COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

EX PARTE
HUMB ERTO CAMARI L L O. § § § § § § No. 08-09-00259- CR

Appea l from the 384th District Court of El Paso County , Texas (TC# 20090D04091)

O P I N I O N
I n his sole issue, Appellant complai n s t h at t h e trial court err ed in deny ing his reque sted habea s-cor

pus relief from the enfor ceme nt of an interstate extradition war rant. We aff

irm the trial
court’s or der.
BACK GR OUND
A New Mexi co grand jury had indicted Appellant for burg lary of a vehicle, larc eny of a firea rm, larc eny over $500, and possession of a firea rm by a felon, and the S t at e of New Mexi co
soug ht to ext radite A

ppellant to fac e those charg es. At the request of New Mexi co Governor Bill
R ichar dson, and pursuant to article 51.13, section 2 of the Texas Code of Criminal Pr o ce d u re , Gover nor Rick Perry issued a wa rra nt for Appe llant’s arr est and Appellant filed an application for writ of hab ea s co rpus s eeking to challeng e the issuance of the warrant. T E X
. C O D E C R I M
. P R O C
. AN N . art. 51.13, § 2 (V ernon 2006)

. At the habea s-cor

pus hear ing, Gover

nor Perry ’ s w a

r r ant and supporting paper s, including the
New Mexi co requ e s t, in d ic tm e n t, p h o to g r a

p h s , a n d f in g e rprints, wer e admitted into evidenc e without objection. On cross-e x amination, Appellant’s counsel elicited evidenc e that a booking photogr aphand fing erpr int card tha t were offe red in support of Governor Ri char dson’s reque st wer e not from

Ne w M exico as rec ited but wer e, instead, from the El Paso Police Depa rtment and wer e dated October 22, 1990, and Fe bruar y 13, 1997, respe ctively

. I n his arg ument to the trial court, Appellant stated that the supporting documents that wer e admitted into evidenc e did not meet the require ments of article 51.13 as the a

rre st data came from El Paso, Texas, r ather than New Mexi co. T E X
. C O D E C R I M
. P R O C
. A

N N
. art. 51.13, § 2 (Ve rnon 2006). Appellant also complain ed that there was no evidenc e that he had been in New Mexi co, th e d emanding State, when the crimes wer e alleg edly committed.
I n response , th e S t at e conce ded that Gover nor Richardson’s extradition reque st contained ty pog raphic al err ors when it said that booking photos and fing erpr ints wer e from Dona Ana County , New Mexi co, as they had, in fac t, been submitt ed by the State of Texas to the State of New Mexi co for the purpose of identify ing Appellant. The State explained that Appellant had never been arr ested
in New Mexi co, and the State of New Mex ico did not have fing erpr ints and photogr aphs of Appellant. The requisition packe t also contained another photogr aph of Appellant which had been shown to the complaining witness in New Mexi co who there afte r identified Appellant as the person who had comm i t t ed the char g ed offe nses. The complaining witness’s aff idavit containing her identification of Appellant’s photogr aph had been made a part of the complaining witness’s aff idavit which had been submitt ed, along with other documents, by Gover nor Richardson in suppor t of his extradition request.
At no time during an y of the proce eding s did Appellant deny under oath that he was the
person named in the g overnor ’s war rant. Nor did Appellant prese nt evidenc e demonstrating that he

was not in the State of New Mexi co at or about the time the char g ed offe nses wer e committed. The trial court de nied Appellant’ s application for writ of habe as cor

pus and this appea l followed.DISCUSSIO N

Appellant asser

ts that the trial court err ed when it denied his reque sted habea s-cor pus relief beca use the evidenc e failed to show (1) that Appellant is the same person named in the extradition
paper s and (2) that Appellant was in the demanding state, New Mexi co, at the time the alleg ed offe nse wa s committed. W e disag ree
. Standard of Review
We revie w a trial court’s ruling on a writ of habea s corpus under an abu s e o f discretion standard. Kniatt v. State , 206 S.W .3d 657, 664 (Tex. Crim. App. 2 0 06). Appellant must prove entitlement relief by a preponde ranc e of the evidenc e. Id. We revie w the evidenc e prese nted in the light most favor able to the tria l court’s ruling

. Id.
I nterstate extradition is intended to be a summary and mandatory executive proce eding derive d from the United States Constit ution. Ex parte Potter , 21 S.W .3d 290, 294 (Tex. Crim. App. 2000), citing Michigan v. Doran , 439 U.S. 282, 288, 99 S.Ct

