Ex Parte Nelson , 1979 Tex. Crim. App. LEXIS 1761 ( 1979 )

OPINION

ODOM, Judge.

This is an appeal from an order remanding appellant to custody for extradition to the State of Illinois.

At the extradition hearing, the State introduced in evidence the Governor’s Warrant, regular on its face, authorizing extradition of appellant.

“It is well established that the introduction of the Governor's Warrant, regular on its face, is sufficient to make out a prima facie case authorizing extradition, [citations omitted.] The burden then shifts to the accused to overcome proof of every fact which the Governor was obliged to determine before issuing the extradition warrant. [citations omitted.]” Ex parte Bunch, 519 S.W.2d 653 (Tex.Cr.App.).

Initially, appellant contends the trial court erred in ruling that the evidence was sufficient to show he was the same person named in the extradition papers. He argues that his sworn statement that he was not the person named in the extradition papers was sufficient to rebut the presumption of identity created by introduction of the Governor’s Warrant, regular on its face. He claims the burden of proving that appellant was the same person named in the warrant shifted to the State once' identity was placed in issue, and that there is no evidence in the record to meet this burden. We disagree on the basis of what the record shows.

Appellant has correctly set forth the law applicable to the facts of this case. It is true that the issue of identity was raised by the filing of his affidavit denying under oath that he is the same Eugene K. Nelson named in the extradition papers. Ex parte Spencer, 567 S.W.2d 520, 522 n. 1 (Tex.Cr.App.); Ex parte Vidauri, 525 S.W.2d 163, 163 (Tex.Cr.App.). The burden was then upon the demanding state to show that the person taken into custody and held for extradition is the identical person named in the Governor’s Warrant. Ex parte Spencer, supra.

In the instant case, the State met the burden placed upon it. At the extradition hearing, Assistant District Attorney Wayne Campbell took the witness stand and stated he had requested photos from the Cook County Sheriff’s office of the Eugene K. Nelson wanted on the murder charge. Campbell identified and introduced into evidence two copies of a photograph, certified by the Records Division of the City of Chicago, which he received in response to his request. In his “Order to Relinquish Custody of Defendant” the trial court noted the introduction of the photograph and found as a matter of fact that appellant is the same Eugene K. Nelson sought by the State of Illinois to face murder charges.

We hold that the photograph and the trial court’s consequent finding were sufficient to show appellant is the same person named in the Governor’s Warrant. In Ex parte Spencer, supra, we intimated our approval of the procedure, or one very similar, used by the State in the instant case. See also Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.); Ex parte Vidauri, supra. The first ground of error is overruled.

In another ground of error, appellant complains that the trial court erred in not informing appellant of the crime charged pursuant to Art. 51.13, Sec. 10, Y.A.C.C.P. That section of the statute provides for a mandatory appearance of the person in custody before a trial court, “who shall inform him ... of the crime with which he is charged, . . . ” This mandatory appearance is separate and distinct from a hearing on a writ of habeas corpus, which is optional in nature and must be specifically requested by the person taken into custody. Art. 51.13, Sec. 10, V.A.C. C.P. In the present case, no record of the hearing on mandatory appearance has been included in the record on appeal. Accordingly, nothing is presented for review. Rivera v. State, 581 S.W.2d 161, 163. Furthermore, it appears from the habeas corpus hearing that appellant was aware of the charges against him. The ground of error is overruled.

The remaining ground of error is that error was committed in denying without a hearing bail pending appeal of the denial of appellant’s habeas corpus petition. In view of our disposition of the appeal, this contention is moot.

The judgment is affirmed and appellant is remanded to custody for extradition to the State of Illinois.

Before the court en banc.