### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00284- CR

Ex parte Leonard Barker

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 15- 1000 34, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n October 2013, the State of Virg inia issued a capia s for the arr est of L eonar d Ba rker afte r he w as indicted on seve ral fe lony char g es, wa s relea sed fr om jail on a persona l rec og nizance bond, and failed to show up in court. Two months later, Ba rker was arr ested in Texas on unrela ted char g es. After his arr est in Texas, Ba rker enter ed int o a plea b ar gai n wi th the S tate reg arding the Texas offe nses. Under the terms of the ag ree ment , Ba rker was sentenc ed to twelve months’ imprisonment, and Ba

rker completed his sentenc e in Dec ember 2014. Whil e Ba rker was serving his sentenc e, the State of Virg inia communicated with the Texas Depa

rtment of Criminal J ustice and with the Travis County District Attorney ’s Offic e about transfe rring Ba

rker to V irg inia, but B arke r ref used to sig n a wa iver a llowing him to be re turned to Virg inia. Acc ording ly , in J anuar y 2015 and afte r Ba

rker finished serving his sentenc e, the State of Virg inia applied for a Gover nor’s Warrant from Gover nor Gre g Abbott’s Offic e seeking interstate rendition of Ba

rker , and in Fe bruar

y 2015, Gover

nor Abb o tt issued a war rant authorizing the extradition of Ba

rker

. See Tex. Code Crim. Proc. art. 51.13, § 2 (stating that “the Gover nor of thisState” is obliga ted “to have arr ested and delivere d up to the Ex ecutive Authority of any other State

. . . any person char g ed in tha t State with trea son, felony , or other crime, who has fled from justice and is found in this St ate” ). During the time betwee n when B arke r’s sentence w as complete d and when the w arr ant was issued, B arke r re mained in custody

.

Once the w a

r r a n t w a s sent to wher e Ba

rker was in custody , Ba

rker filed an application for writ of habea s corpus challenging his “dete ntion pursuant to [t he] extradition proce eding s.” After a hear ing was held reg arding Ba rker ’s application, the mag istrate rec ommended deny ing the reque sted relief

, and the district court adopted the mag ist rate’s finding s of fac t, conclusions of law, and re co m m en d at ions. See Tex. Gov’t Code § 54.976(a) (4) (authorizing trial court to ref er applications for writ of habea s corpus to mag istrate). I n two issues on appea l, Ba rker contends that the district court e rre d by deny ing his a

pplication. We will affirm the district cour t’s order deny ing his wr it application.

STANDARD OF REVIEW Appellate courts revie w a trial court’s denial of h abea s-cor pus relief under an abuse- of-discr etion standard. Kniatt v. State , 206 S.W .3d 657, 664 (Tex. Crim. App. 2006). “A trial court abuses its discretion when its ruling is arbitra ry or unrea sonable.” Gaytan v. State , 331 S.W .3d 218, 2 2 3 (Tex. App.—Austin 2011, pet. ref ’d). But a trial court does not abuse its discretion if its ruling lies within “the zone of rea sonable disag ree ment.” Bigon v. State , 252 S.W .3d 360, 367 (Tex. Crim. App. 2008); see Lopez v. State , 8 6 S.W .3d 228, 230 (Tex. Crim. App. 2002). Under that standard, we “re view the re co rd evidenc e in the light most favor able to the trial court’s ruling ,” Knia t t , 2 0 6 S

. W

. 3 d at 664, and the applicant has the burden of proving his claims by a 2preponde ranc e of the ev i d ence , Ex parte Grave s , 271 S.W .3d 801, 803 (Tex. App.—Waco 2008, pet. re f’d)

.
DISCUSSIO N

Whether Barker was a F ugitive

I n his first issue on appea l, Ba rker points to the U n i fo rm Criminal Ex tradition Act

as well as the I nte r s ta

te Ag ree ment on Detaine rs. The Uniform Criminal Ex tradition Act implements the Ex tradition Clause of the United States Constit ution and h as b ee n adopted by Texas. See U.S. Const., art. I V, § 2, cl. 2 (providing that person char g ed in any state who flee s from justice and is “ found in a

