                                                                                            ACCEPTED
                                                                                       03-15-00012-CR
                                                                                              4663071
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  3/26/2015 4:37:32 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                            No. 03—15—00012—CR

                      IN THE TEXAS COURT OF APPEALS       FILED IN
                                                   3rd COURT OF APPEALS
                             THIRD DISTRICT            AUSTIN, TEXAS
                               AT AUSTIN           3/26/2015 4:37:32 PM
                                                                 JEFFREY D. KYLE
                                                                      Clerk

                   EX PARTE TREVINO DARNELL FOX

               Appeal from Cause Number D-1-DC—14—100177
            331st Judicial District Court, Austin, Travis County, Texas
                     Honorable David Crain, Judge Presiding


                            APPELLANT’S BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

      Comes now Appellant Trevino Darnell Fox, by and through his appointed
counsel Paul M. Evans, and files this, his Appellant’s Brief, in compliance with
the Texas Rules of Appellate Procedure.
APPELLANT HEREBY REQUESTS ORAL ARGUMENT.


                                            Respectfully submitted,


                                            ___/s/ Paul M. Evans_____________
                                            Paul M. Evans
                                            Attorney for Appellant
                                            811 Nueces Street
                                            Austin, Texas 78701
                                            (512) 569-1418
                                            (512) 692-8002 FAX
                                            paulmatthewevans@hotmail.com
                                            SBN 24038885




                                                                                   1
                     Identities of the Parties and Counsel


Presiding Judge:                    Honorable David Crain
                                    Honorable Magistrate Leon Grizzard


Appellant:                          Trevino Darnell Fox


Trial Counsel:                      Paul M. Evans
                                    811 Nueces Street
                                    Austin, Texas 78701

                                    Alexandra Gauthier
                                    505 W. 12th Street, Ste. 204
                                    Austin, TX 78701


Appellate Counsel:                  Paul M. Evans
                                    811 Nueces Street
                                    Austin, Texas 78701


Appellee:                           State of Texas

Trial Counsel:                      Dayna Blazey
                                    Assistant District Attorney
                                    Travis County District Attorney
                                    P.O. Box 1748
                                    Austin, Texas 78767


Lead Appellate Counsel:             Rosemary Lehmberg
                                    District Attorney
                                    c/o Appellate Division
                                    Travis County District Attorney
                                    P.O. Box 1748
                                    Austin, Texas 78767


                                                                         2
                                  Table of Contents


Identity of Parties and Counsel                                     2

Table of Contents                                                   3

Index of Authorities                                                4

Statement of the Case                                               5

Issue Presented                                                     6

Statement of Facts                                                  6

Summary of Arguments                                                12

Issue Number One—The trial court abused its discretion by denying   12
Appellant’s application for writ of habeas corpus.

Prayer                                                              15

Certificate of Service                                              16

Certificate of Compliance                                           16




                                                                         3
                           Index of Authorities

Federal Cases

California v. Superior Court, 482 U.S. 400 (1987)………………………13

Michigan v. Doran, 439 U.S. 282 (1978)……………………………..13-14

New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151 (1998)……………....….13

Texas State Statutes

Government Code § 54.976……………………………………………..…4

Texas Cases

Ex parte Brown, 450 S.W.2d 647 (Tex.Crim.App. 1970)…………….….14

Ex parte Cain, 592 S.W.2d 359 (Tex.Crim.App. 1980)…………..….14-15

Ex parte Chapman, 601 S.W.2d 380 (Tex.Crim.App. 1980)……………14

Ibarra v. State, 961 S.W.2d 415 (Tex.App.—Houston [1st Dist.]
1997, no pet.)…………………………………………………………….14

State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539 (Tex.Crim.
App. 1991)………...…………………………………………………..…13

Kniatt v. State, 206 S.W.3d 657 (Tex.Crim.App. 2006)……………...…14

Ex parte Lancaster, 501 S.W.2d 904 (Tex.Crim.App. 1973)…………...14

Ex parte Lekavich, 145 S.W.3d 699 (Tex.App.—Ft. Worth 2004,
no pet.)………………………………………………………………..…13

Ex parte Sanchez, 642 S.W.2d 809 (Tex.Crim.App. 1982)………....14-15

Washington v. State, 326 S.W.3d 701 (Tex.App.—Houston [1st Dist.]
2010, no pet.)……………………………………………………………14



