Affirmed and Opinion and Concurring Opinion filed April 2, 2013.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-12-00540-CR

                         EX PARTE ROBYN M. REED


                    On Appeal from the 338th District Court
                             Harris County, Texas
                       Trial Court Cause No. 1164028-A

                                 OPINION


      Applicant Robyn M. Reed appeals the habeas court’s order denying her
post-conviction application for writ of habeas corpus on her conviction for theft of
welfare benefits valued at more than $1,500 but less than $20,000. On direct
appeal, applicant complained of the legal and factual sufficiency of the evidence to
support her conviction, and we affirmed. Reed v. State, No. 14-09-00372-CR,
2010 WL 2195955 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (mem. op.,
not designated for publication). In her current appeal, applicant argues in two
issues that she is entitled to habeas relief because there is no evidence that she
unlawfully appropriated at least $1,500 in welfare benefits. Finding no abuse of
discretion by the habeas court, we affirm.

              I.       FACTUAL AND PROCEDURAL BACKGROUND

      In this court’s opinion on applicant’s direct appeal, we summarized the
background of her case:

      Appellant submitted an application for welfare benefits on July 12,
      2006, in which she stated that she was unemployed and had no source
      of income. Appellant initially indicated on her application that she
      was employed by Pappadeaux Restaurant, but she marked through this
      entry and wrote “quit” next to it.
      Jose Vazquez, a Texas Department of Health and Human Services
      (“TDHHS”) employee, contacted appellant by telephone on
      September 5, 2006 regarding her application. Appellant told Vazquez
      that she currently was unemployed and had no source of income. She
      informed Vazquez that she formerly was employed by Pappadeaux
      Restaurant, but had quit her job in March 2006. Appellant's
      application was approved, and she began receiving food stamp and
      Medicaid benefits. Appellant filed an application for recertification of
      her eligibility to receive welfare benefits on December 14, 2006. She
      stated on her December 14, 2006 application that she was employed
      by Pappadeaux Restaurant.
      In 2007, appellant’s case file was “flagged” for investigation by the
      Texas Workforce Commission (“TWC”); Robert Rodgers, a TDHHS
      investigator, was assigned to investigate appellant's case file. Rodgers
      discovered that appellant was employed by Pappadeaux Restaurant
      from April 28, 2005 to March 9, 2006 and again from June 6, 2006
      until July 17, 2007. Rodgers calculated the benefits that appellant
      would have been entitled to receive from September 2006 through
      February 2007 had she reported her employment, and determined that
      appellant had received an over-issuance of $1,806.13 in welfare
      benefits during that period.
      Appellant was indicted for the offense of theft of welfare benefits
      valued at more than $1,500 but less than $20,000 “pursuant to one
      scheme and continuing course of conduct.” After a jury trial, the jury
      found appellant guilty as charged in the indictment. The trial court

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      signed its judgment on April 20, 2009, and assessed punishment at
      confinement for one year probated for one year of community
      supervision.

Id. at *1.    Applicant presented three issues in her direct appeal: (1) legal
sufficiency of the evidence to establish that she received an over-issuance of more
than $1,500 in welfare benefits; and (2) legal and (3) factual sufficiency of the
evidence to establish that applicant intended to deprive the State of the over-issued
welfare benefits and deceived the State to obtain the over-issued welfare benefits.
Id. We overruled applicant’s issues, concluding that the jury could have found
beyond a reasonable doubt that applicant received an over-issuance of more than
$1,500 in welfare benefits, id. at *7, and the jury could have found beyond a
reasonable doubt that applicant deceived and intended to deprive the State of the
over-issued benefits, id. at *4, 5. Applicant reurged these issues in her petition for
discretionary review, which the Court of Criminal Appeals refused.

       Applicant then filed an application for writ of habeas corpus, arguing that
there is no evidence to support her conviction because investigator Rodgers’
testimony is incompetent; that applicant is actually innocent because there is no
evidence that applicant unlawfully appropriated at least $1500.00 in welfare
benefits; and accordingly, that applicant’s right to due process was violated. The
habeas court denied applicant’s request for relief, and issued findings of fact and
conclusions of law. The habeas court issued findings that “[a]pplicant raised the
same issues in her application for Writ of Habeas Corpus that were argued in her
appeal” and that these issues were “addressed by the Court of Appeals.” The
habeas court concluded that applicant’s allegations were not cognizable on a writ
of habeas corpus, and that applicant was manifestly entitled to no relief.

      On appeal, applicant argues that the habeas court incorrectly denied her


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application because her no-evidence challenges on due process grounds are
cognizable on a habeas corpus action. Applicant then presents the same two issues
from her application that she alleges entitle her to habeas relief: (1) the State’s
evidence of value based on Rodgers’ incompetent testimony amounts to no
evidence and (2) the record conclusively establishes as a matter of law that
applicant did not unlawfully appropriate at least $1,500 in welfare benefits.