nother State, shall on Demand of the executive Authority

of the State fr om w hich he fled, be delivere d up, to be remove d to the State having J urisdiction of the Crime”); Tex. Code Crim. Proc. art. 51.13 (adopting Uniform Criminal Ex tradition Act). Ex tradition proce eding s are “limited in scope in order to fac ilitate a swift and eff icient transfe r o f cu s t o d y to the demanding state.” Ex parte Potter , 21 S.W .3d 290, 294 (Tex. Crim. App. 2000). Acc ording ly , the courts in an asy lum state are limit ed to the following deter minations when “conside ring rele ase on habea s corpus” : “(a ) whether the extradition documents on their fac e are in order ; (b) whether the petitioner has been char g ed with a crime in the dema nding sta te; (c) whether

the petitioner is the per son named in the reque st f or extradition; and (d) whether the petitioner is a fug itive.” Michigan v. D oran , 439 U.S. 282, 289 (1978). Although “[t] he Uniform Criminal E x t ra d i t ion Act does not formally define ‘fug itive,’” “[a] ll that is nece ssary to make a person a fu gi t i v e fr o m justice is that he leave a state

u n d e r w h o s e la

w s h e h a s in c u

r r e d g u il t. ” E x p a r te S a n c h e z , 9 8 7 S. W. 2 d 9 5 1 , 9 5 2 ( T e x. A p p . — A u s ti n

31999, pet. ref ’d, untimely filed); see also Potter , 21 S.W .3d at 297 n.8 (explaining that “‘[f]ugitive

means prese nce in the demanding state when the cr im e w a s a ll e g e d ly committed’” (quoting Moncrief

v. Anderson , 342 F.2d 902, 904 (D.C. Cir. 1964)))

. Moreove r, “[a] g overnor ’s g rant of extradition is pr ima fac ie evidenc e that the c onstitut ional and statutory require ments have been met.” Doran , 439 U.S. at 289. “I f the Gover nor’s Warrant is r eg ular on its fa ce, the burden shifts to the acc used to sho w the war

rant was not leg ally issued, not based on proper authority , or contains inacc urate

rec itals.” Ibarra v. State , 961 S.W .2d 415, 417 (Tex. App.—Houston [1s t Dist.] 1997, no pet.).

Under the I nterstate A g ree ment on Detaine rs, i f an individual has bee n imprisoned in one state and has a pending indictment ag ainst him in another state, he is entitled to be br oug ht to trial within 180 day s in that other state if he delivers “to the prosec uting office r and the appropr iate court of the prosec uting office r’s j u ri s d i ct ion written notice of the place of his imprisonment and his reque st for a final dispositi on to be made of the indictment.” Tex. Code Crim. Proc. art. 51.14, art
. I I I (a)

. Moreove r, although t he I nterstate Ag ree ment on Detaine rs does allow for extensions of time, it provides a deadline stating that if trial is not held within the 180 day s, “any indictment

. . . shall not be of any further forc e or eff ect, and the court shall enter an order dismiss ing th e s a me w it h p r e ju d ic e . ” I d

. a r t. 5 1

. 1 4 , a r t. I I I ( a ) , ( d )

. F u

r th e r , th e I n te r s ta te A g r e e me n t o n D e ta in e r s specifie s that any reque st for final dispositi on “shall also be deeme d a waiver of extradition” as well

as “conse nt by the prisoner to the production of his body in any court wher e his p re s en ce m ay be require d in order to eff

ectua te the purposes of this ag ree ment.” Id. art. 51.14, art. I I I (e)

. I n addition, the 180-day deadline “does not commence until the prisoner’ s reque st for final dispositi on of the char g es ag ainst him has actually been delivere d to the court and pros ec u t i n g o ffice r of the

4jurisdiction that lodge d the detainer ag ainst him,” Fex v. Michigan , 507 U.S. 43, 52 (1993) (e mpha sis

added) , and the inmate has “‘the burden of demonstrating compliance with the formal proce dural require ments of’” the I nterstate Ag ree ment on Detaine rs, Morganfield v. State , 919 S.W .2d 731, 734 (Tex. App.—San Antonio 1996, no pet.) (quoting United States v. Henso n , 9 4 5 F. 2 d 430, 434 (1st Cir. 1991)).

