RUBEN O. GARZA, JR. v. THE STATE OF TEXAS--Appeal from 93rd District Court of Hidalgo County

 NUMBER 13-05-189-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

RUBEN O. GARZA, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 93rd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

  Memorandum Opinion by Justice Garza

Appellant, Ruben O. Garza, Jr., filed an application in the trial court seeking relief via a writ of habeas corpus from a warrant issued by the governor of Texas directing his extradition to the state of Wisconsin. The trial court conducted a hearing pursuant to Texas Code of Criminal Procedure article 51.13. Tex. Code Crim. Proc. Ann. art. 51.13 (Vernon Supp. 2004-05). Upon conclusion of the hearing, appellant=s request for habeas corpus relief was denied and he was ordered extradited to Wisconsin. Appellant now appeals the denial of the writ in a single issue. We affirm.

By one issue, appellant contends that the trial court erred in denying habeas corpus relief because the governor=s warrant does not reflect that the governor exercised discretion vested in him by section 6 of article 51.13. See id. ' 6. Instead, appellant asserts the warrant states facts necessary for mandatory extradition under section 3 of article 51.13. Id. '' 2, 3. Appellant further claims that the trial court erred in denying habeas corpus relief because the governor=s warrant of extradition does not substantially recite the facts necessary to the validity of its issuance in accordance with section 7 of article 51.13. Id. ' 7.

I. Background

The state of Wisconsin charged appellant by complaint with conspiracy to deliver a controlled substance. The complaint alleges in pertinent part that:

Between January 2002 and October 13, 2002 the defendant did conspire to deliver THC to various locations in Portage County, Wisconsin, in the amount of more than 10,000 grams contrary to sec. 961.41 (1) (h) (5) of the Wisconsin Statutes, a Class E Felony punishable by a fine not more than $15,000 and imprisonment of not more than 15 years, or both.

* * *

After his arrest in Texas, appellant filed an application for writ of habeas corpus seeking to avoid extradition to Wisconsin. At the hearing on appellant=s application, appellant=s wife testified that she and appellant lived together in January 2002 and were married in February 2002. She testified that she and appellant lived in Donna, Texas from January 2002 to January 2004. She further testified that appellant worked at H&H Foods in Mercedes, Texas. The State stipulated that appellant was not in Wisconsin during the relevant times, but clarified that whether he was in Wisconsin at the time was irrelevant because article 51.13 section 6 allows extradition if an act committed in Texas results in a crime in the demanding state. At the conclusion of the hearing, the trial court denied appellant the relief requested by his application for writ of habeas corpus. This appeal followed.

II. Applicable Law

Only four issues may be raised by application for writ of habeas corpus. They are whether: (1) the extradition documents on their face are in order, (2) the petitioner has been charged with a crime in the demanding state, (3) the petitioner is the same person named in the request for extradition, and (4) the petitioner is a fugitive. See Michigan v. Doran, 439 U.S. 282, 289 (1978). A governor=s warrant that is regular on its face is sufficient to make a prima facie case authorizing extradition. See Ex parte Moore, 436 S.W.2d 901, 902 (Tex. Crim. App. 1968); Ex parte Johnson, 651 S.W.2d 439, 440 (Tex. App.BDallas 1983, no pet.). The burden of proof then shifts to the petitioner to show the warrant was not legally issued, that it was issued on improper authority, or that the recitals in it are inaccurate. Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980). This can be done by the supporting papers introduced at the hearing. See id.

