Ex Parte: Jose Luis Chavez, Jr.

                                   NUMBER 13-01-456-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

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                          EX PARTE: JOSE LUIS CHAVEZ, JR.

  

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                         On appeal from the 92nd District Court

                                  of Hidalgo County, Texas.

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                          MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                                Opinion by Justice Rodriguez

  

Appellant, Jose Luis Chavez, brings this appeal following the trial court=s denial of his writ of habeas corpus challenging extradition.  By one issue, appellant contends the trial court erred in denying the writ of habeas corpus.  We affirm.

As this is a memorandum opinion not designated for publication, and the parties are familiar with the facts, we will not recite them here.  See Tex. R. App. P. 47.1, 47.2.

I.  Standard

A trial court=s determination whether to grant or deny a writ of habeas corpus is reviewed under an abuse of discretion standard.  State v. Cabrera, 24 S.W.3d 528, 529 (Tex. App.BCorpus Christi 2000, pet. ref=d); State v. Patrick, 990 S.W.2d 450, 451 (Tex. App.BCorpus Christi 1999, no pet.).  The evidence demonstrates a clear abuse of discretion where the record indicates the trial court acted without reference to any guiding principles or rules, such that its decision is arbitrary or unreasonable.  Patrick, 990 S.W.2d at 451.

II.  Analysis

By one issue, appellant contends the trial court erred in denying his writ of habeas corpus challenging extradition.  

A court considering whether to grant or deny a petitioner=s writ of habeas corpus challenging extradition can only 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.  Michigan v. Doran, 439 U.S. 282, 289 (1978); State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, 543 (Tex. Crim. App. 1991). It is well settled that a Governor=s warrant regular on its face is sufficient to make a prima facie case authorizing extradition.  Ex parte Moore, 436 S.W.2d 901, 902 (Tex. Crim. App. 1968); Ex parte Rodriguez, 943 S.W.2d 97, 99 (Tex. App.BCorpus Christi 1997, no pet.).  After the warrant is introduced, the burden shifts to the party contesting extradition to rebut the prima facie case.  See Ex parte Scarbrough, 604 S.W.2d 170, 174 (Tex. Crim. App. 1980).

In this instance, the State introduced the Governor=s warrant into evidence.  The trial court admitted the warrant without objection by appellant. The warrant appears regular on its face, therefore, the State made out its prima facie case for extradition.  See Ex parte Jackson, 575 S.W.2d 570, 570 (Tex. Crim. App. 1979).  Appellant argues, however, that the prima facie case was rebutted because: (1) the photographs in the warrant package were not sufficient to depict him as the person sought by the state of Indiana; and (2) the documents in the warrant package were not in compliance with article 51.13 of the code of criminal procedure.  See Tex. Code Crim. Proc. Ann.  art. 51.13, ' 23 (Vernon 1979 & Supp. 2003).

A.  Photographs

Appellant first argues the two photographs^[1] of the person sought by the State of Indiana do not Aappear to be the likeness of the same individual.@  However, at the hearing, appellant only pointed out to the trial judge that Athere=s two pictures with [appellant] within that packet that you have before you.  They have two different addresses, same name, though, judge.@  Appellant did not add any additional argument regarding the photographs.  Moreover, appellant never challenged the validity of the photographs, or placed the issue of identity in issue.  Cf. Ex parte Nelson, 594 S.W.2d 67, 68 (Tex. Crim. App. 1979) (when identity is placed in issue, burden shifts to State to show person held in custody for extradition is same person named in Governor=s warrant).  Thus, this claim has no merit.

B.  Documents

Appellant also argues that the Governor=s warrant package contained documents that did not comply with article 51.13 of the code of criminal procedure.  See Tex. Code Crim. Proc. Ann. art. 51.13, ' 23.  Specifically, appellant argues the application for requisition did not include any information of the times and places where the alleged crimes in Indiana took place, and two certified copies of the indictment^[2] were not included in the application.  See id. ' 23(1) & (3).

These claims have no merit. Upon review of the application for requisition, it is clear that the State of Indiana included two certified copies of separate informations for each count with which appellant was being charged.  Moreover, the times and locations of the alleged criminal activities are contained in the separate informations.  Thus, we conclude appellant did not rebut the State=s prima facie case that extradition was authorized.  See Ex parte Scarbrough, 604 S.W.2d at 174; see also State ex rel. Holmes, 819 S.W.2d at 542.  The trial court did not abuse its discretion in denying appellant=s extradition writ of habeas corpus.  See Cabrera, 24 S.W.3d at 529.  Appellant=s sole issue is overruled.

Accordingly, the trial court=s judgment is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 9th day of January, 2003.

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^[1]The two photographs in question are from two separate Texas driver=s licenses.

^[2]We note that appellant was served by information, rather than by indictment.