. 530, 58 L .Ed.2d 521 (1978); Ex parte Lekavic h , 145 S.W .3d 699, 700-01 (Tex. App. – For t Worth 2004, no pet.); Ex parte Hearing , 125
S.W .3d 778, 781 (Tex. App. – Texarkana 2004, no pet.). When a gover nor has g rante d int er s t at e extradition, a trial court enter taining an application for writ of habea s corpus may decide only four issues: (1) whether t h e ex t ra d i tion documents are fac ially in order ; (2) whether the applicant has been char g ed with a crime in the demanding state; (3) whether the applicant is the person named in the demand for extradition; and (4) whether the applicant is a fug itive. Ex parte Potter , 21 S.W .3d
at 294, citing Dora n , 4 3 9 U.S. at 289. The acc used may also raise issues rela ting to his mental competenc y

to consult with counsel. Id . at 294-95.
A g overnor ’s war

rant which is reg ular on i t s fa ce is sufficie nt to make a prima facie case

au t h o ri zing ex tradition. Doran , 439 U.S. at 289; Ex parte Kronhaus , 410 S.W .2d 442, 443 (Tex.Crim. Ap p
. 1967); Ex parte Rodriguez , 943 S.W .2d 97, 99 (Tex. App. – Corpus Christi 1997, no

pet.). After a prima facie showing of reg ularity has been mad e, t h e applicant bear s the burden to show that the g overnor ’s war rant was not leg ally issued or was issued on improper authority , or that the rec itals in the g overnor ’s war rant are inacc urate

. Ex parte Cain , 592 S.W .2d 3 5 9 , 3 6 2 (Tex

. Crim. App. 1980); Ex parte Rodriguez , 943 S.W .2d at 99. Section 3 of article 51.13 of the Code of Cri minal Procedur e require s that the extradition
reque st from t h e d em anding state be acc ompanied by either (1) a copy of an indictment, (2) an information supported by an aff idavit, (3) an aff

idavit made befor e a m agis trate toge ther with a

war rant, or (4) a copy of a judgme nt of conviction or sentenc e toge ther with a statement the person has esca ped from confine ment or brok en t h e t er m s of his bail, probation, or parole

. T E X
. C O D E C R I M
. P R O C
. AN N
. art. 51.13, § 3 (Ve rnon 2006). Eac h of these instruments ser ves the purpose of demonstrating that the person whose surre nder is so u gh t was char g ed in the reg ular course of the judicial proce eding s of the demanding state. Ex parte Rosenthal , 515 S.W .2d 114, 119 (Tex. Crim. App. 1974); Ex parte Rodriguez , 943 S.W .2d at 99. The supporting documents enumer ated in article
5 1.13, section 3 have been rec og nized as being disjunctive, meaning only one of the sup p o rt i n g d ocuments enumer ated in the statute must acc ompany the g overnor ’s war rant. Noe v. State , 65 4
S.W .2d 701, 702 (Tex. Crim. App. 1983). Analysis Appellant acknowledg es t hat t he gover nor’s wa rra nt is reg ular on its fac e and ma kes out a prima facie case th at t h e re quirements for extradition wer e met. Be cause a prima facie case for extradition wa s made, the burden shifted to A ppellant to ove rcome the fac ts tha t the g overnor was oblige d to deter

mine befor e the extradition warra nt was issued. Ex parte Nelson , 594 S.W .2d 67, 68 (Tex. Crim. App. 1979); Ex parte Bunc h , 519 S.W .2d 653, 654 (Tex. Crim. App. 1975).Appellant first compl ai ns that the trial court err ed in deny ing his reque sted habea s-cor pus

re l i ef beca

use the evidenc e failed to show Appellant was the person being soug ht by the Sta t e o f
New Mexi co. I dentity is among the four issues that the trial court may revie w in an application for writ of habea s corpus. Ex parte Potter , 21 S.W .3d at 294. Howeve r, an acc used who wishes to raise the issue of identity must deny u n d er oath that he is the person named in the war rant. Ex parte Scarbrough , 604 S.W .2d 170, 174 (Tex. Crim. App. 1980); Ex parte Hearing , 125 S.W .3d 778, 782 (Tex. App. – Texarkana 2004, no pet.) (quoting Hanks v. State , 113 S.W .3d 523, 525 (Tex. App.

