McPherson v. State

752 S.W.2d 178, 1988 WL 72050

• Court: Court of Appeals of Texas
• Decided: August 3, 1988
• Docket: 04-87-00553-CR
• Status: Published

Opinions

BUTTS, Justice.

This is an attempted appeal from an order remanding petitioner to custody for extradition to the State of Colorado. It is not based on denial of habeas corpus relief. We are immediately confronted with a jurisdiction question.

Petitioner was arrested before the Governor’s warrant was issued. According to the record at a later hearing, he appeared before the then presiding judge and he also earlier filed two applications for habeas corpus, which were dismissed as moot at his request. The record further shows that after the warrant was issued petitioner appeared before a different judge.

Petitioner appeared in 175th District Court on July 10, 1987. At that time he complained through his counsel that the provisions of section 10 of the Uniform Criminal Extradition Act, TEX.CODE CRIM.PROC.ANN. art. 51.13 (Vernon 1979) had not been met:

No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has a right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habe-as corpus. When such writ is applied for notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding State.

The judge then set a hearing for July 17, 1987, based on petitioner’s statement that he was “not ready.”

Specifically, petitioner says that a Texas judge of a court of record did not inform him of the demand made for his surrender and of the crime with which he is charged as prescribed by section 10. However, petitioner did have counsel before and during his appearances in court. Further, there is no assertion that he did not receive copies (“a complete set”) of the demanding instruments as required by section 3 of the Uniform Criminal Extradition Act, TEX.CODE CRIM.PROC.ANN. art. 51.13 (Vernon 1979).

The purpose of section 10 of the Act is to protect the rights of the arrested person by preventing the arrested person from being delivered over to an agent from the demanding State without first being afforded the opportunity to contest the legality of the arrest while in this State. It is settled that the only method of contesting extradition proceedings is by way of habe-as corpus.

In the instant case the record reflects petitioner had his own counsel; he appeared before the district judge. There is no showing he did not receive a complete set of the extradition instruments nor that he was not taken forthwith before a judge of a court of record. The record shows that the opportunity was given petitioner to test the legality of the arrest by habeas corpus. It is clear that he was not delivered over to the agent from the demanding State without availing him of that opportunity.

On July 17, 1987, a week after the first appearance date in that court, the trial court conducted a hearing although no application for a writ had been made.

The court made findings of fact and issued an order on October 8, 1987, upholding the extradition. The findings and order are not challenged. In Ex parte Hagler, 161 Tex.Cr.R. 387, 278 S.W.2d 143 (1955) it was emphasized that the law guarantees that a citizen shall not be sent to a foreign State for trial until: (1) the Governor of the State shall issue a warrant which orders him delivered to the agent of the demanding State; (2) he is given an opportunity to apply for a writ of habeas corpus, and, (3) he is given an opportunity to appeal from an adverse ruling. Id. 278 S.W.2d at 144-45.

In this case, as in Ex parte Chapman, 601 S.W.2d 380 (Tex.Crim.App.1980), the petitioner has clearly waived his right to proceed to the third step, the right to appeal, by failing to avail himself of the second step “opportunity.” Id. at 383.

This case is similar to Chapman in that the present trial judge also conducted a gratuitous hearing and entered an order. However, like Chapman, this does not place petitioner in the posture of an applicant for habeas corpus whose prayer for relief has been denied for appellate purposes. The determination that the Governor’s warrant should be issued had already been made. Thus, the trial court was not required to make any determination other than by proper motion for writ of habeas corpus challenging legality of arrest under the warrant. Ex parte Chapman, supra at 383. See, Martinez v. State, 688 S.W.2d 201 (Tex.App.—Corpus Christi 1985, no pet.).

In this case there is no application for habeas corpus, although petitioner was given the opportunity to apply for it. We hold this court is without jurisdiction to consider any appellate point in this case since our jurisdiction is limited to consideration of an appeal from denial of habeas corpus relief.

Accordingly, the attempted appeal must be dismissed, and it is so ordered.

CHAPA, J., concurs without opinion.