Ex Parte Gregory Paul Damm ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00381-CR
EX PARTE GREGORY PAUL DAMM
From the 18th District Court
Johnson County, Texas
Trial Court No. 201400025
MEMORANDUM OPINION
In three issues, Gregory Paul Damm appeals the denial of his application for writ
of habeas corpus that challenged his extradition from the State of Texas to the State of
Louisiana for the alleged crime of failure of a sex offender to notify law enforcement of
a change of address. We affirm.1
1 Based on our disposition of Damm’s appeal, we dismiss Damm’s motion to stay extradition as
moot.
I. BACKGROUND2
In his affidavit for arrest warrant, Sergeant Robert G. Vittatoe of the St.
Tammany Parish Sheriff’s Office stated that Damm appeared in person to advise the
Sheriff’s Office that he intended to reside with his brother in Illinois. Damm, a
convicted sex offender, provided his brother’s address and telephone number and filled
out a change-of-address card confirming that he intended to travel to and reside in
Illinois with his brother.
Subsequently, the Sheriff’s Office received information from the Illinois State
Police indicating that Damm had failed to arrive at the Illinois address provided earlier.
The Illinois State Police also noted that Damm did not register with the law
enforcement agency in Illinois within three business days of arriving at the new
address, as is required by law. Accordingly, on July 24, 2014, a Louisiana magistrate
issued an arrest warrant for Damm.
Thereafter, the Sheriff’s Office received a tip from the U.S. Marshals advising that
Damm was possibly in Texas. In a November 3, 2014 letter directed to Louisiana
Governor Bobby Jindal, Louisiana Attorney General James D. Caldwell stated that
Damm was in the custody of the Sheriff’s Office in Johnson County, Texas. Upon
learning of Damm’s whereabouts, the State of Louisiana, through Governor Jindal, filed
2The facts in this case are undisputed, and Damm attached to his brief the relevant documents
and a copy of the transcript from the hearing on his habeas-corpus application. Furthermore, Damm filed
requested emergency relief in this matter. Thus, Damm has provided the record upon which we can
conduct our review of the trial court’s ruling in this expedited review of the denial of an application for
writ of habeas corpus. See TEX. R. APP. P. 31. Moreover, to the extent necessary, we invoke and apply
Rule 2 to suspend the rules as to the time and manner of obtaining a record and to, therefore, reach a
more expeditious disposition. See id. at R. 2.
Ex parte Damm Page 2
a formal requisition demand for Damm with Texas Governor Rick Perry. In response to
Governor Jindal’s requisition demand, Governor Perry issued a governor’s extradition
warrant on November 14, 2014. The warrant states the following, in relevant part:
TO ALL SHERIFFS AND OTHER PEACE OFFICERS OF THIS STATE:
WHEREAS if has been represented to me by the Governor of the State of
LOUISIANA, that GREGORY PAUL DAMM aka GREGORY DAMM,
fugitive, stands charged with the crime of FAILURE OF SEX OFFENDER
TO NOTIFY LAW ENFORCEMENT OF CHANGE OF ADDRESS
committed in said State, and that he fled from the justice of that State, and
has taken refuge in the State of Texas, and the said Governor of
LOUISIANA having, in pursuance of the Constitution and laws of the
United States and of the State of Texas, demanded of me that I shall cause
the said fugitive to be arrested and delivered to SHERIFF RODNEY
STRAIN AND/OR DULY AUTHORIZED AGENT(S) OF ST. TAMMANY
PARISH hereby authorized to receive into custody and convey the
fugitive back to said State; and
WHEREAS the said representation and demand is accompanied by a copy
of the AFFIDAVIT MADE BEFORE A MAGISTRATE AND WARRANT,
certified by the Governor of said State to be authentic, whereby the said
fugitive is charged with said crime.
THEREFORE, I, Rick Perry, Governor of Texas, by this warrant command
you to arrest and secure said fugitive, wherever he may be found within
this State, and to deliver said fugitive into the custody of said agent(s), to
be taken back to said State from which he held, pursuant to the said
requisition, there to be dealt with according to law.
In short, Governor Perry issued his warrant because Governor Jindal sent the Texas
Governor’s Office a requisition demand with (1) a criminal complaint made before a
magistrate, and (2) a warrant, both of which documented Damm’s crime in Louisiana.
Damm filed an application for writ of habeas corpus in the trial court, and after a
hearing, the trial court concluded,
Ex parte Damm Page 3
I do find that the documents on their face, the extradition documents on
their face are in order. I find the Petitioner has been charged with a crime
in the demanding state of Louisiana. I find the Petitioner is the person
named in the request for extradition and that the Petitioner is a fugitive.
The trial court denied Damm’s habeas-corpus application and a related request to stay
extradition. This appeal followed.
II. APPLICABLE LAW
The language of the Extradition Clause of the United States Constitution is “clear
and explicit” and “creates a mandatory duty to deliver up fugitives upon proper
demand . . . .” Puerto Rico v. Branstad, 483 U.S. 219, 226, 107 S. Ct. 2802, 2807, 97 L. Ed.
2d 187 (1987) (citing Michigan v. Doran, 439 U.S. 282, 286, 99 S. Ct. 530, 525-26, 58 L. Ed.
2d 521 (1978)). The Uniform Criminal Extradition Acts (UCEA) “establishes procedures
for the interstate transfer of persons against whom criminal charges are outstanding . . .
