                                                                                               ACCEPTED
                                                                                           03-15-00284-CR
                                                                                                   7216698
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                      10/2/2015 6:42:50 PM
October 6, 2015                                                                          JEFFREY D. KYLE
                                                                                                    CLERK
                               No. 03—15—00284—CR

                         IN THE TEXAS COURT OF APPEALS RECEIVED IN
                                                      3rd COURT OF APPEALS
                                THIRD DISTRICT            AUSTIN, TEXAS
                                  AT AUSTIN           10/2/2015 6:42:50 PM
                                                                    JEFFREY D. KYLE
                                                                         Clerk

                       EX PARTE LEONARD RAY BARKER

                  Appeal from Cause Number D-1-DC—15—100034
               331st Judicial District Court, Austin, Travis County, Texas
                        Honorable David Crain, Judge Presiding
                Honorable Leon Grizzard, District Magistrate Presiding


                               APPELLANT’S BRIEF


   TO THE HONORABLE THIRD COURT OF APPEALS:

         Comes now Appellant Leonard Ray Barker, by and through his appointed
   counsel Paul M. Evans, and files this, his Appellant‘s Brief, in compliance with
   the Texas Rules of Appellate Procedure.
   APPELLANT HEREBY REQUESTS ORAL ARGUMENT.


                                               Respectfully submitted,


                                               ___/s/ Paul M. Evans_____________
                                               Paul M. Evans
                                               Attorney for Appellant
                                               811 Nueces Street
                                               Austin, Texas 78701
                                               (512) 569-1418
                                               (512) 692-8002 FAX
                                               paulmatthewevans@hotmail.com
                                               SBN 24038885



                                                                                       1
                     Identities of the Parties and Counsel


Presiding Judge:                    Honorable David Crain
                                    Honorable Magistrate Leon Grizzard


Appellant:                          Leonard Ray Barker


Trial Counsel:                      Paul M. Evans
                                    811 Nueces Street
                                    Austin, Texas 78701




Appellate Counsel:                  Paul M. Evans
                                    811 Nueces Street
                                    Austin, Texas 78701


Appellee:                           State of Texas

Trial Counsel:                      Dayna L. Blazey
                                    Brandon Grunewald
                                    Assistant District Attorneys
                                    Travis County District Attorney
                                    P.O. Box 1748
                                    Austin, Texas 78767


Lead Appellate Counsel:             Rosemary Lehmberg
                                    District Attorney
                                    c/o Appellate Division
                                    Travis County District Attorney
                                    P.O. Box 1748
                                    Austin, Texas 78767



                                                                         2
                                 Table of Contents


Identities of the Parties and Counsel                                  2

Table of Contents                                                      3

Index of Authorities                                                   4

Statement of the Case                                                  6

Issues Presented                                                       7

Statement of Facts                                                     7

Summary of Arguments                                                   16

Issue Number One—The trial court abused its discretion by denying      17
Appellant‘s application for writ of habeas corpus, in that Appellant
was not a ―fugitive‖ at the time the Governor‘s Warrant was issued.


Issue Number Two—The trial court abused its discretion by denying      24
Appellant‘s application for writ of habeas corpus, because Appellant
was entitled to release from custody as of January 19, 2015.

Prayer                                                                 26

Certificate of Service                                                 27

Certificate of Compliance                                              27




                                                                            3
                           Index of Authorities


Federal Constitution

Article IV, Section 2……………………………………………………….17
Sixth Amendment………………………………………………………….14


Federal Cases

California v. Superior Court of California, 482 U.S. 400 (1987)…………17

Fex v. Michigan, 507 U.S. 43 (1993)…………………………………..…..19

United States v. Henson, 945 F.2d 430 (1st Cir. 1991)………………...…..19

Michigan v. Doran, 439 U.S. 282 (1978)…………………………..17-18, 20

New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151 (1998)………………..….17

Young v. Mabry, 471 F.Supp. 553 (E.D. Ark. 1978)…………………..…..23


Texas State Statutes

Code of Criminal Procedure § 51.05………………………...…..7, 15-16, 24

Code of Criminal Procedure § 51.07………………...…………..7, 15-16, 24

Code of Criminal Procedure § 51.13………………………...…..7, 15-16, 24

Code of Criminal Procedure § 51.14…………………………….....15, 20, 23

Government Code § 54.976………………………………………......…..…7




                                                                        4
Texas Cases

Ex parte Brown, 450 S.W.2d 647 (Tex.Crim.App. 1970)……………..….18

Bryant v. State, 819 S.W.2d 927 (Tex.App.—Houston [14th
Dist.] 1991, pet. ref‘d)…………………………………………….…….…19

