Alfonso, Michael v. The State of Texas--Appeal from 180th District Court of Harris County

Affirmed and Memorandum Opinion filed May 10, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00962-CR

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MICHAEL ALFONSO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 998,653

M E M O R A N D U M O P I N I O N

Appellant, Michael Alfonso, filed an application for writ of habeas corpus challenging his arrest and extradition. In one point of error, appellant claims the district court erred in refusing to grant a writ of habeas corpus because the Governor s Warrant does not meet the requirements of article 51.13 of the Texas Code of Criminal Procedure. We affirm.

In July 2001, the State of Illinois charged appellant with first degree murder and aggravated stalking. On July 16, 2004, appellant was apprehended in Mexico and deported to Houston, Texas. On August 5, 2004, pursuant to a rendition request from the Governor of Illinois, the Governor of Texas issued a warrant for appellant s arrest and extradition to Illinois.

On August 23, 2004, appellant filed an application for writ of habeas corpus claiming his arrest by Governor s Warrant was unlawful under the Uniform Criminal Extradition Act because he was not a fugitive. At the habeas hearing on September 16, 2004, the State of Texas introduced a copy of the Governor s Warrant and copies of the following documents supporting the warrant: a complaint alleging the murder and stalking counts; a verification of the complaint; an affidavit supporting the complaint; and an arrest warrant for first degree murder. The affidavit was sworn before and signed by a Judge of the Circuit Court of DuPage County, Illinois and asserted, there is probable cause to believe such offense[s were] committed by the accused. The court admitted the affidavit over appellant s objection that it did not state probable cause, which . . . can be challenged under Ex parte Sanchez. The court denied appellant s request for habeas relief and remanded him for extradition to Illinois, and appellant filed a timely notice of appeal.

In his sole point of error, appellant claims the trial court erred in denying habeas relief because the affidavit offered at the habeas hearing in support of the Governor s Warrant was signed and sworn before an Illinois Circuit Court Judge, not a magistrate, and, thus, fails to meet the facial requirements of Texas Code of Criminal Procedure article 51.13, section 3. See Tex. Code Crim. Proc. Ann. art. 51.13, 3 (Vernon Supp. 2004 2005). In his brief, appellant provides an overview of Illinois courts and concludes magistrates no longer exist in the State of Illinois. Therefore, appellant reasons, the affidavit must fail under the Texas statute because the State of Illinois can never meet the requirements of article 51.13 that an affidavit be sworn before a magistrate. Appellant concedes this situation may appear preposterous, but maintains the State of Illinois still ha[s] the option of providing three other forms of supporting documentation to extradite an accused from Texas.

We conclude as a preliminary matter that appellant failed to preserve his complaint for appellate review at the habeas proceeding. Generally, error must be presented at trial with a timely and specific objection, and any objection that differs from the complaint on appeal preserves nothing for review. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990); see also Tex. R. App. P. 33.1. In other words, an objection stating one legal theory may not be used to support a different legal theory on appeal. Babb v. State, 868 S.W.2d 3, 5 (Tex. App. El Paso 1993, no pet.) (holding that error was not preserved in a habeas corpus hearing contesting extradition where challenge to Governor s Warrant at hearing differed from challenge raised on appeal); see also Adams v. State, No. A14 91 00466 CR, 1992 WL 49789, at *1 2 (Tex. App. Houston [14th Dist.] Mar. 19, 1992, no pet.) (not designated for publication) (holding appellant had not preserved Fifth Amendment right against self incrimination complaint for appeal where the lone objection at the habeas corpus hearing contesting extradition claimed the supporting documents failed to describe an offense punishable under Texas law).

At the hearing, appellant objected to the State s supporting affidavit on the sole ground the affidavit does not state probable cause, which . . . can be challenged under Ex parte Sanchez. For the first time on appeal, however, appellant argues solely that the Governor s Warrant does not meet the facial requirements of Texas Code of Criminal Procedure article 51.13, section 3 because a magistrate did not sign the supporting affidavit. As in Babb, appellant s complaint on appeal does not comport with his objection raised at the habeas hearing; accordingly, appellant has failed to preserve any grounds of error for review.