Wit h the prec eding in mind, Ba rker arg ues in his first issue on appea l that the district court a bused its discretion by

deny ing his application for a writ of habe as cor pus beca use he “ was not a ‘fug itive’ at the time the Gover nor’s Warrant was issued.” Although Ba rker acknow ledg es that he was a fug itive when he was first arr ested in Texas, he asser ts that he was no longe r a fug itive when the Gover

nor’s Warrant issued beca use he “tried to eff

ect a reque st for final dispositi on of his Virg inia char g es in May 2014

. . . by way of forms” provided by the Texas Depa rtment of Criminal J ustice under t h e I nterstate Ag ree ment on Detaine rs. See Tex. Code Crim. Proc. art. 51.14. As support for this proposition, Ba rker ref ers to an ex hibit t hat he attache d to his application for writ of habea s corpus showing that he signe d paper work reque sting final dispositi on of his Virg inia offe nses in May 2014 and showing that he g ave his consen t to be transfe rre d to Virg inia for final dispositi on of those char g es. I n addition, during the habea s proce eding , Ba rker and Ba

rker ’s former attorney eac h testified that Ba rker was working with a coordina tor at the jail to file the paper work. I n light of the fac t that he filled out the forms in May 2014, Ba rker urg es that the 180-day deadline for comply ing was in November 2014. For that rea son, he asser ts that the indictments from Virg inia

wer e no longe r eff

ective under the I nterstate Ag ree ment on Detaine rs and, there fore , that he was no longe r a fug itive for purposes of the Uniform Criminal Ex tradition Act and was enti t l ed t o be discharg ed fr om custody

. 5Altho u gh Ba rk er attache d as exhibi ts to his application forms that he filled out

seeking final dispositi on of his V ir g in ia offe nses, nothing in the rec ord demonstrates that those forms

wer e sent to or r ec ei v ed by the relevant officials in Virg inia or t hat t he indi ctments from Virginia

wer e dismiss ed. On the contra ry , when challeng ing Ba

rker ’s rig ht to the relief reque sted, the State admitted into evidenc e during the habea s proce eding a letter from Cathry n Evans, who was “the custodian of rec ords for I nterstate Act on Detaine rs and Ex tradition case s” for Alexandria, Virg inia. I n her letter, Evans explained that she has been s ee k i n g t h e return of Ba rker and that all of the

corr espondenc e that she has rec eived from Texas officia ls conce rning Ba rker indicated that Ba

rker

wa s “r efusing to return to Virg inia.” Fur ther, she wrote that she has “neve r rec eived any reque st from . . . B arke r t o return him, via I nterstate Act of Detaine r or throug h any waiver of Ex tradition to Virg inia. Fur

thermore , I sear ched the local court rec ords to ve rify that no such documents wer e filed or sent.” Evans also attache d emails showing her communications with various officia ls

s ee k i n g ex tradition of Ba rker and a document listi ng the eff orts that had been made to return Ba rker to Virg inia. I n light of the rec ord befor e us, we cannot conclude that the district court abused its discretion by deter

mining that Ba

rker did not satisfy his burden of establishing that h e was not a f u g it iv e a t th e ti me o f th e h a

b e a s h e a r in g . F o r th e s e r e a s o n s , w e o v e r r u le B a r k e r ’ s f ir s t is s u e o n a

p p e a l.

Whether t he Gove rnor’s War rant was T im ely

I n his second issue on appea l, Ba rker contends that the dist ri ct court abused its discretion by deny ing his application for writ of habea s corpus beca use the Gover

nor’s Warrant was issued afte r he was entitled to be rele ased fr o m cu s t o d y . When prese nting this issue on appea l,
6Ba

rker highlig hts provisions of the Code of Criminal Procedur e authorizing a mag istrate to issue a fug itive war

rant afte r “a complaint is made to [t he] mag istrate that” a “per son within his jurisdiction is a fug itive from justice from another State,” Tex. Code Crim. Proc. art. 51.03, and notes that when the acc used is broug ht befor e a mag istrate afte r the mag istrate has issued a fug itive war rant, the mag istrate must deter

mine whether “the acc used is char g ed in another State with the offe nse named in the complaint” and whether to “commit the defe ndant to jail to awa it a requisition from the Gover nor of the Sta t e from which he fled,” id. art. 51.05. Fur ther, Ba rker points out that if the mag istrate decide s to place the acc used in jail, the leng th of the confine ment cannot be “long er . . . than ninety day s.” Id. Moreove r, Ba rker notes that if someone has been confine d under a fug itive

