in Re: Derrick Shawn Culberson ( 2022 )

DENIED and Opinion Filed November 16, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01204-CV
IN RE DERRICK SHAWN CULBERSON, Relator
Original Proceeding from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F98-30801-T
MEMORANDUM OPINION
Before Justices Myers, Nowell, and Goldstein
Opinion by Justice Myers
Relator Derrick Shawn Culberson, a pro se inmate, seeks a writ of mandamus
to compel the trial court to vacate its order granting Culberson’s own motion for
judgment nunc pro tunc in his criminal case. We deny relief for multiple reasons.
First, the person filing a mandamus petition must certify that he or she has
reviewed the petition and concluded that every factual statement in the petition is
supported by competent evidence included in the appendix or record. In re Butler,
270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding) (quoting TEX. R.
APP. P. 52.3(j)). Culberson has included no such certification in his mandamus
petition.
Second, although Culberson filed a petition for writ of mandamus, his petition
collaterally attacks his felony conviction and seeks what should be characterized as
article 11.07 habeas relief. See In re Phillips, Nos. 05-21-01068-CV through 05-21-
01070-CV, 2022 WL 278240, at *1 (Tex. App.—Dallas Jan. 31, 2022, orig.
proceeding) (mem. op., not designated for publication). “The only proper means of
collaterally attacking a final felony conviction is via petition for writ of habeas
corpus under article 11.07 of the code of criminal procedure.” In re Morrison, No.
05-15-00519-CV, 2015 WL 1910329, at *1 (Tex. App.—Dallas 2015, orig.
proceeding) (mem. op., not designated for publication). Only the Texas Court of
Criminal Appeals may grant article 11.07 relief, and Culberson thus seeks habeas
relief that we have no jurisdiction to grant. See id. (concluding we lacked
jurisdiction over complaints that should be raised in post-conviction 11.07 writ
application).
Third, Culberson asked the trial court to enter the very same nunc pro tunc
judgment that he now complains the trial court was wrong to render, which brings
the invited-error rule into play. See Woodall v. State, 336 S.W.3d 634, 644 (Tex.
Crim. App. 2011). “The law of invited error provides that a party cannot take
advantage of an error that it invited or caused, even if such error is fundamental.”
Id. Under this rule, Culberson is estopped from seeking relief based on an action
that he induced. See id.–2–
Fourth, Culberson had an adequate remedy at law by appealing the nunc pro
tunc judgment, which conflicts with the first mandamus element for criminal cases.
See In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). To be
entitled to mandamus relief, the relator must show two things: (1) that he has no
adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. Id.The Texas Court of Criminal Appeals has “consistently recognized” nunc pro tunc
judgments as appealable orders, thus making “a judicially-recognized legal remedy
available” by appeal. Blanton v. State, 369 S.W.3d 894, 903 (Tex. Crim. App. 2012);
see In re Altschul, Nos. 14-21-00018-CR through 14-21-00020-CR, 2021 WL
509846, at *1 (Tex. App.—Houston [14th Dist.] Feb. 11, 2021, orig. proceeding)
(per curiam) (mem. op., not designated for publication) (denying mandamus relief
because a relator in a criminal case “had an adequate remedy by appeal from the trial
court’s judgments nunc pro tunc”).
For all these reasons, we deny relator’s petition for writ of mandamus.
/Lana Myers/
LANA MYERS
221204f.u05 JUSTICE
Do not publish.
TEX. R. APP. P. 47.2(b)
–3–