JESUS VIVES, JR. v. THE STATE OF TEXAS--Appeal from 398th District Court of Hidalgo County

 NUMBER 13-04-123-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

EX PARTE JESUS VIVES, JR.

On appeal from the 398th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Memorandum Opinion by Justice Ya ez

Appellant, Jesus Vives, Jr., filed an application for writ of habeas corpus seeking to avoid extradition to Michigan. Following a hearing, the trial court denied appellant the relief he sought and authorized his extradition. Appellant also filed a motion for new trial, which the trial court denied. In a single issue, appellant contends the trial court erred in denying his habeas petition because he is not a fugitive from Michigan. We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it.[1]

The record contains the trial court's certification that the case is not a plea bargain case and the defendant has the right of appeal.[2]

Applicable Law

If the governor has signed a governor's warrant granting extradition, a trial court entertaining an application for writ of habeas corpus may decide only four issues: (1) whether the extradition documents are facially in order; (2) whether the applicant has been charged with a crime in the demanding state; (3) whether the applicant is the person named in the demand for extradition; and (4) whether the applicant is a fugitive.[3] Additionally, an accused may raise the issue of his mental competency to consult with counsel.[4]

A governor's warrant which is regular on its face is sufficient to make a prima facie case authorizing extradition.[5] Once the governor's warrant is shown to be regular on its face, the burden shifts to the petitioner to show that (1) the warrant was not legally issued, (2) it was issued on improper authority, or (3) the recitals in it are inaccurate.[6]

Federal law provides for mandatory extradition of interstate fugitives who commit an offense in one state and then flee to another state.[7] The Texas Code of Criminal Procedure imposes a duty upon the Governor to order extradition under these mandatory circumstances.[8] 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.[9]

Analysis

The State of Michigan has charged appellant with felony criminal non-support of his children. The obligation for support arose out of a divorce decree entered in Michigan in 1996. The documents admitted into evidence at appellant=s habeas hearing reflect that as of October 25, 2002, appellant allegedly had accumulated an arrearage of $39,168.74.

Appellant contends the trial court erred in denying his request for habeas relief because he properly raised an issue as to whether he is a fugitive from Michigan.[10] Specifically, appellant argues in his brief that he Acannot be considered a fugitive from Michigan if the allegations which gave rise to any pending criminal matter in Michigan have already been formalized by the Office of the Attorney General in the State of Texas.@[11]

In his habeas petition, appellant argued, among other things, that (1) because a contempt action was pending against him in Hidalgo County for failure to pay the same child support, Michigan had waived its right to extradition, and (2) neither the affidavit, warrant, or indictment state that he was present in Michigan at the time of the offense and that he fled from the state, nor do the documents allege that he committed an act in Texas, or a third state, resulting in a crime in Michigan.[12] At the hearing, appellant argued only that the documents supporting the extradition request failed to comply with section 3 of article 51.13 of the code of criminal procedure because the documents failed to recite that Athe 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 . . .@[13]

When a complaint on appeal differs from that made at trial, the error is waived.[14] Because appellant denied the trial court an opportunity to rule on the specific complaint he argues on appeal (i.e., appellant=s status as a fugitive), he presents nothing for review.[15]

We overrule appellant=s sole issue and AFFIRM the trial court=s denial of appellant=s petition for writ of habeas corpus.

_______________________

LINDA REYNA YA EZ,

Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and

filed this the 25th_day of August, 2005.

[1] See Tex. R. App. P. 47.4.

[2] See Tex. R. App. P. 25.2(a)(2).

[3] Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App. 2000).

[4] Id. at 296.

[5] Ex parte Kronhaus, 410 S.W.2d 442, 443 (Tex. Crim. App. 1969); Ex parte Rodriguez, 943 S.W.2d 97, 99 (Tex. App.BCorpus Christi 1997, no pet.).

[6] Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980); Rodriguez, 943 S.W.2d at 99.

[7] See U.S. Const. art. IV, ' 2, cl. 2; 18 U.S.C.A. ' 3182 (2005); see also Ex parte Holden, 719 S.W.2d 678, 678 (Tex. App.BDallas 1986, no pet.).

[8] See Tex. Code Crim. Proc. Ann. art. 51.13, '' 2, 3 (Vernon Supp. 2004-05); see also Holden, 719 S.W.2d at 678.

[9] See Tex. Code Crim. Proc. Ann. art. 51.13, ' 6 (Vernon Supp. 2004-05); see also Ex parte Harrison, 568 S.W.2d 339, 343 (Tex. Crim. App. 1978). The State contends appellant=s extradition was authorized under section 6.

[10] See Potter, 21 S.W.3d at 294. A fugitive is "a person charged in the demanding state with committing a crime in the demanding state and fleeing therefrom." Castillo v. State, 700 S.W.2d 350, 351 (Tex. App.BCorpus Christi 1985, no writ) (quoting Ex Parte Harrison, 568 S.W.2d 339, 343 (Tex. Crim. App. 1978)). The term 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 state where the offense was perpetrated. See Harrison, 568 S.W.2d at 344.

[11] At the habeas hearing, appellant introduced into evidence an AOrder to Appear and Show Cause@ in cause number F-009-99-1, styled In the Interest of C. Vives, T. Vives, Minor Children, in County Court-at-Law No. 1 in Hidalgo County. The document states appellant is ordered to appear on December 4, 2002.

[12] See Tex. Code Crim. Proc. Ann. art. 51.13 '' 3, 6 (Vernon Supp. 2004-05).

[13] See id. ' 3.

[14] See Tex. R. App. P. 33.1; Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Alvarado v. State, 822 S.W.2d 236, 239 (Tex. App.BHouston [14th Dist.] 1991, pet. ref=d) (holding an objection must call the attention of the trial court to the specific complaint raised on appeal).

[15] See Alvarado, 822 S.W.2d at 239.