                                                                        ACCEPTED
                                                                   05-15-00185-CR
                                                         FIFTH COURT OF APPEALS
                                                                  DALLAS, TEXAS
                                                              3/23/2015 4:41:15 PM
                                                                        LISA MATZ
                                                                            CLERK




                                                 FILED IN
                                          5th COURT OF APPEALS
                 No. 05-15-00185-CR           DALLAS, TEXAS
                                          3/23/2015 4:41:15 PM
       IN THE FIFTH COURT OF APPEALS OF TEXAS LISA MATZ
                                                  Clerk
   _________________________________________________

           EX PARTE
    BRANDON WALTON STEWART
   _________________________________________________

     APPEAL FROM CRIMINAL DISTRICT COURT NO. 3 OF
     DALLAS COUNTY, TEXAS, CAUSE NO. WX15-90003
   _________________________________________________

 APPELLANT’S BRIEF ON DIRECT APPEAL
   _________________________________________________


BRUCE ANTON                   SORRELS, UDASHEN & ANTON
State Bar No. 01274700        2311 Cedar Springs, Suite 250
ba@sualaw.com                 Dallas, Texas 75201
                              214-468-8100 (office)
BRETT ORDIWAY                 214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com           Counsel for Appellant
                  Identity of Parties and Counsel

For Appellant Brandon Walton Stewart:

     PAUL BLOCKER
          Writ hearing counsel of record
     DALLAS COUNTY PUBLIC DEFENDER’S OFFICE
     133 North Riverfront Boulevard
     Dallas, Texas 75207

     BRUCE ANTON
     BRETT ORDIWAY
          Appellate counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs, Suite 250
     Dallas, Texas 75201

For Appellee the State of Texas:

     ALEX HERNANDEZ
          Writ hearing counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 North Riverfront Boulevard
     Dallas, Texas 75207

     To be determined
          Appellate counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court:

     THE HONORABLE DOROTHY SHEAD
     Magistrate Judge

     THE HONORABLE GRACIE LEWIS
     Criminal District Court No. 3




                                   2
                                        Table of Contents

Identity of Parties and Counsel ................................................................. 2

Index of Authorities .................................................................................... 4

Statement of Facts and the Case ............................................................... 5

Issue Presented........................................................................................... 7

   Whether the trial court erred in denying Stewart’s writ application
   because it did not have before it the requisite evidence to support
   extradition ............................................................................................... 7

Summary of the Argument ........................................................................ 8

Argument .................................................................................................... 9

Certificate of Service ................................................................................ 12

Certificate of Compliance ......................................................................... 12	  




                                                      3
                                       Index of Authorities

Cases

Kelley v. State, 676 S.W.2d 104, 107 (Tex. Crim. App. 1984) ................. 10
Omura v. State, 730 S.W.2d 766, 768 (Tex. App.—Dallas 1987, writ
  ref’d) ....................................................................................................... 10


Statutes

TEX. CRIM. PROC. CODE ANN. art. 51.13 ..................................................... 9




                                                        4
                      Statement of Facts and the Case1

       Stewart was charged in California with several crimes. (CR: 11).

Upon learning that Stewart was in Texas, California’s Governor de-

manded from Texas’s Governor that Stewart be arrested and extradited

to California. (CR: 11). Texas’s Governor acquiesced, and Stewart was

arrested in Dallas County pursuant to an extradition warrant. (CR: 9-

10).

       Stewart filed an application for a writ of habeas corpus in which

he argued that his “arrest and detention [were] unlawful and not a

proper basis for the extradition of the applicant to the State of Califor-

nia because” because:

    1) he had “not be[en] adjudged guilty of the crimes of which he

       is accused in the state o f California;” and

    2) his identity had “not been affirmatively linked to the person

       sought by the law enforcement authorities of the state of

       California.”




1Because this case is resolved entirely on procedural grounds, the Statements of the
Facts and Case are merged.



                                         5
(CR: 5). The court held a brief hearing on the matter on January 22,

2015, before a magistrate judge. (RR: 5). Stewart urged that, because

there was no fingerprint analysis performed, there was “no biometric or

conclusive link” that he was the man sought in California. (RR: 11-12).

The State introduced a copy of the Governor’s warrant with supporting

documentation and then argued that, to challenge identity, an applicant

must “deny under oath that he is the person named in the warrant,”

and Stewart had not done that. (RR: 9-10, 13; SX 1 & 2) (citing Ex parte

Larkins, No. 05-11-00477-CR, 2011 WL 3795254 (Tex. App.—Dallas

2011, no pet.); Ex parte Scarborough, 604 S.W.2d 170, 174 (Tex. Crim.

