Ex Parte Leonard Barker ( 2015 )

ACCEPTED
03-15-00284-CR
7603984
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/29/2015 3:28:10 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00284-CR
FILED IN
3rd COURT OF APPEALS
In the Texas Court of Appeals AUSTIN, TEXAS
Third District, at Austin 10/29/2015 3:28:10 PM
JEFFREY D. KYLE
Leonard Ray Barker, Clerk
Appellant
v.
The State of Texas,
Appellee
Appeal from the 331st District Court of Travis County
Cause Number D-1-DC-15-100034
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is not requested
Table of Contents
Index of Authorities............................................................................. ii
Statement of Facts ................................................................................1
Summary of the State’s Argument....................................................... 2
Standard of Review.............................................................................. 3
Argument ............................................................................................. 3
Reply Point One: The trial court did not abuse its discretion in
finding that Appellant is a “fugitive.”................................................ 3
Reply Point Two: Appellant is not entitled to release from custody. 5
Prayer ...................................................................................................7
Certificate of Compliance and Service ................................................. 8
i
Index of Authorities
Cases
Echols v. State, 810 S.W.2d 430 (Tex. App.—Houston [14th Dist.]
1991, pet. denied).............................................................................. 6
Ex parte Potter, 21 S.W.3d 290 (Tex. Crim. App. 2000) .................... 5
Ex parte Robertson, 210 S.W.2d 593 (Tex. Crim. App. 1948)............. 4
Ex parte Sanchez, 987 S.W.2d 951 (Tex. App.—Austin 1999, pet. ref’d,
untimely filed) .................................................................................. 4
Ex parte Wall, Nos. 02-11-00326-CR, 02-11-00517-CR, 2012 Tex.
App. LEXIS 9652 (Tex. App.—Fort Worth 2012, no pet.) ................ 6
Ex parte Worden, 502 S.W.2d 803 (Tex. Crim. App. 1973) ................ 6
Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006).................... 3
Statutes
Tex. Code Crim. Proc. art. 51.03 .......................................................... 6
Tex. Code Crim. Proc. art. 51.05 .......................................................... 6
Tex. Code Crim. Proc. art. 51.07 .......................................................... 6
Tex. Code Crim. Proc. art. 51.13....................................................... 4, 6
Tex. Code Crim. Proc. art. 51.14........................................................... 4
Constitution
U.S. Const. art. IV, § 2, cl. 2 ................................................................. 3
ii
No. 03-15-00284-CR
In the Texas Court of Appeals
Third District, at Austin
Leonard Ray Barker,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 331st District Court of Travis County
Cause Number D-1-DC-15-100034
STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to
Appellant’s brief.
Statement of Facts
The State of Virginia indicted Appellant on several felony charges;
released him from jail on a personal recognizance bond; and issued
warrants for his arrest when he failed to show up to court, all in
October 2013. SX 3.
1
Appellant was arrested in Texas on unrelated felonies in
December 2013. He resolved those cases through a plea bargain in
April 2014, and completed his sentence on December 1, 2014. 3RR 5-
6; DX 1, 3.
Appellant was kept in custody, pending extradition to Virginia.
Virginia made a formal demand for extradition in January 2015, and
in February, the governor issued a Governor’s Warrant to extradite
Appellant to Virginia. SX 2, 3; DX 1.
Appellant filed a writ of habeas corpus, challenging his detention
on the Governor’s Warrant. CR 3-48. The trial court denied relief, and
Appellant appealed. CR 49-52.
Summary of the State’s Argument
Point One: Appellant argues that he is not a “fugitive” (and
therefore not subject to the Governor’s Warrant).
Reply: All that is necessary to make a person a fugitive is that he
left a state where he was charged with a crime. It is undisputed that
Appellant was charged with several felonies in Virginia and that he
subsequently left the state. Thus, the trial court did not abuse its
discretion in finding that Appellant is a fugitive.
2
Point Two: Appellant argues that he is entitled to release from
custody because the Governor’s Warrant did not issue within the time
allowed by statute.
Reply: Appellant’s argument is not cognizable. Additionally, the
issuance of a valid Governor’s Warrant rendered Appellant’s
complaint moot. Finally, the Governor’s Warrant issued within the
time allowed. For all of these reasons, Appellant is not entitled to
release from custody.
Standard of Review
A trial court’s ruling on a writ of habeas corpus is subject to review
for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006).
Argument
Reply Point One: The trial court did not abuse its
discretion in finding that Appellant is a “fugitive.”
Article IV, Section 2 of the United States Constitution establishes
the basis for extradition of fugitives between states. U.S. Const. art.