In any event, even had appellant preserved error for our review, his argument fails. Once the Governor has granted extradition, a court considering release on habeas corpus can do no more than decide: (a) whether the extradition documents on their face are in order, (b) whether the petitioner has been charged with a crime in the demanding state, (c) whether the petitioner is the person named in the request for extradition, and (d) whether the petitioner is a fugitive. Rentz v. State, 833 S.W.2d 278, 279 (Tex. App. Houston [14th Dist.] 1992, no pet.). The State may establish a prima facie case for extradition at the habeas hearing by introducing a Governor s Warrant, regular on its face, and, once established, the burden shifts to the accused to show that the warrant was neither legally issued nor based on proper authority or that its recitals are inaccurate. Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980). A prima facie case can be defeated or supported by the supporting papers introduced, regardless of which party may have offered the supporting papers into evidence. Id.

Appellant attempts to defeat the State s prima facie case for extradition by alleging the affidavit introduced in support of the Governor s Warrant fails under the plain language of Texas Code of Criminal Procedure article 51.13, section 3 because it was sworn before an Illinois Circuit Court Judge, rather than a magistrate. Article 51.13, section 3 provides in part that no demand for extradition of a person charged with a crime in another state shall be recognized unless it is accompanied by at least a copy of one of the following: (1) an indictment; (2) an information supported by affidavit; (3) an affidavit made before a magistrate, together with a copy of any warrant issued thereupon; or (4) a judgment of conviction or sentence imposed, together with a statement by an Executive Authority of the demanding state that the person has escaped from confinement or has broken the terms of his bail, probation, or parole. Tex. Code Crim. Proc. Ann. art. 51.13, 3.

The purpose of section 3 in requiring that the demand be accompanied by one of the enumerated set of instruments is to present a showing that the person whose surrender is sought was charged in the regular course of judicial proceedings. Ex parte Rosenthal, 515 S.W.2d 114, 119 (Tex. Crim. App. 1974). Unless the accusation is clearly void, the question of its validity is for the demanding state; the sufficiency of the indictment, information, or affidavit as a criminal pleading is not at issue in the asylum state. Id. Further, if the demanding state has made a judicial determination that probable cause exists, no further judicial inquiry regarding probable cause for extradition may occur in the asylum state. Ex parte Sanchez, 642 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1982). If it appears to the court the accused is charged with an offense and all other prerequisites have been complied with, the applicant for habeas relief should be extradited. Ex parte Flores, 548 S.W.2d 31, 32 (Tex. Crim. App. 1977). See generally Tex. Code Crim. Proc. Ann. art. 51.13, 3 (stating that an affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that State ).

Here, the affidavit, introduced along with a complaint, a verification, and an arrest warrant, was sworn before and signed by a Judge of the Circuit Court of DuPage County, Illinois and asserts, there is probable cause to believe such offense[s were] committed by the accused. Thus, appellant appears to have been substantially charged with an offense in the regular course of judicial proceedings under article 51.13, section 3. Moreover, this court and others have consistently rejected arguments that an affidavit s lack of signature or swearing before a magistrate, in itself, defeats a prima facie case for extradition established by the State. See, e.g., Ex parte Mungia, 478 S.W.2d 440, 441 (Tex. Crim. App. 1972) (holding an affidavit sworn before a district court judge sufficient under article 51.13, section 3); Ex parte Martin, No. 14 03 00082 CR, 2003 WL 21283067, at *2 (Tex. App. Houston [14th Dist.] June 5, 2003, no pet.) (not designated for publication) (holding an affidavit sworn before a superior court judge sufficient under article 51.13, section 3). Therefore, appellant s sole issue is overruled.

The trial court s judgment is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed May 10, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish Tex. R. App. P. 47.2(b).