Munoz, Samuel Rocky ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-68,281-01

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EX PARTE SAMUEL ROCKY MUNOZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F-9574555-ML IN CRIMINAL DISTRICT COURT NO. 5 FROM DALLAS COUNTY

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   Per curiam. O R D E R  

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to twenty-five years' imprisonment. The Fifth Court of Appeals dismissed his appeal. Munoz v. State, No. 05-98-00648-CR (Tex. App.-Dallas, delivered May 21, 1998, no pet.).

Applicant contends that the court of appeals erred in not following the mandate of Tex. R. App. P. 34.5(e) and that, as a result, he was denied his right to appeal. The trial court concluded that Applicant was denied his right to appeal and recommended that we grant him an out-of-time appeal.

We disagree. We have repeatedly held that habeas corpus should not be used to litigate claims that could have been raised on appeal. Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989); Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). Applicant should have challenged the court of appeals' dismissal in a petition for discretionary review, not in a habeas application.

Accordingly, we deny relief.

Filed: October 3, 2007

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