                           NUMBER 13-12-00322-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

                    EX PARTE ANTHONY ALLEN HAYES


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                       MEMORANDUM OPINION
           Before Justices Rodriguez, Benavides and Longoria
              Memorandum Opinion by Justice Benavides
      Anthony Allen Hayes appeals the denial of his application for writ of habeas

corpus that challenged his extradition from the State of Texas to the Commonwealth of

Virginia for alleged crimes against children.     See TEX. CODE CRIM. PROC. ANN. art.

11.01–.65 (West 2006 & West Supp. 2011).        We affirm.

                                    I. BACKGROUND

      Hayes was arrested on November 10, 2011 in Kleberg County, Texas because

two felony arrest warrants had been issued for him in the Commonwealth of Virginia.
The first arrest warrant was for “knowingly and intentionally propos[ing] an act of sexual

intercourse” with a child, and the second was for “using a communication device or

computer to attempt to solicit a minor.”    See VA. CODE ANN. §§ 18.2–370, 18.2–374.3

(2013). The trial court held an extradition hearing on December 1, 2011. Because a

Governor’s Warrant had not yet been formally issued, the trial court extended Hayes’s

incarceration for thirty days.   See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 7 (West

2006).    On January 6, 2011, Hayes’s incarceration was extended for another sixty days

because the warrant still had not been issued.     See id. art. 51.13, § 17 (West 2006).

         The State of Virginia through its Governor, Robert F. McDonnell, eventually filed a

formal requisition demand for Hayes on February 9, 2012.              In response, Texas

Governor Rick Perry issued a Governor’s Warrant on February 14, 2012. The warrant

states as follows:

         TO ALL SHERIFFS AND OTHER PEACE OFFICERS OF THIS STATE:

         WHEREAS it has been represented to me by the Governor of the State of
         VIRGINIA that ANTHONY ALLEN HAYES, the accused stands charged
         with the crimes of INDECENT LIBERTIES WITH A MINOR AND USING A
         COMMUNICATION DEVICE OR COMPUTER TO ATTEMPT TO SOLICIT
         A MINOR and is now to be found in the State of Texas, and the said
         Governor of VIRGINIA having, pursuant to the laws of the State of Texas
         and of the demanding state, demanded of me that I shall cause the said
         accused to be arrested and delivered to senior special agent LYNN C.
         HENDRICK AND SPECIAL AGENT CHAD M. MORRIS AND/OR
         AUTHORIZED AGENT OF ROCKINGHAM COUNTY authorized to receive
         into custody and convey the accused back to the demanding state; and

         WHEREAS the said representation and demand is accompanied by a copy
         of CRIMINAL COMPLAINT MADE BEFORE A MAGISTRATE AND
         WARRANT certified by the Governor of the demanding state to be
         authentic, whereby the accused is charged with said crimes; and it
         satisfactorily appearing that the representation of said Governor are true,
         YOU ARE THEREFORE, commanded to arrest and secure the said
         accused, wherever found within this State, to be delivered into the custody


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        of said agent(s) to be taken back to the demanding state, pursuant to said
        requisition, there to be dealt with according to law.

        In short, Governor Perry issued his warrant because Governor McDonnell sent

the Texas Governor’s Office a requisition demand with (1) a criminal complaint made

before a magistrate, and (2) a warrant, both of which documented Hayes’s crimes in

Virginia.   The trial court ordered that Hayes be returned to Virginia.                  Hayes then filed

this application for writ of habeas corpus.

                                            II. APPLICABLE LAW1

        "An appellate court reviewing a trial court's ruling on a habeas claim must review

the record evidence in the light most favorable to the trial court's ruling and must uphold

that ruling absent an abuse of discretion."               Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App. 2006) (citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.

2003)); see Ex parte McWilliams, 272 S.W.2d 531, 531 (Tex. Crim. App. 1954).                             The

applicant bears the burden to prove he or she is entitled to the relief sought by a

preponderance of the evidence.            Kniatt, 206 S.W.3d at 664.

        Article 51.13 of the Texas Code of Criminal Procedure codifies the Uniform

Criminal Extradition Act, which deals with extraditing persons from one state to another.

See TEX. CODE CRIM. PROC. ANN. art. 51.13. The Act "establishes procedures for the

interstate transfer of persons against whom criminal charges are outstanding . . . . [and]

applies to persons at liberty as well as to persons in prison."              Cuyler v. Adams, 449 U.S.

433, 436 (1981); Ex parte Garcia, No. 13-11-097-CR, 2011 Tex. App. LEXIS 7908, at *1

        1
          The State did not file a brief. See Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.—Corpus
Christi 2002, no pet.) (holding that when the State does not file a brief, “[t]he appellate court must make an
independent examination of the merits of the claim of error.”). “However, this examination must necessarily
be limited to the arguments advanced in the trial court, otherwise, we run afoul of the prohibition of
advancing argument on behalf of the parties.” Id.


                                                      3
(Tex. App.—Corpus Christi Sept. 29, 2011, no pet.) (mem. op., not designated for

publication).   Section 3 explains the requirements for the requesting state’s form of

demand:

       No demand for the extradition of a person charged with crime in another
       State shall be recognized by the Governor unless in writing, alleging . . .
       that the accused was present in the demanding State at the time of the
       commission of the alleged crime, and that thereafter he fled from the State,
       and accompanied by a copy of an indictment found or by information
       supported by affidavit in the State having jurisdiction of the crime, or by a
       copy of an affidavit before a magistrate there, together with a copy of any
       warrant which issued thereupon; or by a copy of a judgment of conviction
       or of a sentence imposed in execution thereof, together with a statement
       by the Executive Authority of the demanding State that the person claimed
       has escaped from confinement or has broken the terms of his bail,
       probation, or parole . . . all such copies of the aforesaid instruments shall
       be in duplicate, one complete set of such instruments to be delivered to the
       defendant or to his attorney.

