Henry Lee Hutchinson v. The State of Texas--Appeal from 54th District Court of McLennan County

NO. 10-91-054-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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HENRY LEE HUTCHINSON,

Appellant

v.

THE STATE OF TEXAS

Appellee

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From 54th Judicial District Court

McLennan County, Texas

Trial Court # 91-677-2

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O P I N I O N

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Appellant, after being arrested on an extradition warrant issued by the Governor of Texas based on proceedings in the State of Mississippi, filed a petition for a writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 51.13 (Vernon 1979). After a hearing, the court denied the petition and ordered Appellant delivered to proper Mississippi officers for return to that State, and Appellant brought this appeal.

Appellant's counsel has asserted no points of error. Indeed, his counsel has certified to this court and to Appellant that, in his professional opinion, the appeal is without merit and frivolous. Because Appellant is represented by counsel and because there is no right to hybrid representation, Appellant's pro se brief presents nothing for review. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. [Panel Op.] 1981). In the interest of justice, however, we will consider Appellant's point of error relating to identification by fingerprint comparison. Appellant complains that because the State's fingerprint expert only found seven points of similarity, the identification testimony should not have been admitted into evidence.

After the Governor's Warrant, regular on its face, is placed in evidence, the burden is on the petitioner to overcome prima facie proof of the existence of every fact which the Governor was obliged to determine before issuing an extradition warrant. Ex Parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980). The introduction of the Governor's Warrant prima facie established the identity of the Appellant and he did not thereafter raise the issue of identity. See id. at 364.

No objection was made to the qualifications of the State's expert, who had attended the FBI academy in fingerprint classification and identification. The expert testified that he compared the fugitive's fingerprints which accompanied the extradition request from the State of Mississippi with fingerprints of Appellant taken on February 2, 1991. He stated that he "stopped at seven" points of similarity, and in his opinion, the two sets of fingerprints were made by the same person. This testimony, offered to bolster the identity of the Appellant, was unnecessary. See id. Having considered this testimony, however, and the physical description and photograph of the fugitive which are contained in the extradition package admitted into evidence, we cannot say that the court erred in admitting the testimony into evidence nor in finding that Appellant was the same person wanted by the State of Mississippi.

The judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings,

and Justice Vance

Affirmed

Opinion delivered and filed May 23, 1991

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