Ex Parte Francisco Molina-Neave--Appeal from Criminal District Court, Magistrate Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00648-CR
EX PARTE Francisco MOLINA-NEAVE,
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-W-0195
Honorable Mary Rom n, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: May 2, 2007

 

AFFIRMED

Francisco Molina-Neave appeals the order denying habeas corpus relief from a Governor's extradition warrant. We affirm.

Procedural Background

On demand of the Governor of Colorado, the Governor of Texas issued a warrant ordering law enforcement officials to arrest Francisco Molina-Neave and deliver him into the custody of Colorado authorities. After the warrant was served, Molina-Neave filed an application for writ of habeas corpus challenging the legality of his arrest and extradition. The district court referred the extradition case to the Bexar County Criminal Law Magistrate, who conducted a hearing, denied habeas corpus relief, and denied Molina-Neave's request for findings of fact and conclusions of law. Molina-Neave appeals contending the magistrate did not have authority to deny relief, erred in failing to issue findings of fact and conclusions of law, and erred in concluding the arrest under the warrant was legal.

Authority of the Magistrate

After Molina-Neave refused to waive extradition and the governor's warrant issued, the judge of the 175th Judicial District Court, Bexar County, Texas, signed an order referring the extradition proceeding to the criminal law magistrate. The referral order did not limit the magistrate's authority or power, other than to direct that the magistrate "[a]ct in accordance with Sec. 54.908, Govt. Code." The referral order further provided: "Any action you take will become a decree of this Court if not superceded by an order entered by me within fifteen (15) days of your report of your action to me."

Molina-Neave argues the magistrate was authorized only to make findings and recommendations and was not authorized to rule on the merits of his application for writ of habeas corpus. We disagree. Section 54.906 of the Texas Government Code authorizes a judge to refer any criminal case to a magistrate "for proceedings involving . . . any . . . matter the judge considers necessary and proper." Tex. Gov't Code Ann. 54.906 (a) (Vernon 2005). (1) The "judge must issue an order of referral specifying the magistrate's duties," and, except as limited by the referral order, the magistrate may "do any act and take any measure necessary and proper for the efficient performance of the duties required by the order of referral." Id. 54.907(a), 54.908(14). The district judge in this case thus implicitly authorized the magistrate to "do any act and take any measure necessary and proper for" handling the extradition proceeding. This would necessarily include ruling on the application for writ of habeas corpus. That the referral authorized the magistrate to make a ruling (and not simply recommendations) is also evident from the fact that the referral order makes the magistrate's action on the matter final unless superceded by an order of the district court.

Molina-Neave also argues there is no final order denying him relief because the magistrate has not made a "report of [his] action" as required by the referral order. We again disagree. At the conclusion of the proceedings referred, a magistrate must "transmit to the referring court any papers relating to the case, including the magistrate's findings, conclusions, orders, recommendations, or other action taken." Id. 54.911. No specific form of "report" is required by statute, the referral order, or local rule. Absent proof otherwise, we presume the magistrate complied with the statute by transmitting the papers relating to the case to the district court and that the district court chose not to supercede the magistrate's order. See Kelley v. State, 676 S.W.2d 104, 108-09 (Tex. Crim. App. 1984). The magistrate's order denying relief therefore became the order of the district court.

Findings of Fact and Conclusions of Law

Molina-Neave next argues the trial court erred by failing to make findings of fact and conclusions of law after being requested to do so. He first contends findings of fact and conclusions of law are required by article 11.07, section 3(d) of the Texas Code of Criminal Procedure. However, article 11.07 applies only to applications for writs of habeas corpus in which the applicant seeks relief from a felony judgment, and findings of fact are required under that article only if the court decides there are material and controverted previously undecided facts. See Tex. Code Crim. Proc. Ann. art. 11.07, 1, 3(d). Neither is the case here.

Molina-Neave next contends the trial court specifically instructed the magistrate to make findings and conclusions by directing the magistrate to act in accordance with section 54.908 of the Government Code and report to the court. We again disagree. Section 54.908 authorizes, but does not require, a magistrate to make findings of fact and conclusions of law. See Tex. Gov't Code Ann. 54.098(8), (9) (Vernon 2005). And, as discussed above, Molina-Neave has pointed to no authority requiring the magistrate's report to the trial court to take any particular form.

Finally, citing Cullen v. State, 195 S.W.3d 696 (Tex. Crim. App. 2006), Molina-Neave contends that trial court findings of fact and conclusions of law "are essential for an adequate appellate review." In Cullen, the Texas Court of Criminal Appeals held that "upon the request of the losing party on a motion to suppress evidence, the trial court . . . must make findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court's application of the law to the facts." Id. at 699. We do not believe the reasoning supporting the court's holding in Cullen applies in this case.

