[U] Ex Parte Edwards, No. 05-03-00215-CR (Tex.App. Dist.

5 04/04/2003)

[1] In The Court of Appeals Fifth District of Texas at Dallas

[2] No. 05-03-00215-CR

[3] 2003.TX.0002634< http://www.versuslaw.com>

[4] April 4, 2003

[5] EX PARTE DAVID EUGENE EDWARDS

[6] On Appeal from the 282nd Judicial District Court, Dallas County,
Texas, Trial Court Cause No. X02-00232-8

[7] Before Justices Wright, FitzGerald, and Lang

[8] The opinion of the court was delivered by: Justice FitzGerald

[9] AFFIRMED

[10] OPINION

[11] David Eugene Edwards appeals the district court's judgment denying his
application for writ of habeas corpus to avoid extradition to California
where he is charged with twenty-five felony counts of securities fraud,
mainly against the elderly.*fn1 In two issues, appellant questions
whether he was denied due process because he was not presented before
a court of record within the forty-eight- hour mandate of article 15.17(a)
of the code of criminal procedure, and he questions whether the
documents supporting the California Governor's Warrant were
insufficient, whether he was denied gubernatorial discretion, and
whether the State established his identity or presence in the demanding
state. We affirm.
[12] Facts

[13] Between 1998 and 2002, appellant allegedly committed twenty-five

felony offenses in California. On November 13, 2002, the Governor of
California issued a request upon the Governor of Texas to arrest and
extradite appellant because he committed illegal acts outside the State of
California resulting in crimes inside that state. On November 20, the
Governor of Texas issued a warrant for appellant's extradition to
California. On December 4, Dallas County sheriff deputies located
appellant at a federal detention center, arrested him, and transported him
to the Dallas County jail, where he was issued the two Governors'
warrants. On December 12, appellant was taken before Magistrate
Dorothy Shead, at which time appellant objected that he had not been
before a "court of record" within forty-eight hours pursuant to code of
criminal procedure article 15.17 and article 51.13, section 10. Eight days
later, appellant filed his petition for writ of habeas corpus, to which he
attached the Governors' warrants and appellant's supporting affidavit. In
his affidavit, appellant stated his due process rights had been violated
because he was not taken before a magistrate within forty-eight hours of
arrest and he was not the person identified in the Governors' warrants.
He later filed a supplement to his petition for writ of habeas corpus,
asserting the trial court had no jurisdiction to extradite him because: (1)
he was denied due process because he was not brought before a "court
of record" within forty-eight hours of his arrest; (2) the supporting
extradition documents, the complaint and application for requisition,
were invalid on their face because they were not verified; (3) the
California Governor's Warrant seeks a person of the opposite gender,
which shows the State's lack of proof of identity; and (4) the California
Governor's warrant bases the request for extradition on code of criminal
procedure article 51.13 section 6, yet alleges crimes that could only be
committed under article 51.13 section 3, thereby showing the State's lack
of proof of appellant's presence and status as a "fugitive" amenable to
extradition. At the district court's request, the magistrate court held a
hearing on January 3, 2003. That court considered appellant's habeas
corpus complaints and entered proposed findings and recommendations
that the Governor's Warrant was valid on its face, appellant had been
charged with a crime in the demanding state, appellant was the person
named in the request for extradition, and appellant was a fugitive. In its
order, the district court adopted the magistrate's findings and
recommendations and denied appellant's application for writ of habeas
corpus. This appeal followed.

[14] Applicable Law

[15] A governor's grant of extradition is prima facie evidence that the
constitutional and statutory requirements have been met. Michigan v.
Doran, 439 U.S. 282, 289 (1978). Once the governor of the asylum state
has granted extradition, a court considering release on habeas corpus is
limited to a determination of whether the extradition documents are
facially in order, whether the applicant has been charged with a crime in
the demanding state, whether the applicant is the person named in the
request for extradition, and whether the applicant is a fugitive. See id.;
State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, 543 (Tex. Crim.
App. 1991). The court is without authority to consider equitable issues
during the habeas corpus hearing. See Holmes, 819 S.W.2d at 543.

