In Re: Tismon E. Colbert Appeal from 194th Judicial District Court of Dallas County (memorandum opinion)
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Dismissed w.o.j. and Opinion Filed April 9, 2018 In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00340-CV No. 05-18-00341-CV IN RE TISMON E. COLBERT, Relator Original Proceeding from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F91-40938-LM and F91-40939-LM MEMORANDUM OPINION Before Justices Lang-Miers, Fillmore, and Stoddart Opinion by Justice Stoddart On February 28, 1992, relator pleaded guilty, without a plea agreement, to aggravated sexual assault with a deadly weapon and aggravated robbery with a deadly weapon, and the trial court imposed consecutive life terms of imprisonment. See Colbert v. Thaler, No. 3:11-CV-1881O BK, 2011 WL 6156694, at *1 (N.D. Tex. Sept. 26, 2011) (citing State v. Colbert, No. F91– 40938 and F91–40939 (194th Jud. Dist. Court, Dallas County, 1992)). Relator did not appeal. See id. He did, however, file post-conviction petitions for writ of habeas corpus in the trial court and the Texas Court of Criminal Appeals that were denied. See id. In this original proceeding, relator complains that the consecutive life sentences constitute improper cumulation orders. Relator seeks a writ of mandamus directing the trial court to reform the judgment by removing the language that the sentence in cause number F91-40938-LM does not begin until the expiration of the sentence in cause number F91-40939-CM. This proceeding is a collateral attack on a final conviction and, therefore, falls within the scope of a post-conviction writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); see In re Taylor, No. 1212-00240-CR, 2012 WL 3201959, at *1 (Tex. App.—Tyler Aug. 8, 2012, orig. proceeding) (mem. op.) (dismissing original proceeding for want of jurisdiction where relator sought order directing the trial court to vacate cumulation order and reform the judgment to reflect that sentences are to run concurrently). Only the Texas Court of Criminal Appeals has jurisdiction in final, postconviction felony proceedings. Id; Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). As such, we may not grant a writ of mandamus, a writ of injunction, or any other writ that would result in vacating a judgment of conviction. See Ex parte Kennedy, No. 12-17-00279-CR, 2017 WL 4321333, at *1 (Tex. App.—Tyler Sept. 29, 2017, orig. proceeding) (mem. op.) (citing Ater, 802 S.W.2d at 243). Accordingly, we dismiss this proceeding for want of jurisdiction. /Craig Stoddart/ CRAIG STODDART JUSTICE 180340F.P05 –2–
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