                                                                     4
                                   Statement of the Case

       On October 21, 2014, Governor Terry E. Branstad of the State of Iowa

submitted to the Governor’s Office of the State of Texas a request for interstate

rendition for Appellant, Trevino Darnell Fox. On October 31, 2014, Governor Rick

Perry issued a Texas Governor’s warrant to extradite Appellant from Texas to

Iowa. The warrant was forwarded to the Sheriff of Travis County, where Appellant

was being held in custody. RR3 SX #1; CR1 7-8, 10.1 Through appointed

counsel,2 Appellant filed a “Petition for Writ of Habeas Corpus—Extradition

Proceedings.” CR1 3-141. On December 17, 2014, the Honorable Leon Grizzard,

District Court Magistrate for Travis County, entertained a hearing on the

application and denied the requested relief. The trial court adopted the findings,

conclusions, and recommendations of the magistrate. RR2 4-11; CR1 142-3; see

Tex. Gov’t. Code § 54.976(a)(4). Appellant filed timely notice of appeal. CR1

144. This appeal follows from the denial of habeas relief.




1
 Introduced into evidence as SX #1, the Governor’s Warrant and supporting materials were also
included in the Clerk’s Record, appended to Appellant’s petition for habeas relief as “Exhibit A.”
RR2 5-6; RR3 SX #1; CR1 6-138. In the present Brief, for ease of reference, citations to
specific matters found in the Governor’s Warrant and supporting materials shall refer to the
identical copy found in the Clerk’s Record, which offers the benefit of numeric pagination.
2
 Appellant was originally represented by Alexandra Gauthier, who filed the “Petition for Writ of
Habeas Corpus” on Appellant’s behalf. The undersigned counsel was appointed to relieve Ms.
Gauthier of her duties after she subsequently accepted employment as a magistrate in
Williamson County. RR2 4.


                                                                                                5
                                  Issue Presented
Issue Number One—The trial court abused its discretion by denying
Appellant’s application for the writ of habeas corpus: The supporting
documentation provided to the Governor of Texas by the Governor of Iowa
contained an inaccurate recital, namely, that Appellant was in the custody of the
Milwaukee, Wisconsin police department at the time of the demand for requisition.
The Governor’s Warrant was therefore invalid. The trial court abused its discretion
by denying Appellant’s request for relief by way of an application for writ of
habeas corpus.

                                Statement of Facts

      On August 27, 2014, Appellant was arrested on unrelated matters in Travis

County, Texas. A fugitive from justice detainer was filed against Appellant on

September 3, 2014. CR1 3, 140-1. On October 21, 2014, Governor Terry E.

Branstad of the State of Iowa submitted to the Governor’s Office of the State of

Texas a request for interstate rendition for Appellant, who stood charged with

violating the terms of his probation after his conviction for “Possession of

Marijuana with Intent to Deliver, Failure to Affix Drug Tax Stamp, Fa[il]ure to

Appear—Voluntary Absence, [and] Failure to Appear for BEP / Assault D/A

Causing Injury.” CR1 10. In response to Governer Branstad’s requisition demand,

Governor Rick Perry issued a governor’s extradition warrant on October 31, 2014.

      The warrant states the following:

             TO ALL SHERIFFS AND OTHER PEACE OFFICERS OF
             THIS STATE:

             WHEREAS it has been represented to me by the Governor of the
             State of IOWA that TREVINO DARNELL FOX, fugitive, stands
             convicted of the crime of POSSESSION OF MARIJUANA WITH

                                                                                   6
            INTENT TO DELIVER, FAILURE TO AFFIX DRUG TAX
            STAMP, FAILURE TO APPEAR-VOLUNTARY ABSENCE,
            FAILURE TO APPEAR FOR BEP I ASSAULT D/A CAUSING
            INJURY committed in said State, and thereafter violated the terms
            of his probation, fled from the justice of that State, and has taken
            refuge in the State of Texas, and the said Governor of IOWA having,
            in pursuance of the Constitution and laws of the United States and of
            the State of Texas, demanded of me that I shall cause the said fugitive
            to be arrested and delivered to SHERIFF TONY THOMPSON OR
            A DESIGNEE OF BLACKHAWK COUNTY, hereby authorized to
            receive into custody and convey the fugitive back to said State; and

            WHEREAS the said representation and demand is accompanied by a
            copy of the INFORMATION, AFFIDAVIT, AND WARRANT
            certified by the Governor of said State to be authentic, whereby the
            said fugitive is convicted of said crime;

            THEREFORE, I, Rick Perry, Governor of Texas, by this warrant
            command you to arrest and secure the said fugitive, wherever he may
            be found within this State, and to deliver said fugitive into the custody
            of said agent(s), to be taken back to said State from which he fled,
            pursuant to the said requisition, there to be dealt with according to
            law.

