Ex Parte Stacey

682 S.W.2d 348, 1984 Tex. App. LEXIS 7025

• Court: Court of Appeals of Texas
• Decided: October 31, 1984
• Docket: 05-84-00369-CR
• Status: Published

Opinions

SPARLING, Justice.

We grant the State’s motion for rehearing in this cause. The panel opinion dated May 31, 1984, is withdrawn and replaced with this opinion by the court sitting en banc.

Appellant Stacey appeals a judgment denying his application for writ of habeas corpus and remanding him to the custody of the sheriff for extradition to Alabama. Appellant contends, inter alia, that since the judge did not enter a referral order, the habeas corpus hearing improperly was held before a magistrate, and that the evidence is insufficient to sustain a judgment of extradition. A preliminary issue is whether there is a presumption that the trial judge heard evidence pertaining to extradition. If so, the issue of the propriety of the magistrate’s hearing is rendered moot. We hold that such a presumption exists and that the evidence is sufficient. Accordingly, we affirm.

Although the record contains a transcription of a “writ of habeas corpus” hearing held before a magistrate, the judgment, signed by Judge Ron Chapman, states in pertinent part:

On this, the 14th day of March, A.D., 1984, came on to be heard the application for the Writ of Habeas Corpus against Kenneth Wayne Stacey, and ... 7 proceeded to hear said application and after having examined the Writ ... and all papers and documents attached thereto, and having heard the testimony offered on both sides, I am of the opinion that the said Kenneth Wayne Stacey is legally held in custody_ (Emphasis added.)

We are bound by the record made in the trial court, Evans v. State, 622 S.W.2d 866, 868 (Tex.Crim.App.1981), and, absent a showing to the contrary, we presume that the recitations in the judgment are correct. Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App.1982); Miller v. Hood, 536 S.W.2d 278, 285 (Tex.Civ.App.1976, writ ref’d n.r.e.); Dorfman v. Dorfman, 457 S.W.Sd 417, 421 (Tex.Civ.App.—Texarkana 1970, no writ). As the Court of Criminal Appeals stressed in Kelley v. State, 676 S.W.2d 104 (Tex.Crim.App.1984), every presumption is to be indulged in favor of regularity of the proceedings and documents in the trial court. See Schneider v. State, 594 S.W.2d 415, 418 (Tex.Crim.App.1980); McCloud v. State, 527 S.W.2d 885, 887 (Tex.Crim.App.1975); Green v. State, 510 S.W.2d 919, 921 (Tex.Crim.App.1974); Martinez v. State, 504 S.W.2d 897, 899 (Tex.Crim.App.1974); Scates v. State, 161 Tex.Cr.R. 114, 274 S.W.2d 833, 834 (1955). The burden is on appellant to overcome the presumption that the judgment is correct. Tennison v. State, 168 Tex.Cr.R. 354, 327 S.W.2d 575, 576 (1959); Ex parte Clark, 164 Tex.Cr.R. 385, 299 S.W.2d 128, 129 (1957); Travelers Insurance Co. v. Brown, 402 S.W.2d 500, 504 (Tex.1966); Jones v. State, 644 S.W.2d 546, 549 (Tex.App.—Dallas 1982) (en banc), pet. refd, 646 S.W.2d 449 (Tex.Crim.App.1983); Taylor v. American Emery Wheel Works, 480 S.W.2d 26, 30 (Tex.Civ.App.—Corpus Christi 1972, no writ); Holliday v. Holliday, 453 S.W.2d 512, 514 (Tex.Civ.App.—Corpus Christi 1970, no writ).

Thus, we cannot address appellant’s arguments that the magistrate lacked jurisdiction to hear the writ and that there was no order of referral¹ because the judgment unequivocally states that the judge heard the evidence, and, absent evidence in rebuttal, we cannot infer otherwise. When a judgment recites that evidence was introduced, we must presume sufficient evidence was introduced to support the judgment. Roye v. Silver Dollar Financing, Inc., 432 S.W.2d 123, 125 (Tex.Civ.App.—Fort Worth 1968, no writ). Absent direct proof to the contrary, recitations in a judgment are presumed true and control the rest of the record. Allen v. Bolton, 416 S.W.2d 906, 911 (Tex.Civ.App.—Corpus Christi 1967, no writ). See also Escobar v. State, 587 S.W.2d 714, 716 (Tex.Crim.App.1979); Gutierrez v. State, 456 S.W.2d 84, 85 (Tex.Crim.App.1970); Smith v. State, 455 S.W.2d 748, 756 (Tex.Crim.App.1970); Murchison v. Caruth Building Service, 369 S.W.2d 380, 384 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.).

