in Re Lexter Kennon Kossie

• Court: Court of Appeals of Texas
• Decided: April 25, 2013
• Docket: 14-13-00324-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed April 25, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00324-CR

IN RE LEXTER KENNON KOSSIE, Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 185th District Court Harris County, Texas Trial Court Cause No. 679887

MEMORANDUM OPINION

On April 15, 2013, relator Lexter Kennon Kossie filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Susan Brown, presiding judge of the 185th District Court of Harris County to grant him a new trial. Relator was convicted in 1994 of aggravated robbery and sentenced to life in prison. At trial, relator’s request to instruct the jury on the lesser-included offense of theft was denied. Relator’s appellate counsel failed to challenge this denial on direct appeal. See Kossie v. State, No. 14-94-01171-CR; 1997 WL 109996 (Tex. App.—Houston [14th Dist.] Mar. 13, 1997, no pet.)(not designated for publication). Relator filed state and federal habeas petitions with several claims, which were denied. See Ex parte Kossie, 2008 WL 366681 (Tex. Crim. App. 2008); Kossie v. Thaler, 423 Fed.Appx. 434 (5th Cir. 2011) cert. denied 132 S.Ct. 766 (2011). The United States District Court concluded that relator satisfied the deficiency prong of Strickland v. Washington, 466 U.S. 668 (1984), but did not establish that the Texas court’s conclusion that there was no prejudice was not objectively reasonable. Kossie v. Thaler, 423 Fed.Appx. at 441.

Relator asks this court to issue writ of mandamus to compel the trial court to grant him a new trial because he was entitled to a jury instruction on the lesser- included offense of theft. Although courts of appeals have jurisdiction in criminal matters, only the Texas Court of Criminal Appeals has jurisdiction over matters related to final post-conviction felony proceedings, such as relator’s request. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding). Because we do not have jurisdiction over the requested relief, the petition for writ of mandamus is ordered dismissed.

PER CURIAM

Panel consists of Justices Brown, Christopher, and McCally. Do Not Publish — TEX. R. APP. P. 47.2(b). 2