In Re: David A. Kelly v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 31, 2023
• Docket: 12-23-00105-CR
• Status: Published

Opinion

NO. 12-23-00105-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE: §

DAVID A. KELLY, § ORIGINAL PROCEEDING

RELATOR §

MEMORANDUM OPINION PER CURIAM David A. Kelly, acting pro se, filed this original proceeding to challenge Respondent’s failure to rule on his motion to withdraw plea of guilty. 1 On May 18, 2023, Respondent signed an order denying Relator’s motion. Because Respondent ruled on Relator’s motion, Relator received the relief requested and this complaint is now moot. See In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (orig. proceeding) (there is nothing to mandamus when relief sought has become moot); see also In re Hays, No. 12-19-00413-CR, 2019 WL 7987970, at *1 (Tex. App.—Tyler Feb. 19, 2019, orig. proceeding) (per curiam) (mem. op., not designated for publication) (dismissing as moot mandamus proceeding challenging failure to rule on motion for judgment nunc pro tunc because respondent ruled on motion); In re Andrews, No. 12-19-00015-CR, 2019 WL 210815, at *1 (Tex. App.—Tyler Jan. 16, 2019, orig. proceeding) (per curiam) (mem. op., not designated for publication) (mandamus proceeding challenging failure to rule on motion to compel dismissed as moot where respondent ruled on motion). Accordingly, we dismiss the petition for writ of mandamus as moot. 2 Opinion delivered May 31, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH) 1 Respondent is the Honorable Eddie Northcutt, Judge of the 8th District Court in Rains County, Texas. The State of Texas is the Real Party in Interest. 2 Relator’s mandamus petition failed to comply with certain appellate rules. This Court granted Relator an extension to June 22, 2023, to correct the defects. In the interim, however, Respondent ruled on Relator’s motion to withdraw guilty plea. COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT

MAY 31, 2023

NO. 12-23-00105-CR

DAVID A. KELLY, Relator V.

HON. EDDIE NORTHCUTT, Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by David A. Kelly; who is the relator in appellate cause number 12-23-00105-CR and the defendant in trial court cause number 6370, pending on the docket of the 8th Judicial District Court of Rains County, Texas. Said petition for writ of mandamus having been filed herein on April 25, 2023, 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 dismissed as moot. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.