Opinion issued February 14, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-16-00808-CR
                            ———————————
            EX PARTE RICHARD VINCENT LETIZIA, Appellant



           On Appeal from the County Criminal Court at Law No. 5
                            Harris County, Texas
                        Trial Court Case No. 2112524



                       MEMORANDUM OPINION

      Appellant, Richard Vincent Letizia, appeals the trial court’s order denying his

application for a writ of habeas corpus challenging his confinement under a

governor’s warrant for extradition to Florida.1 We affirm the trial court’s order.




1
      See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 10(a).
                                       Background

       The record indicates that appellant was charged, in Florida, with the felony

offenses of driving while license revoked-habitual offender and forgery. He pleaded

nolo contendere to the offenses, was found guilty, and was committed to the custody

of the sheriff of Indian River County, Florida for a term of six months to be followed

by probation for a period of two years, with the sentences to run concurrently.

However, he violated the terms of his probation, and a Florida court set a date for

sentencing. Appellant did not appear, he was sentenced in absentia to confinement

for five years in the Florida Department of Corrections, and a bench warrant was

issued for his arrest.

       On July 6, 2016, appellant was arrested in Harris County, Texas. He appeared

before a Harris County magistrate and refused extradition to Florida.2 The State of

Florida applied for appellant’s extradition to Florida, stating, in part, that

“RICHARD VINCENT LETIZIA” had been convicted of felony driving while

license revoked-habitual offender, forgery, and giving a false name while arrested

or detained, had been placed on probation for driving while license revoked-habitual

offender and forgery, had violated the terms of the probation, and was to be found


2
       The record and documents filed in this Court reflect that the trial court appointed
       counsel to represent appellant. This attorney also represented appellant in the habeas
       corpus proceeding but the record does not reflect that the trial court appointed
       counsel to represent appellant in the proceeding on his application for a writ of
       habeas corpus.
                                          2
in Texas. The Texas governor’s office issued a warrant authorizing extradition of

“Richard Vincent Letizia aka Richard V. Letizia aka Richard Letizia.”3 Represented

by counsel, appellant then filed his verified application for a writ of habeas corpus,

contending that he was unlawfully restrained “under the Uniform Criminal

Extradition Act because [he was] not the same person requested in the Governor’s

Warrant for extradition.” He specifically asserted that “the picture in the Governor’s

Warrant [was] not of [appellant], and the Social Security Number listed [was] not

[his] either.”

       The trial court held a hearing on appellant’s application. The State offered,

and the trial court admitted with no objection, the governor’s warrant and supporting

documents. No other documents were offered into evidence, and no testimony was

presented. At the hearing, appellant argued that, although “the name does match, the

other identifiers do not match,” and he was not the person listed in the governor’s

warrant and should not be extradited to Florida. Specifically, according to appellant,

the picture, social security number, and height included in the documents were not

his picture, social security number, or height. However, appellant stated that he

“remember[ed] being before the judge” and “took sentencing” but “[did not]

understand why [he] could have failure to appear for sentencing.” The State



3
       See id. art. 51.13, § 3.

                                       3
responded that the governor’s warrant was “prima facie evidence that it [was]

correct” and, “once it [was] admitted [was] good on its face” and “independently

sufficient.” The trial court denied appellant’s requested habeas relief and remanded

him to Florida. Appellant timely filed a pro se notice of appeal.4 And, the trial court

set a bond in the amount of $25,000, which appellant posted.

      Represented by retained counsel, appellant filed a brief in this Court. After he

and the State filed their briefs, appellant’s counsel filed a motion to withdraw,

representing that appellant had informed counsel that “[a]ppellant no longer wished

for [counsel] to represent him in the [appeal].” We granted the motion, abated the

appeal, and remanded the case to the trial court to determine the issues regarding

appellant’s representation on appeal. On May 24, 2017, the trial court held a hearing

at which appellant did not appear and then revoked his bond. After a capias was

issued and appellant was arrested on February 18, 2018, the trial court held a second

hearing regarding appellant’s representation on appeal. At that hearing, appellant


4
      When appellant appeared in the Harris County trial court, the proceeding was
      assigned trial court cause number 2100551. Appellant filed his application for a writ
      of habeas corpus and notice of appeal in that cause number. His habeas corpus
      proceeding subsequently was docketed as a separate proceeding and assigned cause
      number 2112524. See Greenwell v. Court of Appeals for the Thirteenth Judicial
      Dist., 159 S.W.3d 645, 649–50 (Tex. Crim. App. 2005) (explaining habeas corpus
      action is separate action from proceeding from which it arises); Ex parte Anderson,
      902 S.W.2d 695, 695 n.1 (Tex. App.—Austin 1995, pet. ref’d) (noting habeas
      corpus proceeding is separate proceeding and should be given different cause
      number than criminal case by clerk of court in which habeas corpus proceeding is
      filed regardless of style or cause number placed on habeas corpus petition).

