Opinion
No. 05-03-00213-CR
Opinion Filed May 19, 2003 Do Not Publish
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 49559 REVERSE
Before Chief Justice THOMAS AND Justices WHITTINGTON and RICHTER.
OPINION
Larry E. Polfer, Jr. filed an application for writ of habeas corpus seeking to avoid extradition to Missouri. Following a hearing, the trial court denied appellant the relief he sought. In two points of error, appellant contends the trial court erred in admitting the unauthenticated governor's warrant over his objection and in not finding appellant was not a fugitive from the State of Missouri. For the reasons set forth below, we sustain appellant's second point of error, reverse the trial court's order, and order appellant discharged from custody under the Governor's Warrant.
Facts
The State of Missouri has charged appellant by complaint with felony criminal non-support of his children. The obligation for support arose out of a divorce decree entered in Kansas in 1991. The complaint alleges that:on or between OCTOBER 15, 2001 and APRIL 15, 2002, in the County of Clay, State of Missouri, [appellant] knowingly failed to provide, without good cause, adequate food, clothing, lodging, and medical or surgical attention, which defendant was legally obligated to provide for his minor children . . ., and [appellant] committed the crime of non-support in each of six individual months within any twelve month period or [appellant] has a total arrearage in excess of five thousand dollars.Appellant would not waive extradition, and filed an application for writ of habeas corpus seeking to avoid extradition. At the hearing on appellant's application, appellant testified that he has lived in Denison, Texas for five and one-half years. Appellant and his former wife, Lisa Annette Williams, were married in the State of Kansas, and they lived there together for two-and-a-half years. Appellant and Williams were divorced in Kansas. Appellant further testified he has never been a resident of Clay County, Missouri, or the State of Missouri. Williams testified she currently resides in Liberty, Missouri, and has lived there four-and-a-half years. She and appellant married in Kansas and have two children. Williams and appellant divorced in 1991, and pursuant to that divorce decree, appellant was obligated to pay child support. Williams moved to Missouri in 1990, before the divorce was final. A "case" was filed against appellant in Missouri after Williams began receiving AFDC. Williams testified appellant has never lived in Missouri. At the conclusion of the hearing, the trial court denied appellant the relief requested by his application for writ of habeas corpus. This appeal followed.
Applicable Law
Only four issues may be raised by application for writ of habeas corpus. They are whether: (1) the extradition documents on their face are in order; (2) the petitioner has been charged with a crime in the demanding state; (3) the petitioner is the same person named in the request for extradition; and (4) 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 shifts to the petitioner to show the warrant was not legally issued, that it was issued on improper authority, or that the recitals in it are inaccurate. 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.Validity of Governor's Warrant
In his first point of error, appellant asserts the trial court erred in admitting into evidence the unauthenticated copy of the Governor's Warrant. Appellant contends the Governor's Warrant appears to be a copy of a copy, and that although the State represented it as a certified copy, nothing in the record reflects it was certified. Appellant argues that because the trial court improperly admitted the unauthenticated documents, the State never met its prima facie case. The State responds that the Governor's Warrant from Missouri authenticates the documents attached to it, and the demanding governor's certification as to the authenticity of the documents is sufficient to satisfy the requirement. We construe appellant's complaint as attacking the authenticity of all of the documents, including the Governor's Warrant itself, because the copies of the documents introduced into evidence were not certified. Appellant cites no authority for his argument that the State must introduce certified copies of the Governor's Warrant into evidence. He relies on State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, 543 (Tex.Crim.App. 1991), for the proposition that to be properly introduced, there must be some showing the documents are true and correct copies of what they purport to be. Nothing in Klevenhagen, however, states copies of documents introduced into evidence during an extradition hearing must be certified copies. The court in Klevenhagen merely noted that there were "true and correct copies" of the Governor's Warrant and supporting papers in the record in that case. See id. Moreover, the rules of evidence, except for privileges, do not apply to "proceedings in an application for habeas corpus in extradition." Tex.R.Evid. 101(d)(1)(C). The documents introduced into evidence in support of the extradition consist of the Governor's Warrant signed by the Honorable Rick Perry, Governor of Texas, the Requisition Demand and Agent Authorization, signed by the Honorable Bob Holden, governor of Missouri, and copies of various documents from the State of Missouri, including a complaint charging appellant with the Class D felony of Criminal Non-Support. The requisition demand signed by the governor of Missouri certifies to the authenticity of the documents attached to it. This is sufficient to meet the requirements of article 51.13, section 3. See Tex. Code Crim. Proc. Ann. art. 51.13, § 3 (Vernon 1979). Nothing reflects the documents are not what they purport to be. Therefore, we conclude the trial court did not err in admitting the documents into evidence. We overrule appellant's first point of error.Fugitive from Justice