App. 1980); Ex parte Connelly, 479 S.W.2d 943, 944 (Tex. Crim. App.

1972); Ex parte Martinez, 530 S.W.2d 578, 579 (Tex. Crim. App. 1975)).

The magistrate judge then recommended Stewart’s application be de-

nied for just that reason, and the court adopted that recommendation.

(RR: 15; CR: 97-98). Stewart filed notice of appeal that day. (CR: 99).




                                    6
                Issue Presented

Whether the trial court erred in denying Stew-
art’s writ application because it did not have be-
fore it the requisite evidence to support extradi-
tion




                        7
                    Summary of the Argument

     No demand for the extradition of a person charged with a crime in

another State shall be recognized by the Governor unless accompanied

by, among other things, a copy of any warrant issued upon the indict-

ment or information. And though in this case, Stewart concedes that the

necessary documents were introduced at the hearing before the magis-

trate judge, none of the State’s exhibits were actually appended to the

magistrate’s findings. Because the court adopted the magistrate’s find-

ings without reviewing the necessary documents, then, the court’s find-

ing was unsupported. Thus, Stewart’s writ application was erroneously

denied.




                                  8
                                Argument

           The trial court erred in denying Stewart’s writ
           application because it did not have before it the
           requisite evidence to support extradition

                                  w   w   w

     No demand for the extradition of a person charged with a crime in

another state shall be recognized by the Governor “unless in writing…

and accompanied by, [among other things,] a copy of any warrant” is-

sued upon the indictment or information. TEX. CRIM. PROC. CODE ANN.

art. 51.13 § 3. If a person “desire[s] to test the legality of his arrest [on

such grounds], the judge of the court of record shall fix a reasonable

time to be allowed the prisoner in which to apply for a writ of habeas

corpus TEX. CRIM. PROC. CODE ANN. art. 51.13 § 10.

     In this case, Stewart concedes that, upon his challenge of as much,

the necessary documents were introduced at the hearing before the

magistrate judge. (SX1 & 2). And, to that end, the magistrate’s recom-

mendation states that “that copies of all documentary evidence are at-

tached hereto.” (CR: 97). But none of the State’s exhibits—not the Texas

Governor’s executive warrant, nor the California Governor’s request for




                                       9
extradition—were actually appended to the magistrate’s findings. (RR:

19-20; SX2; CR: 97).

     This is significant because the validity of the trial court’s order

denying relief rests entirely upon the adequacy of the magistrate’s find-

ings. For, in hearing such an application for a writ of habeas corpus, the

magistrate acts as an agent of the district court. See Kelley v. State, 676

S.W.2d 104, 107 (Tex. Crim. App. 1984). And review of the magistrate’s

findings by the district court is a prerequisite to the entry of a valid

judgment—“it is mandatory that the district judge review the actions

taken by the magistrate.” Omura v. State, 730 S.W.2d 766, 768 (Tex.

App.—Dallas 1987, writ ref’d). Thus, if the magistrate’s findings were

inadequate, the order adopting them would likewise be flawed.

     In this case, then, because the magistrate’s recommendation did

not include the necessary documentation, the district court never ac-

quired possession of, nor reviewed, the necessary documents. Indeed,

the trial court’s adoption of the magistrate’s recommendations is entire-

ly unaccompanied. (CR: 98). Instead, it appears that the exhibits re-

mained in the custody of the court reporter until the reporter’s record

was filed with the Court of Appeals on February 3, 2015. Thus, because,



                                    10
contrary to the court’s order, the court did not find the necessary docu-

mentation to be in order, Stewart’s writ application was erroneously

denied.

                                Prayer

     For this reason, Stewart respectfully requests this Court to re-

verse the order of the habeas court and grant him habeas relief.

                                 Respectfully submitted,



                                      /s/ Bruce Anton
                                 BRUCE ANTON
                                 Bar Card No. 01274700
                                 ba@sualaw.com


                                      /s/ Brett Ordiway
                                 BRETT ORDIWAY
                                 State Bar No. 24079086
                                 bordiway@sualaw.com

                                 SORRELS, UDASHEN & ANTON
                                 2311 Cedar Springs Road, Suite 250
                                 Dallas, Texas 75201
                                 (214)-468-8100 (office)
                                 (214)-468-8104 (fax)

                                 Counsel for Appellant




                                   11
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellant’s Brief was electronically served to the Dallas
County District Attorney’s Office on March 23, 2015.


                                       /s/ Bruce Anton
                                  Bruce Anton




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because
     this brief contains 535 words, excluding the parts of the brief ex-
     empted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century.



                                      /s/ Bruce Anton
                                  BRUCE ANTON




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