Ex parte Cain, 592 S.W.2d 359 (Tex.Crim.App. 1980)………………..…18

Ex parte Chapman, 601 S.W.2d 380 (Tex.Crim.App. 1980)………..……18

Ex parte Harrison, 568 S.W.2d 339 (Tex.Crim.App. 1978)………...……22

Ibarra v. State, 961 S.W.2d 415 (Tex.App.—Houston [1st
Dist.] 1997, no pet.)…………………………………………………….…18

State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539 (Tex.Crim.
App. 1991)………...……………………………………………….…..17, 20

Kniatt v. State, 206 S.W.3d 657 (Tex.Crim.App. 2006)…………….…18-19

Ex parte Lancaster, 501 S.W.2d 904 (Tex.Crim.App. 1973)………...…...18

Lanz v. State, 815 S.W.2d 252 (Tex.App.—El Paso 1991,
no pet.)…………………………………………………………………15, 25

Ex parte Lekavich, 145 S.W.3d 699 (Tex.App.—Ft. Worth
2004, no pet.)………………………………………………………………17

Morganfield v. State, 919 S.W.2d 731 (Tex.App.—San Antonio
1996, no pet.)…………………………………………………………..…..19

Ex parte Potter, 21 S.W.3d 290 (Tex.Crim.App. 2000)………………..…17

Ex parte Robertson, 151 Tex. Crim. 635, 210 S.W.2d 593
(1948)…………………………………………………………………..….20

Ex parte Sanchez, 642 S.W.2d 809 (Tex.Crim.App. 1982)………..18-19, 24




                                                                      5
Ex parte Sanchez, 987 S.W.2d 951, 953 (Tex.App.—Austin 1999,
pet. ref‘d, untimely filed)……………………………………………..…..20

Washington v. State, 326 S.W.3d 701 (Tex.App.—Houston [1st
Dist.] 2010, no pet.)……………………………………………………18-19

Other Cases

State of Kansas v. Holeb, 188 Neb. 319, 196 N.W.2d 387 (1972)………..22


                                   Statement of the Case

       On January 22, 2015, Governor Terence R. McAuliffe of the

Commonwealth of Virginia submitted to the Governor‘s Office of the State of

Texas a request for interstate rendition for Appellant, Leonard Ray Barker. On

February 6, 2015, Governor Greg Abbott issued a Texas Governor‘s warrant to

extradite Appellant from Texas to Virginia. The warrant was forwarded to the

Sheriff of Travis County, where Appellant was being held in custody. RR4 SX # 2;

CR1 8-28.1 Through appointed counsel, Appellant filed an ―Application for Writ

of Habeas Corpus.‖ CR1 3-48. On April 14 and 29, 2015, the Honorable Leon

Grizzard, District Court Magistrate for Travis County, entertained a hearing on the

application. See generally RR2, RR3. The magistrate denied the requested relief.


1
 Introduced into evidence as SX # 2, the Governor‘s Warrant and supporting materials were also
included in the Clerk‘s Record, appended to Appellant‘s petition for habeas relief as ―Exhibit A.‖
RR2 5; RR4 SX # 2; CR1 8-28. In the present Brief, for ease of reference, citations to specific
matters found in the Governor‘s Warrant and supporting materials shall refer to the identical
copy found in the Clerk‘s Record, as it offers the benefit of numeric pagination for ease of
reference.



                                                                                                6
The trial court adopted the findings, conclusions, and recommendations of the

magistrate. RR3 22-3; CR1 51-2; see Tex. Gov‘t. Code § 54.976(a)(4). Appellant

filed timely notice of appeal. CR1 49. This appeal follows from the denial of

habeas relief.

                                 Issues Presented

Issue Number One—The trial court abused its discretion by denying
Appellant’s application for the writ of habeas corpus, in that Appellant
was not a “fugitive” at the time the Governor’s Warrant was issued: Under the
particular circumstances of the instant cause, Appellant was no longer a ―fugitive‖
at the time the Governor‘s Warrant was issued. The trial court abused its discretion
by denying Appellant‘s request for relief by way of an application for writ of
habeas corpus.

Issue Number Two—The trial court abused its discretion by denying
Appellant’s application for writ of habeas corpus, because Appellant was
entitled to release from custody as of January 19, 2015: Appellant appeared
before a judge on October 21, 2014, regarding the detainer placed by the
Commonwealth of Virginia. Under the particular circumstances of the instant
cause, Appellant was entitled to a discharge from custody as of January 19, 2015,
pursuant to Tex. Code Crim.Proc. §§ 51.05, 51.07, and 51.13, Sec. 15 and Sec. 17.


