Ex Parte Percy Wayne Froman ( 2002 )

Affirmed and Opinion filed October 17, 2002

Affirmed and Opinion filed October 17, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00450-CR

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EX PARTE PERCY WAYNE FROMAN, Appellant

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 21,470

O P I N I O N

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to Alabama to face a charge of capital murder.  In three points of error, appellant alleges (1) the governor=s warrant served on appellant is defective and insufficient; (2) more than ninety days passed after appellant was arrested on the fugitive from justice warrant from Alabama, thus violating Texas Code of Criminal Procedure article 51.07; and (3) appellant=s rights were violated under the Interstate Agreement on Detainers Act. We affirm.

FACTUAL BACKGROUND

On May 14, 1999, appellant was arrested in Dallas County, Texas, on a fugitive from justice warrant from Alabama.  In October 1999, appellant was tried and convicted of aggravated robbery in Smith County, Texas.  Finally, on May 26, 2000, while still being held in the Texas prison system, appellant was indicted for capital murder in Alabama.  Based on this indictment, on October 21, 2001, Alabama obtained a governor=s warrant pursuant to the Uniform Criminal Extradition Act (UCEA). Appellant was served with the warrant on February 26, 2002 in Walker County, Texas.  The governors of Texas and Alabama also entered into an executive agreement stating appellant would be returned to Texas as soon as the Alabama prosecution terminated unless Alabama imposed the death penalty.

DISCUSSION

Nature of Extradition Proceedings

The UCEA is codified in article 51.13 of the Texas Code of Criminal Procedure.  Ex parte Lebron, 937 S.W.2d 590, 592 (Tex. App.CSan Antonio 1996, pet. ref=d untimely filed). The UCEA sets forth the minimum procedural requirements placed upon the demanding and asylum states in extradition proceedings.  Id.; see Tex. Code Crim. Proc. Ann. Art. 51.13, '' 3, 4 (Vernon 1979).  Section 2 of the UCEA describes the duty of the governor in the asylum state when causing a fugitive to be arrested and delivered to the demanding state.  Lebron, 937 S.W.2d at 592; see Tex. Code Crim. Proc. Ann. Art. 51.13, ' 2 (Vernon 1979).  When the governor of the asylum state determines the extradition request is in order, the governor signs an arrest warrant ordering delivery of the fugitive to the demanding state for prosecution.  Lebron, 937 S.W.2d at 592B93; see Tex. Code Crim. Proc. Ann. Art. 51.13, ' 7 (Vernon 1979).

Once the governor of the asylum state grants extradition, an accused=s sole avenue for relief from extradition is through a writ of habeas corpus. Lott v. State, 864 S.W.2d 152, 153 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d untimely filed).  The purpose of the habeas corpus review is not to inquire into the viability of the prosecution or confinement in the demanding state, but to test the legality of the extradition proceedings.  See id.  A court considering an application for habeas corpus relief from an extradition order can decide only the following: (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.  Michigan v. Doran, 439 U.S. 282, 289, 99 S. Ct. 530, 535 (1978).

Appellant=s Points of Error

Purported insufficiency of the governor=s warrant. In his first point of error, appellant argues the trial court erred in ordering his extradition to Alabama because the governor=s warrant served on appellant is not valid on its face.  Appellant contends the supporting documents have been taken apart and rearranged, thus invalidating the seals and authentication certifications required by the UCEA.  See Tex. Code Crim. Proc. Ann. Art. 51.13, ' 3 (Vernon 1979).  Additionally, appellant argues the attached executive agreement between the governors of Texas and Alabama was not signed by the Governor of Texas, thus rendering it defective.

Introduction of a governor=s warrant, regular on its face, is sufficient to establish a prima facie case authorizing extradition.  Yost v. State, 861 S.W.2d 73, 75 (Tex. App.CHouston [14th Dist.] 1993, no pet.) (citing Ex Parte Burns, 507 S.W.2d 777, 778 (Tex. Crim. App. 1974)).  Once the warrant is placed in evidence, the burden is on the petitioner to overcome prima facie proof of the existence of every fact the Governor was obliged to determine before issuing the extradition warrant.  Yost, 861 S.W.2d at 75 (citing Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980)).  Therefore, the accused must show the warrant was not legally issued, was not based on proper authority, or its recitals are inaccurate.  Cain, 592 S.W.2d at 362.