                         II.      STANDARD OF REVIEW

       Texas Code of Criminal Procedure article 11.072 establishes the procedure
for an applicant to seek habeas corpus relief “from an order or a judgment of
conviction ordering community supervision.” TEX. CODE CRIM. PROC. ANN. art.
11.072, § 1 (West 2012). We have jurisdiction to consider appeals of denials of
habeas corpus relief in cases in which community supervision has been ordered
under article 11.072. Id. art. 11.072, § 8.

       We review the trial court’s denial of habeas corpus relief under an abuse-of-
discretion standard, and consider the facts in the light most favorable to the habeas
court’s ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
An applicant seeking post-conviction habeas corpus relief bears the burden of
establishing by a preponderance of the evidence that the facts entitle her to relief.
Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We afford
almost complete deference to the habeas court’s determination of historical facts
supported by the record, especially when those factual findings rely upon an
evaluation of credibility and demeanor. Ex parte Tarlton, 105 S.W.3d 295, 297
(Tex. App.—Houston [14th Dist.] 2003, no pet.). We apply the same deference to
review the habeas court’s application of law to fact questions, if the resolution of
those determinations rests upon an evaluation of credibility and demeanor; if the
outcome of those ultimate questions turns upon an application of legal standards,

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we review the habeas court’s determination de novo. Id.

                                 III.       ANALYSIS

       For a court to reach the merits of an applicant’s claim on habeas corpus, the
applicant’s claim must be cognizable on habeas corpus. See Ex parte Perales, 215
S.W.3d 418, 419–20 (Tex. Crim. App. 2007); Ex parte McLain, 869 S.W.2d 349,
350 (Tex. Crim. App. 1994) (“A threshold determination in any post[-]conviction
habeas corpus application is whether the claim presented is cognizable by way of
collateral attack.”).

       A writ of habeas corpus ordinarily may not be used to relitigate matters that
already were raised and rejected on direct appeal. Ex parte Brown, 205 S.W.3d
538, 546 (Tex. Crim. App. 2006) (“[H]abeas relief is not available to one who has
already litigated his claim at trial, in post-trial motions, or on direct appeal.”); Ex
parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984); Doyle v. State, 317
S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (“Further, ‘a
claim which was previously raised and rejected on direct appeal is not cognizable
on habeas corpus.’” (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.
App. 1997))).1

       In addition, it is well settled that the sufficiency of the evidence supporting a
conviction cannot be collaterally attacked. See Perales, 215 S.W.3d at 419 (“It is
well settled that a challenge to the sufficiency of the evidence is not cognizable on
an application for a post-conviction writ of habeas corpus.”); Ex parte Grigsby,
137 S.W.3d 673, 674 (Tex. Crim. App. 2004) (“[I]t is well-established that a

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         “[T]his doctrine should not be applied where [1] direct appeal cannot be expected to
provide an adequate record to evaluate the claim in question, and [2] the claim might be
substantiated through additional evidence gathering in a habeas corpus proceeding.” Ex parte
Nailor, 149 S.W.3d 125, 131 (Tex. Crim. App. 2004) (quoting Torres, 943 S.W.2d at 475).
Applicant does not advance this exception here.

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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.”); McLain,
869 S.W.2d at 350 (“Among those claims which are not cognizable by way of
post[-]conviction collateral attack is a challenge to the sufficiency of the
evidence.”); Ex parte Brown, 757 S.W.2d 367, 368 (Tex. Crim. App. 1988)
(agreeing that “it has long been the rule in this State that sufficiency of evidence
claims may not be raised in a collateral attack”); Ex parte Williams, 703 S.W.2d
674, 677 (Tex. Crim. App. 1986) (noting general rule “that the sufficiency of the
evidence cannot be attacked collaterally” “has been applied or intended to apply
across the board to all types of criminal cases”).2

       Despite these rules, applicant urges that this court must review her habeas
claims based on a “no-evidence exception,” and relies on Williams, 703 S.W.2d at
679, Brown, 757 S.W.2d at 368–69, and Perales, 215 S.W.3d at 419. Applicant
thus argues her claims are cognizable on habeas review based on the constitutional
due-process prohibition against convictions that are totally devoid of evidentiary
support.3

       Here, in its findings of fact and conclusions of law, the habeas court stated
that allegations rejected on direct appeal are not cognizable on a writ of habeas

       2
         The Court of Criminal Appeals recognizes two types of “actual innocence” claims that
are cognizable on habeas review. The first is a claim recognized in Herrera v. Collins, 506 U.S.
390 (1993), which is a substantive claim in which the applicant asserts innocence based solely on
newly discovered evidence. In re Allen, 366 S.W.3d 696, 700 (Tex. 2012) (citing Ex parte
Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002)). The second is a claim recognized in
Schlup v. Delo, 513 U.S. 298 (1995), which “is a procedural gateway through which a petitioner
must pass to have his otherwise barred constitutional claim considered on the merits.” Allen, 366
S.W.3d at 700. In a Schlup-type claim, the applicant “must show that the constitutional error
probably resulted in the conviction of one who was actually innocent.” Ex parte Spencer, 337
S.W.3d 869, 878 (Tex. Crim. App. 2011). Applicant does not advance either type of actual-
innocence exception here.
       3
           See Thompson v. City of Louisville, 362 U.S. 199, 199, 206 (1960).

