Ex Parte Gary W. Yancey--Appeal from 379th Judicial District Court of Bexar County

No. 04-00-00376-CR
EX PARTE Gary W. YANCEY
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-W-0123
Honorable Bert Richardson, Judge Presiding (1)

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: April 18, 2001

AFFIRMED

Gary W. Yancey ("Yancey") appeals the trial court's order denying his application for writ of habeas corpus challenging his extradition to Tennessee. In three issues, Yancey complains that the extradition papers were defective and that the evidence is insufficient to prove that Yancey was the same person named in the request for extradition. We overrule Yancey's issues and affirm the trial court's order.

The State of Texas initially returned the demand for extradition to Tennessee because it lacked identifiers, i.e, a photograph or fingerprints. Tennessee subsequently returned the demand for extradition to Texas with four additional documents stapled to it.

Yancey concedes that the governor's warrant was regular on its face but contends that the attachment of the four documents to the demand for extradition vitiated the demand. Yancey cites no authority to support this contention. The introduction of a governor's warrant, regular on its face, establishes a prima facie case authorizing extradition of the person named in the warrant. Ex parte Lebron, 937 S.W.2d 590, 593 (Tex. App.--San Antonio 1996, pet. ref'd); Van Hobbs v. State, 801 S.W.2d 198, 199 (Tex. App.--Houston [14th Dist.] 1990, no pet.). The four documents attached to the demand for extradition could have been mailed separately. See Ex parte Mitchell, 859 S.W.2d 83, 84 (Tex. App.--San Antonio 1993, no pet.). The mere fact that the documents were attached to the demand by a staple does not detract from the regularity of the governor's warrant.

Yancey also contends that the documents were insufficient to prove his identity. "An accused can show he is not the person charged in the demanding state by challenging the identity of the person named in the warrant." Van Hobbs, 801 S.W.2d at 199. "Once identity is placed in issue, the burden shifts back to the demanding state to show that the person being held for extradition is the identical person named in the warrant." Id.

One of the documents attached to the demand for extradition was a photograph of Yancey with a statement signed by the victim in Tennessee positively identifying Yancey as the individual who fondled her. Yancey contends that the documents fail to prove that the victim who signed the statement identifying the photograph was the actual victim of the offense. However, the indictment contains the date of birth of the victim, which is the same date of birth listed for the victim in the investigative report. The investigative report identifies the victim by name - the same name used in the statement identifying the photograph. This is sufficient evidence to identify the victim who signed the statement on the photograph as the actual victim of the offense. Yancey further contends that the documents used to identify him are not verified or authenticated and contain hearsay. However, the rules relating to authentication and the inadmissibility of hearsay are not applicable in extradition proceedings. Ex parte Martinez, 530 S.W.2d 578, 581-82 (Tex. Crim. App. 1975); Mitchell, 859 S.W.2d at 84. Therefore, the documents were sufficient to identify Yancey as the person named in the warrant.

The trial court's order is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. The Honorable Andrew W. Carruthers, criminal law magistrate, presided over the hearing and denied the application for writ of habeas corpus.