                                                                                  ACCEPTED
                                                                              03-15-00284-CR
                                                                                      7603984
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        10/29/2015 3:28:10 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK


                      No. 03-15-00284-CR
                                                             FILED IN
                                                      3rd COURT OF APPEALS
                   In the Texas Court of Appeals           AUSTIN, TEXAS
                      Third District, at Austin       10/29/2015 3:28:10 PM
                                                          JEFFREY D. KYLE
                      Leonard Ray Barker,                      Clerk

                           Appellant

                                  v.

                       The State of Texas,
                            Appellee

        Appeal from the 331st District Court of Travis County
                 Cause Number D-1-DC-15-100034

                         STATE’S BRIEF


                                 Rosemary Lehmberg
                                 District Attorney
                                 Travis County

                                 Angie Creasy
                                 Assistant District Attorney
                                 State Bar No. 24043613
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 (512) 854-9400
                                 Fax (512) 854-4810
                                 Angie.Creasy@traviscountytx.gov
                                 AppellateTCDA@traviscountytx.gov

Oral argument is not requested
                                     Table of Contents

Index of Authorities............................................................................. ii
Statement of Facts ................................................................................1
Summary of the State’s Argument....................................................... 2
Standard of Review.............................................................................. 3
Argument ............................................................................................. 3
 Reply Point One: The trial court did not abuse its discretion in
 finding that Appellant is a “fugitive.”................................................ 3
 Reply Point Two: Appellant is not entitled to release from custody. 5
Prayer ...................................................................................................7
Certificate of Compliance and Service ................................................. 8




                                                       i
                                 Index of Authorities

     Cases
Echols v. State, 810 S.W.2d 430 (Tex. App.—Houston [14th Dist.]
 1991, pet. denied).............................................................................. 6
Ex parte Potter, 21 S.W.3d 290 (Tex. Crim. App. 2000) .................... 5
Ex parte Robertson, 210 S.W.2d 593 (Tex. Crim. App. 1948)............. 4
Ex parte Sanchez, 987 S.W.2d 951 (Tex. App.—Austin 1999, pet. ref’d,
 untimely filed) .................................................................................. 4
Ex parte Wall, Nos. 02-11-00326-CR, 02-11-00517-CR, 2012 Tex.
 App. LEXIS 9652 (Tex. App.—Fort Worth 2012, no pet.) ................ 6
Ex parte Worden, 502 S.W.2d 803 (Tex. Crim. App. 1973) ................ 6
Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006).................... 3

     Statutes
Tex. Code Crim. Proc. art. 51.03 .......................................................... 6
Tex. Code Crim. Proc. art. 51.05 .......................................................... 6
Tex. Code Crim. Proc. art. 51.07 .......................................................... 6
Tex. Code Crim. Proc. art. 51.13....................................................... 4, 6
Tex. Code Crim. Proc. art. 51.14........................................................... 4
     Constitution
U.S. Const. art. IV, § 2, cl. 2 ................................................................. 3




                                                    ii
                        No. 03-15-00284-CR

                      In the Texas Court of Appeals
                         Third District, at Austin

                        Leonard Ray Barker,
                             Appellant

                                   v.

                         The State of Texas,
                              Appellee

         Appeal from the 331st District Court of Travis County
                  Cause Number D-1-DC-15-100034

                           STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief in response to

Appellant’s brief.


                         Statement of Facts

   The State of Virginia indicted Appellant on several felony charges;

released him from jail on a personal recognizance bond; and issued

warrants for his arrest when he failed to show up to court, all in

October 2013. SX 3.




                                        1
   Appellant was arrested in Texas on unrelated felonies in

December 2013. He resolved those cases through a plea bargain in

April 2014, and completed his sentence on December 1, 2014. 3RR 5-

6; DX 1, 3.

   Appellant was kept in custody, pending extradition to Virginia.

Virginia made a formal demand for extradition in January 2015, and

in February, the governor issued a Governor’s Warrant to extradite

Appellant to Virginia. SX 2, 3; DX 1.

   Appellant filed a writ of habeas corpus, challenging his detention

on the Governor’s Warrant. CR 3-48. The trial court denied relief, and

Appellant appealed. CR 49-52.


                Summary of the State’s Argument

   Point One: Appellant argues that he is not a “fugitive” (and

therefore not subject to the Governor’s Warrant).

   Reply: All that is necessary to make a person a fugitive is that he

left a state where he was charged with a crime. It is undisputed that

Appellant was charged with several felonies in Virginia and that he

subsequently left the state. Thus, the trial court did not abuse its

discretion in finding that Appellant is a fugitive.


                                        2
   Point Two: Appellant argues that he is entitled to release from

custody because the Governor’s Warrant did not issue within the time

allowed by statute.

   Reply: Appellant’s argument is not cognizable. Additionally, the

issuance of a valid Governor’s Warrant rendered Appellant’s

complaint moot. Finally, the Governor’s Warrant issued within the

time allowed. For all of these reasons, Appellant is not entitled to

release from custody.


                         Standard of Review

   A trial court’s ruling on a writ of habeas corpus is subject to review

for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App. 2006).


