
In The


Court of Appeals


Ninth District of Texas at Beaumont


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NO. 09-03-016 CR

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EX PARTE FRANKLIN CANTRELL




On Appeal from the 359th District Court
Montgomery County, Texas

Trial Cause No. 02-11-07479-CV




OPINION
 Franklin Cantrell was convicted by a jury for criminal conspiracy to misapply
fiduciary property.  The trial court sentenced Cantrell to five years of imprisonment in the
Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000.00,
but suspended the imposition of the sentence and placed Cantrell on community supervision
for ten years.  The judgment was affirmed on appeal.  Cantrell v. State, 75 S.W.3d 503
(Tex. App.--Texarkana 2002, pet. ref'd). (1)  After the mandate issued, Cantrell filed an
original and an amended application for writ of habeas corpus pursuant to Tex. Code
Crim. Proc. Ann. art. 11.08 (Vernon 1977).  After a hearing in which no additional
evidence was received, the trial court denied the writ. 
	Cantrell raises two arguments in this appeal.  First, he contends that the evidence
is insufficient to establish beyond a reasonable doubt that he acted in a fiduciary capacity
to the complainant, as, he claims, the conspiracy indictment alleged.  Second, he asserts
that he is actually innocent of the crime of conviction because there is no evidence that he
acted in a fiduciary capacity to the complainant. 
	Our threshold determination is whether the claims presented are cognizable through
habeas corpus.  A challenge to the sufficiency of the evidence is not cognizable by way of
post-conviction collateral attack.  Ex parte McLain, 869 S.W.2d 349, 350 (Tex. Crim.
App. 1994).  Only where the judgment is void because there was no evidence to support
the judgment has a violation of due process been shown that justifies collateral attack.  See
Ex parte Moffett, 542 S.W.2d 184 (Tex. Crim. App. 1976).  Cantrell suggests that the
precedent developed under Article 11.07 is irrelevant to applications filed under Article
11.08.  We disagree.  The sufficiency of the evidence supporting the conviction would not
be cognizable on appeal following revocation of community supervision for the same
reasons that the sufficiency of the evidence is not cognizable under Article 11.07.  See
Traylor v. State, 561 S.W.2d 492, 494 (Tex. Crim. App. 1978).  We perceive no reason
to treat one form of collateral attack differently from another.    
	Applying the precedent established under Article 11.07 will not deprive Cantrell of
an adequate remedy.  The sufficiency of the evidence was determined in the appeal from
Cantrell's conviction.  See Cantrell v. State, 75 S.W.3d at 508-11.  The appellate court
rejected Cantrell's argument that he was not shown to be a fiduciary and that he could not
be convicted upon evidence that showed his conspirator to be the fiduciary.  Id at 511-12. 
Issue one asks us to again test the sufficiency of the evidence.  We hold that the issue is
not cognizable, and that the trial court therefore did not err in denying the writ of habeas
corpus based upon the application's claim that the evidence is insufficient to establish
beyond a reasonable doubt that he personally acted in a fiduciary capacity.  Issue one is
overruled.  
	Issue two is presented as an actual innocence claim.  Cantrell's argument under this
issue is virtually identical to his argument under his first issue; namely, that the trier of
fact could not have found an essential element of the offense of conspiracy to misapply
fiduciary property because there is no evidence that Cantrell was a fiduciary, only evidence
that he was a party to an offense in which another person was acting in a fiduciary capacity
to the complainant. 

	The Court of Criminal Appeal recently described claims of factual innocence:
		There are two types of actual innocence claims that may be raised in
a collateral attack on a conviction.  A bare innocence claim, or Herrera-type
[Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)]
claim "involves a substantive claim in which applicant asserts his bare claim
of innocence based solely on newly discovered evidence."  Ex parte
Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Schlup v.
Delo, 513 U.S. 298, 314, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); [Ex parte
Elizondo, 947 S.W.2d [202] at 208 [Tex. Crim. App. 1996]).  The other
actual innocence claim, a Schlup-type claim, we explained "is a procedural
claim in which applicant's claim of innocence does not provide a basis for
relief, but is tied to a showing of constitutional error at trial."  Ibid. (citing
Schlup, 513 U.S. at 314, 115 S.Ct. 851).