war rant and has not been “ar rested u n d er a war

rant from the Gover

nor of this State befor e the expiration of ninety day s form the day of his commitment,” th e i n dividual “shall be discharg ed.” Id. art. 51.07. After ref

err ing to those statutory provision s an d deadlines, Ba rker insists that he should ha ve been rele ased in mid-J anuar y 2015, which was befor e the Gover nor’s Warrant issued, and that his continued detention bey ond mid-J anuar y was illega l. I n particula r, he notes that he was b roug ht befor e a mag istrate in October 2014, while he was serving out his sentenc e for th e T ex as offe nses, and was informed t h at t h e S t at e of Virginia wanted to place a detainer on him. I n other words, Ba

rker arg ues that the he aring from Oc tober 2014 wa s the ty pe of hear ing descr ibed above in which a mag istrate must deter mine whether an acc used has been char g ed with a crime in another state and, if so, whether to c onfine the acc used. See id. art. 51.05. Acc ording ly , he insists that the hear ing started the running of the 90-day deadline, that he should have been rele ased in mid-J anuar y

72015, and that the issuance of the Gover nor’s Warrant afte r mid-J anuar y was untimely

. Cf. Lanz v. State , 8 1 5 S

. W.2d 252, 253-54 (Tex. App.—El Paso 1991, no pet.) (dete rmining that trial court should have g rante d habea s challeng e asser ting that continued confine ment past 90 day s for individual arr ested under fug itive war rant was improper when n o Gover nor’s Warrant had been issued). Ba

rke r al s o as s er t s that he had resolved his Texas char g es by the time of the hear ing beca use he had enter ed a plea ag ree ment and pleade d g uilty and urg es that “he had additionally provided consent for the production of his body ” in Virg inia by filling out the forms discussed in the first issue. 1 As a preliminary m att er, we note that, as admitted to by Ba rker , the Gover

nor’s Warrant was issued in Fe bruar y 2015 befor e Ba

rker filed his application for writ of habea s corpus. Acc ording ly , his complaint reg arding his continued confinement bey ond the 90-day deadl i n e was rende red moot by “the issuance of a valid g overnor ’s war rant.” See Echols v. State , 810 S.W .2d 430, 4 3 1 ( T e x. A

p p . — H o u s to n [1 4 th D is t. ] 1 9 9 1 , n o p e t. ) ; s e e a ls o E x p a r te Lo g a n , N o . 0 5

- 1 0

- 0 1 3 5 4

- CR , 2011 Tex. App. L EXI S 2040, at *3-5 (Tex. App.—Dallas Mar. 22, 2011, no pet.) (not desig nated for publication) (conc luding that issuance of valid Gover nor’s Warrant rende red moot complaint

re gar ding four- y ear confine ment under fug itive war rant and noting that appellant had been simult aneously detained on local char g es); Ex parte Froman , No. 14-02-00450- CR, 2002 Tex. App. L EXI S 7436, at *7 (Tex. App.—Houston [14t h Dist.] Oct. 17, 2002 , n o p et
. ) (n ot desig nated for

I n his brief, Ba

rker acknow ledg es that he was informed during a hear ing in Dec ember 2013 1 that the s tate of Virg inia wanted him re turned to its jurisdiction. Howeve r, Barke r arg ues t hat t he 90-day dead l ine was not applicable to the Dec ember 2013 hear ing beca use “he still had char g es pending in [ Travis County ] at the tim e.” 8publication) (explaining that “issuance of a valid g overnor ’s war rant rende rs moot a

ny complaints arising from confine ment under a fug itive war rant, including alleg ed violations of Texas Code of Criminal Procedur e article 51.07”); Lanz , 815 S.W .2d at 254 (cla rify ing its ruling that habea s relief should have been g rante d by stating that defe ndant “should be rele ased from custody of the fug itive

war rant unless, of c ourse, the g overnor ’s war rant ha s in the meantime bee n serve d on him”). Fur ther, we note that the rec ord in this case does not contain a tr an s cr i p t fr om the October 2014 hear ing and that the portions of the rec ord from the hab ea s hear ing discussing the October 2014 hear ing do not demonstrate that the magi strate in that hear ing decide d to confine B a r k e r u n d e r a r ti c le 5 1