When ruling on a motion to suppress evidence, a trial court generally makes credibility decisions and factual determinations about disputed historical events. On appeal, if the trial court has not made findings of fact, the appellate court must "view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Id. at 698. In Cullen, the State argued its right to appeal an order granting a motion to suppress is thwarted when appellate review of the order is based on presumed facts rather than findings of actual facts. Id. at 697. The court agreed, stating "the trial court's refusal to act prevented the court of appeals from meaningful review of the decision to grant the motion to suppress. Without findings of fact and conclusions of law, the court of appeals was left in the undesirable position of having to make assumptions about the reasons for the trial court's decision." Id. at 698.

In contrast, a habeas corpus proceeding challenging extradition is "intended to be limited in scope in order to facilitate a swift and efficient transfer of custody to the demanding state." Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App. 2000). Thus, "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." Michigan v. Doran, 439 U.S. 282, 289 (1978). These determinations require few, if any, credibility determinations and are decided primarily by a facial review of the extradition documents.

In this case, Molina-Neave challenges extradition only on the ground that the extradition documents are not in order. This issue is decided, both in the trial court and on appeal, by comparing the extradition documents to the requirements of the Uniform Criminal Extradition Act. There were no credibility determinations or findings of historical fact for the trial court to make. The trial court's failure to make findings does not require us to make any assumptions about the facts or the reasons for the trial court's decision. Nor has it prevented Molina-Neave from exhaustively presenting his grounds for review. Accordingly, the failure to make findings and conclusions was not error.

Validity of Extradition Warrant

Molina-Neave argues the governor's warrant violates his state and federal due process rights because the "form of the demand" and the application for issuance of the requisition were "defective."

The governor's warrant, which is regular on its face and was introduced into evidence at the hearing, is prima facie evidence that all constitutional and statutory requirements for extradition have been met. See Doran, 439 U.S. at 289. Though Molina-Neave could have challenged his extradition on any of the Doran grounds, he attacked only the sufficiency of the extradition documents. See id. (applying the federal Extradition Act, 18 U.S.C. 3182 (West 1996)); Ex parte Wray, 624 S.W.2d 573, 575 (Tex. Crim. App. 1981) (applying article 51.13 of the Texas Code of Criminal Procedure (the Uniform Criminal Extradition Act, as adopted by the State of Texas)). We review the trial court's order denying relief for abuse of discretion. Ex parte McWilliams, 272 S.W.2d 531, 531 (Tex. Crim. App. 1954).

Form of the demand

Molina-Neave first argues the demand for extradition from the Governor of Colorado is "defective" because the documents affixed to it "support a different proposition than that alleged." We disagree.

Section 3 of the Uniform Criminal Extradition Act states in relevant part:

No demand of the extradition of a person charged with crime in another State shall be recognized by the governor unless in writing, alleging . . . the accused was present in the demanding State at the time of the commission of the alleged crime, and that thereafter he fled from the State, and accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, or by a copy of an affidavit before a magistrate there, together with a copy of any warrant which issued thereupon; or by 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. . . .

Tex. Code Crim. Proc. Ann. art. 51.13, 3 (Vernon 2006). The governor's warrant and the requisition demand from the Governor of Colorado recite that Molina-Neave was charged with assault in the first degree, criminal attempt first degree assault, and assault in the third degree (crimes under the laws of the State of Colorado), that Molina-Neave was present in Colorado when the alleged crime was committed, fled from the justice of Colorado, and is now in Texas. The demand is supported by a felony complaint and information charging the assaultive offenses, the affidavit of a Colorado district court judge, a warrant for failure to appear, and the district attorney's application for requisition.

The documents referred to in the demand reflect Molina-Neave was charged with assault in the first degree, criminal attempt first degree assault, and assault in the third degree, alleged to have occurred in the State of Colorado on or about July 5, 1997. Molina-Neave was tried by a jury in Colorado on January 21, 1999. When the jury returned with a verdict in the guilt/innocence phase of the trial, Molina-Neave fled the court. The jury found Molina-Neave guilty on seven of ten counts, but because of his flight, he was not sentenced. A warrant for failure to appear, listing the pending charges against Molina-Neave, was issued the same day, but Molina-Neave has remained a fugitive.

