Ex Parte Bennie Milton Martin

Affirmed and Memorandum Opinion filed June 5, 2003

Affirmed and Memorandum Opinion filed June 5, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00082-CR

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EX PARTE BENNIE MILTON MARTIN

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 933,721

M E M O R A N D U M    O P I N I O N

This is an appeal from the denial of a writ of habeas corpus. Appellant Bennie Milton Martin sought relief from a Governor’s Warrant directing his extradition to the State of New Jersey, where he is wanted on the charge of health care claims fraud.  The trial court conducted a hearing and denied habeas corpus relief on January 10, 2003.  In three issues, appellant complains that (1) the Governor=s Warrant is not accompanied by a certified or authenticated copy of a warrant as required under article 51.13, section 3 of the Texas Code of Criminal Procedure; (2) the order of arrest accompanying the complaint does not comply with the requirements of an arrest warrant under Texas law; and (3) the complaint is defective under Texas law because it was based upon information and belief.  We affirm.

1.         Is There a Properly Authenticated Warrant?

In his first issue, appellant contends the Governor=s Warrant was not accompanied by a properly authenticated warrant for his arrest in New Jersey, which he contends is required by article 51.13, section 3 of the Texas Code of Criminal Procedure.  Texas adopted the Uniform Criminal Extradition Act in the form of article 51.13.  Section 3 of that article provides that no demand for extradition of a person charged with a crime in another state shall be recognized unless it is accompanied by at least one of the following:  (1) an indictment; (2) an information supported by affidavit; (3) an affidavit made before a magistrate, together with a copy of any warrant issued thereupon; or (4) a copy of a judgment of conviction or sentence imposed, together with a statement that the person has escaped from confinement or has broken the terms of his bail, probation or parole.  See Tex. Code Crim. Proc. Ann. art. 51.13, ' 3 (Vernon 1979); see also Ex parte Mason, 656 S.W.2d 470, 471 (Tex. Crim. App. 1983) (requirements of article are stated in the disjunctive, meaning only one of the stated documents is sufficient to satisfy the statute). Appellant apparently contends that the requirement of “an affidavit . . . together with a . . . warrant” is not satisfied.

The introduction of a governor’s warrant, regular on its face, is sufficient to make out a prima facie case authorizing extradition.  Ex parte Burns, 507 S.W.2d 777, 778 (Tex. Crim. App. 1974).  After the prima facie case for extradition is made out, the burden then shifts to the accused to show that the warrant was not legally issued, that it was not based on proper authority, or that its recitals are inaccurate.  Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980).  A prima facie case can be defeated or supported by the supporting papers introduced, regardless of which party may have offered the supporting papers into evidence.  Id.

Among the supporting papers accompanying the Governor’s Warrant, as appellant acknowledges, is a properly authenticated complaint. Appellant contends, however, that nowhere in the supporting papers is there a properly authenticated warrant for his arrest.  We have reviewed the complaint, and find that the form of the complaint contains both a complaint and a warrant, which was sworn to before a judge of the Superior Court of the County of Passaic, New Jersey.  The complaint and warrant form recites the offense charged, and at the bottom of the form is the following recital: “To any peace officer or other authorized person: Pursuant to this warrant, you are hereby commanded to arrest the named defendant and bring (him) (her) forthwith before this court to answer the foregoing complaint.”  The court issuing the complaint and warrant is identified on the form as the ASuperior@ Court of the County of Passaic, New Jersey.  In the space for the signature of the person administering the oath appears a stamp of the name “Miguel de la Carrera, J.S.C.” and a corresponding signature.  The complaint is accompanied by a supporting affidavit, which is entitled “Probable Cause Affidavit in Support of Arrest Warrant.”  This affidavit was executed by a Michael J. English, a State Investigator of the New Jersey Division of Criminal Justice, and was sworn to before Miguel de la Carrera, who signed the affidavit above the signature line for the “Judge of the Superior Court.”  Therefore, it is evident that both a complaint and a warrant were sworn to before Miguel de la Carrera, Judge of the Superior Court of Passaic County, New Jersey.

In addition to the certification of the complaint and warrant as authentic, the New Jersey Governor=s Requisition certifies as authentic all the supporting papers accompanying the request for extradition, and the certification accompanying the demand for extradition is signed by the Governor and the Secretary of State of New Jersey and bears the state seal.  These certifications are sufficient to authenticate all the supporting papers.  See Ex parte Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977); Moberg v. State, 743 S.W.2d 316, 317B18 (Tex. App.CHouston [14th Dist.] 1987, no pet.).

We find, therefore, that the complaint contains a properly certified and authenticated warrant supported by an affidavit sworn to before a superior court judge of Passaic County, in the State of New Jersey.  This is sufficient to satisfy the requirement of section 3 that the demand for extradition be accompanied by an affidavit before a magistrate and a warrant.  See Tex. Code Crim. Proc. Ann. art. 51.13, ' 3.

Therefore, we overrule appellant=s first issue.

