Carl Milton Harrison v. State

• Court: Court of Appeals of Texas
• Decided: July 22, 1992
• Docket: 10-92-00141-CR
• Status: Published

Opinion

Harrison v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-141-CR

     CARL MILTON HARRISON,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 249-67-92

O P I N I O N

      Carl Milton Harrison appeals from the court's denial of a writ of habeas corpus and order extraditing him to Alabama. In a single point, Harrison asserts that the court erred in refusing to grant his application for a writ of habeas corpus because he had not been "substantially charged" with an offense as required by Texas extradition law. We will overrule the point.

      Harrison filed a writ of habeas corpus alleging that the Alabama indictment charging him with homicide does not "substantially charge" him as required by article 51.13, section 3, of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 51.13 § 3 (Vernon 1979). Article 51.13, section 3, provides in part:

No demand for the extradition of a person charged with crime in another State shall be recognized by the Governor unless in writing, alleging . . . 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, and accompanied by a copy of an indictment . . . in the State having jurisdiction of the crime . . . . The indictment . . . must substantially charge the person demanded with having committed a crime under the law of that State . . . .

Id. (emphasis added).

      The Alabama indictment alleged in part:

The Grand Jury of said county charge, that, before the finding of this indictment, Carl Milton Harrison, Jr. . . . did, with the intent to cause the death of Susan Diane Young, cause the death of Susan Diane Young by beating her about the head with a mallet . . . against the peace and dignity of the State of Alabama.

The indictment was signed and filed February 24, 1989. Harrison argues that, because the Alabama homicide indictment fails to state a date on which the offense occurred, it would be void under Texas law—and thus he is not "substantially charged" as required by article 51.13, section 3. See id. He argues that, under Texas law, a charging instrument is fundamentally defective if it does not contain the date on which the offense is alleged to have occurred. See Ex parte Hyett, 610 S.W.2d 787, 789 (Tex. Crim. App. 1981).

      The court took judicial notice of an Alabama statute, section 15-8-30, which provides:

It is not necessary to state the precise time at which an offense was committed in an indictment; but it may be alleged to have been committed on any day before the finding of the indictment, or generally before the finding of the indictment, unless time is a material ingredient of the offense.

See Ala. Code § 15-8-30 (1982). The State also provided the court with Alabama case law confirming that section 15-8-30 does not require that an indictment state the precise time at which an offense occurred. See Cade v. State, 521 So.2d 80, 81-82 (Ala. Cr. App. 1986), aff'd, 521 So.2d 85 (Ala. 1987), cert. denied, 488 U.S. 871, 109 S.Ct. 184, 102 L.Ed.2d 153 (1988); Holmes v. State, 505 So.2d 1308, 1312 (Ala. Cr. App. 1987).

      A court may take judicial notice of the laws of other states on its own motion or on the motion of a party. Tex. R. Crim. Evid. 202. The court's determination is subject to review as a question of law. Id. Harrison has cited no Alabama authority contrary to that supporting the State's position. We do not find that the court erred on the question of law.

      We overrule the point and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed July 22, 1992

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