TEX. CODE CRIM. PROC. ANN. art. 51.13 § 3 (West 2006).     Although this section sets forth

that four types of documentation that must accompany the requesting warrant—an

indictment, an information, a magistrate’s affidavit, or a warrant—only one is required.

See Ex parte Mason, 656 S.W.2d 470, 471 (Tex. Crim. App. 1983) (holding that

“[b]ecause the statutory requirements for the supporting papers are disjunctive, it is not

necessary all the instruments listed in Art. 51.13, Sec. 3, supra, accompany the demand

for extradition”).   “The letter of the statute is satisfied if at least one of the listed

instruments accompany the demand.”         Id. “The purpose of TEX. CODE CRIM. PROC.

ANN. art. 51.13, § 3, in requiring that the demand be accompanied by one of the

enumerated set of instruments, is to present a showing that the person whose surrender

is sought was charged in the regular course of judicial proceedings.”   Ex parte Morales,

810 S.W.2d 470, 473 (Tex. App.—Amarillo 1991, no pet.)



                                             4
       The United States Supreme Court has held that “once the governor of the asylum

state has acted on a requisition for extradition based on the demanding state's judicial

determination that probable cause existed, no further judicial inquiry may be had on that

issue in the asylum state.”          Michigan v. Doran, 439 U.S. 282, 290 (1978).                   "A

governor's grant of extradition is prima facie evidence that the constitutional and

statutory requirements have been met."          Id. at 288–89.

                                              III. ANALYSIS

       Hayes argues that Virginia Governor McDonnell’s requisition was not

accompanied by any of the four items required by article 51.13, section 3 to prove his

alleged crimes in Virginia.2 See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3.                   Hayes

acknowledges that only one item needs to be included with the warrant.                 See Ex parte

Mason, 656 S.W.2d at 471.          However, because Governor McDonnell’s warrant did not

have an indictment, information accompanied by an affidavit, magistrate’s affidavit, or an

arrest warrant attached to it, Hayes contends that Governor Perry’s warrant was

deficient.   See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3.                    On this basis, he

challenges the legality of his arrest.     See id. art. 51.13m § 10.

       At the outset, we note that Governor Perry’s warrant specifically provided that

Virginia Governor Robert McDonnell’s Requisition Demand was accompanied by a copy

of a “criminal complaint made before a magistrate” and “a warrant,” in compliance with

section 3 of article 51.13.       See id. art. 51.13, § 3.       Hayes contends that he never

received formal copies of the “criminal complaint made before a magistrate” or the
       2
           Hayes also appears to complain that he was arrested without a warrant, that the trial court
untimely extended his time of commitment in the Kleberg County jail while awaiting Governor Perry’s
warrant, that no bond was issued, and later that his bond was excessive. However, because these
complaints were neither presented to us as “issues presented” nor briefed with appropriate citations to
authorities or to the record, we decline to consider them. See TEX. R. APP. P. 38.1(g), (i).

                                                  5
“warrant” that were attached to Virginia Governor McDonnell’s requisition demand.

However, Hayes’s attorney admitted during the trial court’s hearing that he and his client

did eventually see copies of the warrants:

       The warrant that we saw in previous hearings was naked. There were
       no—the warrant is not attached to this requisition anyway, but the only
       warrant we’ve ever seen, meaning me and my client and this Court,
       is—just a naked, one-page warrant for each of the cases brought against
       my client, and there were no probable cause affidavits attached to that
       warrant.

       Copies of these Virginia felony warrants are in the appellate record. In each of

these warrants, there is a statement signed by Special Agent C.M. Morris that the

undersigned “found probable cause to believe that the Accused [Hayes] committed the

offense charged.” Furthermore, the trial court judge noted that “the Court did provide all

the documentation [to Hayes] at the last hearing that it did have.         The Court took

recesses and time to call Virginia to request facsimile copies of whatever documentation

could be made available immediately.”

       Based on his briefing, Hayes’s complaint is not that he did not know what he was

being accused of, but rather that a procedural requirement was not met.            See id.

However, relying on the record before us, we conclude that Hayes had notice of why he

was arrested and being extradited. The procedural defect in Governor McDonnell’s

warrant, if any, was cured when Hayes received copies of his arrest warrants from

Virginia.   There is sufficient documentation in the record to show that Hayes “was

charged in the regular course of judicial proceedings” in Virginia.   Ex parte Morales, 810

S.W.2d at 473.

       In this matter, we take our guidance from the United States Supreme Court in its

Michigan v. Doran case and hold that since Governor Perry has acted on this request

                                             6
with the appropriate information, “no further judicial inquiry may be had.” 439 U.S. at

290.     Governor Perry’s warrant acknowledged that he received the required

documentation from the requesting state, Virginia.        Governor Perry’s warrant was also

stamped with the State of Texas seal, directed to any peace officer in the State of Texas,

and “substantially recite[d] the facts necessary to the validity of” the warrant’s issuance.

TEX. CODE CRIM. PROC. ANN. art. 51.13, § 7.             And Hayes, through trial testimony,

acknowledged that he received at least one of the forms of documentation to support the

issuance of the Governor’s warrant.       Reviewing the evidence in the light most favorable

to the trial court's ruling, we hold that the trial court did not abuse its discretion in ordering

Hayes’s extradition to Virginia.    See Kniatt, 206 S.W.3d at 664.        We overrule Hayes’s

sole issue.

                                          IV. CONCLUSION

       Having overruled Hayes’s single issue, we affirm the trial court’s denial of his

application for writ of habeas corpus.



                                                            __________________________
                                                            GINA M. BENAVIDES,
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
8th day of August, 2013.




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