Ex Parte Carla M. Voss--Appeal from Criminal District Court, Magistrate Court of Bexar County

MEMORANDUM OPINION

No. 04-07-00602-CR

EX PARTE CARLA VOSS

From the Criminal District Court, Magistrate Court, Bexar County, Texas

Trial Court No. 2007-W-0153

Honorable Andrew Carruthers, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 19, 2007

AFFIRMED

This is an appeal from an order denying habeas corpus relief. The Texas Governor issued an extradition warrant seeking appellant's arrest and her return to Arizona to answer various pending charges. Appellant filed an application for writ of habeas corpus in which she challenged the legality of her arrest under the warrant. Relief was denied and this appeal ensued. In a single issue on appeal, appellant asserts the court erred in denying her habeas relief because the State failed to establish that she was the same person sought in the warrant or that she was a fugitive from Arizona. We affirm.

DISCUSSION

Introduction of a governor's warrant, regular on its face, makes out a prima facie case for extradition. Ex parte Scarbrough, 604 S.W.2d 170, 174 (Tex. Crim. App. 1980). The burden then shifts to the accused, who must overcome the facts that the governor was obliged to determine before the extradition warrant was issued. Ex parte Nelson, 594 S.W.2d 67, 68 (Tex. Crim. App. 1979); Ex parte Bunch, 519 S.W.2d 653, 654 (Tex. Crim. App. 1975). An accused can show she is not the person charged in the demanding state by challenging the identity of the person named in the warrant. Ex parte Scarbrough, 604 S.W.2d at 174. Once identify 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. Ex parte Martinez, 530 S.W.2d 578, 579 (Tex. Crim. App. 1975).

Here, appellant raised the issue of identity, thus, shifting the burden back to the State to show she was the person named in the warrant. At the habeas corpus hearing, the trial court took judicial notice of the governor's warrant and all attachments. The State then called Deputy Thomas Harrington, who served the warrant on appellant. Harrington testified, without objection, about the information he used to determine that the person sitting at the hearing was the same person named in the warrant. Harrington stated the information in the warrant included appellant's photograph, her birth date, and her height. Harrington testified that, in his opinion, the woman in the photograph was appellant. Also included in the warrant was the affidavit of Grant Gomez, an Arizona resident, who claimed the photograph in the warrant was of appellant. The photograph relied upon by Harrington and Gomez was taken while appellant was in custody at the Bexar County Adult Detention Center. The record does not establish how Gomez came into possession of appellant's photograph; however, he stated under oath that the photograph attached to the warrant "is a photograph of Carla Michelle Voss who was charged by indictment" in the Superior Court of Maricopa County, Arizona. Appellant did not testify at the hearing or call any witnesses, nor did she present any evidence that she was not the person named in the warrant. (1)

Based on this record, we conclude that the State met its burden of showing that the information contained in the governor's warrant was sufficient to show appellant is the same person named in the warrant. Accordingly, we affirm the trial court's order.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. Appellant's affidavit attached to her application for writ of habeas corpus ("application") states that she read the allegations in the application and the allegations of fact are true and correct. In the application, appellant states as follows: "Carla M. Voss is not the person named in the request for extradition. Carla M. Voss is not a fugitive. Carla M. Voss was not present in the Demanding State when the alleged crimes occurred." Appellant's application and accompanying affidavit were not placed into evidence. Even if admitted into evidence, appellant's allegations, standing alone, are insufficient to require a finding that she was not in the demanding state at the time the offense was alleged to have been committed. Ex parte Harvey, 459 S.W.2d 853, 855 (Tex. Crim. App. 1970).