No. 05-03-00556-CR
Opinion Filed August 18, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. X02-00231-S. AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
Opinion By Justice FRANCIS.
On demand of the Governor of California, the Governor of Texas issued a governor's warrant ordering law enforcement officers to arrest James Eugene Edwards and deliver him into the custody of the Sheriff of Santa Clara County, California. After his arrest, appellant filed a petition for writ of habeas corpus to contest the legality of his arrest and extradition. The district court referred appellant's petition to a magistrate who conducted a hearing and then recommended that relief be denied. The district judge adopted the magistrate's findings and recommendations. Appellant now appeals the trial court's determination to deny him relief. In two issues, appellant contends the trial court lacked jurisdiction because of procedural irregularities following his arrest, the magistrate erred in concluding he is a fugitive from justice, and the supporting documentation provided by the Governor of California is insufficient. We affirm.
Background
On November 13, 2002, California Governor Gray Davis signed a written demand for appellant's extradition, supported by an amended felony complaint for extradition, a sworn application for requisition, an arrest warrant, and a photocopy of the accused's Washington State driver's license. On November 20, 2002, Texas Governor Rick Perry signed the governor's warrant authorizing appellant's extradition. On December 4, 2002, officers arrested appellant at a federal detention center and transported him to the Dallas County jail where, on the following day, he received a copy of the governor's warrant. On December 12, 2002, appellant appeared before Dallas County Magistrate Dorothy Shead who, according to an arraignment sheet, informed appellant of his rights. On that same date, appellant's daughter attempted to file a petition for writ of habeas corpus on his behalf. On December 20, 2002, appellant filed his pro se petition for writ of habeas corpus. On that same date, the trial court signed an order referring the matter to the Criminal District Court Magistrate of Dallas County, Texas, with instructions to issue the writ and conduct a hearing on appellant's petition. Magistrate Boyd Patterson held a series of preliminary hearings beginning December 20, 2002 regarding whether appellant would be represented by retained or appointed counsel. Counsel was appointed for appellant in February 2003. On March 26, 2003, Magistrate Patterson conducted a hearing on the merits of appellant's petition and entered proposed findings and recommendations that the governor's warrant was regular on its face, appellant had been charged with a crime in California, he was the person named in the demand for extradition, and he was a fugitive. The magistrate recommended the petition for writ of habeas corpus be denied. The district court adopted the magistrate's findings and recommendations. This appeal followed. Law Governing Review Of Extradition Proceedings
Interstate extradition of persons accused of felony offenses is mandated under federal law. See U.S. Const. Article IV, § 2; 18 U.S.C. § 3182 (2000). Extradition is intended to be a summary and mandatory executive proceeding. Michigan v. Doran, 439 U.S. 282, 288 (1978). A governor's warrant that is regular on its face establishes a prima facie case for extradition. Id. at 289; Ex parte Johnson, 651 S.W.2d 439, 440 (Tex.App.-Dallas 1983, no pet.). If the governor has signed a governor's warrant granting extradition, a trial court entertaining an application for writ of habeas corpus may decide only four issues: (1) whether the extradition documents are facially in order; (2) whether the applicant has been charged with a crime in the demanding state; (3) whether the applicant is the person named in the demand for extradition; and (4) whether the applicant is a fugitive. Doran, 439 U.S. at 289; Ex parte Potter, 21 S.W.3d 290, 294 (Tex.Crim.App. 2000). Additionally, an accused may raise the issue of his mental competency to consult with counsel. Potter, 21 S.W.3d at 296. To process extradition requests, Texas has adopted the Uniform Criminal Extradition Act ("the Act" hereinafter). See Tex. Code Crim. Proc. Ann. art. 51.13 (Vernon 1979 Supp. 2003). The Act contains separate sections governing the mandatory extradition of fugitives from justice and the discretionary extradition of non-fugitives. See Tex. Code Crim. Proc. Ann. art. 51.13, §§ 3, 6 (Vernon 1979). Before delivering the accused to the demanding state, officers must take the accused "forthwith" before "a judge of a court of record" where the accused is to be informed of the demand for his extradition, the charges against him, and his right to counsel. Id. § 10. If the accused or his counsel states a desire to "test the legality of his arrest," the judge is required to set a time for filing and hearing an application for writ of habeas corpus. Id. Alleged Procedural Irregularities
