Ex Parte Spencer , 567 S.W.2d 520 ( 1978 )

567 S.W.2d 520 (1978)

Ex parte Charles M. SPENCER.

No. 58002.

Court of Criminal Appeals of Texas, Panel No. 1.

June 28, 1978.

Ronald W. Chapman (court appointed on appeal), Dallas, for appellant.

Henry M. Wade, Dist. Atty., Ronald D. Hinds and Hugh Lucas, Jr., Asst. Dist. Attys., Dallas, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from an order entered in the 204th District Court of Dallas County remanding appellant for extradition to the State of Arizona to answer a charge of escape.

The appellant contends that the trial court erred in remanding him to Arizona since the State failed to prove that he is the identical person named in the executive warrant of the Governor of Texas.

After the Governor's warrant and supporting documents which authorized the extradition of "Charles M. Spencer" were introduced into evidence, the State rested. With such documents, the State made out a prima facie case for extradition. Ex parte Burns, Tex.Cr.App., 507 S.W.2d 777; Ex parte Reagan, Tex.Cr.App., 549 S.W.2d 204.

Thereupon, the appellant introduced into evidence an affidavit as follows:

"My name is Francis Henry Bula.

I deny being one and the same as one Charles M. Spencer who is currently being sought by the State of Arizona for the alleged offense of Escape, said offense alleged to have been committed in Arizona on December 8, 1977.

I further deny being in the State of Arizona on December 8, 1977."

This affidavit by appellant was sufficient to place identity into issue. Ex parte Viduari, Tex.Cr.App., 525 S.W.2d 163.^[1] Where identity is placed in issue, as it was in this case, the burden is upon the demanding state to show that the person taken into custody and held for extradition is the identical person named in the warrant. Ex parte Martinez, Tex.Cr.App., 530 S.W.2d 578; Ex parte Parker, Tex.Cr.App., 515 S.W.2d 926.

There is no evidence in the record to show appellant is the same person as Charles M. Spencer. The State presented no witnesses and offered no evidence to show they are the same person. The supporting papers contain a photograph and a description of Charles M. Spencer. However, there is no statement in the record identifying appellant as the man in the picture or indicating the appellant meets the description of Charles M. Spencer.

The evidence is therefore insufficient to show that the appellant is the same person demanded by the Governor of Arizona and whose extradition is authorized by the Governor's warrant. Ex parte Smith, supra; Ex parte Parker, supra; cf. Ex parte Martinez, supra; Ex parte Elliott, Tex.Cr.App., 542 S.W.2d 863.

The judgment is reversed and the cause remanded.

NOTES

[1] It must be noted that the supporting papers from Arizona reflect that one of the aliases of Charles M. Spencer is Francis H. Bula. The burden of going forward with the evidence shifts to appellant when the prima facie case of identification is made out by the presumption arising from identity of name. Ex parte Smith, Tex.Cr.App., 515 S.W.2d 925. However, even with identical names, the appellant places identity in issue when he denies he is the individual being sought by the demanding State. Ex parte Viduari, supra.