motions
prior to the hearing. See In re Newby, No. 07-07-00228-CV, 2007 WL 2066359, at *2
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(Tex. App.–Amarillo 2007, orig. proceeding [mand. denied]) (trial court given broad
discretion in managing its docket).
DISPOSITION
For the reasons set forth above, we conclude that Relator has not shown that he is
entitled to mandamus relief. Accordingly, his petition for writ of mandamus is denied.
Opinion delivered August 11, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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