                                        4
stated that he would “like to continue on pro se,” and the trial court admonished him

regarding the dangers and disadvantages of self-representation. Appellant has filed

his pro se appellant’s brief and reply brief in this appeal, and the State has filed an

appellee’s brief in response.

                                 Standard of Review

      We review a trial court’s ruling on a pretrial application for a writ of habeas

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

Crim. App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex. App.—Houston

[1st Dist.] 2010, no pet.). In conducting this review, we view the facts in the light

most favorable to the trial court’s ruling and defer to the trial court’s implied findings

that are supported by the record. See Washington, 326 S.W.3d at 704 (citing Ex parte

Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006)). The applicant has the

burden to prove his claims by a preponderance of the evidence. Id. at 706; Ex parte

Graves, 271 S.W.3d 801, 803 (Tex. App.—Waco 2008, pet. ref’d).

                                      Discussion

      In his first and second issues, appellant contends that his arrest on July 6, 2016

was unlawful and unreasonable and he is not the person identified in the governor’s

warrant.

      Texas has adopted the Uniform Criminal Extradition Act. See TEX. CODE

CRIM. PROC. ANN. art. 51.13; Ex parte Koester, 450 S.W.3d 908, 911 (Tex. App.—

                                        5
Houston [1st Dist.] 2014, no pet.). Under article 51.13, “it is the duty of the Governor

of this State to have arrested and delivered up to the Executive Authority of any

other State of the United States any person charged in that State with treason, felony,

or other crime, who has fled from justice and is found in this State.” TEX. CODE

CRIM. PROC. ANN. art. 51.13, § 2. Once the governor of the asylum state grants

extradition, a person may challenge the extradition only through an application for

a writ of habeas corpus. See id. art. 51.13, § 10(a); Ex parte Chapman, 601 S.W.2d

380, 382–83 (Tex. Crim. App. 1980). And, “[b]ecause extradition is a summary,

mandatory executive proceeding, the review undertaken in the habeas corpus

proceeding is limited in scope.” Ex parte Rhodes, 494 S.W.3d 753, 755 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d). “The ‘sole purpose’ of habeas corpus review

‘is to test the legality of the extradition proceedings.’” Id. (quoting Echols v. State,

810 S.W.2d 430, 432 (Tex. App.—Houston [14th Dist.] 1991, no pet.)).

      Once a governor’s warrant has been issued, a court considering release on an

application for a writ of habeas corpus can decide only whether (a) the extradition

documents on their face are in order, (b) the applicant has been charged with a crime

in the demanding state, (c) the applicant is the person named in the request for

extradition, and (d) the applicant is a fugitive. Michigan v. Doran, 439 U.S. 282,

289, 99 S. Ct. 530, 535 (1978); see Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim.

App. 2000); Ex parte Koester, 450 S.W.3d at 911. The reviewing court may not

                                        6
consider possible defenses or the guilt or innocence of the person charged, and may

not review the demanding state’s determination that probable cause exists for the

person’s arrest. See Ex parte Koester, 450 S.W.3d at 911.

      In his application, appellant asserted that he was “not the same person

requested in the Governor’s Warrant for extradition,” specifically, that “the picture

in the Governor’s Warrant [was] not of [him], and the Social Security Number

listed” was not his social security number. At the hearing on his application,

appellant acknowledged that “the name” matched but contended that “the other

identifiers” did not match. He asserted that the picture, social security number, and

height included in the governor’s warrant documents were not his picture, social

security number, or height. On appeal, he contends that he is “not the person in the

Governor’s Warrant identifiers,” that is, “[t]he picture, birth date, height, social

security number, previous address and list of violations ARE NOT the appellant.”

      The introduction of a governor’s warrant, regular on its face, establishes a

prima facie case that the requirements for extradition from this State to another state

have been met. See Doran, 439 U.S. at 289, 99 S. Ct. at 535; State ex rel. Holmes v.