                                Statement of Facts

      The State of Texas, by and through the Governor‘s office, issued a

Governor‘s Warrant on February 6, 2015, seeking to extradite Appellant to the

requesting state, the Commonwealth of Virginia. At the time, Appellant was in the

custody of the Travis County Jail. RR4 SX # 2; CR1 8-28. Through appointed

counsel, Appellant filed an ―Application for Writ of Habeas Corpus,‖ seeking his

release from custody. CR1 3-48. On April 14, 2015, the Honorable Leon Grizzard,

                                                                                   7
District Court Magistrate for Travis County, initiated a hearing on this application.

At the outset, the State introduced a copy of the Governor‘s Warrant into evidence,

without objection by trial counsel. The magistrate inquired of trial counsel whether

he had any objection to the ―regularity‖ of the recitals contained therein. Trial

counsel took ―exception to the recital on the warrant itself‖ that described

Appellant as a ―fugitive.‖ RR2 4-5; RR4 SX # 2; CR1 9.

       At the hearing, Appellant testified that on December 2, 2013, he was

arrested in Travis County and placed in the Travis County jail, due to matters

unrelated to the allegations made by the Commonwealth of Virginia. RR2 6.2 On

December 5, 2013, Appellant was informed by a magistrate from ―JP 5‖—i.e.,

Travis County Justice of the Peace Number Five—regarding the detainer requested

by Virginia. RR2 6-7. Appellant testified that on April 14, 2014, he ultimately

resolved the unrelated matters pending against him in Travis County after

accepting a plea bargain to a State Jail Felony offense. RR2 7; RR4 DX # 3; CR1

30-40. The ―Plea of Guilty‖ form contains the following notation underneath the

signature of the trial court judge who presided over Appellant‘s plea: ―Due to out

of state holds, and/or Fed. holds, Defendant may serve sentence concurrent to any

subsequent sentences and may serve S[tate] J[ail] sentence in any penal institution,


2
 See also CR1 30, ―Judgment of Conviction by Court—Waiver of Jury Trial,‖ ―Time Credited:
From 12/2/2013 to 4/14/2014;‖ CR1 39, ―Docket Sheet,‖ ―Credit for B[ack] T[ime] 12-2-13 – 4-
14-14.‖


                                                                                           8
with credits.‖ RR4 DX # 3; CR1 37. Appellant was then remanded to the Travis

State Jail, operated by the Texas Department of Criminal Justice. By way of

correspondence dated April 30, 2014, the Department of Criminal Justice notified

the authorities in Alexandria, Virginia that Appellant was in their custody, and that

his sentence would expire on December 1, 2014. RR4 DX # 1; CR1 42.

      Appellant testified that on May 20, 2014, in the law library of the Travis

State Jail, he was presented with two documents on Texas Department of Criminal

Justice letterhead: (1) ―Offenders Notice of Place of Imprisonment and Request for

Disposition of Indictments, Informations, or Complaints,‖ addressed to the ―Chief

Prosecuting Officer‖ of Alexandria, Virginia; and (2) ―Notice of Untried

Indictment, Information, or Complaint and of Right to Request Disposition,‖

addressed to Appellant, Leonard Barker. This latter document appears to have been

signed on May 7, 2014, by Joni M. White, ―IAD Administrator, Interstate

Agreement on Detainers.‖ Appellant testified he had requested this document—

which he signed on May 20—with the understanding that Virginia would then be

required to act upon the request as per the Interstate Agreement on Detainers. A

copy of this document that was given to Appellant on the same date—marked

―Offender‘s Copy‖—was introduced into evidence. This text of this document

reads in part as follows:

             Your request for final disposition will operate as a request for final
             disposition of all untried indictments, informations, or complaints on

                                                                                      9
             the basis of which detainers have been lodged against you from the
             state to whose prosecuting official your request for final disposition is
             specifically directed. Your request will also be deemed to be a waiver
             of extradition with respect to any charge or proceeding contemplated
             thereby or included therein and a waiver of extradition to the state of
             trial to serve any sentence there imposed upon you, after completion
             of your term of imprisonment in this state, your request will also
             constitute a consent by you to the production of your body in any
             court where your presence may be required in order to effectuate the
             purposes of the IAD and a further consent to be voluntarily returned to
             the institution in which you are now confined.
RR2 8-12; RR4 DX # 2; CR1 44-6. Appellant testified that at that time, he was

told Virginia would have 180 days starting on the day of notification to have

Appellant transported for resolution of his pending cases in their jurisdiction.

Appellant testified that he was told on June 5, 2014, that authorities in Virginia had

received the paperwork on the previous day. RR2 12-13.

      On cross-examination by the State, Appellant was asked who gave him this

information on June 5, 2014, regarding receipt of the materials in question by

Virginia authorities. Appellant explained that when he arrived at the State Jail on

April 25, he ―brought it to their attention that [he] had a detainer‖ from Virginia.

Appellant testified he spoke to the ―lady that runs the sociology department,‖ and

she told him she would check on the detainer. Appellant was asked why he signed

the second of the two documents introduced as DX # 2, i.e., the ―Notice of Untried

Indictment, Information, or Complaint and of Right to Request Disposition.‖

Appellant testified, ―I wanted for them to go ahead and transport me to Virginia,



                                                                                       10
because my sentence here had been run concurrent with any other jurisdiction. And

my sentence was arranged here from this jurisdiction. I had that arranged with the

courts to move me so I could go ahead and get this [detainer] resolved. I‘ve been

trying to get that resolved since I found out about it.‖ Appellant affirmed it was his

intention to be sent back to Virginia to resolve his pending charges in that

jurisdiction. RR2 13-14; RR4 DX # 2; see CR1 37.

