Ex Parte Gregory Paul Damm

• Court: Court of Appeals of Texas
• Decided: January 23, 2015
• Docket: 10-14-00381-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00381-CR

EX PARTE GREGORY PAUL DAMM

From the 18th District Court Johnson County, Texas Trial Court No. 201400025

MEMORANDUM OPINION

In three issues, Gregory Paul Damm appeals the denial of his application for writ

of habeas corpus that challenged his extradition from the State of Texas to the State of

Louisiana for the alleged crime of failure of a sex offender to notify law enforcement of

a change of address. We affirm.1

1 Based on our disposition of Damm’s appeal, we dismiss Damm’s motion to stay extradition as moot. I. BACKGROUND2

In his affidavit for arrest warrant, Sergeant Robert G. Vittatoe of the St.

Tammany Parish Sheriff’s Office stated that Damm appeared in person to advise the

Sheriff’s Office that he intended to reside with his brother in Illinois. Damm, a

convicted sex offender, provided his brother’s address and telephone number and filled

out a change-of-address card confirming that he intended to travel to and reside in

Illinois with his brother.

Subsequently, the Sheriff’s Office received information from the Illinois State

Police indicating that Damm had failed to arrive at the Illinois address provided earlier.

The Illinois State Police also noted that Damm did not register with the law

enforcement agency in Illinois within three business days of arriving at the new

address, as is required by law. Accordingly, on July 24, 2014, a Louisiana magistrate

issued an arrest warrant for Damm.

Thereafter, the Sheriff’s Office received a tip from the U.S. Marshals advising that

Damm was possibly in Texas. In a November 3, 2014 letter directed to Louisiana

Governor Bobby Jindal, Louisiana Attorney General James D. Caldwell stated that

Damm was in the custody of the Sheriff’s Office in Johnson County, Texas. Upon

learning of Damm’s whereabouts, the State of Louisiana, through Governor Jindal, filed

2The facts in this case are undisputed, and Damm attached to his brief the relevant documents and a copy of the transcript from the hearing on his habeas-corpus application. Furthermore, Damm filed requested emergency relief in this matter. Thus, Damm has provided the record upon which we can conduct our review of the trial court’s ruling in this expedited review of the denial of an application for writ of habeas corpus. See TEX. R. APP. P. 31. Moreover, to the extent necessary, we invoke and apply Rule 2 to suspend the rules as to the time and manner of obtaining a record and to, therefore, reach a more expeditious disposition. See id. at R. 2.

Ex parte Damm Page 2 a formal requisition demand for Damm with Texas Governor Rick Perry. In response to

Governor Jindal’s requisition demand, Governor Perry issued a governor’s extradition

warrant on November 14, 2014. The warrant states the following, in relevant part:

TO ALL SHERIFFS AND OTHER PEACE OFFICERS OF THIS STATE:

WHEREAS if has been represented to me by the Governor of the State of LOUISIANA, that GREGORY PAUL DAMM aka GREGORY DAMM, fugitive, stands charged with the crime of FAILURE OF SEX OFFENDER TO NOTIFY LAW ENFORCEMENT OF CHANGE OF ADDRESS committed in said State, and that he fled from the justice of that State, and has taken refuge in the State of Texas, and the said Governor of LOUISIANA having, in pursuance of the Constitution and laws of the United States and of the State of Texas, demanded of me that I shall cause the said fugitive to be arrested and delivered to SHERIFF RODNEY STRAIN AND/OR DULY AUTHORIZED AGENT(S) OF ST. TAMMANY PARISH hereby authorized to receive into custody and convey the fugitive back to said State; and

WHEREAS the said representation and demand is accompanied by a copy of the AFFIDAVIT MADE BEFORE A MAGISTRATE AND WARRANT, certified by the Governor of said State to be authentic, whereby the said fugitive is charged with said crime.

THEREFORE, I, Rick Perry, Governor of Texas, by this warrant command you to arrest and secure said fugitive, wherever he may be found within this State, and to deliver said fugitive into the custody of said agent(s), to be taken back to said State from which he held, pursuant to the said requisition, there to be dealt with according to law.

In short, Governor Perry issued his warrant because Governor Jindal sent the Texas

Governor’s Office a requisition demand with (1) a criminal complaint made before a

magistrate, and (2) a warrant, both of which documented Damm’s crime in Louisiana.

Damm filed an application for writ of habeas corpus in the trial court, and after a

hearing, the trial court concluded,

Ex parte Damm Page 3 I do find that the documents on their face, the extradition documents on their face are in order. I find the Petitioner has been charged with a crime in the demanding state of Louisiana. I find the Petitioner is the person named in the request for extradition and that the Petitioner is a fugitive.

The trial court denied Damm’s habeas-corpus application and a related request to stay

extradition. This appeal followed.

II. APPLICABLE LAW

The language of the Extradition Clause of the United States Constitution is “clear

and explicit” and “creates a mandatory duty to deliver up fugitives upon proper

demand . . . .” Puerto Rico v. Branstad, 483 U.S. 219, 226, 107 S. Ct. 2802, 2807, 97 L. Ed.

2d 187 (1987) (citing Michigan v. Doran, 439 U.S. 282, 286, 99 S. Ct. 530, 525-26, 58 L. Ed.

