in Re: Kentrail R. McCuin

DISMISS; and Opinion Filed February 4, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00100-CV
No. 05-19-00101-CV
No. 05-19-00102-CV
IN RE KENTRAIL R. MCCUIN, Relator
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F-12-51308-L, F-12-51309-L, and F-12-51310-L
MEMORANDUM OPINION
Before Justices Brown, Schenck, and Reichek
Opinion by Justice Schenck
In 2012, relator was convicted by a jury of evading arrest or detention, unlawful possession
of a firearm by a felon, and possession with intent to deliver more than one gram and less than four
grams of cocaine in a drug-free zone while using or exhibiting a deadly weapon. McCuin v. State,
Nos. 05-12-01148-CR, 05-12-01149-CR & 05-12-01150-CR, 2013 WL 3929215 (Tex. App.—
Dallas July 26, 2013, no pet.) (not designated for publication). The trial court assessed punishment
at two years’ imprisonment in the evading case, five years’ imprisonment in the firearm case, and
twenty years’ imprisonment in the delivery case, and ordered that the sentences be served
consecutively. Id. This Court affirmed his convictions. Id. Relator did not challenge the cumulation
order in his appeal. Id. In this original proceeding, relator complains that the consecutive sentences
constitute an improper cumulation order. Relator seeks a writ of mandamus directing the trial court
to set aside the cumulation order.
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. TEX. CODE CRIM. PROC. ANN. art. 11.07; see In re Colbert, No. 05-18-00340-CV, 2018
WL 1704149, at *1 (Tex. App.—Dallas Apr. 9, 2018, orig. proceeding) (mem. op.) (court lacked
jurisdiction over mandamus proceeding seeking writ directing trial court to vacate cumulation
order from final felony conviction); In re Taylor, No. 12-12-00240-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, post-conviction felony proceedings. TEX. CODE
CRIM. PROC. ANN. art. 11.07; 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). Because the relief sought in relator’s petition relates to post-conviction
relief from an otherwise final felony conviction, we are without jurisdiction to consider his petition
for writ of mandamus. In re Colbert, 2018 WL 1704149, at *1; see also In re Taylor, 2012 WL
3201959, at *1. Accordingly, we dismiss this proceeding for want of jurisdiction.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
190100F.P05
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