The opinion
ACCEPTED
03-15-00012-CR
4663071
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/26/2015 4:37:32 PM
JEFFREY D. KYLE
CLERK
No. 03—15—00012—CR
IN THE TEXAS COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
THIRD DISTRICT AUSTIN, TEXAS
AT AUSTIN 3/26/2015 4:37:32 PM
JEFFREY D. KYLE
Clerk
EX PARTE TREVINO DARNELL FOX
Appeal from Cause Number D-1-DC—14—100177
331st Judicial District Court, Austin, Travis County, Texas
Honorable David Crain, Judge Presiding
APPELLANT’S BRIEF
TO THE HONORABLE THIRD COURT OF APPEALS:
Comes now Appellant Trevino Darnell Fox, by and through his appointed
counsel Paul M. Evans, and files this, his Appellant’s Brief, in compliance with
the Texas Rules of Appellate Procedure.
APPELLANT HEREBY REQUESTS ORAL ARGUMENT.
Respectfully submitted,
___/s/ Paul M. Evans_____________
Paul M. Evans
Attorney for Appellant
811 Nueces Street
Austin, Texas 78701
(512) 569-1418
(512) 692-8002 FAX
paulmatthewevans@hotmail.com
SBN 24038885
1
Identities of the Parties and Counsel
Presiding Judge: Honorable David Crain
Honorable Magistrate Leon Grizzard
Appellant: Trevino Darnell Fox
Trial Counsel: Paul M. Evans
811 Nueces Street
Austin, Texas 78701
Alexandra Gauthier
505 W. 12th Street, Ste. 204
Austin, TX 78701
Appellate Counsel: Paul M. Evans
811 Nueces Street
Austin, Texas 78701
Appellee: State of Texas
Trial Counsel: Dayna Blazey
Assistant District Attorney
Travis County District Attorney
P.O. Box 1748
Austin, Texas 78767
Lead Appellate Counsel: Rosemary Lehmberg
District Attorney
c/o Appellate Division
Travis County District Attorney
P.O. Box 1748
Austin, Texas 78767
2
Table of Contents
Identity of Parties and Counsel 2
Table of Contents 3
Index of Authorities 4
Statement of the Case 5
Issue Presented 6
Statement of Facts 6
Summary of Arguments 12
Issue Number One—The trial court abused its discretion by denying 12
Appellant’s application for writ of habeas corpus.
Prayer 15
Certificate of Service 16
Certificate of Compliance 16
3
Index of Authorities
Federal Cases
California v. Superior Court, 482 U.S. 400 (1987)………………………13
Michigan v. Doran, 439 U.S. 282 (1978)……………………………..13-14
New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151 (1998)……………....….13
Texas State Statutes
Government Code § 54.976……………………………………………..…4
Texas Cases
Ex parte Brown, 450 S.W.2d 647 (Tex.Crim.App. 1970)…………….….14
Ex parte Cain, 592 S.W.2d 359 (Tex.Crim.App. 1980)…………..….14-15
Ex parte Chapman, 601 S.W.2d 380 (Tex.Crim.App. 1980)……………14
Ibarra v. State, 961 S.W.2d 415 (Tex.App.—Houston [1st Dist.]
1997, no pet.)…………………………………………………………….14
State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539 (Tex.Crim.
App. 1991)………...…………………………………………………..…13
Kniatt v. State, 206 S.W.3d 657 (Tex.Crim.App. 2006)……………...…14
Ex parte Lancaster, 501 S.W.2d 904 (Tex.Crim.App. 1973)…………...14
Ex parte Lekavich, 145 S.W.3d 699 (Tex.App.—Ft. Worth 2004,
no pet.)………………………………………………………………..…13
Ex parte Sanchez, 642 S.W.2d 809 (Tex.Crim.App. 1982)………....14-15
Washington v. State, 326 S.W.3d 701 (Tex.App.—Houston [1st Dist.]