The dissent’s position is that proof that the magistrate did conduct a hearing is “direct proof” that the trial judge did not. We fail to see the logic of that argument. Stated differently, it is not that we are sure that there were two extradition hearings in this cause—we just cannot be sure that there were not.² In sum, the presumption was not rebutted.

The dissent then implies that the “district court judge used the wrong judgment form.” Yet there is not one smidgen of proof that this was a form judgment or that the information contained in the judgment is untrue. It is fundamental that a reviewing court cannot presume a state of evidence exists which supports a ground of error; the record must reveal the error, if any. Townsend v. Collard, 575 S.W.2d 422, 424 (Tex.Civ.App.—Fort Worth 1978, no writ).

If, arguendo, the judgment is in error, there were measures available to correct the error. Appellant could require that the record “speak the truth,” TEX. CODE CRIM.PROC.ANN. art. 40.09(7) (Vernon Supp.1984), Jones v. State, 644 S.W.2d 546, 548; or challenge the judgment by bill of exception, TEX.CODE CRIM. PROC.ANN. art. 36.20 (Vernon 1981); or by motion in arrest of judgment, TEX. CODE CRIM.PROC.ANN., ch. 41 (Vernon Supp.1984 and Vernon 1979); or by a request for a judgment nunc pro tunc. TEX.CODE CRIM.PROC.ANN. art. 42.06 (Vernon 1979); Perkins v. State, 505 S.W.2d 563 (Tex.Crim.App.1974). Consequently, we accept the record as we find it.

Finally, appellant complains that the evidence is insufficient because the record does not contain “a complaint, affidavit, information or indictment.” We disagree. TEX.CODE CRIM.PROC.ANN. art. 51.13 § 3 (Vernon 1979)³ lists certain documents, which include the charging instrument or affidavit and warrant, to be sent by the requesting state before the Governor’s Warrant may issue. The Governor’s Warrant alone, if regular on its face, becomes prima facie evidence authorizing extradition. Ex Parte Trisler, 605 S.W.2d 619, 620 (Tex.Crim.App.1980); Ex Parte Elliott, 542 S.W.2d 863, 864 (Tex.Crim.App.1976); Ex Parte Rosenthal, 515 S.W.2d 114, 116 (Tex.Crim.App.1974). This record contains a Governor’s Warrant that is regular on its face, and no defensive theory has been placed in issue. See Trisler, 605 S.W.2d at 620; Ex Parte Moore, 318 S.W.2d 667 (Tex.Crim.App.1958).

Consequently, we presume Judge Chapman heard the evidence and that the evidence was sufficient. Accordingly, we affirm.

Affirmed.

AKIN, STOREY, SHUMPERT, ROWE, GUILLOT and STEWART, JJ., join in the majority. GUITTARD, C.J., concurs in the result of the majority. WHITHAM, CARVER, STEPHENS, VANCE and ALLEN, JJ., dissenting.

1 . This court, sitting en banc, granted the State’s motion to supplement the record with an Order of Referral. This order, signed by the trial judge and entered in the court’s minutes, purports to act as a blanket referral order required by TEX.REV.CIV.STAT.ANN. art. 1918c § 4(c) (Vernon Supp.1984). Because of our holding regarding the verity of the judgment, we decline to consider the validity of the "referral."

2 . Inexplicably, the dissent has quoted long passages relating to the magistrate's hearing, which demonstrates only that a hearing occurred—a fact conceded by this majority.

3 . Appellant mistakenly cites TEX.CODE CRIM. PROC. art. 51.13 § 23(3) (Vernon 1979), to support this ground of error. Section 23 prescribes the documents to be forwarded when Texas is the demanding state.