PD-0936-15 PD-0936-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/13/2015 4:20:01 PM Accepted 8/14/2015 9:59:28 AM ABEL ACOSTA CLERK NO. 04-15-00093-CR
IN THE COURT OF APPEALS OF THE STATE OF TEXAS FOURTEENTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS ____________________________________ EX PARTE: GREG SAUL ____________________________________
FOURTH COURT OF APPEALS DISTRICT, SAN ANTONIO, TEXAS CAUSE NUMBER 04-15-00093-CR ____________________________________ MOTION TO STAY MANDATE PURSUANT TO RULE 31.4 (1), TEXAS RULES OF APPELLATE PROCEDURE _____________________________________ Edward F. Shaughnessy, III Attorney-at-Law 206 E. Locust San Antonio, Texas 78212 (210) 212-6700 (210) 212-2178 (fax) SBN 18134500 Shaughnessy727@gmail.com
August 14, 2015
No. 04-15-00093-CR
§ IN THE COURT OF
EX PARTE: § APPEALS, FOURTH
GREG SAUL, § COURT OF APPEALS
Appellant § SAN ANTONIO, TEXAS
APPELLANT’S MOTION TO STAY MANDATE PURSUANT TO RULE 31.4 (1), TEXAS RULES OF APPELLATE PROCEDURE
TO THE HONORABLE FOURTH COURT OF APPELAS:
Now comes, Greg Saul, appellant in the instant case, by and through the
undersigned Edward F. Shaughnessy, III, attorney at law, and files this the
Appellant’s Motion to Stay Mandate Pursuant to Rule 31.4 (1), Texas Rules of
Appellate Procedure. In filing the instant motion the appellant is seeking to have
this Court stay the execution of the mandate in the instant matter and forward
the attached Appellant’s Petition for Discretionary Review to the Court of
Criminal Appeals in Austin, Texas. In support of the instant motion to stay the
appellant would show unto the court the following:
A
The instant case involves the appeal of a trial Court’s order granting the
extradition of the appellant to the State of Oklahoma. B
On July 1, 2015, this Court entered an opinion affirming the judgment of
the 218th District Court of Wilson County, Texas thereby sanctioning the
appellant’s extradition to the State of Oklahoma.
C
The appellant is seeking to have the holding of this Court reviewed by the
Court of Criminal Appeals by means of a Petition For Discretionary Review. In
order to perfect that filing, the Rules of Appellate Procedure mandate that the
appellant petition this Court for a stay of the mandate, with the Petition For
Discretionary Review attached thereto as an appendix. The appellant’s Petition
For Discretionary Review has been compiled and is attached to the instant
motion as an appendix. CONCLUSION AND PRAYER
Wherefore premises considered the appellant would respectfully request
that this Court stay the mandate in the instant cause and forward the Appellant’s
Petition For Discretionary Review to the Clerk of the Court of Criminal Appeals
for disposition thereof.
Respectfully submitted,
_________/s/____________ Edward F. Shaughnessy, III Attorney at Law 206 E. Locust San Antonio, Texas 78212 (210) 212-6700 SBN 18134500 Shaughnessy727@gmail.com
CERTIFICATE OF SERVICE
I, Edward F. Shaughnessy, III, hereby certify that a true and correct copy
of the instant pleading was served upon Marc Ledet, Assistant District Attorney
for the 218th Judicial District, attorney for the appellee, by use of the U.S. Mail on
this the 15th day of July, 2015.