In his first issue, appellant complains of numerous alleged violations of his procedural statutory and constitutional rights. Specifically, appellant contends he should be released because the State failed to take him "forthwith" before a "judge" of "a court of record" as required by section 10 of the Act. Appellant complains he was not taken before any judicial officer for eight days and then was taken only before a magistrate. Citing restrictions on the scope of federal magistrate's authority and provisions of the government code, appellant argues the Dallas County magistrate lacked authority to hear this matter and the magistrate proceedings do not qualify as a "court of record," especially in light of the fact that his first two appearances before the magistrate were not recorded by a court reporter. Appellant concludes the State violated his right to a timely initial appearance before a judge. In addition to contending his initial appearance did not qualify as "forthwith," appellant argues the State was required to take him before a magistrate for admonishment of his rights within forty-eight hours of his arrest as stated in article 15.17(a) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 15.17(a) (Vernon Supp. 2003). Appellant maintains he was harmed by these alleged violations of his rights in that he did not receive a proper hearing before the district judge, he was deprived of his right to counsel for a period of time, and he was not informed he could be admitted to bail. Appellant asserts the irregularities deprived the trial court of jurisdiction, and violated his right to due process of law and to counsel. Finally, appellant contends the magistrate's finding that he is a fugitive is erroneous. Extradition proceedings do not invoke the same degree of protection of an accused's constitutional rights as a criminal trial where guilt or innocence is determined. McDonald v. Burrows, 731 F.2d 294, 297 (5th Cir. 1984), cert. denied 469 U.S. 852 (1984). Furthermore, Doran does not empower us to consider contentions of deprivation of constitutional rights by authorities in the asylum state. See id. (concluding petitioners in habeas corpus proceeding challenging extradition could not raise Sixth and Fourteenth Amendment due process complaints based on delays in asylum state's extradition hearing). Except for his complaint about the fugitive finding, addressed below, the contentions in appellant's first issue do not fall within the ambit of review of extradition proceedings. See Doran, 439 U.S. at 289; Potter, 21 S.W.3d at 294. Accordingly, we dismiss appellant's contentions for lack of jurisdiction. Before addressing the issue of appellant's fugitive status, appellant has shown neither a violation of his statutory and constitutional rights nor harm from the alleged violations. Regarding the magistrate's authority, upon a proper referral, magistrates are authorized to hear habeas petitions on extradition matters. See Tex. Gov't Code Ann. § 54.306(a)(8) (Vernon Supp. 2003); Ex parte Allen, 699 S.W.2d 886, 887-88 (Tex.App.-Dallas 1985, pet. ref'd). In performing his functions, the magistrate acts as an agent of the district court which indisputably is a court of record. See Kelley v. State, 676 S.W.2d 104, 107 (Tex.Crim.App. 1984). On request, hearings before the magistrate may be recorded. See Tex. Gov't Code Ann. § 54.309 (Vernon 1998). Appellant's citations to the scope of authority of federal magistrates are irrelevant. Regarding the timing of his initial appearance before the magistrate, appellant has not shown by citation to authority either that he was not presented "forthwith" or that article 15.17(a) applies to persons arrested under extradition warrants. Even if the State violated these statutes, appellant does not show he should be granted habeas relief. The Act provides criminal punishment for officers who willfully violate the accused's section 10 rights, but it does not authorize habeas relief to the accused for noncompliance with section 10. See Tex. Code Crim. Proc. Ann. art. 51.13, § 11 (Vernon 1979). Assuming, without deciding, that article 15.17 is applicable, the remedy for violation of this statute is the suppression, under certain circumstances, of involuntary confessions. See Williams v. State, 692 S.W.2d 671, 675-76 (Tex.Crim.App. 1984). Because this matter does not involve a suspect confession, appellant shows no reversible error for violation of article 15.17. See Montoya v. State, 464 S.W.2d 853, 854 (Tex.Crim.App. 1971). Even if appellant's initial appearance