Brian Clifford Fox v. State of Texas ( 2011 )

Opinion filed December 22, 2011
In The
Eleventh Court of Appeals
__________
No. 11-11-00170-CR
__________
BRIAN CLIFFORD FOX, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause No. CCCR-11-03362
MEMORANDUM OPINION
Brian Clifford Fox, appellant, appeals from an order denying his application for writ of
habeas corpus, in which he challenged his extradition to Florida. We affirm.
In his sole issue on appeal, appellant asserts that the State failed to prove that he was the
person named in the request for extradition. Appellant correctly challenged the legality of the
governor’s extradition warrant by filing an application for writ of habeas corpus. See Ex parte
Chapman, 601 S.W.2d 380, 382–83 (Tex. Crim. App. 1980). When such an application is filed,
a court in the asylum state must determine only whether the requisites of the Uniform Criminal
Extradition Act, TEX. CODE CRIM. PROC. ANN. art. 51.13 (West 2006), have been met. New
Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 153–55 (1998); California v. Superior Court of Cal.,
482 U.S. 400, 408–10 (1987). In making this determination, there are only four issues to
consider: (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 (1978); State ex rel. Holmes v. Klevenhagen, 819 S.W.2d
539, 542–43 (Tex. Crim. App. 1991). On appeal, appellant challenges only the third.
A governor’s warrant that is regular on its face is prima facie evidence that the
requirements for extradition have been met. Ex parte Walker, 350 S.W.3d 417, 419 (Tex.
App.—Eastland 2011, pet. filed); Ex parte Lekavich, 145 S.W.3d 699, 701 (Tex. App.—Fort
Worth 2004, no pet.); Wright v. State, 717 S.W.2d 485, 486 (Tex. App.—San Antonio 1986, no
pet.). Once such a warrant is introduced, the burden then shifts to the petitioner to demonstrate
that the governor’s warrant was not legally issued, is not based on proper authority, or contains
inadequate recitals. Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980).
In this case, the governor’s warrant, signed by the Governor of Texas, and the supporting
documents from the Governor of Florida were admitted into evidence at the hearing. These
documents have been included in the appellate record. Upon review, they appear to be regular
on their face. Moreover, appellant does not argue that the documents are not regular on their
face. Upon the admission of these documents at the hearing, the burden shifted to appellant to
place identity into issue. Appellant did not offer any evidence or present any argument at the
hearing that would indicate he was not the person named in the request for extradition. To the
contrary, appellant’s attorney stated at the hearing that appellant had lived in Florida and used a
credit card but that he had moved back to Texas prior to being charged with a crime and,
therefore, was not a ―fugitive.‖ Appellant did not meet his burden of placing identity into issue.
See Ex parte Meador, 597 S.W.2d 372 (Tex. Crim. App. 1980). We hold that, by offering the
governor’s warrant and the related documents that were regular on their face, the State presented
prima facie evidence that the requirements for extradition had been met. Appellant’s sole issue
is overruled.
The order of the trial court is affirmed.
PER CURIAM
December 22, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
2