________/s/_____________ Edward F. Shaughnessy, III APPENDIX NO. PD-_____________
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS AUSTIN, TEXAS ____________________________________ EX PARTE: GREG SAUL ____________________________________ PETITION FOR DISCRETIONARY REVIEW FROM THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT, SAN ANTONIO, TEXAS CAUSE NUMBER 04-15-00093-CR ____________________________________ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _____________________________________
EDWARD F. SHAUGHNESSY III Attorney-at-Law 206 E. Locust San Antonio, Texas 78212 (210) 212-6700 (210) 212-2178 (fax) SBN 18134500 Shaughnessy727@gmail.com
Attorney for the Appellant
TABLE OF CONTENTS
PAGE(S)
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW…………………………………...iii
TABLE OF AUTHORITIES…………………………………………………………………………………....iv
STATEMENT REGARDING ORAL ARGUMENT…………………………………………………......v
TABLE OF INTERESTED PARTIES………………………………………………………………………..vi
AUTHORITIES IN SUPPORT OF APPELLANT’S PETITION FOR DICRETIONARY REVIEW…………………………………………………………………………......6
NATURE OF THE CASE……………………………………………………………………………………......6
PROCEDURAL HISTORY OF THE CASE…………………………………………………....…………..7
REASON FOR REVIEW………………………………………………………………....…………..……......8
GROUND FOR REVIEW………………………………………………………....…………………………….9
ARGUMENT AND AUTHORITIES IN SUPPORT OF THE GROUND FOR REVIEW…………………………...............…………………………………..11
CONCLUSION AND PRAYER…………………………………………………………………………….....14
CERTIFICATE OF SERVICE………………………………………………………………………………....15
APPENDIX …………………………………………………………………………………………………....……16
ii
NO. PD-____________________
§ IN THE COURT OF § EX PARTE: GREG SAUL, § CRIMINAL APPEALS Appellant § § AUSTIN, TEXAS
______________________ PETITION FOR DISCRETIONARY REVIEW OF CAUSE NUMBER 04-15-00093-CR IN THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS DISTRICT OF TEXAS SAN ANTONIO, TEXAS _________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
Now comes, Edward F. Shaughnessy, III, Attorney-at-Law, on behalf of the appellant, Greg Saul, and prays that a Petition for Discretionary Review be granted to the appellant in the above styled and numbered cause. The arguments in support of that request are provided hereinafter and are incorporated by reference.
EDWARD F. SHAUGHNESSY III Attorney-at-Law 206 E. Locust San Antonio, Texas 78212 (210) 212-6700 (210) 212-2178 (fax) SBN 18134500 Shaughnessy727@gmail.com Attorney for the Appellant
iii
TABLE OF AUTHORITIES
STATE CASES
Ex Parte Meador, 597 S.W.2d 372 (Tex. Crim. App. 1974)……………………………………..…11
Ex Parte Parker, 515 S.W.2d 926 (Tex. Crim. App. 1974)………………………………….………11
Ex Parte Shoels, 643 S.W.2d 761 (Tex. App.-San Antonio, 1982)…………………….…………11
Hobbs v. State, 801 S.W.2d 198 (Tex. App.-Houston [14th Dist.], 1990)……………………..11
RULES
Rule 66.3 (c), Tex. Rule App. Proc…..………………………………………………………………………8
iv
STATEMENT REGARDING ORAL ARGUMENT
Counsel for the appellant would submit that in the event that this petition is
granted, oral argument would be warranted inasmuch as the issue to be resolved by this
Court is novel and worthy of oral argument on the issue presented.
v
TABLE OF INTERESTED PARTIES
Hon. Russell Wilson…………………………………………………Trial Court Judge 218th District Court Floresville Texas
Stephen C. Barrera……………………………………………………Applicant’s Trial Counsel Attorney at Law 1433 3rd Street Floresville, Texas, 78114
Audrey Louis……………………………………………………………..State’s Trial Counsel District Attorney’s Office 1327 3rd Street Floresville, Texas 78114
Marc Ledet…………………………………………………………………Appellee’s Counsel District Attorney’s Office 1327 3rd Street Floresville, Texas 78114
Edward F. Shaughnessy, III…………………………………………..Appellant’s Counsel Attorney at Law 206 E. Locust San Antonio, Texas 78212
vi
EX PARTE: GREG SAUL, § IN THE COURT OF
Appellant § CRIMINAL APPEALS
§ AUSTIN, TEXAS
ARGUMENTS AND AUTHORITIES IN SUPPORT OF THE APPELLANT’S PETITION FOR DISCRETIONARYREVIEW OF CAUSE NUMBER 04-15-00093-CR
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
NOW COMES, Greg Saul, applicant in the trial Court and appellant in the lower
Court, by and through, Edward F. Shaughnessy, III, attorney at law, and offers the
following arguments and authorities in support of his request that this Court grant his
request for a Petition for Discretionary Review in the instant case.
