Sides, Jimmy Wayne v. The State of Texas--Appeal from 56th District Court of Galveston County

Opinion of November 18, 2004, Withdrawn, Affirmed and Corrected Memorandum Opinion filed December 16, 2004

Opinion of November 18, 2004, Withdrawn, Affirmed and Corrected Memorandum Opinion filed December 16, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00680-CR

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EX PARTE JIMMY WAYNE SIDES

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 04CR0171

C O R R E C T E D M E M O R A N D U M O P I N I O N

Appellant, Jimmy Wayne Sides, appeals from the denial of his application for writ of habeas corpus. Appellant raises one issue, claiming the Governor=s Warrant was defective. We affirm.[1]

Appellant was arrested at his home in Dickinson, Texas in January 2004, on a warrant from the State of Mississippi. Appellant refused to waive extradition. After the governor=s warrant from the State of Mississippi was received, appellant filed an application for writ of habeas corpus, claiming that the governor=s warrant was defective. The trial court held a hearing and denied the application. The trial judge filed findings of fact and conclusions of law supporting the denial of relief.

In his sole issue, appellant complains that the governor=s warrant is defective because the requesting state did not include the proper affidavits, warrants, complaints or indictments. Appellant first notes that the governor=s warrant includes an affidavit from a Texas peace officer alleging that appellant was arrested on a Mississippi charge of sale of cocaine. Appellant complains that this alleged charge is inconsistent with the charge for which appellant was arrested. Appellant further notes that the governor=s warrant alleges that appellant was in the custody of the ADickensville Police Department, Dickensville, Texas.@ Finally, appellant contends the Governor=s Warrant includes a bench warrant for the alleged sale of diazepam, but includes no supporting affidavits, indictments or other charging instruments to support the bench warrant charge.

Article IV, Section 2 of the United States Constitution establishes the basis for extradition of fugitives between states:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

U.S. Const. art. IV, ' 2.

When a court in the asylum state reviews the legality of an arrest under a governor's warrant, the court may consider only the following four questions. (1) Are the extradition documents valid on their face? (2) Did the demanding state charge petitioner with a crime? (3) Is the petitioner the person named in the request for extradition? (4) Is the petitioner a fugitive? Michigan v. Doran, 439 U.S. 282, 289 (1978) A governor's warrant that is regular on its face establishes a prima facie case for extradition. See Ex parte Scarbrough, 604 S.W.2d 170, 174 (Tex. Crim. App.1980). Once a prima facie case for extradition has been shown by the introduction of the Governor's Warrant, the burden Ashifts to the accused to overcome proof of every fact which the Governor was obliged to determine before issuing the extradition warrant.@ Ex parte Nelson, 594 S.W.2d 67, 68 (Tex. Crim. App.1979)(quoting Ex parte Bunch, 519 S.W.2d 653, 654 (Tex. Crim. App. 1975)).

The Uniform Criminal Extradition Act requires a demand, made in writing, that alleges the accused was present in the demanding state at the time of the commission of the alleged offense, and thereafter fled the state. Tex. Code Crim. Proc. Ann. art. 51.13, ' 3 (Vernon Supp. 2004). This demand must be accompanied by a copy of the indictment, substantially charging the person demanded with having committed a crime under the laws of that state, and the indictment must be authenticated by the Executive Authority making the demand. Id.

The governor=s warrant in this case contains a written demand meeting the requirements of the Uniform Act. It alleges appellant was charged with a crime in Mississippi, that appellant was in Mississippi at the time the offense occurred, and that appellant thereafter fled the state of Mississippi. This demand is accompanied by a certified copy of an indictment charging appellant with the offense of obtaining a controlled substance by misrepresentation, fraud, deception, or subterfuge. The documents are authenticated by the Governor of Mississippi. Having received the documents from the Governor of Mississippi, the Governor of Texas issued a warrant for the arrest of appellant on May 6, 2004. Appellant does not complain that the warrant issued by the Governor of Texas is invalid. Nonetheless, this warrant is signed by the Governor of Texas, is under the Seal of the State, is directed to all sheriffs and other peace officers of the State of Texas, and recites the facts necessary to the validity of its issuance.

The trial court=s findings of fact and conclusions of law note that the governor=s warrant and supporting documents are properly authenticated and are in order on their face, that appellant was substantially charged with a crime in the demanding state, and that appellant is the same person named in the governor=s warrant and sought by the demanding state. The trial court also found that any minor irregularities in the documentation were insufficient to affect the validity of the governor=s warrant.

Because the demand and indictment meet the requirements of the Uniform Act, we find the alleged defects raised by appellant do not affect the validity of the request for extradition. Accordingly, we find no error by the trial court. We overrule appellant=s sole point of error.

The trial court=s order, denying appellant=s application for habeas relief, is affirmed.

PER CURIAM

Judgment rendered and Corrected Memorandum Opinion filed December 16, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] To correct the style of the case, we withdraw our opinion of November 18, 2004, and issue this corrected opinion.