[and] applies to persons at liberty as well as to persons in prison.” Cuyler v. Adams, 449
U.S. 433, 436 n.1, 101 S. Ct. 703, 705, 66 L. Ed. 2d 641 (1981). Following the language of
the Extradition Clause of the United States Constitution, the UCEA speaks in terms of a
demand by the executive of a state placed on the executive of another state for delivery
of a fugitive from justice. See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 2 (West Supp.
2014). Within the bounds of the constitution and applicable law, the UCEA requires the
governor of a sending state to have a fugitive arrested and delivered to the executive
authority of the receiving state. Id.
A habeas-corpus proceeding challenging extradition is “intended to be limited in
scope in order to facilitate a swift and efficient transfer of custody to the demanding
Ex parte Damm Page 4
state.” Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App. 2000). Once the governor
has granted extradition, a court considering release on habeas can do no more than
decide: (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.” Id. (citing Doran, 439 U.S. at 289, 99 S. Ct. at 527-28).
”An appellate court reviewing a trial court’s ruling on a habeas claim must
review the record evidence in the light most favorable to the trial court’s ruling and
must uphold that ruling absent an abuse of discretion.” Kniatt v. State, 206 S.W.3d 657,
664 (Tex. Crim. App. 2006) (citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim.
App. 2003)); see Ex parte McWilliams, 272 S.W.2d 531, 531 (Tex. Crim. App. 1954). The
applicant bears the burden to prove that he is entitled to the relief sought by a
preponderance of the evidence. Kniatt, 206 S.W.3d at 664.
III. THE AFFIDAVIT FOR ARREST WARRANT
In his first issue, Damm contends that the extradition documents were not
facially in order because Sergeant Vittatoe’s affidavit for arrest warrant contained the
wrong date pertaining to the commission of the charged offense. We decide this issue
by comparing the extradition documents to the requirements of the UCEA. See Rayburn
v. State, 748 S.W.2d 285, 288-89 (Tex. App.—Tyler 1988, no pet.).
Section 3 of the UCEA states in relevant part:
No demand for the extradition of a person charged with a crime in
another State shall be recognized by the Governor unless in writing,
alleging . . . that the accused was present in the demanding State at the
Ex parte Damm Page 5
time of the commission of the alleged crime, and that thereafter he fled
from the State, and accompanied by a copy of an indictment found or by
information supported by affidavit in the State having jurisdiction of the
crime, or by a copy of an affidavit before a magistrate there, together with
a copy of any warrant which issued thereupon; or by a copy of a judgment
of conviction or of a sentence imposed in execution thereof, together with
a statement by the Executive Authority of the demanding State that the
person claimed has escaped from confinement or has broken the terms of
his bail, probation or parole. The indictment, information, or affidavit
made before the magistrate must substantially charge the person
demanded with having committed a crime under the law of the State; and
the copy of the indictment, information, affidavit, judgment of conviction
or sentence must be authenticated by the Executive Authority making the
demand . . . .
TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3.
Here, the governor’s extradition warrant, which included the requisition demand
from the Governor of Louisiana, recites that Damm was charged with the offense of
failure of a sex offender to notify law enforcement of a change of address. In this issue,
Damm does not challenge the identity or presence elements of the analysis, nor does he
argue that he did not commit a crime in Louisiana, the demanding state. Instead,
Damm merely argues that the alleged date of the commission of the crime was incorrect
and, therefore, the extradition documents were not facially in order. We disagree.
In his original affidavit for arrest warrant executed on July 24, 2014, Sergeant
Vittatoe stated that Damm personally advised the St. Tammany Parish Sheriff’s Office
of his change of address on December 5, 2014. However, Sergeant Vittatoe executed an
affidavit of clarification on October 30, 2014, stating that Damm actually appeared in
person at the Sheriff’s Office on December 5, 2013, not December 5, 2014. Additionally,
Ex parte Damm Page 6
the affidavit of probable cause also reflected the December 5, 2013 date, not the
erroneous December 5, 2014 date.
Given this information, and based on our review of the record, we conclude that
the extradition documents are facially in order. See id.; see also Doran, 439 U.S. at 288-89,
99 S. Ct. at 527-28 (“A governor’s grant of extradition is prima facie evidence that the
constitutional and statutory requirements have been met.”). As such, we overrule
Damm’s first issue.
IV. THE GOVERNOR’S EXTRADITION WARRANT
In his second and third issues, Damm argues that Governor Perry did not have
authority to sign the governor’s extradition warrant because Governor Perry is
currently under indictment. Damm further argues that by signing the governor’s
extradition warrant, Governor Perry acted “as a juror as trier of the facts.”
However, in his brief, Damm does not cite any relevant authority to support the
contentions made in his second and third issues. Accordingly, we conclude that these
issues have been inadequately briefed. See TEX. R. APP. P. 38.1(i) (“The brief must
contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”). We overrule Damm’s second and third
issues.
V. CONCLUSION
For the reasons discussed above, the trial court did not abuse its discretion in
concluding that the governor’s warrant for the extradition of Damm to Louisiana is
valid. See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3; see also Doran, 439 U.S. at 288-89,
Ex parte Damm Page 7
99 S. Ct. at 527-28. And as such, we cannot say that the trial court abused its discretion
by denying Damm’s habeas-corpus application. See Kniatt, 206 S.W.3d at 664; Ex parte
Peterson, 117 S.W.3d at 819; see also Ex parte McWilliams, 272 S.W.2d at 531. Accordingly,
we affirm the trial court’s order denying habeas-corpus relief.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 22, 2015
Do not publish
[CR25]
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