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e e T e x. Co d e Cr im

. Pr o c . a r t. 5 1

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. M o r e o v e r , th e G o v e r n o r ’ s Wa r r a n t

was issued within 90 day s of when Ba rker finished serving his sentenc e for the Texas offe nses, and the Uniform Criminal Ex tradition Act authorizes a judge or mag istrate to confine for up to 90 day s

a person char g ed with an offe nse in another state and who has fled from justice to allow “the arr est of the acc used to be made under a war rant of the Gover

nor.” See id. art. 51.13, §§ 15 (authorizing confine ment for 30 day s), 17 (allowing six ty -day extension). Acc ording ly , we cannot deter mine that the distric t co u rt ab u s ed its discretion by deter mining that the 90-day period for the issuance of a Gover nor’s Warrant did not did not commence until afte r Ba rker finished serving his sentenc e and that, there fore , Ba

rker was not entitled to be re lease d befor e the Gove rnor’ s Warrant issued. Even assuming for the sake of arg ument that a decision reg arding whether to confine Ba rker under the fug itive-war rant provisions descr ibed above was made durin g t h e Oc t o ber 2014 hear ing, we note that one of our sister courts of appea ls addre ssed a simil ar issue reg arding whether those deadlines rende red the issuance of a Gover nor’s Warrant untimely

. See Ex parte W all , No s . 0 2-11-00326- CR, -517-CR, 2012 Tex. App. L EXI S 9652 (Tex. App.—For t Worth Nov. 21 , 92012, no pet.) (mem. op., not desig nated for publ ication). As set out in the opi nion in W all , Wall

was arr ested and confine d in Texas for offe nses that occur red in T exas, a

nd the trial court place d a “no-bond hold” on him afte r lear ning that he was an esca

pee from another state. Id. at *1-2. Severa l months later, Wall pleade d g uilty to one of the Texas offe nses, an d t he other Texas offe nse was dismiss ed. Id. at *2-3. After Wall plea ded g uilty , the trial court sentenc ed him to time serve d and “dete rmined that probable cause exis ted to issue a fug itive war rant.” Id. at *3. Approxim ately two months later, “a Texas Gover nor’s war rant” was issued to extradite Wall. Id. I n response , Wall filed

an application for writ of habea s corpus “cha lleng ing the tim el i n es s o f the Texas Gover nor’s

war rant” beca

use the war

rant was not issued until over a y ear afte r he was confine d and afte r a hold had bee n place d on him. Id. at *4.

I n aff irming the trial co u rt ’s denial of W all’s requested habeas relief, the appellate court noted that Wall was not illega lly detained from the time of his confine ment to the time that the fug itive wa rr an t was iss ued because he was being confine d for the Texas offe nses. Id. at *21-22. Acc ording ly , the appellate court rea soned that t he Gover nor’s Warrant was timely beca use it was issued within 57 day s of the fug itive w arr ant being issued. Id. at *23. Alterna tively , the appellate court explained that if the y ear -old “no-bond hold” that was place d on Wall shortly afte r he had been

arr ested could be considere d a fug itive war rant, then it applied from the time t h at W all finished serving his Texas sentenc e, making the Gover nor’s Warrant timely beca use it was issued within 90 day s of the end of

his sentence

. See id. at *24. I n light of the analy sis from W all , we would be u n able to conclude that the di strict

co urt abused its discretion by deter mining that the 90-day deadline for holding an accu s ed o n a

10fug itive war rant did not start to run until af t er Ba rk er finished serving his sentenc e for the Texas offe nses and that, there fore , Ba rker was not entitled to be re lease d befor e the Gove rnor’ s Warrant issued. See id. ; see also Ex parte Froman , 2002 Tex. App. L EXI S 7436, at *7-8 (over ruling claim reg arding g rea ter than two-y ear delay betwee n appellant’ s arr est and issua n c e o f G o vernor ’s Warrant and noti ng that for two of t hose y ear s appellant was being hel d under local char g e and conviction and not on fug itive warr ant).

For all of these r easons, we overr ule B aker ’s sec ond issue on appea l.

CONCLUSION Having overr

uled all of Ba

rker ’s issues on appea l, we aff irm the district court’s order deny ing his wr it application.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: January

8, 2016 Do Not Publish

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