                            NUMBER 13-09-00498-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


                   EX PARTE: OSCAR EDGARDO GUILLEN



                  On appeal from the 92nd District Court of
                          Hidalgo County, Texas.


                         MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
               Memorandum Opinion by Justice Yañez

      Appellant, Oscar Edgardo Guillen, appeals from the trial court’s order denying his

petition for writ of habeas corpus and ordering his extradition to Michigan. By a single

issue, appellant contends that the trial court abused its discretion in authorizing his

extradition because he established that he is not a fugitive. We affirm.

                                    I. Background

      The State of Michigan requested appellant’s arrest and extradition based on
allegations of failure to pay child support and “Desertion/Abandonment/Non-Support.” On

July 17, 2009, the trial court held a hearing on appellant’s petition for writ of habeas

corpus, by which he challenged the legality of his arrest and extradition. The trial court

found that the Texas Governor’s Warrant and supporting documentation presented by the

State met the requirements of the Uniform Criminal Extradition Act.1 The trial court denied

appellant’s petition for writ of habeas corpus, and this appeal followed.

                              II. Standard of Review and Applicable Law

        In a habeas corpus proceeding, the applicant has the burden to prove his claims by

a preponderance of the evidence.2 In reviewing the trial court's ruling on an application for

writ of habeas corpus, we view the facts in the light most favorable to the ruling.3 We

afford almost total deference to the trial court's determination of historical facts that are

supported by the record, especially when the court's fact findings are based on an

evaluation of credibility and demeanor.4 We afford the same level of deference to a trial

court's ruling on an application of law to fact questions if the resolution of those ultimate

questions turns on an evaluation of credibility and demeanor.5 We review de novo mixed

questions of law and fact that do not involve credibility and demeanor evaluations.6 We




        1
            See T EX . C OD E C R IM . P R O C . A N N . art. 51.13 (Vernon 2006).

        2
        See Ex parte Mares, No. AP-76,219, 2010 Tex. Crim . App. Unpub. LEXIS 309, at *2 (Tex. Crim .
App. May 19, 2010) (citing Ex parte Peterson, 117 S.W .3d 804, 818 (Tex. Crim . App. 2003) (per curiam )).

        3
            See Peterson, 117 S.W .3d at 819.

        4
            Id.

        5
            See id.

        6
            See id.

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will uphold the trial court's ruling absent an abuse of discretion.7

        If the governor has signed a warrant granting extradition, a trial court entertaining

an application for writ of habeas corpus may decide only four issues: (1) whether the

extradition documents are facially in order; (2) whether the applicant has been charged

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 fugitive.8 Additionally, an

accused may raise the issue of his mental competency to consult with counsel.9

        A governor's warrant which is regular on its face is sufficient to make a prima facie

case authorizing extradition.10 Once the governor's warrant is shown to be regular on its

face, the burden shifts to the petitioner to show that: (1) the warrant was not legally issued;

(2) it was issued on improper authority; or (3) the recitals in it are inaccurate.11

        Section 3 of article 51.13 of the code of criminal procedure requires that the

extradition request from the demanding state be accompanied by either: (1) a copy of an

indictment; (2) an information supported by an affidavit; (3) an affidavit made before a

magistrate together with a warrant; or (4) a copy of a judgment of conviction or sentence

together with a statement the person has escaped from confinement or broken the terms




        7
            Id.

        8
            Ex parte Potter, 21 S.W .3d 290, 294 (Tex. Crim . App. 2000).

        9
            Id. at 296.

        10
          Ex parte Kronhaus, 410 S.W .2d 442, 443 (Tex. Crim . App. 1969); Ex parte Rodriguez, 943 S.W .2d
97, 99 (Tex. App.–Corpus Christi 1997, no pet.).

        11
             Ex parte Cain, 592 S.W .2d 359, 362 (Tex. Crim . App. 1980); Ex parte Rodriguez, 943 S.W .2d at
99.

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of his bail, probation, or parole.12 The purpose of the requirement that the demand for

extradition be accompanied by one of the enumerated set of instruments is to demonstrate

that the person whose surrender is sought was charged in the regular course of the judicial

proceedings of the demanding state.13 The list of supporting documents in section three

of article 51.13 has been recognized as being disjunctive in nature; that is, only one of the

supporting documents enumerated in the statute must accompany the governor's

warrant.14

                                                          III. Discussion

         Appellant contends that the trial court abused its discretion in denying his habeas

petition because he is “not a fugitive.” Appellant argues that the basis for the Governor’s

Warrant relates to child-support arrearages owed by appellant. At the hearing, appellant

argued that: (1) the Governor’s Warrant was issued on June 26, 2009; (2) on June 30,

2009, he had a telephonic hearing with Michigan authorities; (3) as a result, the Michigan

court modified his child support obligation and ordered him to make monthly payments

towards his outstanding arrearages; and (4) the order took effect on July 1, 2009, after the

issuance of the Governor’s Warrant. In support, appellant submitted several documents,

including a copy of the June 30, 2009 order modifying his child support and ordering

monthly payments on arrearages.