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corpus, citing Acosta, 672 S.W.2d at 472. The habeas court issued a finding that
“[i]n this writ of habeas corpus, the Applicant asserts issues that were raised on
appeal and addressed by the Court of Appeals.” Therefore, the habeas court
determined “from the face of the application for writ of habeas corpus and[/]or
documents attached to the application that the applicant is manifestly entitled to no
relief.”

       Applicant acknowledges the general rule that issues raised and rejected on
direct appeal may not be considered in a post-conviction habeas application, and
does not dispute that she presented both of the issues she raises in her application
for habeas relief to this court and to the Court of Criminal Appeals on her direct
appeal in the context of a sufficiency challenge. Nevertheless, applicant invokes
the no-evidence exception and argues that the habeas court erred when it
concluded that her claims were not cognizable on habeas corpus.

       We cannot agree that the habeas court abused its discretion when it denied
applicant’s request for habeas relief. This court previously rejected applicant’s
argument that the evidence was legally insufficient to establish that she received an
over-issuance of more than $1,500 in welfare benefits. Reed, 2010 WL 2195955,
at *7. In doing so, this court particularly considered applicant’s challenges to
Rodgers’ testimony regarding and his calculations of the welfare benefits over-
issued to applicant. Id. at *6–7. Indeed, applicant concedes that both arguments
she now asserts as grounds for habeas relief—“(1) the only evidence with regard to
the amount stolen is the ipse dixit statement of the State’s investigator, which
constitutes no evidence, and (2) alternatively, the amount of the [welfare] benefits
allegedly stolen do not exceed $1,500 as a matter of law, which results in the
record being a complete lack of evidentiary support for the conviction”—were
“presented by [applicant] to the court of appeals and to the Court of Criminal

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Appeals.” According to applicant, however, we should reconsider the merits of the
exact same arguments because they are now presented as no-evidence claims.
Recasting arguments that have already been rejected on sufficiency grounds as no-
evidence arguments does not otherwise render them cognizable on habeas review.
Cf. Ex parte Cantrell, 112 S.W.3d 753, 755–56 (Tex. App.—Beaumont 2003, pet.
ref’d) (concluding issue that applicant was “actually innocent of the crime of
conviction because there is no evidence” of essential element was not cognizable
on habeas review where argument was “virtually identical” to applicant’s
sufficiency argument already rejected on direct appeal).

      Moreover, the cases applicant argues in support of applying a no-evidence
exception here are distinguishable. In Ex parte Moffett, the Court of Criminal
Appeals granted habeas relief and overturned the applicant’s probation revocation
“[s]ince the conviction for which the court revoked probation was for an offense
committed before the appellant was granted probation.” 542 S.W.2d 184, 186
(Tex. Crim. App. 1976); see also Williams, 703 S.W.2d at 679 (“Moffett . . .
appears to be more of a fundamental fairness case than a true no evidence case.”).
In Perales, the Court of Criminal Appeals granted habeas relief and rendered a
judgment of acquittal for the applicant who had pleaded guilty to delivery of
cocaine to her unborn baby because, based on its holdings, meeting the statutory
element of delivery by actual transfer of a controlled substance was not legally
possible where the alleged transferee was an unborn child. 215 S.W.3d at 419–20
(upholding habeas court’s finding that despite being pleaded as “‘no evidence or
insufficient evidence’ claims, applicant’s real complaint is that her sentence is
illegal”). Unlike in those cases, where the applicants advanced no direct appeals,
applicant here raised the exact same arguments in the context of a sufficiency
review, which this court rejected. Here, this court already considered the evidence


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the State presented with regard to the amount of welfare benefits applicant
allegedly over-issued to applicant, including the alleged ipse dixit opinion of
Rodgers and Rodgers’ alleged over-calculations, and determined that it was legally
sufficient to support her conviction. Reed, 2010 WL 2195955, at *7. Applicant
may not re-weigh the same evidence in this proceeding.

      Therefore, because applicant now asserts the same issues that already were
raised and rejected on direct appeal, applicant’s claims are not cognizable on
habeas review. We conclude that the habeas court did not abuse its discretion in
refusing to reach the merits of and in denying her application for habeas relief.

                             IV.         CONCLUSION

      Accordingly, we affirm the habeas court’s order denying applicant’s
application for writ of habeas corpus.




                                               /s/   Tracy Christopher
                                                     Justice


Panel consists of Justices Frost, Christopher, and Jamison. (Frost, J., concurring).
Publish — TEX. R. APP. P. 47.2(b).




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