[16] Timeliness of Appearance in Asylum State

[17] In his first issue, appellant questions whether he was timely brought
before a magistrate or judge of a court of record. Specifically, he asserts
he first appeared before a magistrate eight days after his arrest, and he
first appeared before a "court of record" thirty days after his arrest,
neither of which were within the forty-eight-hour requirement under
article 15.17(a). Conversely, the State argues article 15.17(a), which
governs arrests generally and requires that an arrested person be brought
before a magistrate within forty-eight hours of arrest, does not apply to
an extradition proceeding. Instead, the State asserts the more specific
statute, article 51.13, section 10, which governs extradition proceedings,
controls over the more general statute, article 15.17(a). Article 51.13,
section 10 requires that a person arrested in an extradition proceeding be
taken "forthwith before a judge of a court of record*fn2 in this State."
Tex. Code Crim. Proc. Ann. art. 51.13, § 10 (Vernon 1979) (footnote
added). Article 51.13, section 10 does not demand an exact time
restriction. As such, the State argues article 15.17(a) is inapplicable, and
appellant was arguably brought before the judge of a court of record
"forthwith." The State adds that even if appellant had not been timely
presented "forthwith," appellant has made no claim or demonstration of
harm for the eight-day delay. Cf. Ex parte Potter, 21 S.W.3d 290, 297
(Tex. Crim. App. 2000) (court in habeas review of extradition could
consider whether appellant lacked sufficient mental competency to assist
his counsel's preparation of a writ of habeas corpus challenging the
extradition proceeding).

[18] We conclude that whether appellant was timely presented before a judge
of a court of record does not fall within the limits of our review. See
Doran, 439 U.S. at 289 (stating rule that reviewing court is limited to
 deciding whether extradition documents are facially valid, whether
petitioner has been charged with crime in demanding state, whether
petitioner is person named in request for extradition, and whether
petitioner is fugitive); Ex parte Potter, 21 S.W.3d at 297(Texas courts
reviewing habeas corpus order in extradition case are limited to the four
grounds set out in Doran and to consideration of the applicant's mental
competency). However, even if we could consider it, we conclude the
record does not show appellant was harmed by any delay in bringing
him before the court pursuant to either articles 15.17(a) or 51.13, section
ten. Appellant asserts the violation of the statutes also violated his
constitutional right to due process. Assuming for purposes of this
opinion that (1) article 51.13, section 10 was violated, and (2) that any
such violation would violate his constitutional right to due process, we
conclude beyond a reasonable doubt that any violation any due process
right did not contribute to the denial appellant's petition for writ of
habeas corpus. See Tex. R. App. P. 44.2 (a).*fn3

[19] Accordingly, we resolve the first issue against appellant.

[20] In his second issue, appellant questions whether the trial court erred in
denying his application for writ of habeas corpus because the documents
supporting the Governor's Warrant were invalid on their face, he was
denied gubernatorial discretion, the State did not prove he was the
person stated in the Governor's Warrant, and the State did not prove he
was present in the demanding State. We review these arguments in
order.

[21] Documents Supporting the Governor's Warrant

[22] Appellant argues the documents supporting the Governor's Warrant did
not meet the requirements of article 51.13, section 3 because (1) the
demanding state's complaint upon which the warrant was issued did not
constitute a proper affidavit, as it was not based on personal knowledge,
and (2) that arrest warrant was not issued on the complaint.