III. Analysis

Article 51.13, section 2 imposes a duty upon the governor to order extradition when someone commits an offense in one state and then flees to Texas. See Tex. Code Crim. Proc. Ann. art 51.13 '' 2, 3. Under such circumstances, the extradition of the fugitive is mandatory. See id. ''2, 3. However, section 6 of the same article provides that the governor may surrender any person whose actions in Texas, or in a third state, intentionally result in a crime in the demanding state. Id. ' 6 (emphasis added). This section, unlike section 2, is expressed entirely in permissive terms. Extradition pursuant to a mandatory section is improper when the supporting documents show the accused was outside the demanding state at the time of the offense because a demand for mandatory extradition, made when the circumstances only authorize permissive surrender, denies the accused any potential benefit from the governor=s exercise of discretion. See Ex parte Holden, 719 S.W.2d 678, 679-80 (Tex. App.BDallas 1986, no pet.); Ex parte Castillo, 700 S.W.2d 350, 353 (Tex. App.BCorpus Christi 1985, no pet.).

In his sole issue, appellant asserts that he was erroneously extradited pursuant to the mandatory provisions of section 2 of article 51.13. He contends that the governor of Texas extradited him pursuant to the mandatory provisions of section 2 because the Wisconsin charge, Requisition Demand, and supporting affidavits erroneously alleged facts which called for mandatory extradition, i.e., that appellant was actually present in Wisconsin when he allegedly committed the crime of conspiracy to deliver. See Tex. Code Crim. Proc. Ann. art. 51.13 '' 2, 3. Appellant contends that mandatory extradition was improper and he was instead entitled to discretionary extradition pursuant to section 6 of article 51.13 because evidence was presented at the habeas corpus hearing establishing that he was not in Wisconsin during the commission of the offense. In support of his argument, appellant points out that the governor=s warrant does not allege acts committed in Texas, or in a third state, intentionally resulting in a crime in Wisconsin. Thus, he concludes, he was denied any potential benefit from the governor=s exercise of discretion. Appellant further claims that the trial court erred in denying habeas relief because the governor=s warrant of extradition failed to Asubstantially recite the facts necessary to the validity of its issuance@ in accordance with section 7 of article 51.13.[1]

In the present case, the governor's warrant was found to be regular on its face and was placed in evidence. Therefore, the burden shifted to appellant to overcome the prima facie proof of the existence of every fact which the governor was obligated to determine before issuing an extradition warrant. Ex parte Cain, 592 S.W.2d at 362. Thus, the burden was on appellant to show that the warrant was not legally issued, Ex parte Evans, 411 S.W.2d 367, 368 (Tex. Crim. App. 1967), that it was not based on proper authority, or that its recitals were inaccurate. Ex parte Stehling, 481 S.W.2d 431, 433 (Tex. Crim. App. 1972).

We note that Texas courts have allowed extradition under section 6 of article 51.13 where the charging instruments themselves did not plead reliance on section 6 of article 51.13 or allege that the acts were committed in Texas or a third state intentionally resulting in a crime in the demanding state. See Ex parte Harrison, 568 S.W.2d 339, 341 (Tex. Crim. App. 1978) (citations omitted); Ex parte Gust, 828 S.W.2d 575, 576 (Tex. App.BHouston [1st Dist.] 1992, no pet.).[2]

We have reviewed the Wisconsin charge, the Requisition Demand, supporting documents, and the governor=s warrant, and have determined, contrary to appellant=s assertion, that the documents neither allege that appellant was actually present in Wisconsin during the commission of the offense, nor do they explicitly reference either section 2, 3, or 6 of article 51.13. Instead, the documents clearly recite facts essential to discretionary extradition. See Tex. Code Crim. Proc. Ann. art. 51.13, ' 6. The relevant portions of the supporting documents provide as follows:

1. Wisconsin Criminal Complaint: Accuses appellant of AConspiracy to Deliver A Controlled Substance@ between January, 2002 and October 13, 2003 to Avarious locations in Portage County, Wisconsin.@ (emphasis added).

2. Wisconsin Criminal Warrant: States that appellant is accused of committing the crime of delivery of a controlled substance.