      The State then questioned Appellant about whether or not he had been

subsequently asked to sign a waiver of extradition in October of 2014. Appellant

confirmed he was asked to do so, but he refused to sign a waiver of extradition at

that time. Appellant testified he had made an inquiry about the request he had

submitted to Virginia from ―Joni in TDCJ, who was the coordinator for that,‖ but

he received no reply. Appellant further explained that in October, while he was still

in the custody of the Texas Department Criminal Justice, he was brought before a

judge in Walker County, where he was presented with a waiver of extradition.

Appellant testified he had tried to explain at that time that he had already signed a

―waiver‖ in May, and when he did not receive an answer as to how a new waiver

would affect the request he had previously submitted in May, he refused to sign a

waiver of extradition at that time. RR2 14-17. The hearing on Appellant‘s

application for writ of habeas corpus was recessed so that the State could obtain

records to present to the court. RR2 18.



                                                                                     11
      Upon resumption of the hearing on April 20, 2015, trial counsel called

attorney Robert Keates to testify. Keates testified he had previously represented

Appellant. His representation ended with a plea bargain on April 14, 2014. Keates

confirmed the recitals contained in Appellant‘s plea paperwork, underneath the

signature of the judge who presided over Appellant‘s plea: ―Due to out of state

holds, and/or Fed. holds, Defendant may serve sentence concurrent to any

subsequent sentences and may serve S[tate] J[ail] sentence in any penal institution,

with credits.‖ Keates was aware during the time he represented Appellant that his

client had a detainer from Virginia:

             TRIAL COUNSEL: And on a scale of 1 to 10, how much of a concern
             was that [detainer] to [Appellant] during the period you represented
             him?

             MR. KEATES: I would say either a 9 or a 10. And in some situations,
             he was more concerned about that than the actual cases at hand.

RR3 5-8; RR4 DX # 3; CR1 37. Keates testified that it was his understanding at

the time that Appellant wished to waive extradition to Virginia, and he recalled

some measures he took on Appellant‘s behalf to ensure that the extradition process

was moving along. RR3 8-9.

      On cross-examination by the State, Keates was questioned about the recital

in the plea paperwork, i.e., ―Due to out of state holds, and/or Fed. holds, Defendant

may serve sentence concurrent to any subsequent sentences and may serve S[tate]

J[ail] sentence in any penal institution, with credits.‖ Keates testified that it was

                                                                                        12
―probably pretty close to the truth‖ that Appellant would not have entered a plea

bargain on his Travis County charge if this language had not been expressly

incorporated into the plea bargain agreement. Keates understood this language to

mean that if Appellant were to be extradited to another jurisdiction in the

meantime, his time spent incarcerated in that jurisdiction would still count towards

his sentence received in Travis County. RR3 9-10; RR4 DX # 3; CR1 37.

      Appellant again took the witness stand for redirect examination. Appellant

confirmed that he ―received paperwork to execute an [I]nterstate [A]greement

[D]etainers [A]ct request for Virginia to deal with their holds on [him], back in

May of 2014.‖ Appellant recounted the specific date of October 21, 2014, when he

was brought before ―Judge Hale, in Huntsville, Walker County.‖ Appellant

testified the judge asked him if he wanted ―to sign a waiver to proceed with the

extradition.‖ Appellant testified he tried to explain to the judge that he had already

signed his ―IADA Act‖ waiver. Appellant testified he refused to sign the waiver in

the absence of any information as to how it might affect the waiver he had signed

in May 2014. RR3 11-13.

      After Appellant testified, the State sought to introduce business records,

namely, records pertaining to ―Interstate Act on Detainers and Extradition cases‖

handled by the Commonwealth‘s Attorney‘s Office for the City of Alexandria,




                                                                                    13
Virginia.3 Trial counsel objected to the inclusion of one paragraph contained in the

second page of the exhibit, a cover letter from Deputy Commonwealth‘s Attorney

Evans, dated April 8, 2015, and addressed to ―Strategic Prosecution, Travis County

District Attorney‘s Office,‖ to-wit:

               I have never received any request from Leonard Barker to return him,
               via Interstate Act of Detainer or through any waiver of Extradition to
               Virginia. Furthermore, I searched the local court records to verify that
               no such documents were filed or sent to the Court or Clerk of Court.
               The contents of the court papers are identified by the document lists
               for each case number enclosed herein.

