## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 1 3 - 00 252 - CR

EX PARTE GEORGE JAMI L WE HB E

---------- FROM CRIMINAL DISTRICT CO URT NUMBER ONE OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- I. I NTRODUCTION Appellant George Jamil We hb e appeals from the trial court ’ s denial of his

a pplication for post
- conviction writ of habeas corpus

. See Tex. Code Crim. Proc. Ann. art. 11.072 (W est 200 5 ). Because the trial court did not abuse its discretion by denying his application, we will affirm the trial court ’ s order.

1 See Tex. R. App. P. 47.4.2 II. B ACKGROUND Wehb e was convicted of theft of vehicles with a combined value of not less than $1,500 but not more than $20,000 , a state jail felony. See Tex. Penal Code
Ann. § 31.03(a), (e)(4) (West Supp. 20 12 ). The trial court sentenced Wehbe to a $1,000 fine and two years ’ confinement, with the confinement portion of his
sent ence probated for five years. Wehbe appeale d to this court , arguing in part that the evidence wa s insufficient to support his conviction. See Wehbe v. State , No. 02

- 07

- 00407

- CR, 2011 WL 1743785, at * 1 (Tex. App.

— Fort Worth May 5, 2011, pet. ref ’ d) (mem. op., not designated for publication). We he ld that the evidence wa s insufficient to support a verdict of guilt beyond a reasonable doubt as to theft of two of the four vehicles that the State alleged Wehbe had stole n , but we ultimately upheld the state
- jail

- felony theft conviction because we held t he evidence sufficient as to theft of the remaining two vehicles and because the evidence showed that the combined value of those two vehicles was over $1,500. See id. at *6

– 8; see also Tex. Penal Code Ann. § 31.03(e)(4). Weh b e subsequently filed an app lication for writ of habeas corpus, seeking reformation of the judgment to reflect conviction for class A misdemeanor theft and to lower his community s upervision term to two years. He argued that this
court ’ s determination on appeal that insufficient evi dence existed to show theft of two of the vehicles, coupled with the trial court ’ s determination that Wehbe owed restitution to the owners of the two remaining vehicles in the amount of $1 , 100, demonstrate that the value of the property stolen does not sat isfy the3

jurisdictional $1,500 minimum for state jail felony theft

. Aft er the State filed a
response, t he trial c ourt denied Wehbe ’ s application and entered findings of fact and conclusions of law

. 2

III. S UFFICIENCY C LAIM N OT C OGNIZABLE Article 11.07 2 of the Texas Code of Criminal Procedure ―establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervisio n.‖ Tex. Code Crim. Proc. Ann. art. 11.072, § 1

. When reviewing the trial court ’ s denial of an application for writ of habeas corpus under article 11.072, the appellate court must view the facts in the light most favorable to the trial court ’ s ruling and uphold that ruling absent an abuse of discretion. See Ex Parte Wheeler , 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). Generally, a claim that has been previously raised and rejected on direct appeal is not cognizable on habeas corpus. Ex parte Torres , 94 3 S.W.2d 469, 475 (Tex. Crim. App. 1997); Doyle v. State , 317 S.W.3d 471 , 476 (Tex. App.

— Houston [1st Dist.] 2010, pet. ref’d); see also Ex parte Brown , 205 S.W.3d 538,

2 The trial court did not enter a written order denying the appl ication , but at the end of its findings of fact and conclusions of law , under a paragraph entitled, ―Recommendation,‖ it states, ―For all the above reasons, this Court recommends that relief be denied on Applicant ’ s habeas petition. So ordered on this 10 day of May of 2013.‖ We will consider this as a written order. See Tex. Code Crim. Proc. Ann. art. 11.072 , § 6(a) (―[T]he trial court shall enter a written order granting or denying the relief sought in the application.‖ ); Few v. State , 230 S.W.3d 184, 1 89 (Tex. Crim. App. 2007) (declining to elevate form over substance)

.4

546 (Tex. Crim. App. 2006). Additionally, a challenge to the sufficiency of the eviden ce is not cognizable on an application for a post

- conviction writ of habeas
corpus. Ex parte Perales , 215 S.W.3d 418, 419 (Tex. Crim. App. 2007) ; Ex parte Grigsby , 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). The sole exception is whe n the record is ― tota lly devoid ‖ of evidentiary support so as to render the conviction unconstitutional under the due process clause of the Fourteenth Amendment of the United States Constitution. Perales , 215 S.W.3d at 419

– 20

. Wehbe ’ s complaint in his app lication

— that the v alue of the two vehicles stolen does not satisfy the jurisdictional $1,500 minimum for a state

- jail

- felony theft conviction

— boils down to a complaint about the sufficiency of the evidence

. See Perales , 215 S.W.3d at 419

– 20 ; see also Tex. Code Crim. Proc. Ann. art. 11.072, § 3(a) (―An application may not be filed under this article if the applicant could obtain the requested relief by means of an appeal . . . .‖)

. We addressed the sufficiency of the evidence on direct appeal, where we determined that ―[t]h e evidence shows that the combined value of [ the two vehicles ] exceeded the $1,500 jurisdictional minimum for state jail felony theft. ‖ Wehbe , 2011 WL 1743785, at * 8. Having previously rejected his sufficiency claim on direct appeal, we hold that the tri al court did not abuse its discretion by concluding that Wehbe ’ s claim is not cognizable in a habeas proceeding. 3 See Ex parte Torres , 943 S.W.2d at 475; Doyle , 317 S.W.3d at 476

.

3 Wehbe has filed a motion requesting that this court take judicial notice of the trial court’s record from his trial and of our opinion on direct appeal. See Tex.5 IV. C ONCLUSION We affirm the trial court ’ s order denying Wehbe ’ s applicati on for writ of habeas corp us.

PER CURIAM
PANEL: WALKER, J.; LIVINGSTON, C.J.; and GABRIEL, J. DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 1, 2013

R. Evid. 201. Because we hold that his claim is not cognizable in a habeas proceeding, and to the extent that the se documents are not already part of the record in this habeas proceeding , we deny Wehbe’s motion.