                              Argument

Reply Point One: The trial court did not abuse its
discretion in finding that Appellant is a “fugitive.”

   Article IV, Section 2 of the United States Constitution establishes

the basis for extradition of fugitives between states. U.S. Const. art.

IV, § 2, cl. 2. The Extradition Clause is implemented by the Uniform

Criminal Extradition Act, which has been adopted by Texas. See Tex.


                                      3
Code Crim. Proc. art. 51.13. Under the Act, the governor has a duty to

issue a warrant for the arrest and extradition of fugitives found in

Texas, upon proper demand by another state. See id.

   All that is necessary to make a person a “fugitive” is that he left a

state where he was charged with a crime. Ex parte Sanchez, 987

S.W.2d 951, 952-53 (Tex. App.—Austin 1999, pet. ref’d, untimely

filed); Ex parte Robertson, 210 S.W.2d 593 (Tex. Crim. App. 1948).

   It is undisputed that Appellant was charged with several felonies

in Virginia and that he subsequently left the state. Thus, Appellant is

a fugitive.

   Appellant argues that he is not a fugitive (and therefore not

subject to the Governor’s Warrant) because he signed paperwork

notifying Virginia that he was incarcerated in Texas and asking

Virginia to come get him, pursuant to Tex. Code Crim. Proc. art.

51.14. But Appellant cites no authority for the argument that merely

signing this paperwork (which, incidentally, never even made it to

Virginia) somehow transformed him into a non-fugitive who is

immune to a Governor’s Warrant issued under Article 51.13.




                                     4
   The facts are that Appellant bond-forfeited and fled Virginia, he

has not returned, he has refused to sign papers agreeing to

extradition, and he is currently fighting extradition through a writ of

habeas corpus and appeal. He is a fugitive from Virginia in every

sense of the word.

   For all of these reasons, the trial court did not abuse its discretion

in finding that Appellant is a fugitive.


Reply Point Two: Appellant is not entitled to release from
custody.

   Appellant argues that he is entitled to release from custody

because the Governor’s Warrant did not issue within the time allowed

by statute.

   First, Appellant’s argument is not cognizable. Extradition

proceedings are limited in scope in order to facilitate a swift and

efficient transfer of custody to the demanding state, so once the

governor grants extradition, a court considering release on habeas

corpus can consider only (1) whether the extradition documents on

their face are in order; (2) whether appellant has been charged with a

crime in the demanding state; (3) whether appellant is the same



                                      5
person named in the extradition request; and (4) whether appellant is

a fugitive. Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App.

2000).

   Additionally, the issuance of a valid Governor’s Warrant rendered

Appellant’s complaint moot. See Ex parte Worden, 502 S.W.2d 803,

804-05 (Tex. Crim. App. 1973); Echols v. State, 810 S.W.2d 430, 431

(Tex. App.—Houston [14th Dist.] 1991, pet. denied).

   Finally, even if Appellant’s complaint was judicable, the

Governor’s Warrant issued within the time allowed by statute. The

State may detain a fugitive for 90 days in order to obtain a Governor’s

Warrant. See Tex. Code Crim. Proc. art. 51.13, §§ 15, 17. Appellant

completed his sentence on the Texas felonies on December 1, 2014,

and the Governor’s warrant issued on February 6, 2015, well within

this 90-day window. Thus, Appellant was never entitled to release.

See Ex parte Wall, Nos. 02-11-00326-CR, 02-11-00517-CR, 2012 Tex.

App. LEXIS 9652, at *17-24 (Tex. App.—Fort Worth 2012, no pet.).

   Appellant argues that the State needed to issue the Governor’s

Warrant within 90 days of his appearance before a magistrate on

October 21, 2014. He cites Tex. Code Crim. Proc. arts. 51.05 and



                                     6
51.07. These sections apply when a person has been arrested under a

magistrate’s warrant (also called a fugitive warrant), per Tex. Code

Crim. Proc. art. 51.03. There is no evidence that Appellant was

arrested on a fugitive warrant on October 21, 2014. Instead, the

record shows that the magistrate asked Appellant if he wanted to

waive extradition, and he refused. 2RR 14-17; 3RR 11-13. Nothing

about this triggered the 90-day clock for fugitive warrants in Articles

51.05 and 51.07.

   For all of these reasons, Appellant is not entitled to release from

custody.


                                Prayer

   The State asks this Court to overrule Appellant’s points of error

and affirm the trial court’s order denying habeas relief.


                              Respectfully submitted,

                              Rosemary Lehmberg
                              District Attorney
                              Travis County




                              Angie Creasy

                                     7
                              Assistant District Attorney
                              State Bar No. 24043613
                              P.O. Box 1748
                              Austin, Texas 78767
                              (512) 854-9400
                              Fax (512) 854-4810
                              Angie.Creasy@traviscountytx.gov
                              AppellateTCDA@traviscountytx.gov


             Certificate of Compliance and Service
   I certify that this brief contains 1,078 words. I further certify that,

on the 29th day of October, 2015, a true and correct copy of this brief

was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to Appellant’s attorney, Paul

Evans, 811 Nueces Street, Austin, Texas 78701.




                              Angie Creasy




                                      8