Trial counsel asked for this portion to be redacted from the State‘s exhibit, on the

basis that it violated Appellant‘s rights under the Confrontation Clause of the Sixth

Amendment of the United States Constitution. Trial counsel specifically noted he

was unable to cross-examine Deputy Commonwealth‘s Attorney Evans. The

magistrate presiding over the hearing questioned whether the rights afforded by the

Confrontation Clause applied to the instant hearing, and the exhibit was admitted

in its entirety, with the objection on Confrontation Clause grounds to be held under

advisement. RR3 13-17; RR4 SX # 3.

       After both sides concluded producing evidence, trial counsel made two

arguments before the trial court. First, trial counsel maintained that Appellant had
3
  As reproduced in the Reporter‘s Record, this exhibit contains a second page, which is a
photocopy of the reverse of the seal found on the first page, the business records affidavit by
Deputy Commonwealth‘s Attorney Cathryn F. Evans. The second page of the actual exhibit
itself is a cover letter from Deputy Commonwealth‘s Attorney Evans, dated April 8, 2015,
addressed to ―Strategic Prosecution, Travis County District Attorney‘s Office,‖ and directed to
the attention of Nicole Waggoner. See RR4 SX # 3.


                                                                                                  14
executed an Interstate Agreement on Detainers Act request for Virginia to resolve

his holds within 180 days of the request, and that by operation of Tex. Code

Crim.Proc. § 51.14, Article III(e), this also constituted his consent to be delivered

to Virginia authorities. Trial counsel further argued that pursuant to Tex. Code

Crim.Proc. § 51.14, Article V(c), the hold would have ceased to have any force or

effect once the applicable 180-day period had expired. Trial counsel argued that by

the time the Governor‘s Warrant was issued, Appellant was no longer a ―fugitive.‖

RR3 17-18.

      In the alternative, trial counsel argued that once Appellant was notified of

the detainer on October 21, 2014, there began a 90-day deadline for Virginia to

take custody of Appellant, by operation of Tex. Code Crim.Proc. §§ 51.05, 51.07,

and 51.13, Sec. 15 and Sec. 17. Trial counsel argued that Appellant‘s continued

detention beyond 90 days after October 21, 2014, was illegal, citing Lanz v. State,

815 S.W.2d 252 (Tex.App.—El Paso 1991, no pet.). RR3 18-20; RR4 SX # 3.

      The presiding magistrate received clarification that Appellant was still

serving sentence on his Travis County case at the time of October 21, 2014. The

magistrate maintained that the applicable 90-day period would not be triggered

until a defendant was ―free and clear here in Texas, or whatever the local

jurisdiction is.‖ Regarding trial counsel‘s position regarding the Interstate

Agreement on Detainers issue, the magistrate found ―that it does not appear that



                                                                                     15
the Commonwealth of Virginia ever received his request, and therefore that

[applicable 180-day] period would not have run.‖ The magistrate announced he

would recommend that Appellant‘s writ be denied and overruled trial counsel‘s

grounds for objection. RR3 20-3. On May 4, 2015, the magistrate submitted his

written ―Findings and Recommendations of Magistrate, which were approved on

the same date by the trial court. CR1 51-2. Appellant filed timely notice of appeal.

CR1 49. This appeal follows from the denial of habeas relief.


                              Summary of Arguments

      The trial court abused its discretion by denying Appellant‘s request for relief

by way of an application for writ of habeas corpus. First, by executing a request

pursuant to the Interstate Agreement on Detainers Act, Appellant was no longer a

―fugitive‖ at the time the Governor‘s Warrant was issued, because he had thereby

given his consent to the production of his body in the courts of the Commonwealth

of Virginia. By the time the Governor‘s Warrant was issued, Appellant‘s continued

detention was illegal. In the alternative, by virtue of this same consent to the

production of his body in the courts of the Commonwealth of Virginia, Appellant

was entitled to a discharge from custody as of January 19, 2015, as his continued

detention at that time became illegal pursuant to Tex. Code Crim.Proc. §§ 51.05,

51.07, and 51.13, Sec. 15 and Sec. 17.




                                                                                    16
                              Issue Number One
 The trial court abused its discretion by denying Appellant’s application for
 writ of habeas corpus, because Appellant was not a “fugitive” at the time of
                   the issuance of the Governor’s Warrant.

