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EX PARTE DAYE

Court of Appeals of Texas, Fifth District, Dallas
Aug 3, 2004
No. 05-04-00706-CR (Tex. App. Aug. 3, 2004)

Opinion

No. 05-04-00706-CR

Opinion Filed August 3, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195th Judicial District, Dallas County, Texas, Trial Court Cause No. WX04-03860-N. Affirmed.

Before Justices MOSELEY, BRIDGES, and LANG-MIERS.


OPINION


Wilson Don Daye filed an application for writ of habeas corpus seeking to avoid extradition to Georgia. Following a hearing, the trial court denied appellant the relief he sought. In one point of error, appellant complains the trial court erred in denying him relief because the extradition documents did not include the instruments charging appellant with a pending crime in Georgia. We affirm the trial court's order. Only four issues may be raised by application for writ of habeas corpus: (1) whether the extradition documents on their face are in order; (2) whether the petitioner has been charged with a crime in the demanding state; (3) whether the petitioner is the same person named in the request for extradition; and (4) whether the petitioner is a fugitive. See Michigan v. Doran, 439 U.S. 282, 289 (1978). A Governor's Warrant that is regular on its face is sufficient to make a prima facie case authorizing extradition. See Ex parte Moore, 436 S.W.2d 901, 902 (Tex.Crim. App. 1968); Ex parte Johnson, 651 S.W.2d 439, 440 (Tex. App.-Dallas 1983, no pet.). The burden is on the petitioner to show the warrant was not legally issued, that it was issued on improper authority, or that the recitals in the warrant are not accurate. Ex parte Cain, 592 S.W.2d 359, 362 (Tex.Crim.App. 1980) (op. on reh'g). This can be done by the supporting papers introduced at the hearing. See id. Appellant asserts the documents on their face defeat the prima facie case established by the Governor's Warrant. With regards to the marijuana case, appellant claims the extradition documents fail because the information is not accompanied by an affidavit and there is no reference to appellant's probation or revocation of probation in the petition to terminate the drug court contract. It also appears appellant is contending the document placing him on probation does not meet the requirements of a judgment. In regards to the escape charge, appellant asserts there is no charging instrument accompanying the Governor's Warrant. The State responds that the documents accompanying the Governor of Georgia's Requisition are sufficient to satisfy the requirements of article 51.13. See Tex. Code Crim. Proc. Ann. art. 51.13 (Vernon Supp. 2004). We disagree with appellant's claim that the supporting documents defeat the prima facie case established by the Governor's Warrant. Article 51.13, section three requires that one of the following documents accompany a demand for extradition: (1) a copy of an indictment; (2) a copy of an information supported by affidavit; (3) a copy of an affidavit before a magistrate, together with a copy of any warrant issued thereupon; or (4) a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding State that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. See id. § 3. Article 51.13(3) only requires one of these documents, not all of them. In this case, the demand for extradition is accompanied by a document entitled "In the Superior Court of Camden County, Georgia Final Disposition." The contents of the "Final Disposition" show that appellant was found guilty of the felony offense of possession of marijuana. Sentence was assessed at five years confinement, to be served on probation. We conclude this document satisfies the requirement of a judgment of conviction because it shows appellant was charged and convicted in the regular course of judicial proceedings. See Ex parte Rosenthal, 515 S.W.2d 114, 119 (Tex.Crim.App. 1974). The demand from the Governor of Georgia further states that appellant escaped from confinement and fled the jurisdiction of the state. Therefore, the requirements of article 51.13, section three have been satisfied with regards to the possession of marijuana conviction. We further reject appellant's complaint that there is no instrument accompanying the Governor's Warrant charging him with escape consequence. The demand for extradition is not based solely on the charge of escape. Rather, it is based on the conviction for possession of marijuana and the fact that appellant escaped from confinement that arose as a result of that conviction. Therefore, the failure to include a charging instrument for the escape offense does not render the demand insufficient. We conclude the Governor's Warrant and accompanying demand for extradition are sufficient. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.

In support of its argument, the State cites only one unpublished case, Ex parte DeLorenzo, No. 04-00-00339-CR, 2001 WL 293624 (Tex. App.-San Antonio Mar. 28, 2001, no pet.) (not designated for publication). "Opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, `(not designated for publication).'" Tex.R.App.P. 47.7.


Summaries of

EX PARTE DAYE

Court of Appeals of Texas, Fifth District, Dallas
Aug 3, 2004
No. 05-04-00706-CR (Tex. App. Aug. 3, 2004)
Case details for

EX PARTE DAYE

Case Details

Full title:EX PARTE WILSON DON DAYE

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 3, 2004

Citations

No. 05-04-00706-CR (Tex. App. Aug. 3, 2004)