Ex Parte James Douglas Dale

Opinion

NUMBER 13-12-00496-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

EX PARTE JAMES DOUGLAS DALE ____________________________________________________________

On Appeal from the 156th District Court of Aransas County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion Per Curiam

This is an attempted appeal from an extradition proceeding based on the

non-payment of child support. We dismiss the appeal for want of jurisdiction.

The record in this cause shows that appellant was arrested based on an

extradition warrant issued by the Governor of Texas at the request of the State of

Missouri. Pursuant to the criminal code, appellant was taken before a judge of this state

and informed of the demand from the State of Missouri. See TEX. CODE CRIM. PROC. ANN. art. 51.13 (Vernon 2006). Appellant refused to sign a waiver of extradition.

Appellant testified that he was the individual identified in the warrant. The trial court

issued an order staying the extradition and holding the appellant in jail, “until the appeal is

resolved or further Order of the Court.” The trial court informed appellant of his possible

right of appeal and appointed appellate counsel. This appeal ensued.

This Court lacks jurisdiction to consider this appeal. The only manner to test the

legality of 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, 383 (Tex. Crim. App.1980);

Stelbacky v. State, 22 S.W.3d 583, 587 (Tex. App.BAmarillo 2000, no pet.). Moreover,

an appealable judicial determination occurs only if the arrestee challenges the extradition

by way of a writ of habeas corpus and receives an adverse ruling by the trial court.

Chapman, 601 S.W.2d at 383; McPherson v. State, 752 S.W.2d 178, 179 (Tex. App.BSan

Antonio 1988, pet. ref'd, untimely filed); Martinez v. State, 688 S.W.2d 201, 202 (Tex.

App.BCorpus Christi 1985, no pet.). If no writ of habeas corpus is filed, the arrestee is

not in the posture of an applicant for habeas corpus whose prayer for relief has been

denied for appellate purposes. Chapman, 601 S.W.2d at 383; Martinez, 688 S.W.2d at

202. This is so even if the trial court gratuitously holds a hearing on the extradition.

Martinez, 688 S.W.2d at 202.

Here, the record shows that appellant did not file an application for writ of habeas

corpus. Therefore, because our jurisdiction is limited to consideration of an appeal from

the denial of habeas corpus relief, we must dismiss appellant's appeal. Chapman, 601

2 S.W.2d at 383; Martinez, 688 S.W.2d at 202. Accordingly, the appeal is hereby

DISMISSED FOR WANT OF JURISDICTION.

PER CURIAM

Delivered and filed the 4th day of October, 2012.