[23] Code of criminal procedure article 51.13, section 3 provides that a

demand for extradition must be accompanied by one of the specified
types of charging instruments to support issuance of a Governor's
Warrant. See Tex. Code Crim. Proc. Ann. art. 51.13, § 3 (Vernon 1979).
The charging instrument must be a copy of one of the following: (1) an
indictment; (2) an information; (3) an affidavit before a magistrate and a
 warrant issued thereupon; or (4) a judgment of conviction or a sentence
imposed in execution of the conviction. Id. The issuance and
introduction into evidence of a Governor's Warrant, regular on its face,
creates a prima facie case that the requirements for extradition have
been met. See Ex parte Martinez, 530 S.W.2d 578, 579 (Tex. Crim. App.
1975). However, the accused may complain about the supporting papers
and challenge their sufficiency in order to show that the Governor's
Warrant was illegally issued. See Ex parte Cain, 592 S.W.2d 359, 362
(Tex. Crim. App. 1980) (op. on reh'g). The supporting papers introduced
with the Governor's Warrant may be used to "buttress or defeat" the
prima facie case made out by the introduction of the warrant. See id.
Here, the California Governor's Warrant is supported by an amended
complaint and affidavit made before a magistrate with a copy of an
arrest warrant issued upon it.

[24] Appellant first argues the affidavit in support of the amended complaint
was insufficient because Deputy Sondra Serenka did not state she had
personal knowledge of the facts stated in the complaint. There is no
requirement that an affidavit in support of a complaint recite the affiant
has personal knowledge of the matters stated in the complaint. Ex parte
Harris, 389 S.W.2d 668, 669 (Tex. Crim. App. 1965); Ex parte
McDonald, 631 S.W.2d 222, 224 (Tex. App.-Fort Worth 1982, pet.
ref'd). Appellant relies upon this Court's decisions in Ex parte Bahmer,
763 S.W.2d 433 (Tex. App.-Dallas 1986, no pet.), and Ex parte Zepeda,
No. 05-97-01435-CR (Tex. App.-Dallas Feb. 9, 1998, no pet.) (not
designated for publication). Those cases, however, are distinguishable
from the present case. In Bahmer, there was no affidavit contained in the
supporting papers. See Bahmer, 763 S.W.2d at 433. Notwithstanding that
the unpublished Zepeda opinion has no precedential value, the affidavit
in that case was not signed by the affiant; instead, it was signed by
someone else on behalf of the affiant. See Zepeda, No. 05-97-01435-CR
at *2; see also Tex. R. App. P. 47.7 ("Opinions not designated for
publication by the court of appeals under these or prior rules have no
precedential value . . . .").

[25] Without deciding the sufficiency of the affidavit as a criminal

pleading,*fn4 we conclude the amended complaint in the present case
meets the affidavit requirement of the extradition statute. An affidavit is
defined as "a statement in writing of a fact or facts signed by the party
making it, sworn to before an officer authorized to administer oaths, and
officially certified to by the officer under his seal of office." Tex. Gov't
Code Ann. § 312.011(1) (Vernon 1998). The amended complaint was in
writing; it listed the twenty-five counts of felony offenses against
appellant; it was signed by Deputy Sondra Serenka, the party making the
 statement; it stated that Serenka was duly sworn and deposed; she swore
to the amended complaint before Superior Court Judge Gilbert T.
Brown, an officer authorized to administer oaths; and Judge Brown
certified the amended complaint under his seal of office. Appellant's
argument lacks merit.

[26] In a related argument, appellant asserts that, based on an inconsistency

in the proffered arrest warrant, no arrest warrant was issued on the
amended complaint. Specifically, he relies on the arrest warrant's
recitation that Judge Brown, who authorized the issuance of the warrant,
received the amended complaint under oath from "35 Nolen" of the
District Attorney's office, not Deputy Sondra Serenka, who signed the
amended complaint.

[27] Article 51.13, section 3 requires a copy of an affidavit before a

magistrate in the demanding state, "together with a copy of any warrant
which issued thereupon." See Tex. Code Crim. Proc. Ann. art. 51.13, §
3. We have already determined the amended complaint constituted a
valid affidavit. What we must decide is whether the arrest warrant was
issued on the amended complaint, and we conclude that it did.

[28] Notwithstanding the complained-of error, the two documents correspond

in sufficient, significant respects. Both documents were issued on the
same day by the same judge, they recite the same defendant with the
same birth date, they list the same offenses committed, and they each
bear the same "PFN" number "DSD229." That the fill-in-the-blank
arrest warrant form states a different name from the deputy's name is not
sufficient to overcome the prima facie case made by the introduction of
the Governor's Warrant that the arrest warrant was issued on the
amended complaint. As such, the arrest warrant and the amended
complaint together comply with article 51.13, section 3. The supporting
documents were valid on their face.*fn5 We resolve this argument
against appellant.

