Ex Parte McLain

869 S.W.2d 349, 1994 Tex. Crim. App. LEXIS 9, 1994 WL 5682

Opinions

OPINION

OVERSTREET, Judge.

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Art. 11.07, V.A.C.C.P.

A jury convicted applicant of voluntary manslaughter. Punishment was assessed by the jury at twenty (20) years. In response to a special issue submitted by the court, the jury found applicant used or exhibited a deadly weapon during the commission of the offense. Applicant’s conviction was affirmed on direct appeal. McLain v. State, No. 12-90-00042-CR (Tex.App.—Tyler, delivered July 10, 1992, pet. ref'd).

The record reflects applicant and his stepson went to the home of the deceased, to confront the deceased and his sons about telephone calls that applicant’s wife had been receiving. Applicant and the deceased became engaged in a fist fight outside the home. A son of the deceased came from inside the house with a pistol and fired shots. Applicant’s stepson retrieved a rifle from their pickup truck and when applicant shouted, “shoot him,” the stepson fired shots. One shot killed the deceased.

Applicant presents a single allegation in which he challenges the jury’s determination he used or exhibited a deadly weapon during the commission of the offense. Specifically, applicant complains the jury was not provided with evidence demonstrating he personally used or exhibited a deadly weapon.¹ Applicant seeks to have this Court reform the judgment by deleting the affirmative finding entered pursuant to the provisions of Art. 42.12, Sec. 3g(a)(2), V.A.C.C.P. See Art. 42.01, Sec. 1(21), V.A.C.C.P.

A threshold determination in any post conviction habeas corpus application is whether the claim presented is cognizable by way of collateral attack. Traditionally, habe-as corpus is available only to review jurisdictional defects, or denials of fundamental or constitutional rights. Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Cr.App.1989). Among those claims which are not cognizable by way of post conviction collateral attack is a challenge to the sufficiency of the evidence. See Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982); Ex parte Ash, 514 S.W.2d 762 (Tex.Cr.App.1974).

In the instant cause, applicant’s claim is directed at the sufficiency of the evidence to support the jury’s affirmative finding regarding the use or exhibition of a deadly weapon during the commission of the offense. Such a challenge is not cognizable by way of post conviction collateral attack and therefore the relief sought is denied.

1 . Applicant was tried prior to the 1991 amendment to Art. 42.12, Sec. 3g(a)(2) allowing the entry of an affirmative finding upon a determination a party to an offense knew that a deadly weapon would be used or exhibited during the commission of the offense.