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In re Kennedy

Court of Appeals of Texas, Twelfth District, Tyler
Aug 3, 2011
No. 12-11-00229-CR (Tex. App. Aug. 3, 2011)

Opinion

No. 12-11-00229-CR

Opinion delivered August 3, 2011. DO NOT PUBLISH.

Original Proceeding.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.


MEMORANDUM OPINION


This is an original proceeding. Relator Michael Allyn Kennedy complains in his "Petition for Prohibitation and Motion to Reverse Trial Court Conviction and Punishment and Sep[a]rate Mandamus" that he has been denied the right to challenge his conviction and punishment in trial court cause number 12326. Because we have no jurisdiction to grant the relief he requests, we dismiss.

BACKGROUND

Relator was charged with theft of property worth more than $1,500 and less than $20,000. The indictment alleged that the victim was elderly, which elevated the punishment range from that of a state jail felony to that of a third degree felony. The indictment also contained a single enhancement paragraph alleging that Relator had previously been convicted of a felony offense. At trial, the State was permitted to seek an enhanced sentence based on Relator's previous convictions for two felony offenses, instead of one as alleged in the indictment. The jury found Relator guilty and assessed punishment at imprisonment for sixty-two years and a fine of $10,000. See Kennedy v. State , No. 12-08-00246-CR, 2009 WL 4829989, at *1 (Tex. App.-Tyler Dec. 16, 2009, pet. stricken) (mem. op., not designated for publication). On appeal, Relator argued, and this court held, that one of the convictions used to enhance Relator's sentence was not shown to be a final conviction. Accordingly, this court reversed the trial court's judgment with respect to the punishment imposed and remanded the case to the trial court for a new punishment hearing. See id. , at *4. On remand, the trial court conducted a new punishment hearing, and the jury assessed Relator's punishment at ninety-nine years of imprisonment. The trial court sentenced Relator in accordance with the jury's punishment verdict. Relator filed a notice of appeal from the trial court's judgment, and that appeal is now pending in this court's cause number 12-11-00041-CR.

AVAILABILITY OF RELIEF

Although the title of Relator's petition indicates that he is seeking a writ of mandamus and a writ of prohibition, his request for relief reads as follows:
For these reasons this court should reverse [the] conviction or show how a crime or offense [was] committed since there [are] no remedies by habeas corpus to address this conviction or no crime or offense committed, the conviction should be reversed for a new trial in case no. 29326 Kennedy v. State from Anderson County, Texas.
This court has affirmed Relator's conviction. See Kennedy , 2009 WL 4829989, at *4. Our mandate issued on April 30, 2010, and the judgment is final. Therefore, Relator's request for relief is, in substance, a request for postconviction habeas relief. See Ex parte Adams , 768 S.W.2d 281, 287 (Tex. Crim. App. 1989). The court of criminal appeals has sole jurisdiction to grant postconviction habeas relief from a final felony conviction. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3(a) (Vernon Supp. 2010).

DISPOSITION

Because we are without jurisdiction to grant postconviction habeas corpus relief from a final felony conviction, we dismiss Relator's petition for want of jurisdiction. All pending motions are overruled as moot.


Summaries of

In re Kennedy

Court of Appeals of Texas, Twelfth District, Tyler
Aug 3, 2011
No. 12-11-00229-CR (Tex. App. Aug. 3, 2011)
Case details for

In re Kennedy

Case Details

Full title:IN RE: MICHAEL ALLYN KENNEDY, RELATOR

Court:Court of Appeals of Texas, Twelfth District, Tyler

Date published: Aug 3, 2011

Citations

No. 12-11-00229-CR (Tex. App. Aug. 3, 2011)