CR1 8 (emphasis in original).

      The supporting materials on record include the request for requisition

submitted by the local prosecuting authority to the Governor of Iowa. This request

is accompanied by an affidavit by a probation officer, along with attached

supporting documents incorporated by reference. CR1 12-136. The request

addressed to the Governor of Iowa—sworn to by Kim Griffith, Prosecuting

Attorney—recites the following:




                                                                                     7
                  Pursuant to the Iowa Code Section 820.23, I hereby request
            issuance of a requisition for the extradition of Trevino Darnell Fox
            who stands convicted of the crime(s) of:

                         FECR145468: Ct. I: Possession of Marijuana With Intent
                         to Deliver, and
                         Ct. II: Failure to Affix Drug Tax Stamp;
                         FECR165748: Failure to Appear-Voluntary Absence;
                         SRCR116395: Failure to Appear for BEP I Assault D/A
                         Causing Injury

            by final judgment and sentence of the First Judicial District, Court of
            Black Hawk County, State of lowa, but who since conviction and
            release on probation, as more fully appears in the attached
            judgment /sentence /order, failed to abide by probation, as appears
            from the attached:

                          Sentencing Order(s), Probation Violation Report; and
            Warrant(s) for Arrest; and who is now a fugitive from justice, known
            to be in the city of Austin county of Travis, State of Texas. The ends
            of justice require that the fugitive be returned to Iowa.

                  In my opinion, the facts stated in the attached Probation
            Violation Report are true and correct and would result in revocation of
            probation.

                  I nominate Sheriff Tony Thompson or Designee to be appointed
            agent( s) to bring the fugitive back to Iowa and I certify that these
            proposed agent(s) have not private interest in the arrest
            and return to Iowa of his fugitive. This application for requisition is
            not made to enforce a private claim.

CR1 12. In turn, this sworn request is supported by an affidavit, dated September

30, 2014, which recites the following:

                   I, Nick McGivern, being duly sworn, state that I am a Probation
            / Parole Officer II in Black Hawk County, Waterloo Iowa. In my
            official investigation, I have determined that the approximate



                                                                                      8
             circumstances surrounding the commission of the offense charged in
             this case are as follows:

                    Report of Violation of Probation. The Defendant is in the
                    custody of the Milwaukee County, Milwaukee Wisconsin
                    Police Department.

                    The following supporting documents are attached and
                    incorporated by this reference:

                    Probation Violation Report, a certified copy of which is
                    attached.
                    Warrant for Arrest, a certified copy of which is attached.
                    Judgment I Sentencing Order, a certified copy of which is
                    attached.

                   The following material identifying the Defendant is attached
             and incorporated by this reference:

                    XX Fingerprint card (copy)
                    XX Photograph
                    ___Physical Description of Defendant
                    ___No Identification Material Available

CR1 13 (emphasis in original).

      With regards to the charge of Possession of Marijuana With Intent to

Deliver, the supporting documentation incorporated by reference includes the

following: the trial information, supplemental trial information, the sentence, a

violation report, an order for warrant and addendum, a revocation order, another

violation report, an arrest warrant, and an order for warrant, all filed in the matter

of State v. Trevino Fox, cause number FECR145468, Black Hawk County, Iowa.

CR1 14-32. With regards to the offense of Assault Domestic Abuse Causing



                                                                                         9
Injury, the supporting documentation includes the following: the trial information,

the judgment and sentence, an order for warrant, a probation violation and

addendum, an arrest warrant and addendum, an order for “PPV” warrant and

addendum, an order modifying probation, an order for warrant, and an arrest

warrant, all filed in the matter of State v. Trevino Fox, cause number

SRCR116395, Black Hawk County, Iowa. CR1 33-52. With regards to the offense

of Failure to Appear—Voluntary Absence, the supporting documentation includes

a complaint and arrest warrant, filed in the matter of State v. Trevino Fox, cause

number FECR165748, Black Hawk County, Iowa. CR1 53-5.

