                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
                                                                No. 08-09-00259-CR
                                                §
                                                                   Appeal from the
 EX PARTE                                       §
                                                                 384th District Court
 HUMBERTO CAMARILLO.                            §
                                                              of El Paso County, Texas
                                                §
                                                                 (TC# 20090D04091)
                                                §

                                          OPINION

       In his sole issue, Appellant complains that the trial court erred in denying his requested

habeas-corpus relief from the enforcement of an interstate extradition warrant. We affirm the trial

court’s order.

                                        BACKGROUND

       A New Mexico grand jury had indicted Appellant for burglary of a vehicle, larceny of a

firearm, larceny over $500, and possession of a firearm by a felon, and the State of New Mexico

sought to extradite Appellant to face those charges. At the request of New Mexico Governor Bill

Richardson, and pursuant to article 51.13, section 2 of the Texas Code of Criminal Procedure,

Governor Rick Perry issued a warrant for Appellant’s arrest and Appellant filed an application for

writ of habeas corpus seeking to challenge the issuance of the warrant. TEX . CODE CRIM . PROC.

ANN . art. 51.13, § 2 (Vernon 2006).

       At the habeas-corpus hearing, Governor Perry’s warrant and supporting papers, including the

New Mexico request, indictment, photographs, and fingerprints, were admitted into evidence without

objection. On cross-examination, Appellant’s counsel elicited evidence that a booking photograph
and fingerprint card that were offered in support of Governor Richardson’s request were not from

New Mexico as recited but were, instead, from the El Paso Police Department and were dated

October 22, 1990, and February 13, 1997, respectively. In his argument to the trial court, Appellant

stated that the supporting documents that were admitted into evidence did not meet the requirements

of article 51.13 as the arrest data came from El Paso, Texas, rather than New Mexico. TEX . CODE

CRIM . PROC. ANN . art. 51.13, § 2 (Vernon 2006). Appellant also complained that there was no

evidence that he had been in New Mexico, the demanding State, when the crimes were allegedly

committed.

       In response, the State conceded that Governor Richardson’s extradition request contained

typographical errors when it said that booking photos and fingerprints were from Dona Ana County,

New Mexico, as they had, in fact, been submitted by the State of Texas to the State of New Mexico

for the purpose of identifying Appellant. The State explained that Appellant had never been arrested

in New Mexico, and the State of New Mexico did not have fingerprints and photographs of

Appellant. The requisition packet also contained another photograph of Appellant which had been

shown to the complaining witness in New Mexico who thereafter identified Appellant as the person

who had committed the charged offenses. The complaining witness’s affidavit containing her

identification of Appellant’s photograph had been made a part of the complaining witness’s affidavit

which had been submitted, along with other documents, by Governor Richardson in support of his

extradition request.

       At no time during any of the proceedings did Appellant deny under oath that he was the

person named in the governor’s warrant. Nor did Appellant present evidence demonstrating that he

was not in the State of New Mexico at or about the time the charged offenses were committed. The

trial court denied Appellant’s application for writ of habeas corpus and this appeal followed.
                                           DISCUSSION

       Appellant asserts that the trial court erred when it denied his requested habeas-corpus relief

because the evidence failed to show (1) that Appellant is the same person named in the extradition

papers and (2) that Appellant was in the demanding state, New Mexico, at the time the alleged

offense was committed. We disagree.

                                         Standard of Review

       We review a trial court’s ruling on a writ of habeas corpus under an abuse of discretion

standard. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). Appellant must prove

entitlement relief by a preponderance of the evidence. Id. We review the evidence presented in the

light most favorable to the trial court’s ruling. Id.

       Interstate extradition is intended to be a summary and mandatory executive proceeding

derived from the United States Constitution. Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App.

2000), citing Michigan v. Doran, 439 U.S. 282, 288, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978); Ex parte

Lekavich, 145 S.W.3d 699, 700-01 (Tex. App. – Fort Worth 2004, no pet.); Ex parte Hearing, 125

S.W.3d 778, 781 (Tex. App. – Texarkana 2004, no pet.). When a governor has granted interstate

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. Ex parte Potter, 21 S.W.3d

at 294, citing Doran, 439 U.S. at 289. The accused may also raise issues relating to his mental

competency to consult with counsel. Id. at 294-95.

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

authorizing extradition. Doran, 439 U.S. at 289; Ex parte Kronhaus, 410 S.W.2d 442, 443 (Tex.
Crim. App. 1967); Ex parte Rodriguez, 943 S.W.2d 97, 99 (Tex. App. – Corpus Christi 1997, no

pet.). After a prima facie showing of regularity has been made, the applicant bears the burden to

show that the governor’s warrant was not legally issued or was issued on improper authority, or that

the recitals in the governor’s warrant are inaccurate. Ex parte Cain, 592 S.W.2d 359, 362 (Tex.

Crim. App. 1980); Ex parte Rodriguez, 943 S.W.2d at 99.

