NOS. 12-20-00203-CR
12-20-00204-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
EMMIT BRAGER, § ORIGINAL PROCEEDINGS
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Emmit Brager, acting pro se, filed these original proceedings seeking writs of mandamus
to compel Respondent to withdraw an allegedly void cumulation order and judgment of
conviction. 1
For two reasons, we conclude Relator is not entitled to mandamus relief. First, Relator
has not shown that he first requested relief from the trial court. “Mandamus relief is not
available to compel an action which has not first been demanded of, and refused by, the trial
court.” In re Marshall, No. 14-09-00796-CR, 2010 WL 27054, at *2 (Tex. App.—Houston
[14th Dist.] Jan. 7, 2010, orig. proceeding) (mem. op., not designated for publication). To obtain
a writ of mandamus compelling the trial court to consider and rule on motion, relator must show
that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to
perform the act, and (3) failed or refused to do so. See In re Molina, 94 S.W.3d 885, 886 (Tex.
App.–San Antonio 2003, orig. proceeding). Here, Relator does not provide this Court with a
record to show that he filed any type of motion or other document with Respondent to present
the complaints he asserts in these original proceedings, brought any such motion to Respondent’s
1
Respondent is the Honorable Mark A. Calhoon, Judge of the 3rd District Court in Anderson County,
Texas. The State of Texas is the Real Party in Interest.
attention and requested a hearing or ruling thereon, or that Respondent refused to act on the
motion within a reasonable time. See id.
Second, Brager was convicted of attempted murder in trial court cause number 20860 and
aggravated assault on a correctional officer in trial court cause number 20861, both in 1993. The
appropriate method for collaterally attacking a final felony conviction is by a petition for writ of
habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2005). This Court has no
jurisdiction over complaints that may be raised only by postconviction habeas corpus
proceedings brought under Article 11.07. See id. arts. 11.05, 11.07 (West 2005). Only the
convicting court and the court of criminal appeals have any role to play in attempts to raise
postconviction challenges to final felony convictions. See In re McAfee, 53 S.W.3d 715, 717
(Tex. App.–Houston [1st Dist.] 2001, orig. proceeding); see also Ater v. Eighth Court of
Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (in granting writ of
mandamus to vacate conviction appellate court found void, court of appeals usurped exclusive
authority of court of criminal appeals to grant postconviction relief); see also In re Colbert, No.
05-18-00340-CV, 2018 WL 1704149, at *1 (Tex. App.—Dallas Apr. 9, 2018, orig. proceeding)
(mem. op.) (no jurisdiction over mandamus proceeding seeking writ directing trial court to
vacate cumulation order from final felony conviction); Noble v. State, No. 05-17-01409-CR,
2017 WL 6547083, at *2 (Tex. App.—Dallas Dec. 22, 2017, no pet.) (mem. op., not designated
for publication) (to extent appellant sought to challenge purportedly void judgment by filing
post-conviction habeas application, appellate court had no jurisdiction over such proceedings).
Accordingly, for these reasons, we deny Relator’s petitions for writ of mandamus.
Opinion delivered September 16, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 16, 2020
NO. 12-20-00203-CR
EMMIT BRAGER,
Relator
V.
HON. MARK A. CALHOON,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Emmit Brager; who is the relator in appellate cause number 12-20-00203-CR and the defendant
in trial court cause number 20861, in the 3rd Judicial District Court of Anderson County, Texas.
Said petition for writ of mandamus having been filed herein on August 19, 2020, 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 denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 16, 2020
NO. 12-20-00204-CR
EMMIT BRAGER,
Relator
V.
HON. MARK A. CALHOON,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Emmit Brager; who is the relator in appellate cause number 12-20-00204-CR and the defendant
in trial court cause number 20860, in the 3rd Judicial District Court of Anderson County, Texas.
Said petition for writ of mandamus having been filed herein on August 24, 2020, 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 denied.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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