Ex Parte Wayne Burton--Appeal from 411th District Court of San Jacinto County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-07-324 CR
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EX PARTE WAYNE BURTON
On Appeal from the 411th District Court
San Jacinto County, Texas
Trial Cause No. 8638
MEMORANDUM OPINION

In this Article 11.072 appeal, we hold the issues raised are not cognizable and affirm the trial court's order denying the application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005).

A jury found Wayne Burton guilty of an aggravated assault committed on his estranged wife. The jury acquitted Burton of aggravated sexual assault in the same proceeding. The jury assessed a ten-year sentence and a $10,000 fine, and recommended that the sentence of confinement be probated. Deciding the appeal under a docket equalization order, the Waco Court of Appeals found the evidence to be legally and factually sufficient to support the jury's verdict and affirmed the judgment. See Burton v. State, No. 10-04-235 CR, 2005 WL 2234002, *1-2 (Tex. App.--Waco Sept. 14, 2005, pet. dism'd). The trial court subsequently denied Burton's application for writ of habeas corpus, and Burton perfected this appeal. See Tex. Code Crim. Proc. Ann. art. 11.072. Burton's two issues challenge the legal and factual sufficiency of the evidence to support the conviction for aggravated assault. (1) Burton contends the trial court erred in denying his habeas corpus application because the evidence was legally and factually insufficient to prove his guilt. The appellate court considered and rejected these complaints on direct appeal. Burton, 2005 WL 2234002 at *1-2. "It is well settled by the decisions of the Court of Criminal Appeals that the merits of a case involving the guilt or innocence of an accused are not a proper subject of inquiry in a habeas corpus proceeding." Ex parte Banspach, 130 Tex. Crim. 3, 91 S.W.2d 365, 365 (Tex. Crim. App. 1936). "[A] challenge to the sufficiency of the evidence used to sustain a felony conviction is not cognizable on an application for a post-conviction writ of habeas." Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004) (footnote omitted). Although it involved an Article 11.07 writ, the principles expressed in Grigsby apply here because Article 11.072 expressly provides that "[a]n application may not be filed under this article if the applicant could obtain the requested relief by means of an appeal . . . ." Tex. Code Crim. Proc. Ann. art. 11.072, 3(a).

Burton offered no newly discovered or newly available evidence, and there is no error rendering Burton's conviction constitutionally invalid. See Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). He merely seeks to obtain another review of the evidence from his trial and another assessment of the complainant's credibility. We overrule Burton's issues and affirm the trial court's order denying habeas corpus relief.

AFFIRMED.

 

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CHARLES KREGER

Justice

 

Submitted on October 2, 2007

Opinion Delivered October 10, 2007

Do not publish

 

Before Gaultney, Kreger, and Horton, JJ.

1. The trial court ruled on the merits of the habeas corpus application. We have jurisdiction over the appeal. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991).