– Houston [1st Dist.] 2003, no pet.)). Her e, Appellant never denied under oath that he was the person named in the war

rant. Consequently , as Appellant failed to raise the issue of identity , the trial court did not abuse its discretion in deny ing Appellant habea s relief upon this basis. Ex parte Scarbrough , 604 S.W .2d at 174. Appellant also complains that the trial court err oneously denied his habea s-cor pus relief beca use the evidenc e failed to show that he had been prese nt in New Mexi co, the demanding State,
at the time of the char g ed offe nses, thus casting doubt on his fu gi t i v e s t at us. I n support there of, Ap pellant notes that the rec ord indicates that he was never arr ested in New Mexi co. Fro m t h i s alleg ed fac t, Appellant sug g ests t h at t h e ev i dence was insufficient to show that he was prese nt in
New Me x ico at the time the c harg ed off enses we re c ommitt ed. Contrary to his arg ument, arti cl e 51.13, section 3 does not require proof that a person was
prese nt in the demanding State at the time of the char g ed offe nse but, rathe r, require s an alleg ation of hi s prese nce in t h e demanding State at t hat t ime. T E X
. C O D E C R I M
. P R O C
. AN N
. art. 51.13, § 3 (Ve rnon 2006) (“N o demand for the extradition of a person char g ed with crime in another State shall be recog nized by the Governor unless in writing , all egi n g
. . . that the accused was present in thedemanding S t at e at the time of the commission of the alleg ed crime

. . . .”). The trial court was 1
neither r equire d nor authorized to determine whether Appellant wa s in the demanding State at the time of the offe nse in order to establish that Appellant was a fug itive from justice. Rayburn v. State , 748 S.W .2d 285, 289 (Tex. App. – Ty ler 1988, no pet

. ) (i f t h e requisition alleg es acc used was
prese nt i n d em anding State at the time the offe nse was committed and there afte r flee s, and if the requisition is otherwise sufficie nt, the g overnor of the asy lum state must issue the executive war rant and a habea s trial court is not permitted t o make a fac tual inquiry as t o the t ruth of t he allegations made in the requisition). Moreove r, had Appellant offe red testimony or evidenc e reg arding his wher eabouts on the date of the commission of the cha rged offe nses, such would have been inadmissible because it is onl y rele vant to the issue of his g uilt or innocence , which is triable only
in the courts of the demanding State. Id. Be cause the trial court was neither require d nor authorized
to deter mine that Ap p el l an t was in New Mexi co at the time the char g ed offe nses occur red, Appellant’s c ontention is without merit. Id. Finding that the trial cour t did not commit err or, Appe llant’s issue is overrule d.
CONCLUSION

G o v e r n o r R i c h a r d s o n ’ s e x t r a d i t i o n r e q u e s t p r o v i d e d : 1

W H E R E A S , I t a p p e a r s f r o m t h e a n n e x e d a p p l i c a t i o n s f o r r e q u i s i t i o n a n d c o p i e s o f B e n c h W a r r a n t , G r a n d J u r y I n d i c t m e n t , F i n g e r p r i n t s a n d P h o t o g r a p h

. . . t h a t H u m b e r t o C a m a r i l l o J r
. s t a n d s c h a r g e d w i t h t h e c r i m e [ s ] o f A g g r a v a t e d B u r g l a r y ( A r m e d A f t e r E n t e r i n g ) , L a r c e n y ( F i r e a r m ) , L a r c e n y ( O v e r $ 5 0 0 ) a n d P o s s e s s i o n o f a F i r e a r m o r D e s t r u c t i v e D e v i c e b y a F e l o n c o m m i t t e d i n t h i s S t a t e , a n d i t h a v i n g b e e n r e p r e s e n t e d a n d s a t i s f a c t o r i l y s h o w n t o m e t h a t [ A p p e l l a n t ] w a s p r e s e n t i n t h i s S t a t e a t t h e t i m e o f c o m m i s s i o n o

f s a i d c r i m e a n d t h e r e a f t e r f l e d f r o m t h e j u s t i c e o f t h i s S t a t e , a n d h a s t a k e n r e f u g e i n t h e S t a t e o f T e x a s [ , ]
N O W , T H E R E F O R E , P u r s u a n t t o t h e p r o v i s i o n s o f t h e C o n s t i t u t i o n a n d l a w s o f t h e U n i t e d S t a t e s , i n s u c h c a s e s m a d e a n d p r o v i d e d , I d o h e r e b y r e s p e c t f u l l y d e m a n d t h a t t h e s a i d f u g i t i v e b e a p p r e h e n d e d a n d d e l i v e r e d t o D o n a A n a C o u n t y S h e r i f f T o d d G r a r r i s o n a n d / o r d e s i g n e e , a s a g e n t , w h o i s h e r e b y a u t h o r i z e d t o r e c e i v e a n d c o n v e y s a i d f u g i t i v e t o t h e S t a t e o f N e w M e x i c o , h e r e t o b e d e a l t w i t h a c c o r d i n g t o l a w . ( E m p h a s i s a d d e d )

.We affir m the trial court’ s denial of Appe llant’s petition for writ of ha beas c orpus.

GUADA L UPE RI VERA, J ustice
J uly 14, 2010
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)