AFFIRM; and Opinion Filed July 21, 2017.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-17-00143-CR


                                EX PARTE YESENIA SESMS


                     On Appeal from the 292nd Judicial District Court
                                  Dallas County, Texas
                         Trial Court Cause No. WX17-90001-V

                            MEMORANDUM OPINION
                        Before Justices Bridges, Lang-Miers, and Evans
                                Opinion by Justice Lang-Miers
       Yesenia Sesms appeals the denial of her application for writ of habeas corpus challenging

her extradition from Texas to Kansas. In a single issue, Sesms contends that because the

magistrate judge did not file written findings or an order on her application, the district judge

could not have adopted the magistrate’s oral recommendation. Because the record does not

affirmatively show the district judge did not adopt the magistrate’s actions, we conclude Sesms’s

issue lacks merit.

       Sesms was arrested on November 22, 2016 pursuant to an extradition warrant issued by

the State of Kansas where she had been indicted for the offenses of first-degree murder,

kidnapping, and aggravated interference with parental custody. Sesms filed an application for

writ of habeas corpus on January 17, 2017, asserting she had not been adjudged guilty of any
crime in Kansas and that her identify had not been affirmatively linked to the person sought by

law enforcement in Kansas. On January 26, 2017, appellant waived having her case heard by the

district court judge and requested referral to a magistrate judge; the district court judge signed

the order of referral. After hearing arguments from the parties, the magistrate judge stated he

was denying the writ of habeas corpus and would sign the “Proposed Findings and

Recommendations” presented by the State. He then signed an order denying Sesm’s application

for writ of habeas corpus. This appeal followed.

       In a single issue, Sesms contends the case should be remanded to the district court for

further proceedings because a magistrate judge’s actions are not legally binding until they are

adopted by the referring court. She argues that because the magistrate judge did not file written

findings or an order, the district judge could not adopt the magistrate’s oral recommendation

denying appellant’s writ of habeas corpus.

       A district judge may refer an application for writ of habeas corpus that has been filed to

avoid extradition to a magistrate for a hearing and the entry of findings and recommendations.

See TEX. GOV’T CODE ANN. §§ 54.306, 54.308 (West 2013); Ex parte Allen, 699 S.W.2d 886,

888 (Tex. App.—Dallas 1985, pet. ref’d). At the conclusion of the proceedings, the magistrate is

required to transmit to the referring court “any papers relating to the case, including the

magistrate’s findings, conclusions, orders, recommendations, or other action taken.” TEX. GOV’T

CODE ANN. § 54.311 (West 2013). The district court may “modify, correct, reject, reverse, or

recommit” for further information any action taken by the magistrate. Id. § 54.312(a). If the

district court does not “modify, correct, reject, reverse, or recommit an action of the magistrate,

the action becomes the decree of the court.” Id. § 54.312(b).




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       A magistrate’s actions are not legally binding unless and until they are adopted by the

referring court. Omura v. State, 730 S.W.2d 766, 767–68 (Tex. App—Dallas 1987, pet. ref’d)

(citing Kelley v. State, 676 S.W.2d 104, 107 (Tex. Crim. App. 1984)). It is mandatory that the

judge review the magistrate’s actions. See Omura, 730 S.W.2d at 768. To conduct a proper

review, the judge must have before him the record and any exhibits from the magistrate’s

proceeding. Id. Only after reviewing the record is the judge in a position to “modify, correct,

reject, reverse or recommit for further information” the actions of the magistrate. Id. The

magistrate need not put findings in writing, although written findings are advisable to avoid

confusion. Ex parte Allen, 699 S.W.2d at 889.

       However, a presumption of regularity applies to court proceedings. Omura, 730 S.W.2d.

at 767. Thus, we may reverse only if the record affirmatively reflects the district court did not

review the magistrate’s actions. Christian v. State, 865 S.W.2d 198, 202 (Tex. App.—Dallas

1993, pet. ref’d). On appeal, Sesms has the burden of overcoming the presumption of regularity

by presenting a record that affirmatively shows that the requirements of the Act were not met.

Id.

       Here, the record shows the magistrate held a hearing on January 26, 2017. At the

conclusion, he found (1) there was no evidence that Sesms was not the same person being sought

in the state of Kansas, (2) Kansas has persisted in trying to obtain her return back to the state, (3)

the governor’s warrant and all extradition paperwork were in proper order, and (4) Sesms was, in

fact, the person that is wanted in Kansas for the three stated offenses. The magistrate then stated

he was “going to deny the Writ of Habeas Corpus” and would order that Sesms be tendered to

the State of Kansas. He signed an order denying the writ of habeas corpus that same day.

Nothing further appears in the clerk’s record. Because the record does not affirmatively show to




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the contrary, we must presume the actions of the magistrate were adopted by the district court.

We reject Sesms’s argument to the contrary.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47

170143F.U05




                                              –4–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

EX PARTE YESENIA SESMS                                On Appeal from the 292nd Judicial District
                                                      Court, Dallas County, Texas
No. 05-17-00143-CR                                    Trial Court Cause No. WX17-90001-V.
                                                      Opinion delivered by Justice Lang-Miers.
                                                      Justices Bridges and Evans participating.

        Based on the Court’s opinion of this date, the trial court’s order denying the relief sought
by the application for writ of habeas corpus is AFFIRMED.




Judgment entered this 21st day of July, 2017.




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