      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00804-CR



                         Kenneth Wilkie aka James Hartley, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-15-100198, HONORABLE DAVID CRAIN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Kenneth Wilkie aka James Hartley appeals the denial of relief on his pro se

application for writ of habeas corpus challenging a governor’s extradition warrant. Appellant

contends that the trial court erred in denying him relief because the warrant’s supporting

documentation was not authenticated, he was not the person named therein, and the trial court

denied him his right to counsel. We will affirm the district court’s denial of habeas corpus relief.


                                         BACKGROUND

               After appellant was arrested in Texas on an out-of-state warrant for the felony offense

of criminal possession of stolen property, he was appointed counsel and refused to waive extradition.

Subsequently, the Texas governor issued a governor’s warrant ordering extradition of appellant to

the state of New York. See Tex. Code Crim. Proc. art. 51.13, § 7 (if governor decides that extradition

demand made by executive authority of another state should be complied with, he shall sign warrant
of arrest). After his appointed counsel found no non-frivolous grounds to file a writ of habeas

corpus, appellant filed simultaneously a pro se writ of habeas corpus and a motion to dismiss his

appointed counsel, in which he requested that the court appoint him new counsel.1 A magistrate held

a hearing on the writ application, during which the court provided an attorney to sit with appellant

and answer any questions he might have. Appellant did not ask for another attorney, did not confer

with the attorney provided to him, and did not present any evidence or testify at the hearing. Instead,

he argued at the hearing that the extradition documents were not in order for various reasons, that

he was being extradited in retaliation for a lawsuit that he had previously filed against a sheriff’s

department in New York, and that he had a “temporary restraining order pending” against the sheriff’s

department into whose custody he would be released. After the hearing, the magistrate filed written

findings recommending denying relief because the governor’s warrant was “regular on its face”

and that appellant had presented no evidence showing otherwise. The district court adopted the

magistrate’s findings, conclusions, and recommendations and denied appellant’s requested relief.


                                           DISCUSSION

Denial of writ of habeas corpus

               We will review the trial court’s ruling on appellant’s application for writ of habeas

corpus for abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). It is


       1
           Appellant’s prior counsel filed an “Ex Post Facto Motion to Withdraw” shortly after the
trial court rendered its final order denying appellant relief. In this motion, appellant’s prior counsel
asserted that, in open court and in the presence of appellant, (1) he had advised the court that, in his
professional opinion, there were no valid grounds upon which to assert a challenge to the governor’s
warrant; (2) appellant then advised the court that he wished to pursue his own remedies pro se;
and (3) he orally requested to be relieved of his duties of representation of appellant, which the trial
court granted.

                                                   2
well established that if a governor’s warrant is introduced and is “regular on its face,” the State has

made a prima facie case for extradition, and the burden then shifts to the defendant to prove that the

warrant was not legally issued or was issued on improper authority or that the recitals in it are

inaccurate. Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980) (op. on reh’g).

               We conclude that the trial court properly found that the governor’s warrant was

regular on its face because it recited that appellant was charged with the offense of criminal

possession of stolen property in the third degree as shown by representations and demand by the

governor of New York and by copies of (1) a complaint made before a magistrate and (2) a warrant

for appellant’s arrest, both certified by the governor of New York to be authentic. See Ex parte

Henson, 408 S.W.2d 233, 233 (Tex. Crim. App. 1966); see also Tex. Code Crim. Proc. art. 51.13,

§ 3 (setting out requirements of governor’s recognition of another state’s demand for extradition

under Uniform Criminal Extradition Act). The burden therefore shifted to appellant to prove that

the governor’s warrant was invalid or that the recitals therein were inaccurate. See Ex parte Cain,

592 S.W.2d at 362; see Ex parte Holden, 719 S.W.2d 678, 679 (Tex. App.—Dallas 1986, no writ)

(granting relief because defendant met burden by presenting uncontroverted testimony at extradition

hearing establishing that she was not in demanding state at time alleged offense was committed).

               Appellant raises several issues contesting the authenticity of the documents

supporting the New York governor’s extradition request.2 However, Texas courts have consistently

held that the demanding governor’s certification of authenticity of the supporting documents is


       2
         For instance, appellant contends that (1) the New York “certificate of exemplification” has
no court seal or signature of a judge or clerk and (2) the New York complaint and warrant issued
thereupon are both “amended” and do not provide facts sufficient to support an arrest warrant.

