Olan Dwayne Willis v. The State of Texas--Appeal from 54th District Court of McLennan County

AFFIRMED

APRIL 5, 1990

NO. 10-90-029-CR

Trial Court

# 90-286-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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OLAN DWAYNE WILLIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 54th Judicial District Court

McLennan County, Texas

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O P I N I O N

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Appellant gave notice of appeal from the denial of a writ of habeas corpus to complain about an extradition order directing that he be delivered to the State of California. See TEX. CODE CRIM. PROC. ANN. art. 51.13 (Vernon 1979). He complains that the evidence was insufficient to support his extradition because the certification by the California Secretary of State was dated the day after the California Governor's requisition, and because the motion for requisition was incomplete on its face. He also asserts that the affidavit of Jeff Ouimet does not show probable cause that he committed a crime in California. The judgment will be affirmed.

On January 26, 1990, the court held an extradition hearing at which the State introduced the governor's warrant and its supporting documents. At the conclusion of the hearing, the court found that Appellant was the same person charged with an offense in California and ordered that he be delivered to California.

Appellant attacks the court's action in a habeas corpus proceeding. In points one and two he claims that the motion for requisition was insufficient to support his extradition because the certification by the California Secretary of State was dated the day after the California Governor's requisition, and because the motion for requisition was incomplete on its face.

Once a governor's warrant that is regular on its face is introduced into evidence, the burden is upon the defendant to overcome the prima facia proof of the existence of every fact the governor was obliged to determine before issuing the extradition warrant. Ex parte Williams, 622 S.W.2d 482, 483 (Tex. App.--Beaumont 1981, pet. ref'd). To prevail, the defendant must overcome the following presumptions: (1) that the governor acted on a proper, legal and sufficient requisition by the demanding state; (2) that he was charged with an extraditable offense under the demanding state's laws; (3) that he was in the demanding state at the time of the offense; (4) that he is a fugitive from justice; and (5) that he is legally held in custody for extradition to the demanding state. Michigan v. Doran, 439 U.S. 282, 99 S. Ct. 530, 535, 58 L. Ed. 2d 521 (1978); Wright v. State, 717 S.W.2d 485, 487 (Tex. App.--San Antonio 1986, no pet.).

In a habeas corpus proceeding involving extradition, inquiry is limited to whether the defendant has been charged with a crime in the demanding state, whether he is the person named in the extradition request, and whether he is a fugitive. Wright, 717 S.W.2d at 487. The documents introduced below meet the requirements of the extradition statute, and Texas may not look behind the documents because their validity should be determined in the demanding state. See TEX. CODE CRIM. PROC. ANN. art. 51.13 (Vernon 1979); Doran, 99 S. Ct. at 536.

Assuming, without deciding, that Appellant preserved his complaints on appeal, even though they do not comport with any objection or argument made at the hearing, he failed to rebut the State's prima facia evidence. See Williams, 622 S.W.2d at 483. Appellant's only objection was that the governor's warrant was hearsay. He did not contest the validity of the documents, which constituted the State's prima facia case; therefore, his evidence was insufficient to rebut the State's prima facia case. Points one and two are overruled.

The third point is that the affidavit of Jeff Ouimet did not establish probable cause to believe that Appellant committed an offense in California. This point is overruled because, "when a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination." See Doran, 99 S. Ct. at 536. The documents introduced at the hearing show that Judge Edward Nelson, a judicial officer in California, determined that there was probable cause to believe that Appellant committed the offense charged. Appellant introduced no evidence to show that Judge Nelson was not a neutral judicial officer. The judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice