Ex Parte Trisler , 1980 Tex. Crim. App. LEXIS 1398 ( 1980 )

OPINION

PHILLIPS, Judge.

This is an appeal from an order of the 155th District Court of Austin County remanding appellant to custody for extradition to the state of Indiana.

Appellant has filed a motion in this Court requesting that his appeal be dismissed. The motion is signed by both appellant and his attorney, but is not sworn. It is a long established rule that the right of appeal is personal, and an appeal will be dismissed only upon the sworn motion of the appellant himself. Washington v. State, 551 S.W.2d 56 (Tex.Cr.App. 1977); Page v. State, 532 S.W.2d 341 (Tex.Cr.App. 1976); Gilliam v. State, 177 S.W.2d 782 (Tex.Cr.App. 1944); Catron v. State, 140 S.W. 227 (Tex.Cr.App. 1911). The requirement that the motion be authenticated has never been relaxed by this Court. See Zamora v. State, 568 S.W.2d 355, n. 1 (Tex.Cr.App. 1978); Page, supra; Gilliam, supra; Newell v. State, 101 S.W.2d 254 (Tex.Cr.App. 1937); Catron, supra. The authentication requirement serves to assure this Court that the appellant personally decided to forego his right of appeal, and gave some consideration to his decision. We expressly adhere to the previous case law on this matter. Because the motion to dismiss in this case is not sworn to by appellant, we cannot dismiss the appeal.

In his writ of habeas corpus filed with the trial court appellant urges that the extradition documents “are defective and not properly authenticated,” the probation violation alleged by Indiana authorities will not support extradition, the state failed to establish that appellant was present in Indiana at the time the probation violation took place, and the state failed to prove that appellant is the person demanded by Indiana authorities.

At the hearing on appellant’s writ of habeas corpus the state introduced the governor’s warrant authorizing appellant’s arrest and extradition, along with the supporting documents from Indiana. The supporting documents include a requisition order from the governor of Indiana alleging that appellant was convicted of theft in Indiana and subsequently violated the terms of his probation and fled the state. It is alleged in the application for requisition that appellant was present in the state of Indiana at the time of the theft and probation violation. Also contained in the supporting documents is a judgment of conviction for the theft offense reciting in part that appellant is placed on probation, a report of a probation violation, and a bench warrant for appellant’s arrest issued as a result of the probation violation.

Contrary to appellant’s first contention, the supporting papers are complete and properly authenticated. Article 51.-13(3), V.A.C.C.P.

Appellant’s second contention is without merit because a probation violation will support extradition under Article 51.13, supra. Ex parte Larson, 494 S.W.2d 179 (Tex.Cr.App. 1973); Ex parte Knoll, 339 S.W.2d 678 (Tex.Cr.App. 1960).

Appellant’s third contention is without merit because the state had the burden of establishing only a prima facie case that appellant was in Indiana at the time of the violation of probation. The state met this burden when it introduced the governor’s warrant regular on its face. Ex parte Larson, supra. Appellant produced no evidence to rebut the state’s prima facie case.

Appellant’s final contention that the state failed to prove appellant’s identity is without merit because appellant never succeeded in placing his identity in issue. The state made out a prima facie case on identity by introducing the governor’s warrant naming appellant as the person sought by Indiana. Ex parte Kaufman, 323 S.W.2d 48 (Tex.Cr.App. 1959); Ex parte Jones, 322 S.W.2d 292 (Tex.Cr.App. 1959). The state went further and proved that during appellant’s confinement in Brazos County Jail, he identified himself as Richard Eugene Tris-ler to Fred Maddox, a Brazos County probation officer. Appellant previously had identified himself to jail officials as Wesley Paul Huffman; Maddox knew Huffman, however, and upon seeing appellant immediately determined that he was not Huffman. Appellant told Maddox that he was from Indiana and had used a pseudonym because he feared that there were warrants for his arrest pending in that state. Appellant admitted to Maddox that he had violated his probation in Indiana.

Appellant did not testify at the hearing. Austin County deputy sheriff B. T. Noviskie testified in behalf of appellant that when appellant had been incarcerated in the Austin County Jail previous to being incarcerated in the Brazos County Jail, he used the name Huffman. After returning from the Brazos County Jail appellant used the name Trisler. Appellant’s evidence was insufficient to raise the issue of identity. Ex parte Wheeler, 528 S.W.2d 229 (Tex.Civ.App. 1975).

The judgment is affirmed.