       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 of his bail, probation, or parole. TEX . CODE

CRIM . PROC. ANN . art. 51.13, § 3 (Vernon 2006). Each of these instruments serves the purpose of

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

judicial proceedings of the demanding state. Ex parte Rosenthal, 515 S.W.2d 114, 119 (Tex. Crim.

App. 1974); Ex parte Rodriguez, 943 S.W.2d at 99. The supporting documents enumerated in article

51.13, section 3 have been recognized as being disjunctive, meaning only one of the supporting

documents enumerated in the statute must accompany the governor’s warrant. Noe v. State, 654

S.W.2d 701, 702 (Tex. Crim. App. 1983).

                                             Analysis

       Appellant acknowledges that the governor’s warrant is regular on its face and makes out a

prima facie case that the requirements for extradition were met. Because a prima facie case for

extradition was made, the burden shifted to Appellant to overcome the facts that the governor was

obliged to determine before the extradition warrant was issued. 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).
       Appellant first complains that the trial court erred in denying his requested habeas-corpus

relief because the evidence failed to show Appellant was the person being sought by the State of

New Mexico. Identity is among the four issues that the trial court may review in an application for

writ of habeas corpus. Ex parte Potter, 21 S.W.3d at 294. However, an accused who wishes to raise

the issue of identity must deny under oath that he is the person named in the warrant. Ex parte

Scarbrough, 604 S.W.2d 170, 174 (Tex. Crim. App. 1980); Ex parte Hearing, 125 S.W.3d 778, 782

(Tex. App. – Texarkana 2004, no pet.) (quoting Hanks v. State, 113 S.W.3d 523, 525 (Tex. App. –

Houston [1st Dist.] 2003, no pet.)). Here, Appellant never denied under oath that he was the person

named in the warrant. Consequently, as Appellant failed to raise the issue of identity, the trial court

did not abuse its discretion in denying Appellant habeas relief upon this basis. Ex parte Scarbrough,

604 S.W.2d at 174.

       Appellant also complains that the trial court erroneously denied his habeas-corpus relief

because the evidence failed to show that he had been present in New Mexico, the demanding State,

at the time of the charged offenses, thus casting doubt on his fugitive status. In support thereof,

Appellant notes that the record indicates that he was never arrested in New Mexico. From this

alleged fact, Appellant suggests that the evidence was insufficient to show that he was present in

New Mexico at the time the charged offenses were committed.

       Contrary to his argument, article 51.13, section 3 does not require proof that a person was

present in the demanding State at the time of the charged offense but, rather, requires an allegation

of his presence in the demanding State at that time. TEX . CODE CRIM . PROC. ANN . art. 51.13, § 3

(Vernon 2006) (“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 . . . .”).1 The trial court was

neither required nor authorized to determine whether Appellant was in the demanding State at the

time of the offense in order to establish that Appellant was a fugitive from justice. Rayburn v. State,

748 S.W.2d 285, 289 (Tex. App. – Tyler 1988, no pet.) (if the requisition alleges accused was

present in demanding State at the time the offense was committed and thereafter flees, and if the

requisition is otherwise sufficient, the governor of the asylum state must issue the executive warrant

and a habeas trial court is not permitted to make a factual inquiry as to the truth of the allegations

made in the requisition). Moreover, had Appellant offered testimony or evidence regarding his

whereabouts on the date of the commission of the charged offenses, such would have been

inadmissible because it is only relevant to the issue of his guilt or innocence, which is triable only

in the courts of the demanding State. Id. Because the trial court was neither required nor authorized

to determine that Appellant was in New Mexico at the time the charged offenses occurred,

Appellant’s contention is without merit. Id.

       Finding that the trial court did not commit error, Appellant’s issue is overruled.

                                                CONCLUSION



       1
           Governor Richardson’s extradition request provided:

                W H EREAS , It appears from the annexed applications for requisition and copies of Bench
       W arrant, Grand Jury Indictment, Fingerprints and Photograph . . . that Humberto Camarillo Jr.
       stands charged with the crime[s] of Aggravated Burglary (Armed After Entering), Larceny
       (Firearm), Larceny (Over $500) and Possession of a Firearm or Destructive Device by a Felon
       committed in this State, and it having been represented and satisfactorily shown to me that
       [Appellant] was present in this State at the time of commission of said crime and thereafter fled
       from the justice of this State, and has taken refuge in the State of Texas [,]

                 N O W , T H EREFO RE , Pursuant to the provisions of the Constitution and laws of the United
       States, in such cases made and provided, I do hereby respectfully demand that the said fugitive be
       apprehended and delivered to Dona Ana County Sheriff Todd Grarrison and/or designee, as agent,
       who is hereby authorized to receive and convey said fugitive to the State of New Mexico, here to
       be dealt with according to law. (Emphasis added).
       We affirm the trial court’s denial of Appellant’s petition for writ of habeas corpus.



                                              GUADALUPE RIVERA, Justice

July 14, 2010

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