In his second point of error, appellant contends the trial court erred in not finding appellant was not a fugitive from Missouri. Appellant asserts the uncontroverted evidence shows he was not in the State of Missouri at the time the alleged offense was committed, nor has he ever lived in Missouri. And, although, appellant concedes, extradition would be permissible under article 51.13, section six, all of the supporting documentation from Missouri, as well as the Governor's Warrant, reflect the states are pursuing their remedy under article 51.13, section three. The State responds that whether Missouri proceeded under section three or section six is immaterial. Appellant was indicted for failing to pay support to his children, Williams testified appellant was originally indicted in Kansas, where he did reside, and the case was transferred to Missouri after she began receiving AFDC. The State asserts, without any citation to authority, that the offense occurred in both Kansas and Missouri, an indictment was obtained in Missouri, and a warrant was issued on that indictment; therefore, because appellant was residing in Texas when Missouri issued the warrant based on its indictment, appellant was a fugitive from Missouri. One of the four issues that may be raised in an extradition proceeding is whether the petitioner is a fugitive. See Doran, 439 U.S. at 289. A fugitive is a person charged in the demanding state with committing a crime in the demanding state and fleeing therefrom. Ex parte Harrison, 568 S.W.2d 339, 343 (Tex.Crim.App. [Panel Op.] 1978). The term fugitive also includes an individual who intentionally commits an act in one state resulting in a crime in another state, who thus seeks to abate the administration of justice in the sate where the offense was perpetrated. See id. at 344. Federal law provides for mandatory extradition of interstate fugitives who commit an offense in one state then flee to another state. See U.S. Const. art. IV, § 2, cl. 2; 18 U.S.C.A. § 3182 (West 2000); see also Ex parte Holden, 719 S.W.2d 678, 678 (Tex.App.-Dallas 1986, no pet.). The Texas Code of Criminal Procedure imposes a duty upon the Governor to order extradition under these mandatory circumstances. See Tex. Code Crim. Proc. Ann. art. 51.13, §§ 2, 3; see also Ex parte Holden, 719 S.W.2d at 678. Section six of article 51.13 gives the Governor discretion to surrender any person whose actions in Texas, or in a third state, intentionally result in a crime in the demanding state. See id. § 6; see also Ex parte Harrison, 568 S.W.2d at 343. Extradition pursuant to a mandatory section is improper when the supporting documents show the accused was outside the demanding state at the time of the offense because a demand for mandatory extradition, made when the circumstances only authorize permissive surrender, denies the accused any potential benefit from the Governor's exercise of discretion. See Ex parte Holden, 719 S.W.2d at 679-80; Ex parte Castillo, 700 S.W.2d 350, 353 (Tex.App.-Corpus Christi 1985, no pet.). The Governor's Warrant in this case is regular on its face, creating a prima facie case authorizing extradition. See Ex parte Moore, 436 S.W.2d at 902; Ex parte Johnson, 651 S.W.2d at 440. The burden, therefore, shifted to appellant to prove the recitals were not accurate. The testimony of interested witnesses, standing alone, is insufficient to rebut the presumption raised from the allegation. Ex parte Harrison, 469 S.W.2d 571, 572 (Tex.Crim.App. 1971). However, appellant could meet his burden through the supporting papers introduced at the hearing, as well as through uncontroverted testimony. See Ex parte Holden, 719 S.W.2d at 679. In this case, the Requisition Demand and Agent Authorization recites:Larry E. Polfer, Jr. stands charged with the crime(s) of Criminal Non-Support, Section 568.040 RSMo. , said act or acts having been committed in the State of Missouri, intentionally resulting in a crime or crimes in the County of Clay, State of Missouri, and that said person was present in this State at the time of the commission of the crime(s), and has fled here from and has taken refuge within the aforesaid State of Texas.(Emphasis in italics added). Thus, the requisition clearly states appellant committed the offense of criminal non-support while he was in the State of Missouri. However, the undisputed evidence at the extradition hearing showed appellant was not in the State of Missouri at the time he failed to pay child support for his children who were living in Missouri. See Ex parte Holden, 719 S.W.2d at 679. Moreover, the State has adopted appellant's recitation of the facts as true. Therefore, the evidence rebuts the prima facie showing that appellant was in the State of Missouri at the time he allegedly committed the offense of criminal non-support. We are unpersuaded by the State's argument regarding appellant's commission of the offense while he was in the State of Kansas. Kansas is not seeking appellant's extradition, Missouri is, and for an offense it alleged appellant committed while in the State of Missouri. Because the undisputed evidence shows appellant was not in Missouri at the time of the alleged offense, appellant's extradition to Missouri is a matter gubernatorial discretion. See Tex. Code Crim. Proc. Ann. art. 51.13, § 6. The Requisition Demand and Agent Authorization signed by the governor of Missouri and the Governor's Warrant, however, clearly recite facts essential to mandatory extradition as required by sections three and seven. See id. §§ 3, 7. This conflict concerning the statutory basis for appellant's extradition reveals that he was effectively denied gubernatorial discretion by the misleading requisition tracking the mandatory section of the extradition. See Ex parte Holden, 719 S.W.2d at 679-80; Ex parte Castillo, 700 S.W.2d at 353. We sustain appellant's second point of error. We conclude the trial court erred in not granting appellant the relief he sought by his application for writ of habeas corpus. Accordingly, we reverse the trial court's order denying appellant relief. We order appellant discharged from custody under the Governor's Warrant issued on November 21, 2002.