TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00804-CR
Kenneth Wilkie aka James Hartley, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. D-1-DC-15-100198, HONORABLE DAVID CRAIN, JUDGE PRESIDING
MEMORANDUM OPINION
Kenneth Wilkie aka James Hartley appeals the denial of relief on his pro se
application for writ of habeas corpus challenging a governor’s extradition warrant. Appellant
contends that the trial court erred in denying him relief because the warrant’s supporting
documentation was not authenticated, he was not the person named therein, and the trial court
denied him his right to counsel. We will affirm the district court’s denial of habeas corpus relief.
BACKGROUND
After appellant was arrested in Texas on an out-of-state warrant for the felony offense
of criminal possession of stolen property, he was appointed counsel and refused to waive extradition.
Subsequently, the Texas governor issued a governor’s warrant ordering extradition of appellant to
the state of New York. See Tex. Code Crim. Proc. art. 51.13, § 7 (if governor decides that extradition
demand made by executive authority of another state should be complied with, he shall sign warrant of arrest). After his appointed counsel found no non-frivolous grounds to file a writ of habeas
corpus, appellant filed simultaneously a pro se writ of habeas corpus and a motion to dismiss his
appointed counsel, in which he requested that the court appoint him new counsel.1 A magistrate held
a hearing on the writ application, during which the court provided an attorney to sit with appellant
and answer any questions he might have. Appellant did not ask for another attorney, did not confer
with the attorney provided to him, and did not present any evidence or testify at the hearing. Instead,
he argued at the hearing that the extradition documents were not in order for various reasons, that
he was being extradited in retaliation for a lawsuit that he had previously filed against a sheriff’s
department in New York, and that he had a “temporary restraining order pending” against the sheriff’s
department into whose custody he would be released. After the hearing, the magistrate filed written
findings recommending denying relief because the governor’s warrant was “regular on its face”
and that appellant had presented no evidence showing otherwise. The district court adopted the
magistrate’s findings, conclusions, and recommendations and denied appellant’s requested relief.
DISCUSSION
Denial of writ of habeas corpus
We will review the trial court’s ruling on appellant’s application for writ of habeas
corpus for abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). It is
1 Appellant’s prior counsel filed an “Ex Post Facto Motion to Withdraw” shortly after the trial court rendered its final order denying appellant relief. In this motion, appellant’s prior counsel asserted that, in open court and in the presence of appellant, (1) he had advised the court that, in his professional opinion, there were no valid grounds upon which to assert a challenge to the governor’s warrant; (2) appellant then advised the court that he wished to pursue his own remedies pro se; and (3) he orally requested to be relieved of his duties of representation of appellant, which the trial court granted.
2 well established that if a governor’s warrant is introduced and is “regular on its face,” the State has
made a prima facie case for extradition, and the burden then shifts to the defendant to prove that the
warrant was not legally issued or was issued on improper authority or that the recitals in it are
inaccurate. Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980) (op. on reh’g).
We conclude that the trial court properly found that the governor’s warrant was
regular on its face because it recited that appellant was charged with the offense of criminal
possession of stolen property in the third degree as shown by representations and demand by the
governor of New York and by copies of (1) a complaint made before a magistrate and (2) a warrant
for appellant’s arrest, both certified by the governor of New York to be authentic. See Ex parte
Henson, 408 S.W.2d 233, 233 (Tex. Crim. App. 1966); see also Tex. Code Crim. Proc. art. 51.13,
§ 3 (setting out requirements of governor’s recognition of another state’s demand for extradition
under Uniform Criminal Extradition Act). The burden therefore shifted to appellant to prove that
the governor’s warrant was invalid or that the recitals therein were inaccurate. See Ex parte Cain,
592 S.W.2d at 362; see Ex parte Holden, 719 S.W.2d 678, 679 (Tex. App.—Dallas 1986, no writ)
(granting relief because defendant met burden by presenting uncontroverted testimony at extradition
hearing establishing that she was not in demanding state at time alleged offense was committed).
Appellant raises several issues contesting the authenticity of the documents
supporting the New York governor’s extradition request.2 However, Texas courts have consistently
held that the demanding governor’s certification of authenticity of the supporting documents is
2 For instance, appellant contends that (1) the New York “certificate of exemplification” has no court seal or signature of a judge or clerk and (2) the New York complaint and warrant issued thereupon are both “amended” and do not provide facts sufficient to support an arrest warrant.
3 all that is necessary to support the extradition paperwork’s being “in order.” See Ex parte Gomez,
855 S.W.2d 42, 43 (Tex. App.—Corpus Christi 1993, pet. ref’d, untimely filed) (citing Ex parte
Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977)). Appellant also challenges whether there
was probable cause for the New York charge against him and contends that the charge was filed in
retaliation for a lawsuit that he filed. However, those issues may not be raised in an extradition
proceeding. See Ex parte Cain, 592 S.W.2d at 362 (citing Michigan v. Doran, 439 U.S. 282, 286–90
(1978) (holding that asylum state must accept probable-cause determination made by demanding
state)). We accordingly overrule appellant’s issues relating to the propriety or legality of the extradition
request from the governor of New York.