     Clause 2 of Article IV, Section 2 of the United States Constitution establishes

the basis for extradition of fugitives between states. The Extradition Clause is

implemented by the Uniform Criminal Extradition Act, which has been adopted by

Texas. See Tex. Code Crim.Proc. § 51.13; Ex parte Potter, 21 S.W.3d 290, 293 n.3

(Tex.Crim.App. 2000). In conducting an extradition hearing, a trial court in the

asylum state may do no more than determine whether the requisites of the Uniform

Criminal Extradition Act have been met. New Mexico ex rel. Ortiz v. Reed, 524

U.S. 151, 153-5 (1998); California v. Superior Court of California, 482 U.S. 400,

408 (1987). A governor‘s warrant that is regular on its face is prima facie evidence

that the requirements for extradition have been met. Ex parte Lekavich, 145

S.W.3d 699, 701 (Tex.App.—Ft. Worth 2004, no pet.). Once the governor of an

asylum state grants extradition, a court considering release on habeas corpus can

consider only the following: (1) whether the extradition documents on their face

are in order; (2) whether the petitioner has been charged with a crime in the

demanding state; (3) whether the petitioner is the person named in the request for

extradition; and (4) whether the petitioner is a fugitive. Michigan v. Doran, 439

U.S. 282, 289 (1978); State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, 542-3

(Tex.Crim.App. 1991); Lekavich, 145 S.W.3d at 700. Once the governor‘s warrant,


                                                                                     17
regular on its face, is introduced into evidence, the burden shifts to the accused to

show the warrant was not legally issued, was not based on proper authority, or

contains inaccurate recitals. Ex parte Cain, 592 S.W.2d 359, 362 (Tex.Crim.App.

1980); Ibarra v. State, 961 S.W.2d 415, 417 (Tex.App.—Houston [1st Dist.] 1997,

no pet.).

      The only appropriate vehicle for challenging arrest pursuant to a governor‘s

extradition warrant is through the filing of an application for writ of habeas corpus.

Ex parte Chapman, 601 S.W.2d 380, 382-3 (Tex.Crim.App. 1980). A petitioner

may contest his extradition in a writ of habeas corpus on the basis of any of the

four issues identified by the Supreme Court in Doran. Ex parte Sanchez, 642

S.W.2d 809, 811 (Tex.Crim.App. 1982). The petitioner bears the burden to prove

he is entitled to the relief he seeks by a preponderance of the evidence. Kniatt v.

State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006). ―A prima facie case can be

defeated or supported by the supporting papers introduced, regardless of which

party may have offered the supporting papers into evidence.‖ Cain, 592 S.W.2d at

362, citing Ex parte Lancaster, 501 S.W.2d 904 (Tex.Crim.App. 1973); Ex parte

Brown, 450 S.W.2d 647 (Tex.Crim.App. 1970).

      The trial court‘s ruling on a writ of habeas corpus is subject to review for

abuse of discretion. Kniatt, 206 S.W.3d at 664; Washington v. State, 326 S.W.3d

701, 704 (Tex.App.—Houston [1st Dist.] 2010, no pet.). In conducting this review,



                                                                                        18
the facts are viewed in the light most favorable to the trial court‘s ruling. See

Kniatt, 206 S.W.3d at 664; Washington, 326 S.W.3d at 704. If the documents from

the demanding state do not meet the requirements of the Uniform Criminal

Extradition Act, the warrant should not issue and the applicant is entitled to a

discharge. Sanchez, 642 S.W.2d at 811.

      Appellant contests the notion that he was a ―fugitive‖ at the time of the

issuance of the Governor‘s Warrant. It is undisputed that Appellant tried to effect a

request for final disposition of his Virginia charges in May 2014, while he was

incarcerated in Texas, by way of forms that were clearly produced, printed, and

promulgated by the Texas Department of Criminal Justice, no less. RR2 6-17;

RR3 6-13; RR4 DX # 1-2. Of course, as the learned magistrate was well aware,

prevailing authorities hold that the 180-day time period under Article III(a) of the

Interstate Agreement on Detainers does not begin until a prisoner‘s request for

final disposition of charges against him has actually been delivered to the court and

the prosecuting authority of the jurisdiction that lodged the detainer against him.

RR3 22. See Fex v. Michigan, 507 U.S. 43, 51-2 (1993); United States v. Henson,

945 F.2d 430, 434 (1st Cir. 1991); Morganfield v. State, 919 S.W.2d 731, 734

(Tex.App.—San Antonio 1996, no pet.); Bryant v. State, 819 S.W.2d 927, 930-1

(Tex.App.—Houston [14th Dist.] 1991, pet. ref‘d). However, the question of

whether or not the proper authorities in Virginia received Appellant‘s request is



                                                                                      19
clearly a matter that must be settled in the Commonwealth of Virginia, not in

Texas.4 Further, ―[t]he courts of the asylum state are ‗without authority to consider

equitable issues.‘‖ Ex parte Sanchez, 987 S.W.2d 951, 953 (Tex.App.—Austin

1999, pet. ref‘d, untimely filed), citing Klevenhagen, 819 S.W.2d at 543; Doran,

439 U.S. at 289. Appellant would argue that in the present context, consideration

of this particular issue is a ―red herring‖ that has no meaningful bearing on the

actual issue at hand.

       ―The Uniform Criminal Extradition Act does not formally define ‗fugitive.‘‖

Sanchez, 987 S.W.2d at 952, citing Tex. Code Crim.Proc. 51.13, Sec. 1. ―A

working definition is found, however, in section two of the act, which provides,

‗[I]t 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.‘‖ Sanchez, 987 S.W.2d at 952, citing Tex. Code Crim.Proc.