Ex parte Tuley, No. 74364, 2002 WL 31839169, 2002 Tex. Crim. App. LEXIS 239  (Tex.
Crim. App. Dec. 18, 2002).  Tuley presented a free-standing claim of actual innocence
under Ex parte Elizondo.  Id.  The Court of Criminal Appeals ruled that his claim was
cognizable in habeas corpus notwithstanding his guilty plea.  The Court reasoned as
follows:
		An applicant claiming actual innocence is not claiming that the
evidence at trial was insufficient to support the conviction.  On the contrary,
the successful applicant shows by clear and convincing evidence that, despite
the evidence of guilt that supports the conviction, no reasonable juror could
have found the applicant guilty in light of the new evidence.  The burden is
on the applicant because we presume that the conviction is valid.  See
Elizondo, 947 S.W.2d at 207.

		Moreover, if an actual innocence claim were nothing more than a
challenge to the sufficiency of the evidence, then no claim of actual
innocence--whether the conviction was based on a jury trial, bench trial, or
guilty plea--would be cognizable on a writ of habeas corpus.  Ex parte
Easter, 615 S.W.2d 719, 721 (Tex. Crim. App. 1981) (attack on sufficiency
of the evidence at trial may not be raised in habeas proceedings).

Id.

	Cantrell presented no extra-record evidence to support his claim that he was
innocent of the crime for which he had been convicted.  Without newly discovered
evidence, his claim is nothing more than a challenge to the sufficiency of the evidence that
is presumed to be valid in a habeas proceeding.  Therefore, Cantrell cannot bring a
Herrera-type claim.  
	The appeal does not present a Schlup-type claim, either.  An examination of
Cantrell's amended application for writ of habeas corpus and the reporter's record of the
writ hearing reveals no procedural claim of constitutional error upon which to base his
claim for relief.  Cantrell suggests that we should review his claim under a Jackson v.
Virginia (2) standard because the Fifth Circuit has taken that approach.  See Haley v.
Cockrell, 306 F.3d 257 (5th Cir. 2002, cert. filed).  Haley was a habeas proceeding filed
pursuant to the federal statute than permits federal review of a state court judgment that
results in a decision contrary to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court.  See 28 U.S.C.A. § 2254(d) (West Supp.
2002).  The federal court uses its own method of measuring sufficiency of the evidence,
rather than the state court's.  See Bledsue v. Johnson, 188 F.3d 250, 260 (5th Cir. 1999). 
The Fifth Circuit's application of the Jackson v. Virginia standard in Section 2254
proceedings is of no benefit to our determination of cognizability of the claim brought by
Cantrell in this state court proceeding.  Cantrell has not tied his claim of actual innocence
to a showing of constitutional error at trial.  Although he facially claims there is "no
evidence" of an essential element of the offense, the claim actually requires an express
rejection of the application of the law of parties in the direct appellate review of the case. 
See Cantrell v. State, 75 S.W.3d at 508-12.  We hold that the issue is not cognizable, and
that the trial court therefore did not err in denying the writ of habeas corpus based upon
the application's claim that there is no evidence that the appellant personally acted in a
fiduciary capacity to the complainant.  Issue two is overruled.  The trial court's order is
affirmed.
	AFFIRMED.
 
						_______________________________
							STEVE MCKEITHEN
							       Chief Justice

Submitted on July 14, 2003
Opinion Delivered July 30, 2003
Publish

Before McKeithen, C.J., Burgess and Gaultney, JJ.
1.   The Sixth Court of Appeals decided the appeal pursuant to a docket control
transfer order.
2.   443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 