NATURE OF THE CASE
The appellant, Greg Saul, was arrested by law enforcement authorities pursuant
to a warrant, arising out of the State of Oklahoma. Saul subsequently filed a Writ of
Habeas Corpus to contest the validity of the warrant from the State of Oklahoma in
Cause No. 15-01-002-HCW. On February 13, 2015 the 81st/218th District Court
conducted an evidentiary hearing pursuant to the Writ of Habeas Corpus filed by Saul.
At the conclusion of the hearing the trial Court denied the relief requested by Saul and
entered a written order authorizing the extradition of the applicant to the State of
Oklahoma. Notice of appeal was subsequently filed in the trial Court and an appeal to
the Court of Appeals for the Fourth Court of Appeals District was pursued. That court
affirmed the order of the trial court in an unpublished memorandum opinion, authored
by Justice Chapa, on July 1, 2015.
PROCEDURAL HISTORY OF THE CASE IN THE LOWER COURT
On July 1, 2015, the San Antonio Court of Appeals, in an unpublished opinion,
authored by Justice Chapa, affirmed the judgment of the trial court in all respects. Ex
Parte Greg Saul (No.04-15-00093-CR, Tex. App.-San Antonio, July 1, 2015) (Appendix
A) The instant petition has been filed in the Fourth Court of Appeals along with a
request for a stay of mandate pursuant to Rule 31.4(a), Tex. R. App. Proc. At the time
this document is being compiled, the appellant’s request for a stay of the mandate has
yet to be presented to the Fourth Court of Appeals; hence there has been no ruling by
that Court on that request. The appellant would submit that there exists one ground for
review that warrants review by this Court. It is urged by the appellant that there exist, at
a minimum, two distinct reasons for reviewing the action of the Court of Appeals for the
Fourth Court of Appeals District.
REASON FOR REVIEW
The appellant respectfully petitions this Honorable Court to grant this Petition
for Discretionary Review pursuant to Rule 66.3 (c), Tex. R. App. Proc. which states that
one of the non-exclusive reasons for this Court to grant a petition for discretionary
review is that the Court of Appeals has decided an important question of state law in a
way that conflicts with the applicable decisions of the Court of Criminal Appeals. The
appellant would respectfully submit that the opinion of the Fourth Court of Appeals is in
conflict with the applicable decisions of this Court.
GROUND FOR REVIEW
THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVIDENCE PRESENTED AT THE HEARING ON THE APPELLANT’S WRIT OF HABEAS CORPUS WAS SUFFICIENT TO DEMONSTRATE THAT THE APPELLANT WAS THE INDIVIDUAL NAMED IN THE GOVERNOR’S WARRANT
APPLICABLE FACTS
As noted previously the appellant filed a writ of habeas corpus challenging the
validity of the request of the demanding State of Oklahoma to extradite him to that
state. Included in that challenge, was a sworn assertion by the appellant that he was not
the person named in the requisition issued by the demanding State of Oklahoma. (C.R.-
6)
In response to the allegation in the appellant’s writ of habeas corpus, which
asserted that he was not the individual named in the Governor’s Warrant, the State of
Texas produced and the trial Court admitted into evidence, State’s Exhibit No. 1. (R.R.2-
8) In addition, the State brought forth the testimony of three witnesses to counter the
appellant’s contention that he was not the individual named in the Governor’s warrant.