51.13, Sec. 2. See also Ex parte Robertson, 151 Tex. Crim. 635, 636-7, 210

S.W.2d 593, 594 (1948): ―[I]f a person was present in the demanding state at the

time it is alleged an offense was committed and leaves that state thereafter for any



4
 Appellant had argued before the magistrate that by operation of his request for final disposition,
the Virginia detainer no longer had effect after the applicable 180-day period. RR3 18. Appellant
does not advance this same argument in the present appeal, but this should be in no way
construed as a waiver of the right to litigate this issue at the appropriate time and in the proper
forum, namely, the Commonwealth of Virginia.


                                                                                                20
reason, whether connected with the alleged offense or not, and is found in the

sending state, he is a fugitive from justice and subject as such to extradition.‖

      That said, when a prisoner makes a request for final disposition of a charge

in another jurisdiction pursuant to the Interstate Agreement on Detainers, the effect

is twofold. First, a properly executed request triggers a 180-day deadline for the

jurisdiction in which the charge is pending. In essence, the charge must be resolved

within that timeframe, or else the charge must be dismissed with prejudice. Tex.

Code Crim.Proc. § 51.14, Article III(a), (d). The request serves an additional

purpose, however, which is spelled out by Tex. Code Crim.Proc. § 51.14, Article

III(e) (emphasis supplied):

             Any request for final disposition made by a prisoner pursuant to
             Paragraph (a) hereof shall also be deemed to be a waiver of
             extradition with respect to any charge or proceeding contemplated
             thereby or included therein by reason of Paragraph (d) hereof, and a
             waiver of extradition to the receiving state to serve any sentence there
             imposed upon him after completion of his term of imprisonment in the
             sending state. The request for final disposition shall also constitute
             a consent by the prisoner to the production of his body in any
             court where his presence may be required in order to effectuate
             the purposes of this agreement and a further consent voluntarily
             to be returned to the original place of imprisonment in
             accordance with the provisions of this agreement. Nothing in this
             paragraph shall prevent the imposition of a concurrent sentence if
             otherwise permitted by law.

There is no requirement set forth in the statute—and there is no authority to be

found in caselaw, either—to support the proposition that this ―consent by the




                                                                                     21
prisoner to the production of his body‖ becomes effective only after the requesting

state has received the request for final disposition.

        ―Status as a fugitive is not essential to extradition. Although not within the

strict definition of a ‗fugitive,‘ one who commits an act in one state intentionally

resulting in crime in another state and who thus seeks to abate the administration of

justice in the state where the offense was perpetrated is, in essence, a ‗fugitive‘

from justice of such state for extradition purposes.‖ Ex parte Harrison, 568 S.W.2d

339, 344 (Tex.Crim.App. 1978), citing State of Kansas v. Holeb, 188 Neb. 319,

196 N.W.2d 387 (1972). While Appellant obviously met this description when he

was first apprehended in Travis County on December 2, 2013, the present record

reflects, without dispute, that he thereafter proactively sought to facilitate—not

abate—the administration of justice in the Commonwealth of Virginia.

        From the present record on appeal, it is impossible to gather the reason or

reasons why the proper authorities in the Commonwealth claim to have never

received Appellant‘s request for final disposition. RR4 SX # 3, p. 2 (cover letter

from Deputy Commonwealth‘s Attorney Evans, dated April 8, 2015). Potential

sources of the miscommunication might very well involve official misconduct,

reckless ineptitude, a plain and simple act of unintentional human negligence, an

act of God or accident, or a combination thereof. Measuring the degree of blame—

if any—to be assigned to the State of Texas, the Commonwealth of Virginia, or the



                                                                                       22
United States Postal Service, however, is immaterial to the issue at hand. What can

be determined from the record is that Appellant had given consent for the

production of his body—per Tex. Code Crim.Proc. § 51.14, Article III(e)—as of

May 20, 2014. The Governor‘s Warrant issued 262 days after Appellant

transmitted through Texas authorities his consent for the production of his body in

the Commonwealth. RR4 SX # 2; CR1 8-28. November 16, 2014 would have

marked 180 days since the State of Texas became aware of Appellant‘s consent for

production of his body in the Commonwealth of Virginia. Appellant‘s State Jail

Felony sentence arising from the Travis County charge expired on December 1,

2014. CR1 30-1, 39, 42.

        Appellant had given his consent for the production of his body to the

Commonwealth of Virginia. He had not granted consent for any further delay.