Klevenhagen, 819 S.W.2d 539, 542 (Tex. Crim. App. 1991); Ex parte Koester, 450

S.W.3d at 911. Article 51.13, section 3 requires that an 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

                                       7
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.

Each document 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 97, 99 (Tex. App.—Corpus Christi–Edinburg 1997,

no pet.). Once a governor’s warrant, regular on its face, is introduced into evidence,

the burden shifts to the applicant to show that the warrant was not legally issued,

was not based on proper authority, or contains inaccurate recitals. See Ex parte Cain,

592 S.W.2d 359, 362 (Tex. Crim. App. 1980); Ex parte Koester, 450 S.W.3d at 911.

      At the hearing on appellant’s application for a writ of habeas corpus, the State

introduced, and the trial court admitted with no objection, a copy of the governor’s

warrant with supporting documents. In an “Affidavit in Aid of Extradition,” an

assistant state attorney in Indian River County, Florida stated that “Richard Vincent

Letizia” was charged with the offenses of felony driving while license

revoked-habitual offender, forgery, and giving a false name while arrested or

detained; pleaded nolo contendere to the charges and was sentenced on February 9,

2006; a “Violation of Probation Report, Affidavit and Warrant” were filed; “[o]n

August 4, 2006, [he] admitted to the Violation of Probation, the Judge accepted the

                                       8
admission and sentencing was set for October 05, 2006”; and that day he “was

sentenced in absentia” to five years in the Department of Corrections, and a bench

warrant was issued for his arrest. The supporting documents also include an

“Application for Requisition” in which the same assistant state attorney stated that

“Richard Vincent Letizia” had not “completed his sentence” and had been arrested

under a fugitive warrant in Texas. Attached to the requisition were certified copies

of the Florida trial court documents, including copies of the judgments and

sentences, naming Richard Vincent Letizia, for the offenses of driving while license

revoked-habitual offender and forgery, and a bench warrant for the arrest of “Letizia,

Richard V,” issued by a circuit judge of Indian River County, Florida.5

       “To raise the issue of identity, the [applicant] must deny under oath that he is

the person named in the warrant.” Hanks v. State, 113 S.W.3d 523, 525 (Tex. App.—

Houston [1st Dist.] 2003, no pet.). Appellant, therefore, had to make a sworn

statement, either through live testimony or an affidavit, denying that he was the

person sought by the demanding state, Florida. See Ex parte Meador, 597 S.W.2d

372, 373 (Tex. Crim. App. 1980); Hanks, 113 S.W.3d at 525. Appellant did not

testify at the hearing on his application for a writ of habeas corpus or present any


5
      Each “Violation of Probation” warrant is styled “State of Florida vs. Richard
      Vincent Letizia” and includes a photograph and a physical description. At the
      hearing, the trial court had an opportunity to compare the photographs and physical
      descriptions set out in extradition documents to the physical appearance of appellant
      at the hearing on his application for a writ of habeas corpus.
                                        9
evidence, such as his own sworn statement, on the issue of his identity. The

allegations in his application for a writ of habeas corpus were not evidence. An

“application for the writ, although sworn to, is but a pleading and does not prove

itself.” Ex parte Wells, 332 S.W.2d 565, 565 (Tex. Crim. App. 1960); see Ex parte

Taylor, 690 S.W.2d 33, 34 (Tex. App.—Beaumont 1985, no pet.) (holding filing of

application for writ of habeas corpus, sworn to by appellant, “was not in itself

sufficient to raise the issue of identity”); see also State v. Guerrero, 400 S.W.3d 576,

583 (Tex. Crim. App. 2013) (“[I]n all habeas cases, sworn pleadings are an

inadequate basis upon which to grant relief . . . .”). Accordingly, appellant did not

meet his burden to show that he was not the person named in the governor’s warrant.6

We overrule the portion of issue two that challenges the denial of the application for

a writ of habeas corpus on the basis that he is not the person identified in the

governor’s warrant.