IV, § 2, cl. 2. The Extradition Clause is implemented by the Uniform
Criminal Extradition Act, which has been adopted by Texas. See Tex.
3
Code Crim. Proc. art. 51.13. Under the Act, the governor has a duty to
issue a warrant for the arrest and extradition of fugitives found in
Texas, upon proper demand by another state. See id.
All that is necessary to make a person a “fugitive” is that he left a
state where he was charged with a crime. Ex parte Sanchez, 987
S.W.2d 951, 952-53 (Tex. App.—Austin 1999, pet. ref’d, untimely
filed); Ex parte Robertson, 210 S.W.2d 593 (Tex. Crim. App. 1948).
It is undisputed that Appellant was charged with several felonies
in Virginia and that he subsequently left the state. Thus, Appellant is
a fugitive.
Appellant argues that he is not a fugitive (and therefore not
subject to the Governor’s Warrant) because he signed paperwork
notifying Virginia that he was incarcerated in Texas and asking
Virginia to come get him, pursuant to Tex. Code Crim. Proc. art.
51.14. But Appellant cites no authority for the argument that merely
signing this paperwork (which, incidentally, never even made it to
Virginia) somehow transformed him into a non-fugitive who is
immune to a Governor’s Warrant issued under Article 51.13.
4
The facts are that Appellant bond-forfeited and fled Virginia, he
has not returned, he has refused to sign papers agreeing to
extradition, and he is currently fighting extradition through a writ of
habeas corpus and appeal. He is a fugitive from Virginia in every
sense of the word.
For all of these reasons, the trial court did not abuse its discretion
in finding that Appellant is a fugitive.
Reply Point Two: Appellant is not entitled to release from
custody.
Appellant argues that he is entitled to release from custody
because the Governor’s Warrant did not issue within the time allowed
by statute.
First, Appellant’s argument is not cognizable. Extradition
proceedings are limited in scope in order to facilitate a swift and
efficient transfer of custody to the demanding state, so once the
governor grants extradition, a court considering release on habeas
corpus can consider only (1) whether the extradition documents on
their face are in order; (2) whether appellant has been charged with a
crime in the demanding state; (3) whether appellant is the same
5
person named in the extradition request; and (4) whether appellant is
a fugitive. Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App.
2000).
Additionally, the issuance of a valid Governor’s Warrant rendered
Appellant’s complaint moot. See Ex parte Worden, 502 S.W.2d 803,
804-05 (Tex. Crim. App. 1973); Echols v. State, 810 S.W.2d 430, 431
(Tex. App.—Houston [14th Dist.] 1991, pet. denied).
Finally, even if Appellant’s complaint was judicable, the
Governor’s Warrant issued within the time allowed by statute. The
State may detain a fugitive for 90 days in order to obtain a Governor’s
Warrant. See Tex. Code Crim. Proc. art. 51.13, §§ 15, 17. Appellant
completed his sentence on the Texas felonies on December 1, 2014,
and the Governor’s warrant issued on February 6, 2015, well within
this 90-day window. Thus, Appellant was never entitled to release.
See Ex parte Wall, Nos. 02-11-00326-CR, 02-11-00517-CR, 2012 Tex.
App. LEXIS 9652, at *17-24 (Tex. App.—Fort Worth 2012, no pet.).
Appellant argues that the State needed to issue the Governor’s
Warrant within 90 days of his appearance before a magistrate on
October 21, 2014. He cites Tex. Code Crim. Proc. arts. 51.05 and
6
51.07. These sections apply when a person has been arrested under a
magistrate’s warrant (also called a fugitive warrant), per Tex. Code
Crim. Proc. art. 51.03. There is no evidence that Appellant was
arrested on a fugitive warrant on October 21, 2014. Instead, the
record shows that the magistrate asked Appellant if he wanted to
waive extradition, and he refused. 2RR 14-17; 3RR 11-13. Nothing
about this triggered the 90-day clock for fugitive warrants in Articles
51.05 and 51.07.
For all of these reasons, Appellant is not entitled to release from
custody.
Prayer
The State asks this Court to overrule Appellant’s points of error
and affirm the trial court’s order denying habeas relief.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
7
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Certificate of Compliance and Service
I certify that this brief contains 1,078 words. I further certify that,
on the 29th day of October, 2015, a true and correct copy of this brief
was served, by U.S. mail, electronic mail, facsimile, or electronically
through the electronic filing manager, to Appellant’s attorney, Paul
Evans, 811 Nueces Street, Austin, Texas 78701.
Angie Creasy
8