Opinion
NO. 12-17-00269-CR
09-13-2017
IN RE: MICHAEL ALLYN KENNEDY, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Michael Allyn Kennedy has filed this original proceeding in which he requests that this Court order the trial court to conduct a pretrial hearing. He contends that no indictment was read during trial and he is entitled to a new trial. He has also filed a motion to recuse the justices of this Court.
Regarding Relator's motion to recuse, the applicable rules governing recusal apply to judges in which the case is pending. See TEX. R. APP. P. 16.3. Relator's criminal case, however, is no longer pending either in the trial court or this Court. See Kennedy v . State , No. 12-11-00041-CR, 2012 WL 3201924, at *8 (Tex. App.-Tyler Aug. 8, 2012, pet. ref'd) (mem. op., not designated for publication) (affirming judgment on punishment); see also Kennedy v . State , No. 12-08-00246-CR, 2009 WL 4829989, at *3-4 (Tex. App.-Tyler Dec. 16, 2009, pet. stricken) (mem. op., not designated for publication) (affirming judgment of conviction).
With respect to his petition for writ of mandamus, Relator has not provided the "clear and concise argument," "appropriate citations to authorities," and necessary documents as required by the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(h), (k), 52.7(a)(1). Nor has Relator demonstrated that he called any request for a hearing to the trial court's attention. See In re Chavez , 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding). Additionally, to the extent Relator 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). For these reasons, we deny Relator's petition for writ of mandamus. Opinion delivered September 13, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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).
We further note that Relator has repeatedly moved to recuse this Court and raised virtually identical complaints in previous proceedings. See In re Kennedy , No. 12-17-00245-CR, 2017 WL 3405102 (Tex. App.—Tyler Aug. 9, 2017, orig. proceeding) (mem. op., not designated for publication); see also In re Kennedy , 12-17-00177-CR, 2017 WL 2464692 (Tex. App.—Tyler June 7, 2017, orig. proceeding) (mem. op., not designated for publication); In re Kennedy , 12-17-00162-CR, 2017 WL 2351354 (Tex. App.—Tyler May 31, 2017, orig. proceeding) (mem. op., not designated for publication); In re Kennedy , 12-17-00123-CR, 2017 WL 1534040 (Tex. App.—Tyler April 28, 2017, orig. proceeding) (mem. op., not designated for publication); In re Kennedy , No. 12-17-00048-CR, 2017 WL 511889 (Tex. App.—Tyler Feb. 8, 2017, orig. proceeding) (mem. op., not designated for publication); In re Kennedy , 12-17-00035-CR, 2017 WL 361195 (Tex. App.—Tyler Jan. 25, 2017, orig. proceeding) (mem. op., not designated for publication); In re Kennedy , 12-16-00316-CR, 2016 WL 7187495 (Tex. App.—Tyler Dec. 9, 2016, orig. proceeding) (mem. op., not designated for publication). The filing of frivolous proceedings wastes scarce judicial and fiscal resources. See Ex parte Jones , 97 S.W.3d 586, 588 (Tex. Crim. App. 2003); see also In re Lucas , No. 09-14-00106-CR, 2014 WL 1285396 (Tex. App.—Beaumont Mar. 26, 2014, orig. proceeding) (mem. op., not designated for publication).
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MICHAEL ALLYN KENNEDY, Relator V. HON. MARK A. CALHOON, Respondent
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. 29326. Said petition for writ of mandamus having been filed herein on September 5, 2017, and the same having been duly considered, because it is the opinion of this Court that a 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.