         In response, the State makes two arguments. First, the State contends that

Michigan’s extradition request is not based on an allegation that appellant committed a



         12
         T     EX .   C OD E C R IM . P R O C . A N N . art. 51.13, § 3.

         13
              Ex parte Rosenthal, 515 S.W .2d 114, 119 (Tex. Crim . App. 1974); Ex parte Rodriguez, 943 S.W .2d
at 99.

         14
              Noe v. State, 654 S.W .2d 701, 702 (Tex. Crim . App. 1983).

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 crime in Michigan and fled—the type of situation covered in section three of article 51.13.15

 Rather, the State asserts that Michigan has based its extradition request on allegations that

 appellant committed an act in Texas which intentionally resulted in a crime in

 Michigan—allegations covered by section six of article 51.13.16 Thus, according to the

 State, there is no allegation that appellant is a “fugitive” who fled from Michigan, and

 appellant’s argument that he is not a “fugitive” is irrelevant.

         Secondly, the State argues that “issues of the merits of the charges against the

 person whose extradition is being sought are to be determined by the demanding state,

 and are not to be considered by the asylum state.” In support, the State cites, among other

 authorities, California v. Superior Court of California,17 State ex rel. Holmes v.

 Klevenhagen,18 Ex parte McMillan,19 and Ex parte Lepf.20

         We agree with the State on both points. Among the documents presented by the

 State is an “Application for Requisition – Nonfugitive Form” from the Michigan prosecuting

 attorney to Jennifer Granholm, governor of Michigan, requesting appellant’s return to



         15
              See T EX . C OD E C R IM . P R O C . A N N . art. 51.13, § 3.

         16
              See id. art. 51.13, § 6. Section 6 provides that:

         The Governor of this State m ay also surrender, on dem and of the Executive Authority of any
         other State, any person in this State charged in such other State in the m anner provided in
         Section 3 with com m itting an act in this State, or in a third State, intentionally resulting in a
         crim e in the State whose Executive Authority is m aking the dem and, and the provisions of
         this Article not otherwise inconsistent, shall apply to such cases, even though the accused
         was not in that State at the tim e of the com m ission of the crim e, and has not fled therefrom .

Id.

         17
              482 U.S. 400, 408 (1987).

         18
          819 S.W .2d 539, 543 (Tex. Crim . App. 1991) (“Neither defenses nor the guilt or innocence of the
 charged party is to be considered during extradition proceedings.”).

         19
              482 S.W .2d 640, 641 (Tex. Crim . App. 1972) (sam e).

         20
              848 S.W .2d 758, 761 (Tex. App.–Corpus Christi 1993, pet. ref’d) (sam e).

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Michigan. The first paragraph states,

         The subject is charged with committing Count I: Child Support—Failing to
         Pay and Count II: Desertion/Abandonment/Non-Support in Leelanau
         County, Michigan, on July 12, 2000 to present. The charge(s) arose from
         acts committed while the subject was located in Texas, that intentionally
         resulted in the crime(s) charged in Michigan.

We conclude that appellant’s extradition is governed by section six of article 51.13; thus,

appellant’s defense that he is not a fugitive is inapplicable.21

        We also agree with the State that “[t]he 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.”22

        Here, the introduction of the Governor’s Warrant, regular on its face, made out a

prima facie case that the requirements for extradition had been met.23 The burden then

shifted to appellant, who was required to overcome the facts that the governor was obliged

to determine before the extradition warrant was issued.24                     Appellant challenged his

extradition only on the ground that he was not a fugitive, which the State was not required




        21
             See T EX . C OD E C R IM . P R O C . A N N . art. 51.13, § 6.

        22
           Rentz v. State, 833 S.W .2d 278, 279 (Tex. App.–Houston [14th Dist.] 1992, no pet.); see
Klevenhagen, 819 S.W .2d at 543; see also Ex parte Packer, No. 14-09-493-CR, 2009 Tex. App. LEXIS 7844,
at *3 (Tex. App.–Houston [14th D ist.] Oct. 8, 2009, no pet.) (m em . op., not designated for publication); Ex
parte Lepf, 848 S.W .2d at 761.

        23
          See Ex parte Martinez, 530 S.W .2d 578, 579 (Tex. Crim . App. 1975); Ex parte Lepf, 848 S.W .2d
at 760; see also Ex parte Garcia, No. 13-08-586-CR, 2009 Tex. App. LEXIS 6605, at *2 (Tex. App.–Corpus
Christi Aug. 24, 2009, no pet.) (m em . op., not designated for publication).

        24
          Van H obbs v. State, 801 S.W .2d 198, 199 (Tex. App.–Houston [14th Dist.] 1990, no pet.) (citing
Ex Parte Nelson, 594 S.W .2d 67, 68 (Tex. Crim . App. 1979); Ex Parte Bunch, 519 S.W .2d 653, 654 (Tex.
Crim . App. 1975)).

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to prove.25 We hold the trial court did not abuse its discretion in denying appellant’s

petition for writ of habeas corpus.

                                                    IV. Conclusion

       We overrule appellant’s sole issue and affirm the trial court’s denial of appellant’s

petition for writ of habeas corpus.




Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
19th day of August, 2010.




       25
            See T EX . C OD E C R IM . P R O C . A N N . art. 51.13, § 6.

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