Appellant also raises two issues contesting that he is the same person as that
identified in the New York governor’s extradition request. However, the extradition paperwork
names “Kenneth James Wilkie” (along with several aliases) as the person at issue, and appellant
signed his pro se writ application with that name and identified himself at the writ hearing with
that name. Therefore, it is a readily identifiable historical fact that appellant is the person named
in the request for extradition and governor’s warrant. While on appeal appellant seems to contend
that he has a different date of birth than the individual identified in some of the paperwork
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00804-CR
Kenneth Wilkie aka James Hartley, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. D-1-DC-15-100198, HONORABLE DAVID CRAIN, JUDGE PRESIDING
MEMORANDUM OPINION
Kenneth Wilkie aka James Hartley appeals the denial of relief on his pro se
application for writ of habeas corpus challenging a governor’s extradition warrant. Appellant
contends that the trial court erred in denying him relief because the warrant’s supporting
documentation was not authenticated, he was not the person named therein, and the trial court
denied him his right to counsel. We will affirm the district court’s denial of habeas corpus relief.
BACKGROUND
After appellant was arrested in Texas on an out-of-state warrant for the felony offense
of criminal possession of stolen property, he was appointed counsel and refused to waive extradition.
Subsequently, the Texas governor issued a governor’s warrant ordering extradition of appellant to
the state of New York. See Tex. Code Crim. Proc. art. 51.13, § 7 (if governor decides that extradition
demand made by executive authority of another state should be complied with, he shall sign warrant of arrest). After his appointed counsel found no non-frivolous grounds to file a writ of habeas
corpus, appellant filed simultaneously a pro se writ of habeas corpus and a motion to dismiss his
appointed counsel, in which he requested that the court appoint him new counsel.1 A magistrate held
a hearing on the writ application, during which the court provided an attorney to sit with appellant
and answer any questions he might have. Appellant did not ask for another attorney, did not confer
with the attorney provided to him, and did not present any evidence or testify at the hearing. Instead,
he argued at the hearing that the extradition documents were not in order for various reasons, that
he was being extradited in retaliation for a lawsuit that he had previously filed against a sheriff’s
department in New York, and that he had a “temporary restraining order pending” against the sheriff’s
department into whose custody he would be released. After the hearing, the magistrate filed written
findings recommending denying relief because the governor’s warrant was “regular on its face”
and that appellant had presented no evidence showing otherwise. The district court adopted the
magistrate’s findings, conclusions, and recommendations and denied appellant’s requested relief.
DISCUSSION
Denial of writ of habeas corpus
We will review the trial court’s ruling on appellant’s application for writ of habeas
corpus for abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). It is
1 Appellant’s prior counsel filed an “Ex Post Facto Motion to Withdraw” shortly after the trial court rendered its final order denying appellant relief. In this motion, appellant’s prior counsel asserted that, in open court and in the presence of appellant, (1) he had advised the court that, in his professional opinion, there were no valid grounds upon which to assert a challenge to the governor’s warrant; (2) appellant then advised the court that he wished to pursue his own remedies pro se; and (3) he orally requested to be relieved of his duties of representation of appellant, which the trial court granted.
2 well established that if a governor’s warrant is introduced and is “regular on its face,” the State has
made a prima facie case for extradition, and the burden then shifts to the defendant to prove that the
warrant was not legally issued or was issued on improper authority or that the recitals in it are
inaccurate. Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980) (op. on reh’g).
We conclude that the trial court properly found that the governor’s warrant was
regular on its face because it recited that appellant was charged with the offense of criminal
possession of stolen property in the third degree as shown by representations and demand by the
governor of New York and by copies of (1) a complaint made before a magistrate and (2) a warrant
for appellant’s arrest, both certified by the governor of New York to be authentic. See Ex parte
Henson, 408 S.W.2d 233, 233 (Tex. Crim. App. 1966); see also Tex. Code Crim. Proc. art. 51.13,
§ 3 (setting out requirements of governor’s recognition of another state’s demand for extradition
under Uniform Criminal Extradition Act). The burden therefore shifted to appellant to prove that
the governor’s warrant was invalid or that the recitals therein were inaccurate. See Ex parte Cain,
592 S.W.2d at 362; see Ex parte Holden, 719 S.W.2d 678, 679 (Tex. App.—Dallas 1986, no writ)
(granting relief because defendant met burden by presenting uncontroverted testimony at extradition
hearing establishing that she was not in demanding state at time alleged offense was committed).