[29] Gubernatorial Discretion

[30] Next, appellant argues the Texas Governor mistakenly believed that,
based on the nature of the crimes alleged and conflicts in the supporting
documents, he had no discretion to refuse California's demand for
appellant's extradition. As such, appellant was deprived of any possible
benefit of gubernatorial discretion allowed under article 51.13, section
 6.*fn6

[31] Article 51.13, section 3 mandates extradition in cases where the accused
was present in the demanding state during the commission of the offense
and thereafter fled to the asylum state. Unlike section 3, section 6 is
stated in permissive language, allowing the Texas Governor the
discretion to surrender any person to the demanding state whose actions
in Texas, or in a third state, intentionally result in a crime in the
demanding state. Compare Tex. Code Crim. Proc. Ann. art. 51.13, § 3
with Tex. Code Crim. Proc. Ann. art. 51.13, § 6.

[32] The amended complaint and application for requisition allege offenses
committed in California, including first degree burglary. That count in
the amended complaint states that appellant "did enter an inhabited
dwelling house located at [the victim's] home with the intent to commit
theft and [a] felony[ies], Securities Fraud." The application for
requisition states that because the victims were contacted and deceived
in their homes, the suspects' joint actions constituted first degree
burglary. It also explains that appellant, whose business was located in
Washington State, conspired with sales agents in California to convince
California residents to invest money in fraudulent bank notes. The
California Governor's Warrant states that appellant stands charged with
the offenses listed in the amended complaint and application for
requisition "by intentionally committing an act or acts while outside the
State of California resulting in said crimes in this State, and it has been
represented and is satisfactorily shown . . . that [appellant]*fn7 is now to
be found in the State of Texas." Arguably, California can pursue
appellant's conviction under the law of parties. As such, the offenses
listed in the amended complaint and the application for requisition are
not inconsistent with the language of the California Governor's Warrant
that tracks section six. Nothing in the California Governor's Warrant or
its supporting documents suggest appellant did not receive the
gubernatorial discretion to which he was entitled. We resolve this
argument against appellant.

[33] Identity

[34] Appellant next argues the State failed to prove he was the accused
named in any of the demanding or asylum state's documents.
Specifically, he contends the State's proof, an enlarged photo copy of a
Washington State driver's license and supporting certification that the
license was a true and correct copy, did not identify appellant as the
 same person named in the Governor's Warrant.

[35] The Texas Governor's Warrant, which appears regular on its face, made
out a prima facie case authorizing remand of appellant to custody for
extradition. See Ex parte Larson, 494 S.W.2d 179, 180 (Tex. Crim. App.
1973). By introducing the Texas Governor's Warrant into evidence at the
habeas corpus hearing, the State shifted the burden to appellant to prove
that he was not the person charged with the crimes in California.
Appellant placed identity into issue at the hearing by denying he was the
person named for extradition. As such, the burden then shifted to the
State to show that appellant was the identical person named in the Texas
Governor's Warrant. See id.

[36] The amended complaint and the arrest warrant contain information
identifying the person sought for extradition. Both documents refer to
"David Eugene Edwards," whose birth date is October 8, 1957. The
arrest warrant describes the accused as a six-foot-tall male weighing
205, living at 75th Avenue Ct. W., University Place, Washington,
98467. The driver's license states the same address, birth date, height,
and weight for "David Eugene Edwards." To prove identity, the
prosecutor introduced into evidence the driver's license and a supporting
affidavit stating the license was a true and correct copy. On cross-
examination, appellant identified himself by the same name, address,
birth date, height, and weight as reflected in the supporting documents.
Based on this record, the State showed appellant was the identical person
named in the Texas Governor's Warrant. We resolve this argument
against appellant.