was untimely, he would not be entitled to release nor would the trial court's jurisdiction be impaired by this harmless error. See Tex.R.App.P. 44.2(b). Similarly, there is no merit to appellant's constitutional complaints. Due process requires, at a minimum, notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The record shows appellant appeared before a magistrate, was advised of his rights, received appointed counsel, and actively contested his extradition through habeas proceedings. Appellant does not complain about ineffective assistance nor has he shown any harm arising from the alleged delay in informing him of his right to counsel. Magistrate Shead's December 12, 2002 arraignment sheet states she informed appellant "of his rights to bail if allowed by law." We conclude appellant received the due process of law and right to counsel to which he was entitled under the law. See Tex. Code Crim. Proc. Ann. art. 51.13, § 10 (Vernon 1979). We further conclude beyond a reasonable doubt that any violations were harmless. See Tex.R.App.P. 44.2(a). Fugitive Status
Appellant contends the record does not show he is a fugitive and the extradition documents do not contain the word "fugitive" or the language set out in section 3 of the Act "that the accused was present in the demanding state, and that thereafter he fled from the State." Section 3 governs mandatory extradition of fugitives from justice. Governor Davis's demand and the supporting documents show California seeks discretionary extradition under section 6 of the Act. Section 6 grants the Governor of Texas discretion to extradite persons "even though the accused was not in [the demanding state] at the time of the commission of the crime, and has not fled therefrom." Tex. Code Crim. Proc. Ann. art. 51.13, § 6 (Vernon 1979). Assuming the magistrate's finding was erroneous, the absence of evidence showing appellant is a fugitive from justice does not present grounds for granting him relief from discretionary extradition. Accordingly, we overrule appellant's first issue. Verification and Conflict Of Supporting Documents and Proof Of Identity
In his second issue, appellant contends the trial court erred in denying his application for writ of habeas corpus because the amended complaint is not verified properly, the supporting documents contain conflicting information, and there was inadequate proof of his identity as the accused. As we have already noted, a governor's warrant that is regular on its face establishes a prima facie case for extradition. Doran, 439 U.S. at 289; Johnson, 651 S.W.2d at 440. Extradition documents, authenticated by the demanding state's governor, are in order when they include a copy of an affidavit sworn before a magistrate with a copy of an arrest warrant issued on it. Tex. Code Crim. Proc. Ann. art. 51.13, § 3 (Vernon 1979). The burden then shifts to the accused to rebut the prima facie case, which can be done by the supporting documents introduced at the hearing. Ex parte Cain, 592 S.W.2d 359, 362 (Tex.Crim.App. 1980) (op. on reh'g). The accused may rebut the prima facie case by showing the warrant was not legally issued, was not based on proper authority, or contained inaccurate recitals. Id. Appellant contends the amended complaint and arrest warrant are insufficient because (1) the affiant on the amended complaint, Santa Clara County Deputy Sheriff Sondra Serenka, did not swear the allegations in the complaint were made on personal knowledge; (2) the arrest warrant indicates it is issued based on the complaint of "35 Rolen" rather than Serenka; and (3) there is a discrepancy between the docket numbers of the amended complaint and the arrest warrant. An extradition affidavit need not state it is made on personal knowledge. Ex parte Harris, 389 S.W.2d 668, 669 (Tex.Crim.App. 1965); Ex parte McDonald, 631 S.W.2d 222, 224 (Tex.App.-Fort Worth 1982, pet. ref'd) (affidavit made on information and belief is sufficient). The amended complaint was in writing, signed by Serenka and sworn before Superior Court Judge Gilbert T. Brown, an officer authorized to administer oaths whose seal of office certifies the complaint. We conclude Serenka's amended complaint qualifies as an affidavit under the Act. Appellant contends the arrest warrant does not support the amended complaint because the warrant names "35 Rolen" as the complainant rather than Serenka and because the amended complaint and arrest warrant are filed under different docket numbers. Both documents bear the same date, both identify the same defendant with the same date of birth, both bear the "PFN" number "DSD231." Although the arrest warrant does not describe twenty-five felonies, the fourteen felonies it lists correspond to the California statutes the amended complaint alleges appellant violated. The arrest