                                                  3
all that is necessary to support the extradition paperwork’s being “in order.” See Ex parte Gomez,

855 S.W.2d 42, 43 (Tex. App.—Corpus Christi 1993, pet. ref’d, untimely filed) (citing Ex parte

Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977)). Appellant also challenges whether there

was probable cause for the New York charge against him and contends that the charge was filed in

retaliation for a lawsuit that he filed. However, those issues may not be raised in an extradition

proceeding. See Ex parte Cain, 592 S.W.2d at 362 (citing Michigan v. Doran, 439 U.S. 282, 286–90

(1978) (holding that asylum state must accept probable-cause determination made by demanding

state)). We accordingly overrule appellant’s issues relating to the propriety or legality of the extradition

request from the governor of New York.

                Appellant also raises two issues contesting that he is the same person as that

identified in the New York governor’s extradition request. However, the extradition paperwork

names “Kenneth James Wilkie” (along with several aliases) as the person at issue, and appellant

signed his pro se writ application with that name and identified himself at the writ hearing with

that name. Therefore, it is a readily identifiable historical fact that appellant is the person named

in the request for extradition and governor’s warrant. While on appeal appellant seems to contend

that he has a different date of birth than the individual identified in some of the paperwork

supporting the extradition request, he never placed his identity at issue by denying under oath that

he is the person named in the extradition documents or presenting any other form of evidence

supporting that contention, and therefore the burden never shifted to the State to prove that he was

indeed identical to the person being sought by the demanding state, and the trial court did not err in

denying habeas corpus relief on this ground. See Hanks v. State, 113 S.W.3d 523, 525 (Tex.



                                                     4
App.—Houston [1st Dist.] 2003, no pet.) (to place identity at issue, accused must deny under oath

that he is person named in warrant); Ex parte Hearing, 125 S.W.3d 778, 782 (Tex. App.—Texarkana

2004, no pet.) (same).3

               Without any evidence or authority supporting his arguments, appellant did not

meet his burden to rebut the validity of the governor’s warrant. The trial court properly denied his

application for writ of habeas corpus, and we overrule his issues relating to the denial of his writ of

habeas corpus on its merits.


Appellant’s right to counsel

               Appellant also contends that he was denied the right to be appointed new counsel

after the court granted his motion to dismiss his court-appointed counsel following that counsel’s

determination that there were no merits to a writ of habeas corpus. He also contends that he

should have been appointed appellate counsel upon his request. While it is true that an indigent

defendant is entitled to court-appointed counsel to represent him in a habeas corpus proceeding

brought under the Texas Uniform Criminal Extradition Act, see Tex. Code Crim. Proc. art. 51.13,

§ 10(a); Ex parte Turner, 410 S.W.2d 639, 641 (Tex. Crim. App. 1967), there is no requirement

that a defendant be appointed new counsel when his court-appointed counsel is dismissed after

determining that his client’s desired course of action has no merits or that a defendant be appointed

appellate counsel under these circumstances. Cf. Tex. Code Crim. Proc. art. 1.051(d)(3) (indigent




       3
          Even if appellant had raised the issue of identity, the extradition paperwork in the record
included a photograph of the person charged in New York, permitting verification of the fact that
Wilkie is the exact person New York is seeking to extradite.

                                                  5
defendant is entitled to appointed attorney to represent him in appeal of habeas corpus proceeding

if trial court concludes that interests of justice require representation). Appellant was afforded his

statutory right to counsel, and the trial court did not err in refusing to appoint him new counsel after

his prior counsel determined that there were no non-frivolous grounds for contesting the governor’s

warrant.4 We overrule appellant’s issues concerning his right to counsel.5


                                          CONCLUSION

                We affirm the district court’s denial of habeas corpus relief.



                                                __________________________________________

                                                David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: July 26, 2016

Do Not Publish



       4
         As noted in the background section, while the trial court did not “appoint” new counsel for
appellant, it did make an attorney available to him for consultation during the writ hearing, but
appellant did not avail himself of the assistance of this attorney.
       5
           We also overrule appellant’s related issue contending that he was rendered ineffective
assistance of counsel because his counsel “refused to file” a writ of habeas corpus and “did not
show up to 3 court dates.” Because we have determined that the governor’s warrant was regular on
its face and appellant presented no evidence to rebut the State’s prima facie case, these omissions
by appellant’s counsel did not constitute ineffective assistance of counsel or harm appellant as a
matter of law. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (en banc) (to
prove ineffective assistance of counsel, defendant must show that there is reasonable probability
that, but for counsel’s unprofessional errors, result of proceeding would have been different).

                                                   6