2d 521 (1978)). The Uniform Criminal Extradition Acts (UCEA) “establishes procedures

for the interstate transfer of persons against whom criminal charges are outstanding . . .

[and] applies to persons at liberty as well as to persons in prison.” Cuyler v. Adams, 449

U.S. 433, 436 n.1, 101 S. Ct. 703, 705, 66 L. Ed. 2d 641 (1981). Following the language of

the Extradition Clause of the United States Constitution, the UCEA speaks in terms of a

demand by the executive of a state placed on the executive of another state for delivery

of a fugitive from justice. See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 2 (West Supp.

2014). Within the bounds of the constitution and applicable law, the UCEA requires the

governor of a sending state to have a fugitive arrested and delivered to the executive

authority of the receiving state. Id.

A habeas-corpus proceeding challenging extradition is “intended to be limited in

scope in order to facilitate a swift and efficient transfer of custody to the demanding

Ex parte Damm Page 4 state.” Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App. 2000). Once the governor

has granted extradition, a court considering release on habeas can do no more than

decide: (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.” Id. (citing Doran, 439 U.S. at 289, 99 S. Ct. at 527-28).

”An appellate court reviewing a trial court’s ruling on a habeas claim must

review the record evidence in the light most favorable to the trial court’s ruling and

must uphold that ruling absent an abuse of discretion.” Kniatt v. State, 206 S.W.3d 657,

664 (Tex. Crim. App. 2006) (citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim.

App. 2003)); see Ex parte McWilliams, 272 S.W.2d 531, 531 (Tex. Crim. App. 1954). The

applicant bears the burden to prove that he is entitled to the relief sought by a

preponderance of the evidence. Kniatt, 206 S.W.3d at 664.

III. THE AFFIDAVIT FOR ARREST WARRANT

In his first issue, Damm contends that the extradition documents were not

facially in order because Sergeant Vittatoe’s affidavit for arrest warrant contained the

wrong date pertaining to the commission of the charged offense. We decide this issue

by comparing the extradition documents to the requirements of the UCEA. See Rayburn

v. State, 748 S.W.2d 285, 288-89 (Tex. App.—Tyler 1988, no pet.).

Section 3 of the UCEA states in relevant part:

No demand for the extradition of a person charged with a 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

Ex parte Damm Page 5 time of the commission of the alleged crime, and that thereafter he fled from the State, and accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, or by a copy of an affidavit before a magistrate there, together with a copy of any warrant which issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding State that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of the State; and the copy of the indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand . . . .

TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3.

Here, the governor’s extradition warrant, which included the requisition demand

from the Governor of Louisiana, recites that Damm was charged with the offense of

failure of a sex offender to notify law enforcement of a change of address. In this issue,

Damm does not challenge the identity or presence elements of the analysis, nor does he

argue that he did not commit a crime in Louisiana, the demanding state. Instead,

Damm merely argues that the alleged date of the commission of the crime was incorrect

and, therefore, the extradition documents were not facially in order. We disagree.

In his original affidavit for arrest warrant executed on July 24, 2014, Sergeant

Vittatoe stated that Damm personally advised the St. Tammany Parish Sheriff’s Office

of his change of address on December 5, 2014. However, Sergeant Vittatoe executed an

affidavit of clarification on October 30, 2014, stating that Damm actually appeared in

person at the Sheriff’s Office on December 5, 2013, not December 5, 2014. Additionally,

Ex parte Damm Page 6 the affidavit of probable cause also reflected the December 5, 2013 date, not the

erroneous December 5, 2014 date.

Given this information, and based on our review of the record, we conclude that

the extradition documents are facially in order. See id.; see also Doran, 439 U.S. at 288-89,

99 S. Ct. at 527-28 (“A governor’s grant of extradition is prima facie evidence that the

constitutional and statutory requirements have been met.”). As such, we overrule

Damm’s first issue.

IV. THE GOVERNOR’S EXTRADITION WARRANT

In his second and third issues, Damm argues that Governor Perry did not have

authority to sign the governor’s extradition warrant because Governor Perry is

currently under indictment. Damm further argues that by signing the governor’s

extradition warrant, Governor Perry acted “as a juror as trier of the facts.”

However, in his brief, Damm does not cite any relevant authority to support the

contentions made in his second and third issues. Accordingly, we conclude that these

issues have been inadequately briefed. See TEX. R. APP. P. 38.1(i) (“The brief must

contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.”). We overrule Damm’s second and third

issues.

V. CONCLUSION

For the reasons discussed above, the trial court did not abuse its discretion in

concluding that the governor’s warrant for the extradition of Damm to Louisiana is

valid. See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3; see also Doran, 439 U.S. at 288-89,

Ex parte Damm Page 7 99 S. Ct. at 527-28. And as such, we cannot say that the trial court abused its discretion

by denying Damm’s habeas-corpus application. See Kniatt, 206 S.W.3d at 664; Ex parte

Peterson, 117 S.W.3d at 819; see also Ex parte McWilliams, 272 S.W.2d at 531. Accordingly,

we affirm the trial court’s order denying habeas-corpus relief.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed January 22, 2015 Do not publish [CR25]

Ex parte Damm Page 8