Sandra Ruiz testified that she was a latent fingerprint examiner for the San
Antonio Police Department and had, as part of her duties, taken fingerprints of the
applicant on the day of the hearing. Ruiz also was able to relate that she had compared
the applicant’s known fingerprints to a another document contained within the
Governor’s warrant and had concluded that the fingerprints were that of the applicant.
(R.R.2-14, 15) The identifying documents contained within the Governor’s Warrant
consist of photographs taken in the Wilson County jail on the day of his arrest on
December 27, 2014 along with the fingerprints obtained on that same date. The
documents authorities in Cleveland County, Oklahoma indicating that a given individual
has been arrested and is confined in the Wilson County Jail.
Thomas Silva of the Wilson County Sheriff’s Department testified that he had the
occasion to arrest the applicant on the out-of-state warrant at which time the applicant
identified himself as Gregory Saul. (R.R. 2-20)
The State was allowed to reopen after initially resting on the evidentiary portion
of the hearing. Upon re-opening the State re-called Deputy Silva and through his
testimony introduced a video recording of the applicant taken at the time of his arrest at
which time he informed Silva of his name (Gregory Saul Sr.) and date of birth (3/13/47).
(R.R.3-8)
The final testimony on the issue of identity came through the testimony of Israel
Briones a fingerprint expert with the Special Prosecution Unit. (R.R.3-8) According to
Briones, the fingerprints of the applicant were found on a document forwarded from the
demanding State of Oklahoma. That document purported to contain certain identifiers
regarding the applicant. (R.R.3-14, 15)
Following the close of the testimony the trial Court entered a written order in
which he denied the appellant the relief requested in the writ of habeas corpus and
ordered that he be returned to the demanding state of Oklahoma. (C.R.-14)
An appeal was pursued, in a timely fashion, to the Fourth Court of Appeals in
which a single point of error was raised by the applicant/appellant. The point of error
being that the State of Texas had failed to demonstrate that the applicant was the
individual named in the Governor’s Warrant.
The opinion of the court below rejected the argument presented by the
applicant/appellant regarding the sufficiency of the evidence on the issue of the identity
of the individual named in the Governor’s warrant. The Court reasoned as follows:
The State’s undisputed evidence was sufficient to establish that the photograph and fingerprints in Exhibit 6 belong to the person who is the subject of demand for extradition and the Governor’s warrant. The State further established that the fingerprints in Exhibit 6 are those of appellant. That, together with the evidence that the appellant identified himself as being Gregory Allan Saul Sr. and having the same birth date as the person named in the named in the warrant, is sufficient to support the trial court’s finding that the ppellant is the individual sought by the State of Oklahoma. Accordingly, the trial court did not err in denying habeas relief, and we affirm the trial court’s order. Ex Parte Saul, slip op. pg. 3 (Appendix)
ARGUMENT AND AUTHORITIES IN SUPPORT OF THE GROUND FOR REVIEW
This Court has consistently held that, in a extradition matter, such as the case at
hand, that if the applicant “places his identity in issue” through a sworn denial in a writ
of habeas corpus, that he is the individual named in the Governor’s warrant, then the
burden shifts to the State to bring forth sufficient proof that the applicant is the identical
person named in the Governor’s warrant. Ex Parte Meador, 597 S.W.2d 372 (Tex. Crim.
App. 1974); Ex Parte Parker, 515 S.W.2d 926 (Tex. Crim. App. 1974). This rule of law
has been consistently adhered to by the intermediate appellate courts of this State. See
generally: Hobbs v. State, 801 S.W.2d 198 (Tex. App.-Houston [14th Dist.], 1990); Ex
Parte Shoels, 643 S.W.2d 761 (Tex. App.-San Antonio, 1982).