Molina-Neave insists the documents supporting the demand indicate he has been convicted of the charges. Accordingly, he contends the demand for extradition inaccurately states he is a fugitive from pending charges. He argues that to comply with the requirements of section 3 of article 51.13, the demand must recite that he "has escaped from confinement or has broken the terms of his bail, probation or parole" and must be accompanied by "a copy of a judgment of conviction or of a sentence imposed in execution thereof." See id.

Molina-Neave is incorrect. "A defendant is not 'convicted' until sentenced." Ex parte McClintick, 945 S.W.2d 188, 191 (Tex. App.-San Antonio 1997, no pet.); see People v. Wiedemer, 899 P.2d 283, 284 (Colo. App. 1994) (defendant must be sentenced before there is a "judgment of conviction" under Colorado law); see also Ex parte Fontes, 475 S.W.2d 781, 782 (Tex. Crim. App. 1972) (holding that in absence of contrary proof, courts assume laws of requisitioning state are same as laws of Texas). (2) Because Molina-Neave has not been convicted, the demand correctly recites he is a fugitive from justice and contains all the other allegations required by section 3 of article 51.13.

Sufficiency of the application for requisition

Molina-Neave next argues the application for requisition filed by the District Attorney for the City and County of Denver was defective because it did not state the appropriate ground for extradition and because it failed to state either the approximate time, place, and circumstances of the commission of the alleged crime, as required for a fugitive from justice, or the crime of conviction, circumstances of escape, or circumstance of breach of bail, as required for a fugitive who has escaped. See Tex. Code Crim. Proc. Ann. art. 51.13 23(1)-(2) (Vernon 2006); Co. Rev. Stat. 16-19-124(1)-(2). We conclude the sufficiency of the application for requisition is not an issue that may be raised in a habeas corpus proceeding challenging extradition. See McClintick, 945 S.W.2d at 192; Rayburn v. State, 748 S.W.2d 285, 289 (Tex. App.-Tyler 1988, no pet.).

The Extradition Clause of the United States Constitution creates a "mandatory duty to deliver up fugitives upon proper demand." Puerto Rico v. Branstad, 483 U.S. 219, 226 (1987); see U.S. Const. art. IV, 2, cl. 2. "The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act [18 U.S.C. 3182] have been met." California v. Superior Court of California, 482 U.S. 400, 408, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987). A petitioner's ability to challenge by habeas corpus "whether the extradition documents on their face are in order," Doran, 439 U.S. at 289, thus necessarily refers to whether the demand and the required accompanying documents comply with the Extradition Act and the Texas Uniform Criminal Extradition Act. Rayburn, 748 S.W.2d at 288-89; see Doran, 439 U.S. at 288-290. Neither federal nor Texas law require that a demand for extradition be accompanied by an application for requisition. See 18 U.S.C. 3182 (West 1996); Tex. Code Crim. Proc. Ann. art 51.13, 3 (Vernon 2006). Thus a court reviewing the validity of a governor's warrant may not go behind the demand to question the application. McClintick, 945 S.W.2d at 192; Rayburn, 748 S.W.2d at 289. The issue of the validity of the application is a matter to be litigated in the courts of the demanding state. Rayburn, 748 S.W.2d at 289 n.3.

Other Alleged Errors

Finally, Molina-Neave contends the trial court "erred in not finding, as a matter of law, that the Applicant was in custody when he escaped and/or violated a condition of his bail" and erred in concluding the State's only burden was to prove the identity of the accused. We again disagree. The trial court had no duty to decide whether Molina-Neave violated a condition of his bail or was in custody when he fled. The demand from the Governor of Colorado alleged Molina-Neave was a fugitive from justice with pending charges in Colorado. The supporting documents substantiated the allegations. The trial court was not required, and indeed not authorized to make any further factual inquiry. See Doran, 439 U.S. at 288-290. There is no indication in the record that the trial court considered identity to be the only issue it could consider or the only issue it decided.

Conclusion

For the reasons discussed, the trial court did not abuse its discretion in concluding the governor's warrant for extradition of Molina-Neave to Colorado is valid. Accordingly, we affirm the trial court's order denying habeas corpus relief.

Steven C. Hilbig, Justice

Do not publish

1. The only statutory limitation on matters that may be referred to a magistrate is that magistrates may not preside over a trial on the merits. Id. 54.906(b). A habeas corpus proceeding challenging extradition is not a trial on the merits. Ex parte Scarbrough, 604 S.W.2d 170, 173 (Tex. Crim. App. 1980).

2. Contrary to several statements in Molina-Neave's brief, the documents supporting the demand for extradition do not state he has been "convicted," nor do they refer to the assaults as "final convictions," as opposed to "pending charges."