Ex Parte Robert I. Kahn--Appeal from Criminal District Court, Magistrate Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00805-CR
EX PARTE Robert I. KAHN
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-W-0349
Honorable Juanita A. Vasquez-Gardner, Judge Presiding (1)

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: May 14, 2008

 

AFFIRMED

This is an appeal from the trial court's order denying a writ of habeas corpus filed in response to a governor's warrant, issued by the Governor of Texas pursuant to article 51.13 of the Texas Code of Criminal Procedure, for the extradition of Robert I. Kahn to the State of Louisiana. We affirm the trial court's order.

Interstate extradition is intended to be a summary and mandatory executive proceeding derived from the United States Constitution. Ex parte Lekavich, 145 S.W.3d 699, 700-701 (Tex. App.--Fort Worth 2004, no pet.); Ex parte Hearing, 125 S.W.3d 778, 781 (Tex. App.--Texarkana 2004, no pet.). In conducting an extradition hearing, the asylum state, in this case Texas, may do no more than determine whether the requisites of the Uniform Criminal Extradition Act have been satisfied. Ex parte Hearing, 125 S.W.3d at 781. A governor's warrant that is regular on its face is prima facie evidence that the requirements for extradition have been satisfied. Ex parte Lekavich, 145 S.W.3d at 701; Wright v. State, 717 S.W.2d 485, 486 (Tex. App.--San Antonio 1986, no pet.). Once this prima facie case has been made, the scope of inquiry at a habeas corpus proceeding is limited to the following questions: (1) whether the extradition documents on their face are in order; (2) whether the petitioner has been charged with a crime in the demanding state; (3) whether the petitioner is the person named in the request for extradition; and (4) whether the petitioner is a fugitive. Ex parte Hearing, 125 S.W.3d at 781; Wright, 717 S.W.2d at 487. Whether pleadings filed by a demanding state are sufficient to support a criminal prosecution in that demanding state is not an issue in the courts of the asylum state, but one for the courts of the demanding state to decide. Myer v. State, 686 S.W.2d 735, 737 (Tex. App.--San Antonio 1985, pet. ref'd). Similarly, a petitioner's defense or his guilt or innocence is not an issue to be determined in the asylum state during extradition proceedings; rather, the sole purpose of the proceedings is to test the legality of the extradition proceedings. Ex parte Lekavich, 145 S.W.3d at 701.

In his fifth point of error, Kahn contends the State did not establish its prima facie case because it failed to enter the governor's warrant into evidence. The record, however, reflects that the trial court took judicial notice of the governor's warrant and "it was treated by the court and the parties as if it had been admitted." Ex parte Reagan, 549 S.W.2d 204, 206 (Tex. Crim. App. 1977). "The warrant is in the [clerk's] record before us and [it is] regular on its face." Id. "Under these circumstances, we decline to reverse the [order] of the trial court." Id. Kahn's fifth point of error is overruled.

In his sixth point of error, Kahn contends the governor's warrant and attached documents are inaccurate. Kahn did not, however, raise this contention at the habeas hearing. Therefore, he failed to preserve error with regard to this contention. Ex parte Hearing, 125 S.W.3d at 782; Babb v. State, 868 S.W.2d 3, 5 (Tex. App.--El Paso 1993, no pet.).

Kahn's remaining points of error all challenge the trial court's order on the basis that he should not be extradited for the worthless check offense because the checks were issued in payment of a gambling debt. In support of this contention, Kahn cites numerous civil cases in which Texas courts refused to allow plaintiffs to collect a judgment in payment of gambling debts. The crux of Kahn's complaint is that issuing worthless checks in payment of a gambling debt is not an offense for which Kahn could be charged or tried in Texas; therefore, it is not an extraditable offense. See Ibarra v. State, 961 S.W.2d 415, 417 (Tex. App.--Houston [1st Dist.] 1997, no pet.).

Kahn is charged with issuing worthless checks under section 14:71 of the Louisiana Revised Statutes. La. Rev. Stat. Ann. 14:71 (West 2008). A similar crime in Texas is theft by check. See Tex. Penal Code Ann. 31.06 (Vernon Supp. 2007). Despite the fact that he has been charged with an offense whose elements constitute a crime in Texas, Kahn argues that the accusation against him is void because the worthless checks were issued for a gambling debt. Kahn's argument would require the asylum state to examine the facts underlying the charged offense to determine the purpose for which the worthless check had been issued. "However, as courts of the asylum state, neither we nor the trial court have the authority to make such a factual determination." Ibarra, 961 S.W.2d at 418. Instead, as previously noted, Texas, as the asylum state, does not consider defenses or the guilt or innocence of the charged party in an extradition proceeding. Ex parte Lekavich, 145 S.W.3d at 701; Ibarra, 961 S.W.2d at 418. Our inquiry is limited to whether Kahn has been charged with a crime in the demanding state. Ibarra, 961 S.W.2d at 418. Because issuing a worthless check is a crime in Louisiana similar to the crime of theft by check in Texas, Kahn's remaining points of error are overruled.

The trial court's order is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

 

1. The Honorable Magistrate Andrew Carruthers presided over the underlying habeas proceeding and issued the order denying relief.