      The supporting documentation also includes the following items: a

fingerprint card, purportedly verified on September 16, 2014, by a custodian of

records for the Iowa Department of Public Safety, Division of Criminal

Investigation, Bureau of Identification; an “Arrest History,” twenty-three pages in

length, apparently compiled by the Black Hawk County Sheriff’s Office; and

printouts of applicable sections of the Iowa Code that pertain to Appellant’s

underlying offenses. CR1 56-136.

      In his “Petition for Writ of Habeas Corpus,” Appellant alleged in part: “The

authenticity of the supporting documents cannot be supported by the Secretary of

State’s certificate which purports to certify the required documentation under

Chapter 51 of the Texas Code of Criminal Procedure, Section 3[, as] there is no



                                                                                     10
information or back up documents pertaining to the presence of Applicant. [sic]”

The “Petition” then noted the faulty recitation from Nick McGivern’s affidavit,

“The Defendant is in the custody of the Milwaukee County, Milwaukee Wisconsin

Police Department.” CR1 3.

      At the hearing before the District Court magistrate, the State introduced the

Governor’s Warrant—“as issued by the governor of the State of Illinois [sic] and

the governor of the State of Texas”—and accompanying exhibits into evidence.

RR2 5-6; RR3 SX #1. The magistrate made a preliminary observation to the effect

that the documentation “appear[ed] regular on its face.” RR2 6. Trial counsel

objected to the faulty sworn recitation by Nick McGivern—set out above in full—

to the effect that Appellant was “in the custody of the Milwaukee County,

Milwaukee Wisconsin Police Department.” Trial counsel argued that this recital

ran contrary to the fundamental requirement that a fugitive must be in the state to

which the extradition request is directed towards, and he requested relief on this

basis. RR2 6-7; see CR1 13. In response, the State argued that this recital

constituted “an inadvertent clerical error” and was “superfluous.” RR2 8-9. In

response to some discussion by the State and the magistrate, trial counsel clarified

that his objection went to the accuracy of the documentation itself, and that

Appellant was not mounting a challenge om the issue of identity. Trial counsel

conceded that the inaccurate recital in question was in all likelihood a “clerical



                                                                                      11
error,” but he argued there was “no evidence to support that.” RR2 8-10.

Overruling trial counsel’s objection, the magistrate found the extradition papers to

be in order, denied habeas relief to Appellant, and ordered his return to the State of

Iowa. RR2 10-11. The following day, the trial court approved the findings and

recommendations of the magistrate. CR1 142-3. Appellant filed timely notice of

appeal. CR1 144. This appeal follows from the denial of habeas relief.


                             Summary of Arguments

      The supporting documentation provided to the Governor of Texas by the

Governor of Iowa contained an inaccurate recital, namely, that Appellant was in

the custody of the Milwaukee, Wisconsin police department at the time of the

demand for requisition. The Governor’s Warrant was therefore invalid. The trial

court abused its discretion by denying Appellant’s request for relief by way of an

application for writ of habeas corpus.


                              Issue Number One
 The trial court abused its discretion by denying Appellant’s application for
                            writ of habeas corpus.

      At the hearing on the application for writ of habeas corpus, Appellant met

his burden of establishing by a preponderance of the evidence that the

documentation in support of the Governor’s Warrant contained an inaccurate

recital. It is undisputed that Appellant was not in the custody of the Milwaukee,



                                                                                     12
Wisconsin police department at the time of the demand for requisition. The

Governor’s Warrant was therefore invalid. The trial court abused its discretion by

denying Appellant’s request for relief by way of an application for writ of habeas

corpus.

      In conducting an extradition hearing, a trial court in the asylum state may do

no more than determine whether the requisites of the Uniform Criminal Extradition

Act have been met. New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 153-5 (1998);

California v. Superior Court of California, 482 U.S. 400, 408 (1987). A governor’s

warrant that is regular on its face is prima facie evidence that the requirements for

extradition have been met. Ex parte Lekavich, 145 S.W.3d 699, 701 (Tex.App.—

Ft. Worth 2004, no pet.). Once the governor of an asylum state grants extradition, a

court considering release on habeas corpus can consider only the following: (1)

whether the extradition documents on their face are in order; (2) whether the

petitioner has been charged with a crime in the demanding state; (3) whether the

petitioner is the person named in the request for extradition; and (4) whether the

petitioner is a fugitive. Michigan v. Doran, 439 U.S. 282, 289 (1978); State ex rel.