6
      Reporter’s records of hearings held after the trial court’s ruling on appellant’s
      habeas application have been filed in this proceeding, and appellant has filed
      numerous affidavits. Although the Texas Rules of Appellate Procedure allow for
      supplementation of an appellate record, supplementation may not be used to create
      a new appellate record or develop arguments or evidence not developed during the
      proceedings leading to the trial court’s ruling. See Whitehead v. State, 130 S.W.3d
      866, 872 (Tex. Crim. App. 2004); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.
      App. 2001). Our review of the record itself is generally limited to the evidence
      before the trial court at the time of the trial court’s ruling. See Whitehead, 130
      S.W.3d at 872; see, e.g., Wyss v. State, No. 03-07-00515-CR, 2008 WL 4093378, at
      *3 (Tex. App.—Austin Sept. 5, 2008, no pet.) (mem. op., not designated for
      publication) (explaining affidavits, documents, and other material not supported by
      record and attached to appellate brief are not considered on appellate review).

                                       10
      In his first issue, appellant contends that his arrest on July 6, 2016 was

unlawful and unreasonable, asserting that it was warrantless and without probable

cause or exigent circumstances that would allow an arrest without a warrant.

Appellant challenges his July 16, 2016 arrest, asserting that the arrest “by the Harris

County [Texas] Sheriff Fugitive Task Force was warrantless, with no probable cause

without any exigent circumstances to extract [him] using excessive force.”7 He,

however, did not raise these challenges to the arrest in his application for a writ of

habeas corpus or at the hearing on his application. Thus, the issue was not before the

trial court when it considered appellant’s application, and the trial court did not have

an opportunity to rule on the issue. Because his argument in his application and the

hearing on the application differs from the argument that he raises here, appellant

did not preserve the argument for our review. See TEX. R. APP. P. 33.1; see also Ex

parte Evans, 410 S.W.3d 481, 485 (Tex. App.—Fort Worth 2013, pet. ref’d)

(declining to consider argument that appellant did not raise in application for writ of

habeas corpus in trial court); see, e.g., Ex parte Yarbrough, No. 04-15-00672-CR,


7
      In part, appellant relies on article 51.03 of the Texas Code of Criminal Procedure,
      which provides that, “[w]hen a complaint is made to a magistrate that any person
      within his jurisdiction is a fugitive from justice from another State, he shall issue a
      warrant of arrest directing a peace officer to apprehend and bring the accused before
      him.” TEX. CODE CRIM. PROC. ANN. art. 51.03. However, article 51.13 provides that
      “[t]he arrest of a person may be lawfully made also by any peace officer . . . without
      a warrant upon reasonable information that the accused stands charged in the courts
      of a State with a crime punishable by death or imprisonment for a term exceeding
      one year.” Id. art 51.13, § 14.

                                        11
2016 WL 1588213, at *2 (Tex. App.—San Antonio Apr. 20, 2016, no pet.) (mem.

op., not designated for publication) (concluding, because appellant did not present

challenge, trial court did not make ruling, and nothing was presented for review on

appeal); Ex parte Mitchell, No. 04-02-00533-CR, 2002 WL 31890896, at *1 (Tex.

App.—San Antonio Dec. 31, 2002, no pet.) (mem. op., not designated for

publication) (concluding appellant did not preserve issue that his arrest was illegal

when he did not raise issue in trial court). We overrule appellant’s first issue.

      In his “Issues Presented,” appellant includes issues regarding “court appointed

attorney,” the State’s briefing in this Court and actions in the trial court, and the

assignment of cause numbers in the trial court. Although referring to the Sixth

Amendment of the United States Constitution and a “violation of due process and

fundamental fairness,” appellant does not present any discussion as to how these

issues support reversal of the trial court’s denial of his application for a writ of

habeas corpus. See TEX. R. APP. P. 38.1(i) (providing appellant’s brief must contain

“clear and concise argument for the contentions made, with appropriate citations to

authorities and record”). The rule 38.1 requirement “is not satisfied by merely

uttering brief, conclusory statements unsupported by legal citations.” Muhammed v.

State, 331 S.W.3d 187, 195 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). A

failure to cite legal authority or provide substantive analysis of a legal issue

presented results in waiver of the complaint. See Stahle v. State, 970 S.W.2d 682,

                                       12
692 (Tex. App.—Dallas 1998, pet. ref’d.). Accordingly, we conclude that these

issues have not been preserved for review in this appeal.

      Considering the evidence in the light most favorable to the trial court’s ruling,

we conclude that appellant has not demonstrated that the trial court abused its

discretion in denying his application for a writ of habeas corpus.

                                 Conclusion

      We affirm the order of the trial court. We dismiss all pending motions as moot.




                                              Russell Lloyd
                                              Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).




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