In the instant case, the supporting papers include, inter alia, a request from Alabama for interstate rendition.  The request for rendition is in writing, sets forth the necessary allegations, and is accompanied by the indictment.  These papers were sufficient to allow the governor of Texas to recognize the extradition demand.  Tex. Code Crim. Proc. Ann. Art. 51.13, ' 3 (Vernon 1979); see Moberg v. State, 743 S.W.2d 316, 317 (Tex. App.CHouston [14th Dist.] 1987, no pet.) (holding only one of documents listed in section 3 is required to accompany the demand for extradition).

As noted by appellant in his brief, this prima facie case may be defeated by the supporting papers accompanying the warrant.  Ex Parte Mason, 656 S.W.2d 470, 471 (Tex. Crim. App. 1983). At the habeas corpus hearing, counsel for the appellant pointed to numerous staple marks exhibited in the corner of the supporting documents and to the fact that the two pages of the executive agreement were out of sequence.  Appellant, however, provides this court with no authority demonstrating that rearranging papers invalidates otherwise valid and sufficient documentation. See Tex. R. App. P. 38.1(h) (stating Aa brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record@).  Therefore, we will not address this contention.

Appellant also asserts the Governor of Texas did not sign the executive agreement made between the governors of Texas and Alabama.  It is clear from the record Governor Rick Perry signed the document, but the two pages of the agreement were out of sequence, with Governor Perry=s signature appearing first, followed by the body of the agreement.  Accordingly, appellant=s argument in this regard is without support in the record.  

We overrule appellant=s point of error one.

Purported violation of ninety-day rule.  In appellant=s second point of error, appellant contends that the trial court erred in not discharging appellant because appellant was not arrested under a governor=s warrant within ninety days of his initial arrest as a fugitive.  Tex. Code Crim. Proc. Ann. Art. 51.07 (Vernon 1979). Appellant was initially arrested on May 14, 1999, and the governor=s warrant was not obtained until October 24, 2001.  From at least October 1999, however, appellant was not being held in Texas as a fugitive from justice pursuant to the statute, but under Texas charges and under a Texas conviction.  Additionally, issuance of a valid governor=s warrant renders moot any complaints arising from confinement under a fugitive warrant, including alleged violations of Texas Code of Criminal Procedure  article 51.07.  See Ex parte Worden, 502 S.W.2d 803, 804 (Tex. Crim. App. 1974); Echols v. State, 810 S.W.2d 430 (Tex. App.CHouston [14th Dist.] 1991, no pet.).  In the present case, as we held in point one, a valid governor=s warrant was issued.

We overrule appellant=s point of error two.

Purported violation of the Interstate Agreement on Detainers.  In appellant=s final point of error, he contends the proper method of extradition in this case is through the Interstate Agreement on Detainers Act (IADA), rather than a governor=s warrant issued pursuant to the UCEA.  The IADA is a compact between different states enabling a party state to obtain custody of an out-of-state prisoner for prosecution.  State v. Williams, 938 S.W.2d 456, 460 (Tex. Crim. App. 1997).  Duties are imposed upon the requesting state to ensure the prisoner is quickly returned to complete his or her sentence in the sending state.  See id.  However, contrary to appellant=s argument, the IADA is not the exclusive method by which Alabama can gain custody of an individual situated as appellant.  See Bailey v. Shepard, 584 F.2d 858, 861 (8th Cir. 1978) (rejecting claim IADA operates as exclusive method by which one state can obtain custody of person incarcerated under judgment of conviction in another state); Colorado v. Quackenbush, 687 P.2d 448, 450 (Colo. Ct. App. 1984) (agreeing with prosecution that IADA is inapplicable to defendant whose interstate rendition is sought by traditional extradition procedures, even though governor=s warrant was mischaracterized as detainer).

Appellant contends Alabama circumvented the IADA by obtaining a governor=s warrant and, thus, denied him protections and rights under the IADA. Appellant, however, does not explain how the IADA rights and protections apply in his particular case, has not explained how the extradition procedures under a governor=s warrant conflict with the IADA, and has not shown how he was harmed.

We overrule appellant=s point of error three.

                                                                CONCLUSION

We overrule all of appellant=s points of error and affirm the trial court=s order remanding appellant to Alabama to face a charge of capital murder.

/s/        John S. Anderson

Justice

Judgment rendered and Opinion filed October 17, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).