3. Wisconsin Requisition Demand: States that appellant is Acharged by affidavit with the crime(s) of Conspiracy to Deliver Controlled Substance (Marijuana) as Habitual Offender under the laws of this state and the defendant is now in Texas.@

4. Probable Cause Statement: Contains statements demonstrating that the Wisconsin charges were based solely on evidence that appellant sent numerous packages of marijuana from various cities in South Texas to Wisconsin. In addition, it contains statements alleging that appellant would obtain payment for the drugs via Western Union.

5. Governor=s Warrant: States that appellant Astands charged with the crime of Conspiracy to Deliver Controlled Substance (Marijuana) as Habitual Offender and is now to be found in the State of Texas . . . .@

Judging the substance of the charge upon which the extradition is based by considering the charging instrument in conjunction with the supporting requisition documents, we conclude that the Wisconsin request clearly reflects that this is a discretionary extradition under section 6, and the governor=s warrant indicates nothing to the contrary. See Ex parte Harrison, 568 S.W.2d at 342 (stating that Athe better practice is to judge the substance of the charge upon which the extradition is based by considering the >charging instrument= in conjunction with the supporting requisition documents). Likewise, appellant introduced no evidence to show that the governor was in any way misled as to the character of this extradition. Appellant has therefore failed to carry his burden of proof to show that the warrant was invalid. See Ex parte Cain, 592 S.W.2d at 362.[3] The application for writ of habeas corpus was properly denied.

We affirm the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this the 9th day of March, 2006.

[1] Article 51.13, section 7, which dictates what must be followed when dealing with a discretionary extradition, requires that the warrant Asubstantially recite the facts necessary to the validity of its issuance.@ Tex. Code Crim. Proc. Ann. art 51.13 ' 7 (Vernon Supp. 2004-05). This has been held to mean the warrant must name the particular offense alleged to have been committed by the accused. Ex parte Medina, 417 S.W.2d 409, 411 (Tex. Crim. App. 1967); see also Ex parte Ransom, 470 S.W.2d 692, 693 (Tex. Crim. App. 1971) (stating that section 7 was not intended to mean that the governor's warrant must substantially state all of the requirements of Section 3 pertaining to the form of the demand). Appellant=s claim is without merit because the governor=s warrant states appellant Astands charged with the crime of Conspiracy to Deliver a Controlled Substance . . . .@ In any event, any defect in the allegations contained in the warrant may be cured by the inclusion of the papers that show the warrant was justified. See Ex parte Ransom, 470 S.W.2d at 693.

[2] This does not mean that the other supporting documents in these cases did not reflect the applicability of article 51.13, section 6. See Ex parte Harrison, 568 S.W.2d 339, 341 n.3 (Tex. Crim. App. 1978).

[3] Appellant further relies on a statement included in the affidavit of complaining witness, Sergeant Mandeville of Portage County Sheriff=s Department, which states that the Acrime(s) were alleged to have been committed in Portage, County, Wisconsin between January 2002 and October 13, 2003.@

However, appellant fails to recognize the principle announced by the Harrison court that Athe better practice is to judge the substance of the charge upon which the extradition is based by considering the >charging instrument= in conjunction with the supporting requisition documents.@ Ex parte Harrison, 568 S.W.2d 339, 343-44 (Tex. Crim. App. 1978). As stated above, evaluation of the documentation provided demonstrates that extradition was based on allegations that appellant committed acts in Texas which resulted in commission of a crime in Wisconsin.

In addition, in his statement of facts, appellant directs our attention to an affidavit provided by Ricardo Sanchez. Appellant contends the affidavit identifies him as Ahaving been in Wisconsin and having purchased Marihuana from appellant.@ After careful review of the affidavit, we find that the affidavit does no more than provide a means for identifying appellant as the person being charged in the complaint. The relevant portion states AI, Ricardo Sanchez, have personal knowledge that this is a picture of a person I have met personally when Garza [appellant] was in Wisconsin and the same person from whom I have purchased marijuana.@ Again, applying the principle announced in Harrison, we find this statement of no consequence to the overall substance of the charge. See id.