Ex parte Sharp

469 S.W.2d 575, 1971 Tex. Crim. App. LEXIS 1633

• Court: Court of Criminal Appeals of Texas
• Decided: July 28, 1971
• Docket: No. 44395
• Status: Published

Opinion

OPINION

DOUGLAS, Judge.

The appeal is from an order in a habeas corpus proceeding remanding appellant to custody for extradition to the State of New Mexico.

The executive warrant of the Governor of Texas was introduced. It recites that the appellant “stands charged by affidavit made Before a Magistrate With a Warrant before proper authorities with the crime of Kidnapping and Aggravated Battery * * The warrant being regular on its face made a prima facie case for extradition. Ex parte Starks, Tex.Cr.App., 464 S.W.2d 837; Ex parte Slavin, Tex.Cr.App., 461 S.W.2d 421.

The appellant offered proof by two witnesses that he was in Odessa, Texas, at the time of the alleged offense and therefore could not have been in New Mexico where the offense was alleged to have been committed.

Allen Patterson, Jr., testified that he was a deputy sheriff of Lea County, New Mexico and that he saw the appellant at a service station in Hobbs, New Mexico, between eleven and twelve o’clock midnight on the date of the alleged offense.

Polly Merriman, a 74-year-old woman, testified that on the date of the alleged offense the appellant was at her home in Hobbs. She further testified that it was that night when the trouble in her home occurred between the appellant and his former wife.

The appellant, by the apparently disinterested witnesses, raised the issue that he was not in the State of New Mexico at the time alleged. The habeas court had sufficient evidence to conclude that he was in New Mexico at the time alleged.

The proceedings appear to be regular. The judgment remanding appellant to custody for extradition is affirmed.

No motion for rehearing will be filed by the clerk except by leave of the Court.

ODOM, J., not participating.