Julian Rodriguez v. The State of Texas--Appeal from 156th District Court of Bee County

NUMBER 13-05-449-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_________________________________________________________

  JULIAN RODRIGUEZ, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

_________________________________________________________

On appeal from the 156th District Court

of Bee County, Texas.

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MEMORANDUM OPINION

    Before Justices Hinojosa, Ya ez, and Rodriguez

Memorandum Opinion Per Curiam

This is an attempted appeal from an extradition proceeding based on the non-payment of child support. We dismiss the appeal for want of jurisdiction.

The record in this cause shows that appellant was arrested based on an extradition warrant issued by the Governor of Texas at the request of the State of Indiana. Pursuant to the criminal code, appellant was taken before a judge of this state and informed of the demand from the State of Indiana. See Tex. Code Crim. Proc. Ann. art. 51.13 (Vernon Supp. 2004-05). Appellant refused to sign a waiver of extradition. At the hearing, the governor=s warrant was offered for all purposes. Appellant, represented by counsel, testified that he was the individual identified in the warrant and admitted that he owed child support. Appellant requested that he not be extradited on grounds that he had been ill, his parents were ill, he was newly married, and he was gainfully employed.

The trial court issued a verbal ruling that the extradition warrant would be honored and ordered appellant bound and held pending appeal. The trial court informed appellant that he had Athe right to appeal the decision of the Court.@ Trial counsel moved to withdraw from representing appellant based on a conflict of interest, and the trial court appointed new appellate counsel. This appeal ensued.

This Court lacks jurisdiction to consider this appeal. The only manner to test the legality of a governor's extradition warrant is through the filing of an application for writ of habeas corpus. Ex parte Chapman, 601 S.W.2d 380, 383 (Tex. Crim. App.1980); Stelbacky v. State, 22 S.W.3d 583, 587 (Tex. App.BAmarillo 2000, no pet.). Moreover, an appealable judicial determination occurs only if the arrestee challenges the extradition by way of a writ of habeas corpus and receives an adverse ruling by the trial court. Chapman, 601 S.W.2d at at 383; McPherson v. State, 752 S.W.2d 178, 179 (Tex. App.BSan Antonio 1988, pet. ref'd, untimely filed); Martinez v. State, 688 S.W.2d 201, 202 (Tex. App.BCorpus Christi 1985, no pet.). If no writ of habeas corpus is filed, the arrestee is not in the posture of an applicant for habeas corpus whose prayer for relief has been denied for appellate purposes. Chapman, 601 S.W.2d at 383; Martinez, 688 S.W.2d at 202. This is so even if the trial court gratuitously holds a hearing on the extradition. Martinez, 688 S.W.2d at 202.

Here, the record shows that appellant did not file an application for writ of habeas corpus. Therefore, because our jurisdiction is limited to consideration of an appeal from the denial of habeas corpus relief, we must dismiss appellant's appeal. Chapman, 601 S.W.2d at 383; Martinez, 688 S.W.2d at 202. Accordingly, the appeal is dismissed.

PER CURIAM

Do not publish.

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

Memorandum Opinion delivered and

filed this the 25th day of August, 2005.