Compare Young v. Mabry, 471 F.Supp. 553 (E.D. Ark. 1978), aff’d, 596 F.2d 339

(8th Cir.), cert. denied, 444 U.S. 853 (1979). At the time of the issuance of the

Governor‘s Warrant on February 6, 2015, under the particular circumstances

presented by the instant cause, Appellant‘s continued detention was illegal, and he

no longer constituted a ―fugitive.‖ Appellant has met his burden and proven by a

preponderance of the evidence that he was entitled to relief. Since Appellant was

no longer a ―fugitive,‖ the documents from the demanding state failed to meet the

requirements of the Uniform Criminal Extradition Act, and Appellant was entitled



                                                                                    23
to a discharge. Sanchez, 642 S.W.2d at 811. The trial court abused its discretion by

finding that Appellant ―remained within the definition of a fugitive.‖ CR1 51. The

judgment of the trial court should be reversed, and Appellant should be granted an

immediate discharge from custody.

                              Issue Number Two
 The trial court abused its discretion by denying Appellant’s application for
writ of habeas corpus, because Appellant was entitled to release from custody
                            as of January 19, 2015.

     In addition to the argument presented above in Issue Number One, there

remains an additional and alternative basis in support of Appellant‘s entitlement to

habeas relief. The evidence is uncontroverted that Appellant was brought before a

magistrate or judge in Walker County on October 21, 2014, whereupon he was

notified in person regarding the detainer placed by the Commonwealth of Virginia.

RR2 14-17; RR3 11-13. The dictates of Tex. Code Crim.Proc. § 51.05 are clear

(emphasis supplied): ―One arrested under the provisions of this title shall not be

committed or held to bail for a longer time than ninety days.‖ See also, Tex.

Code Crim.Proc. § 51.07 (emphasis supplied): ―A fugitive not arrested under a

warrant from the Governor of this State before the expiration of ninety days from

the day of his commitment or the date of the bail shall be discharged.‖ See also,

Tex. Code Crim.Proc. § 51.13, Sec. 15 and Sec. 17.

        As stated above, Appellant‘s State Jail Felony sentence arising from the

Travis County charge expired on December 1, 2014. CR1 30-1, 39, 42. January 19,


                                                                                     24
2015, marked the 90th day after he appeared before the magistrate in Walker

County. Under the present argument, Appellant‘s continued detention became

illegal as of January 19, 2015, if not in fact sooner, owing to the rationale set forth

in Issue Number One, above. Appellant would argue that the 90-day deadline was

not applicable with reference to his December 5, 2013 magistration in Travis

County—see RR2 6-7—as he still had charges pending in that jurisdiction at the

time. While Appellant was still in custody on the sentence received out of Travis

County as of October 21, 2014, he had by that time not only resolved the charge,

but he had additionally provided consent for the production of his body in the

Commonwealth of Virginia as of May 20, 2014, as discussed in Issue Number

One, above.5 The Governor‘s Warrant was not timely served prior to the expiration

of the applicable deadline of January 19, 2015. Appellant was entitled to a

discharge from continued illegal detention at that time. See Lanz v. State, 815

S.W.2d 252, 253-4 (Tex.App.—El Paso 1991, no pet.). By virtue of the consent for

the production of his body that he had provided to Texas authorities on May 20,

2014, it was an abuse of discretion for the trial court to find that the 90-day period

did not begin until Appellant satisfied his sentence out of Travis County on

December 1, 2014. CR1 51. The judgment of the trial court should be reversed,

and Appellant should be granted an immediate discharge from custody.

5
 Appellant would presently incorporate by reference the arguments presented in Issue Number
One, above, for the purposes of the present argument advance in Issue Number Two.


                                                                                              25
                                      PRAYER

        WHEREFORE, PREMISES CONSIDERED, for the reasons stated above,

Appellant prays that this Court find the judgment of the trial court to have been in

error, and that this Court reverse the judgment of the trial court and order the

immediate discharge of Appellant. Appellant prays for any and all other general

relief to which he may be entitled.



                                                   Respectfully submitted,

                                                   __/s/ Paul M. Evans__________
                                                   Paul M. Evans
                                                   811 Nueces Street
                                                   Austin, Texas 78701
                                                   (512) 569-1418
                                                   (512) 692-8002 FAX
                                                   SBN 24038885
                                                   paulmatthewevans@hotmail.com




                                                                                   26
                         CERTIFICATE OF SERVICE

         I hereby certify that a true and correct copy of the above and foregoing

Appellant‘s Brief was delivered by e-service facsimile to the office of the District

Attorney of Travis County—mailing address P.O. Box 1748, Austin, TX 78767,

physical address 509 W. 11th Street, Austin, TX 78701—on the 2nd day of October,

2015.



                                          ___/s/ Paul M. Evans_____________

                                          Paul M. Evans




                       CERTIFICATE OF COMPLIANCE

        Relying on the Microsoft Word 97-2003 Document word count utility, I

hereby certify that the present document contains 4,908 words, counting all

contents specifically delineated for inclusion in the applicable word count under

Tex. Rule App. Proc. § 9.4(i)(1).


                                          ___/s/ Paul M. Evans_____________

                                          Paul M. Evans




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