Holmes v. Klevenhagen, 819 S.W.2d 539, 542-3 (Tex.Crim.App. 1991); Ex parte

Lekavich, 145 S.W.3d at 700. Once the governor’s warrant, regular on its face, is

introduced into evidence, the burden shifts to the accused to show the warrant was

not legally issued, was not based on proper authority, or contains inaccurate



                                                                                     13
recitals. Ex parte Cain, 592 S.W.2d 359, 362 (Tex.Crim.App. 1980); Ibarra v.

State, 961 S.W.2d 415, 417 (Tex.App.—Houston [1st Dist.] 1997, no pet.).

      The only appropriate vehicle for challenging arrest pursuant to a governor’s

extradition warrant is through the filing of an application for writ of habeas corpus.

Ex parte Chapman, 601 S.W.2d 380, 382-3 (Tex.Crim.App. 1980). A petitioner

may contest his extradition in a writ of habeas corpus on the basis of any of the

four issues identified by the Supreme Court in Doran. Ex parte Sanchez, 642

S.W.2d 809, 811 (Tex.Crim.App. 1982). The petitioner bears the burden to prove

he is entitled to the relief he seeks by a preponderance of the evidence. Kniatt v.

State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006). “A prima facie case can be

defeated or supported by the supporting papers introduced, regardless of which

party may have offered the supporting papers into evidence.” Cain, 592 S.W.2d at

362, citing Ex parte Lancaster, 501 S.W.2d 904 (Tex.Crim.App. 1973); Ex parte

Brown, 450 S.W.2d 647 (Tex.Crim.App. 1970).

      The trial court’s ruling on a pretrial writ of habeas corpus is subject to

review for abuse of discretion. Kniatt, 206 S.W.3d at 664; Washington v. State, 326

S.W.3d 701, 704 (Tex.App.—Houston [1st Dist.] 2010, no pet.). In conducting this

review, the facts are viewed in the light most favorable to the trial court’s ruling.

See Kniatt, 206 S.W.3d at 664; Washington, 326 S.W.3d at 704. If the documents

from the demanding state do not meet the requirements of the Uniform Criminal



                                                                                        14
Extradition Act, the warrant should not issue and the applicant is entitled to a

discharge. Sanchez, 642 S.W.2d at 811.

      In the instant cause, Appellant objected to the inaccurate recital contained in

the affidavit of Nick McGivern: “The Defendant is in the custody of the

Milwaukee County, Milwaukee Wisconsin Police Department.” CR1 13. This

recital “served to defeat the prima facie case established by the Governor's

Warrant.” Ex parte Cain, 592 S.W.2d at 362. Appellant has met his burden and

proven by a preponderance of the evidence that he was entitled to relief. The trial

court abused its discretion by denying the application for writ of habeas corpus.

                                      PRAYER

        WHEREFORE, PREMISES CONSIDERED, for the reasons stated above,

Appellant prays that this Court find the judgment of the trial court to have been in

error, and that this Court reverse the judgment of the trial court and order the

immediate discharge of Appellant. Appellant prays for any and all other general

relief to which he may be entitled.

                                                   Respectfully submitted,

                                                   __/s/ Paul M. Evans__________
                                                   Paul M. Evans
                                                   811 Nueces Street
                                                   Austin, Texas 78701
                                                   (512) 569-1418
                                                   (512) 692-8002 FAX
                                                   SBN 24038885
                                                   paulmatthewevans@hotmail.com

                                                                                      15
                         CERTIFICATE OF SERVICE

         I hereby certify that a true and correct copy of the above and foregoing

Appellant’s Brief was delivered by e-service facsimile to the office of the District

Attorney of Travis County—mailing address P.O. Box 1748, Austin, TX 78767,

physical address 509 W. 11th Street, Austin, TX 78701—on the 25th day of March,

2015.



                                          ___/s/ Paul M. Evans_____________

                                          Paul M. Evans




                       CERTIFICATE OF COMPLIANCE

        Relying on the Microsoft Word 97-2003 Document word count utility, I

hereby certify that the present document contains 2,277 words, counting all

contents specifically delineated for inclusion in the applicable word count under

Tex. Rule App. Proc. § 9.4(i)(1).


                                          ___/s/ Paul M. Evans_____________

                                          Paul M. Evans



                                                                                    16