warrant indicates it is "for extradition purposes only." The State contends the minor discrepancies between the amended complaint and the arrest warrant are mere clerical errors. The State theorizes the wrong name was filled into the warrant form and the inconsistency in the docket numbers is limited to a misplaced "2." Appellant points out the same inconsistent docket numbers also appear on the extradition papers for his son David Eugene Edwards, who was extradited from Texas to California to face similar charges. We conclude the inconsistencies between the arrest warrant and the amended complaint result from clerical error and are not fatal to extradition. See Ex parte Case, 485 S.W.2d 561, 562-63 (Tex.Crim.App. 1972). Appellant next contends conflicts between the requisition and the amended complaint call into question whether the State of California is requesting mandatory extradition or discretionary extradition. Appellant calls our attention to allegations in the amended complaint that he entered dwellings in Santa Clara County and committed thefts in the county. Appellant argues these allegations are inconsistent with the allegations in the demand and the requisition that he committed acts outside California that resulted in offenses in the state. Appellant maintains he cannot be extradited under both sections 3 and 6 of the Act and if the State of California is requesting discretionary extradition, the inconsistencies in the documents may have deprived him of any possible benefit of gubernatorial discretion allowed under section 6 of the Act. The application for requisition, signed under oath by a Santa Clara County deputy district attorney, alleges appellant, although not present in California, conspired with local sales agents to sell fraudulent bank notes to victims in California. Because the sales agents entered the victims' homes with the intent to deceive them and commit theft, appellant is charged as a party with the offenses of burglary, theft, and securities fraud. Governor Davis's demand states appellant is charged "by intentionally committing an act or acts while outside the State of California resulting in said crimes in this State. . . ." The complaint's allegations that appellant entered dwellings in Santa Clara County and committed various thefts in that county, when read together with the requisition and Governor's demand, do not reveal a conflict or an intent to seek mandatory extradition pursuant to section 3 of the Act. The record does not support appellant's claim. Appellant next contends the enlarged, certified copy of his Washington State driver's license did not prove he is the accused named in the governor's warrant. Because appellant placed identity into issue at the hearing, the State bore the burden to prove the identity of the accused. See Ex parte Larson, 494 S.W.2d 179, 181 (Tex.Crim.App. 1973). The amended complaint and the arrest warrant identify the accused as "James Eugene Edwards," born November 22, 1931. The arrest warrant and the driver's license contain identical information about the accused's name, address, date of birth, height, weight, and eye color. On cross-examination, appellant admitted the driver's license bears his photograph and he identified himself by the same name, date of birth, height, weight, and eye color reflected on the driver's license. Appellant's petition for writ of habeas corpus also contains information identifying him by the same name, date of birth, height, and eye color, although it bears a different address and a slightly different weight. We conclude the State met its burden of proof to show appellant's identity as the accused named in the governor's warrant. See Ex parte Henson, 639 S.W.2d 700, 701 (Tex.Crim.App. 1982) (concluding identity proven by authenticated photograph). Finally, appellant contends the State was required but failed to prove he was present in California. As we have already discussed, the Governor of California requested discretionary extradition under section 6 of the Act which does not address presence in the demanding state. Moreover, appellant's presence or absence from the state involves the issue of appellant's guilt or innocence which is not before us. See Yost v. State, 861 S.W.2d 73, 75 (Tex.App.-Houston [14th Dist.] 1993, no pet.); see also Rentz v. State, 833 S.W.2d 278, 279-280 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (Texas defendant properly extradited after he sent drugs to co-defendant in demanding state). The State was not required to prove appellant's presence in California at the time the offenses were committed. Having resolved all arguments in appellant's second issue against him, we overrule appellant's second issue. We affirm the trial court's order adopting the magistrate's recommendation to deny relief.