Appellant raises several issues contesting the authenticity of the documents
supporting the New York governor’s extradition request.2 However, Texas courts have consistently
held that the demanding governor’s certification of authenticity of the supporting documents is
2 For instance, appellant contends that (1) the New York “certificate of exemplification” has no court seal or signature of a judge or clerk and (2) the New York complaint and warrant issued thereupon are both “amended” and do not provide facts sufficient to support an arrest warrant.
3 all that is necessary to support the extradition paperwork’s being “in order.” See Ex parte Gomez,
855 S.W.2d 42, 43 (Tex. App.—Corpus Christi 1993, pet. ref’d, untimely filed) (citing Ex parte
Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977)). Appellant also challenges whether there
was probable cause for the New York charge against him and contends that the charge was filed in
retaliation for a lawsuit that he filed. However, those issues may not be raised in an extradition
proceeding. See Ex parte Cain, 592 S.W.2d at 362 (citing Michigan v. Doran, 439 U.S. 282, 286–90
(1978) (holding that asylum state must accept probable-cause determination made by demanding
state)). We accordingly overrule appellant’s issues relating to the propriety or legality of the extradition
request from the governor of New York.
Appellant also raises two issues contesting that he is the same person as that
identified in the New York governor’s extradition request. However, the extradition paperwork
names “Kenneth James Wilkie” (along with several aliases) as the person at issue, and appellant
signed his pro se writ application with that name and identified himself at the writ hearing with
that name. Therefore, it is a readily identifiable historical fact that appellant is the person named
in the request for extradition and governor’s warrant. While on appeal appellant seems to contend
that he has a different date of birth than the individual identified in some of the paperwork
supporting the extradition request, he never placed his identity at issue by denying under oath that
he is the person named in the extradition documents or presenting any other form of evidence
supporting that contention, and therefore the burden never shifted to the State to prove that he was
indeed identical to the person being sought by the demanding state, and the trial court did not err in
denying habeas corpus relief on this ground. See Hanks v. State, 113 S.W.3d 523, 525 (Tex.
4 App.—Houston [1st Dist.] 2003, no pet.) (to place identity at issue, accused must deny under oath
that he is person named in warrant); Ex parte Hearing, 125 S.W.3d 778, 782 (Tex. App.—Texarkana
2004, no pet.) (same).3
Without any evidence or authority supporting his arguments, appellant did not
meet his burden to rebut the validity of the governor’s warrant. The trial court properly denied his
application for writ of habeas corpus, and we overrule his issues relating to the denial of his writ of
habeas corpus on its merits.
Appellant’s right to counsel
Appellant also contends that he was denied the right to be appointed new counsel
after the court granted his motion to dismiss his court-appointed counsel following that counsel’s
determination that there were no merits to a writ of habeas corpus. He also contends that he
should have been appointed appellate counsel upon his request. While it is true that an indigent
defendant is entitled to court-appointed counsel to represent him in a habeas corpus proceeding
brought under the Texas Uniform Criminal Extradition Act, see Tex. Code Crim. Proc. art. 51.13,
§ 10(a); Ex parte Turner, 410 S.W.2d 639, 641 (Tex. Crim. App. 1967), there is no requirement
that a defendant be appointed new counsel when his court-appointed counsel is dismissed after
determining that his client’s desired course of action has no merits or that a defendant be appointed
appellate counsel under these circumstances. Cf. Tex. Code Crim. Proc. art. 1.051(d)(3) (indigent
3 Even if appellant had raised the issue of identity, the extradition paperwork in the record included a photograph of the person charged in New York, permitting verification of the fact that Wilkie is the exact person New York is seeking to extradite.
5 defendant is entitled to appointed attorney to represent him in appeal of habeas corpus proceeding
if trial court concludes that interests of justice require representation). Appellant was afforded his
statutory right to counsel, and the trial court did not err in refusing to appoint him new counsel after
his prior counsel determined that there were no non-frivolous grounds for contesting the governor’s
warrant.4 We overrule appellant’s issues concerning his right to counsel.5
CONCLUSION
We affirm the district court’s denial of habeas corpus relief.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Bourland
Affirmed
Filed: July 26, 2016
Do Not Publish
4 As noted in the background section, while the trial court did not “appoint” new counsel for appellant, it did make an attorney available to him for consultation during the writ hearing, but appellant did not avail himself of the assistance of this attorney. 5 We also overrule appellant’s related issue contending that he was rendered ineffective assistance of counsel because his counsel “refused to file” a writ of habeas corpus and “did not show up to 3 court dates.” Because we have determined that the governor’s warrant was regular on its face and appellant presented no evidence to rebut the State’s prima facie case, these omissions by appellant’s counsel did not constitute ineffective assistance of counsel or harm appellant as a matter of law. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (en banc) (to prove ineffective assistance of counsel, defendant must show that there is reasonable probability that, but for counsel’s unprofessional errors, result of proceeding would have been different).