The applicant in the instant matter properly placed his identity in issue as noted
by the trial Court and the Court below. Hence, the State carried the burden of proving,
to the satisfaction of the trial Court, that the applicant was the identical person named
in the Governor’s warrant. The court below held that the State met their burden on the
issue. The appellant would submit that the conclusion of the lower Court is erroneous
and in conflict with the above-cited holdings of this Court.
In reaching its conclusion the Court below relied on the State’s production of
State’s exhibit number six, which was admitted into evidence at the hearing on the
applicant’s writ of habeas corpus after the State was allowed to re-open their case. That
exhibit, and the testimony of Investigator Briones regarding the exhibit, does not tend to
establish that the applicant is the identical person named in the Governor’s Warrant.
There is nothing contained in that exhibit that refers to the Governor’s Warrant. It does
not reference the Governor’s Warrant in any fashion. It merely demonstrates that
Gregory Alan Saul, Sr. was at one point arrested, apparently on February 2, 2012. There
is no indication that that arrest references the charges which led to the issuance of the
Governor’s Warrant.
With respect to the purported link between the applicant and the Governor’s
Warrant provided by the statement of the applicant at the time of his arrest, it is crucial
to note that the applicant admitted to being an individual named Gregory Saul Sr. with a
date of birth of March 13, 1947. He did not admit to being the individual being sought
by the demanding State of Oklahoma, or being the individual named in an as of yet not
created Governor’s Warrant.
The remainder of the proof brought forth by the State consisted of nothing more
than authorities in the asylum State (Wilson County Sheriff’s Department) notifying the
authorities in the demanding State (Cleveland County District Attorney’s Office) that
they had in their custody someone they believed to be wanted in the demanding State
and the demanding State’s subsequent confirmation of that belief. That fails to
demonstrate as is required by this Court’s holdings, that the applicant was the identical
person named in the Governor’s Warrant.
Consequently, the holding of the Court below is in conflict with the applicable
holdings of this Court and review should be granted.
CONCLUSION AND PRAYER
It is respectfully requested, by the appellant, that a petition for discretionary
review to the Fourth Court of Appeals be granted and that the case be briefed on the
merits of the appellant’s ground for review with argument to follow.
________/s/_________ EDWARD F. SHAUGHNESSY, III Attorney at Law 206 E. Locust San Antonio, Texas 78212 (210) 212-6700 (210) 212-2178 (fax) SBN 18134500 Shaughnessy727@gmail.com
I, Edward F. Shaughnessy, III., certify that a copy of the foregoing petition was
mailed to Rene Pena, District Attorney, 81st/218th Judicial District, 1327 3rd Street
Floresville, Texas 78026, on this the _15__ day of July, 2015.
__________/s/_____________
Edward F. Shaughnessy, III
I, Edward F. Shaughnessy, III certify that a copy of the foregoing petition was
mailed to Lisa McMinn, State Prosecuting Attorney, P.O. Box 78711, Austin, Texas
78711, on this the _15__ day of July, 2015.
_________/s/_____________
Edward F. Shaughnessy, III.
CERTIFICATE OF COMPLIANCE
I, Edward F. Shaughnessy, III certify that the instant pleading consists of 2291
words, excluding the contents of the appendix.
APPENDIX A
Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-15-00093-CR
EX PARTE Greg SAUL
From the 218th Judicial District Court, Wilson County, Texas Trial Court No. 15-01-002-HCW Honorable Russell Wilson, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice
Delivered and Filed: July 1, 2015
AFFIRMED
Greg Saul appeals the trial court’s order denying relief in Saul’s application for a writ of
habeas corpus challenging extradition. Saul’s sole issue is that the evidence is insufficient to show
that he is the individual named in the governor’s warrant and the extradition request received from
the State of Oklahoma.
An applicant for habeas corpus may assert he is not the person named in the request for
extradition. Wright v. State, 717 S.W.2d 485, 487 (Tex. App.—San Antonio 1986, no pet.). Once
identity is in issue, the burden shifts to the demanding state to prove the correct individual is being
held for extradition. Ex parte Smith, 36 S.W.3d 927, 928 (Tex. App.—San Antonio 2001, no pet.).