2.         Does the Order to Arrest Fail to Comply with Texas Law?

In his second issue, appellant contends the order to arrest_the warrant we have discussed_is defective because it fails to satisfy the requirement of article 15.02 of the Texas Code of Criminal Procedure that a valid warrant must be “signed by the magistrate, and his office be named in the body of the warrant, or in connection with his signature.”  See Tex. Code Crim. Proc. Ann. art. 15.02(3) (Vernon 1977).  Appellant contends we must apply Texas law because “no New Jersey statutory or procedural laws were presented to the trial court.”^[1]  We disagree.

Interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of the Extradition Clause of the United States Constitution.  Michigan v. Doran, 439 U.S. 282, 288 (1978).  When the governor of the asylum state has issued the governor’s warrant, it is prima facie evidence that the constitutional and statutory requirements have been met.  Id. at 289.  The purpose of habeas corpus review of an extradition proceeding is not to inquire into the viability of the prosecution or confinement in the demanding state; rather, the sole purpose is to test the legality of the extradition proceedings. Rentz v. State, 833 S.W.2d 278, 279 (Tex. App.CHouston [14th Dist.] 1992, no pet.).  When a court in the asylum state reviews the legality of an arrest under a governor=s warrant, the court may only consider the following issues: (1) are the extradition documents valid on their face? (2) did the demanding state charge petitioner with a crime? (3) is the petitioner the person named in the request for an extradition? and (4) is the petitioner a fugitive?  Doran, 439 U.S. at 289; Rentz, 833 S.W.2d at 279.  Here, we are concerned only with the first issue.

Under article 51.13, section 3, the indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of the demanding state.  Tex. Code Crim. Proc. Ann. art. 51.13, ' 3.  The purpose of requiring one of the enumerated set of documents is to show that the person whose surrender is sought was charged in the regular course of judicial proceedings.  See Ex parte Rosenthal, 515 S.W.2d 114, 119 (Tex. Crim. App. 1974).  Absent evidence of fraud, our courts will not look behind this showing.  Id. Moreover, the sufficiency of the indictment, information, or affidavit as a criminal pleading is not at issue in the asylum state.  Id. In Ex parte Flores, 548 S.W.2d 31 (Tex. Crim. App. 1977), the Court of Criminal Appeals stated:

Our position upon this question is that, if it reasonably appears upon the trial of the habeas corpus that the relator is charged by indictment, in the demanding state, whether the indictment be sufficient or not under the law of that state, the court trying the habeas corpus case will not discharge the relator because of substantial defects in the indictment in the demanding state, when the true rule is that, if it appears to the court that he is charged by indictment with an offense, all other prerequisites being complied with, the applicant should be extradited.

Id. at 32 (quoting Pearce v. State, 32 (Tex. Crim. 301, 23 S.W. 15 (1893)).

Here, the Governor=s Requisition, signed by the Governor and Secretary of State of New Jersey, reflects that appellant is charged “by Complaint and Warrant issued thereon” with the crime of health care claims fraud in violation of New Jersey law. The papers supporting the charged offense include the affidavit of probable cause, the complaint, and the warrant. These documents demonstrate that appellant was substantially charged as required by Texas Code of Criminal Procedure article 51.13, section 3.  Accordingly, we conclude that the sufficiency of the supporting warrant is an issue for the New Jersey courts, not this court.  See Saenz v. State, 700 S.W.2d 648, 650 (Tex. App.CCorpus Christi 1985, no pet.) (holding that any problems with the papers used to support another state=s demand for extradition are to be resolved by the courts of that state). 

Moreover, we have already determined that the warrant reflects that it was signed by a judge of the Superior Court of Passaic County, New Jersey. Therefore, appellant=s complaintCthat the warrant does not contain the signature of a magistrate whose office is named in the body of the warrant or in connection with his signature_is unfounded.

We overrule appellant=s second issue.

3.         Is the Complaint Defective under Texas Law Because It was Based Upon Information and Belief?

In his third issue, appellant contends that the complaint is defective because it fails to comply with article 15.05 of the Texas Code of Criminal Procedure, which sets out the requisites of a complaint in Texas. Among other things, the complaint “must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense.”  See Tex. Code Crim. Proc. Ann. art. 15.05(2) (Vernon 1977).  Specifically, appellant contends that, in the complaint, the complainant swore “to the best of (his) (her) knowledge, information and belief” that appellant committed the charged offense, instead of swearing that he had “good reason to believe” or “does believe” that appellant committed the offense.  As in his second issue, appellant argues in his third issue that we must apply Texas law in the absence of the introduction of New Jersey law. 

However, as we explained in our discussion of issue two, the sufficiency of the charging instrument as a criminal pleading is not at issue in the asylum state, but is a matter to be resolved by the courts of the demanding state. See Flores, 548 S.W.2d at 32; Rosenthal, 515 S.W.2d at 119.  Additionally, Texas courts have held that complaints and affidavits containing averments “on information and belief” are permissible in extradition proceedings.  See Ex parte Terranova, 170 Tex. Crim. 445, 341 S.W.2d 660, 661 (1960); Ex parte McClintick, 945 S.W.2d 188, 192 (Tex. App.CSan Antonio 1997, no pet.).

Appellant’s third issue is overruled.

The trial court=s judgment is affirmed.

/s/        Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed June 5, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We note that appellant is incorrect that no New Jersey laws were presented to the trial court.  The supporting papers included a copy of the New Jersey statute governing health care claims fraud and the applicable sentencing guidelines.