[37] Presence in Demanding State

[38] Finally, appellant argues the State failed to prove he was present in the
demanding state. Article 51.13, section 3 provides that no demand for
the extradition of a person shall be recognized by the Texas Governor
unless, "except in cases arising under Section 6," it is in writing "that the
accused was present in the demanding State at the time of the
commission of the alleged crime, and that thereafter he fled from the
State . . . ." See Tex. Code Crim. Proc. Ann. art. 51.13, § 3. The
California Governor's Warrant expressly tracked the language of article
51.13, section 6. See Rentz v. State, 833 S.W.2d 278, 280 (Tex. App.-
Houston [14th Dist.] 1992, no pet.) (holding in part that where appellant
was charged with sending package containing cocaine to co-defendant in
state of Florida, it was not necessary for State to prove appellant was in
 demanding state at time of offense). As such, the State was not required
to prove presence in the demanding state at the time of the commission
of the offenses. We resolve this argument against appellant.

[39] Having resolved all arguments in appellant's second issue against him,
we overrule appellant's second issue.

[40] We affirm the trial court's judgment.

[41] KERRY P. FITZGERALD, JUSTICE

[42] Do Not Publish Tex. R. App. P. 47

Opinion Footnotes

[43] *fn1 California's application for requisition states that appellant stands
accused of illegally receiving $365,000 from victims residing in Santa
Clara County, California and $98.7 million from over 1,300 victims
nationwide.

[44] *fn2 A court of record includes those courts whose proceedings are
permanently recorded, and which have the power to fine or imprison for
contempt. Black's Law Dictionary 362 (6th ed. 1990) (defining "courts
of record"). A record is a written account of some act or court
proceeding drawn up under authority of law by a proper officer and
designed to remain as a memorial or permanent evidence of the matters
to which it relates. Id. at 1273 (defining "record"). The magistrate court
before which appellant appeared eight days after his arrest was a "court
of record" for purposes of the Uniform Criminal Extradition Act.

[45] *fn3 Appellant also argues the violation of his due process rights
deprived the trial court of jurisdiction. If the trial court did not have
jurisdiction over appellant's habeas corpus petition, then appellant would
have had no procedure to challenge his extradition. However, the trial
court did have jurisdiction to consider appellant's petition for writ of
habeas corpus. See Tex. Const. art. V, § 8; Tex. Code Crim. Proc. Ann.
 art. 51.13, § 10 (Vernon 1979).

[46] *fn4 The sufficiency of an affidavit as a criminal pleading is a question

for the demanding state, not the asylum state. See Alabama v. Battles,
452 U.S. 920, 923-24 (1981); Ex parte Flores, 548 S.W.2d 31, 32-33
(Tex. Crim. App. 1977).

[47] *fn5 In his reply brief, appellant asserts Rolan was the affiant of the
original complaint, and that the arrest warrant was issued on the original
complaint instead of the amended complaint. No evidence in the record
supports this assertion. Appellant attaches documents to his reply brief,
one of which purports to be a copy of the original complaint. However,
attachments to briefs are not part of the record and cannot be considered
as evidence. See Tex. R. App. P. 34.1 ("The appellate record consists of
the clerk's record and, if necessary to the appeal, the reporter's record.");
Robles v. State, 85 S.W.3d 211, 215 (Tex. Crim. App. 2002).

[48] *fn6 Section 6 provides: The Governor of this State may also surrender,
on demand of the Executive Authority of any other State, any person in
this State charged in such other State in the manner provided in Section
3 with committing an act in this State, or in a third State, intentionally
resulting in a crime in the State whose Executive Authority is making
the demand, and the provisions of this Article not otherwise
inconsistent, shall apply to such cases, even though the accused was not
in that State at the time of the commission of the crime, and has not fled
therefrom. Tex. Code Crim. Proc. Ann. art. 51.13, § 6.

[49] *fn7 The California Governor's Warrant states "she" instead of "he."
Considering that the document also expressly states "David Eugene
Edwards" in two places, we consider this error to be merely clerical and
not reversible.

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