Identity need not be shown beyond a reasonable doubt in a habeas proceeding. Ex parte Martinez,
530 S.W.2d 578, 580-82 (Tex. Crim. App. 1975). 04-15-00093-CR
The trial court held a hearing on Saul’s application, in which he alleged he was “not the
person named in the request for extradition.” The trial court admitted into evidence State’s Exhibit
1, which included a warrant signed by Governor Greg Abbott reciting that Oklahoma had requested
the State of Texas arrest “Gregory Alan Saul, Sr.,” and deliver him to Oklahoma authorities and
the request for extradition from the Governor of Oklahoma. The supporting documents in State’s
Exhibit 1 reflect that in February 2012, the District Attorney of Cleveland County, Oklahoma
charged Gregory Alan Saul Sr. with three counts of first degree rape, two counts of second degree
rape, two counts of forcible oral sodomy, willful solicitation of a minor to participate/distribute
child pornography, and engaging in a pattern of criminal offenses. The documents state that
Gregory Alan Saul Sr., whose date of birth is March 13, 1947, was arrested on February 20, 2012,
in Cleveland County, and bond was set. State’s Exhibit 1 contains an amended information, filed
in Cleveland County in 2013, which added additional charges against Saul, and the affidavit of the
Cleveland County District Attorney, which states Saul fled the jurisdiction.
State’s Exhibit 1 also included a photograph and fingerprints of Gregory Alan Saul Sr.
However, these documents were created in Wilson County, Texas, in December 2014, when Saul
was arrested and refused to waive extradition. State’s Exhibit 1 did not include any photograph or
fingerprints created in Oklahoma. At the close of the evidence, Saul argued the evidence was
insufficient to support a finding that appellant was the individual who had been charged in
Oklahoma. The court recessed the proceedings without making a ruling.
The following day, the trial court granted the State’s motion to reopen the evidence. The
State introduced an audio recording of appellant’s December 2014 arrest in Texas. On the
recording, appellant states his full name is Gregory Alan Saul Sr. and that his date of birth is March
13, 1947. The State also introduced, without objection, State’s Exhibit 6, a packet of documents
from the Oklahoma State Bureau of Investigation, Identification Division. The packet contains -2- 04-15-00093-CR
information, fingerprints, and a photograph received by that office on February 24, 2012, from the
District Attorney of Cleveland County, Oklahoma. The fingerprint card is a form of the Oklahoma
State Bureau of Investigation, is dated February 24, 2012, contains the name “Gregory Alan Saul,
Sr.” and a date of birth of March 13, 1947, and lists the charges against Saul as: three counts of
first degree rape, two counts of second degree rape, two counts of forcible sodomy, solicitation of
a minor for indecent exposure/obscene material, and engaging in a pattern of criminal offenses.
Israel Brionez, Jr., a fingerprint expert, testified for the State. Brionez testified that he
obtained fingerprints from appellant earlier that day. Those prints were admitted as State’s Exhibit
7. Brionez testified he compared the fingerprints in Exhibit 7 that he took from appellant with
those taken from Gregory Alan Saul Sr. in Oklahoma in February 2012 and found on Exhibit 6.
Brionez testified that the fingerprints on the two exhibits belong to the same individual.
The State’s undisputed evidence was sufficient to establish that the photograph and
fingerprints in Exhibit 6 belong to the person who is the subject of demand for extradition and the
Governor’s warrant. The State further established that the fingerprints in Exhibit 6 are those of
appellant. That, together with the evidence that appellant identified himself as being Gregory Alan
Saul Sr. and having the same birth date as the person named in the warrant, is sufficient to support
the trial court’s finding that appellant is the individual sought by the State of Oklahoma.
Accordingly, the trial court did not err in denying habeas relief, and we affirm the trial court’s
order.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
-3-