2010, no pet.)……………………………………………………………14
4
Statement of the Case
On October 21, 2014, Governor Terry E. Branstad of the State of Iowa
submitted to the Governor’s Office of the State of Texas a request for interstate
rendition for Appellant, Trevino Darnell Fox. On October 31, 2014, Governor Rick
Perry issued a Texas Governor’s warrant to extradite Appellant from Texas to
Iowa. The warrant was forwarded to the Sheriff of Travis County, where Appellant
was being held in custody. RR3 SX #1; CR1 7-8, 10.1 Through appointed
counsel,2 Appellant filed a “Petition for Writ of Habeas Corpus—Extradition
Proceedings.” CR1 3-141. On December 17, 2014, the Honorable Leon Grizzard,
District Court Magistrate for Travis County, entertained a hearing on the
application and denied the requested relief. The trial court adopted the findings,
conclusions, and recommendations of the magistrate. RR2 4-11; CR1 142-3; see
Tex. Gov’t. Code § 54.976(a)(4). Appellant filed timely notice of appeal. CR1
144. This appeal follows from the denial of habeas relief.
1
Introduced into evidence as SX #1, the Governor’s Warrant and supporting materials were also
included in the Clerk’s Record, appended to Appellant’s petition for habeas relief as “Exhibit A.”
RR2 5-6; RR3 SX #1; CR1 6-138. In the present Brief, for ease of reference, citations to
specific matters found in the Governor’s Warrant and supporting materials shall refer to the
identical copy found in the Clerk’s Record, which offers the benefit of numeric pagination.
2
Appellant was originally represented by Alexandra Gauthier, who filed the “Petition for Writ of
Habeas Corpus” on Appellant’s behalf. The undersigned counsel was appointed to relieve Ms.
Gauthier of her duties after she subsequently accepted employment as a magistrate in
Williamson County. RR2 4.
5
Issue Presented
Issue Number One—The trial court abused its discretion by denying
Appellant’s application for the writ of habeas corpus: The supporting
documentation provided to the Governor of Texas by the Governor of Iowa
contained an inaccurate recital, namely, that Appellant was in the custody of the
Milwaukee, Wisconsin police department at the time of the demand for requisition.
The Governor’s Warrant was therefore invalid. The trial court abused its discretion
by denying Appellant’s request for relief by way of an application for writ of
habeas corpus.
Statement of Facts
On August 27, 2014, Appellant was arrested on unrelated matters in Travis
County, Texas. A fugitive from justice detainer was filed against Appellant on
September 3, 2014. CR1 3, 140-1. On October 21, 2014, Governor Terry E.
Branstad of the State of Iowa submitted to the Governor’s Office of the State of
Texas a request for interstate rendition for Appellant, who stood charged with
violating the terms of his probation after his conviction for “Possession of
Marijuana with Intent to Deliver, Failure to Affix Drug Tax Stamp, Fa[il]ure to
Appear—Voluntary Absence, [and] Failure to Appear for BEP / Assault D/A
Causing Injury.” CR1 10. In response to Governer Branstad’s requisition demand,
Governor Rick Perry issued a governor’s extradition warrant on October 31, 2014.
The warrant states the following:
TO ALL SHERIFFS AND OTHER PEACE OFFICERS OF
THIS STATE:
WHEREAS it has been represented to me by the Governor of the
State of IOWA that TREVINO DARNELL FOX, fugitive, stands
convicted of the crime of POSSESSION OF MARIJUANA WITH
6
INTENT TO DELIVER, FAILURE TO AFFIX DRUG TAX
STAMP, FAILURE TO APPEAR-VOLUNTARY ABSENCE,
FAILURE TO APPEAR FOR BEP I ASSAULT D/A CAUSING
INJURY committed in said State, and thereafter violated the terms
of his probation, fled from the justice of that State, and has taken
refuge in the State of Texas, and the said Governor of IOWA having,
in pursuance of the Constitution and laws of the United States and of
the State of Texas, demanded of me that I shall cause the said fugitive
to be arrested and delivered to SHERIFF TONY THOMPSON OR
A DESIGNEE OF BLACKHAWK COUNTY, hereby authorized to
receive into custody and convey the fugitive back to said State; and
WHEREAS the said representation and demand is accompanied by a
copy of the INFORMATION, AFFIDAVIT, AND WARRANT
certified by the Governor of said State to be authentic, whereby the
said fugitive is convicted of said crime;
THEREFORE, I, Rick Perry, Governor of Texas, by this warrant
command you to arrest and secure the said fugitive, wherever he may
be found within this State, and to deliver said fugitive into the custody
of said agent(s), to be taken back to said State from which he fled,
pursuant to the said requisition, there to be dealt with according to
law.
CR1 8 (emphasis in original).
The supporting materials on record include the request for requisition
submitted by the local prosecuting authority to the Governor of Iowa. This request
is accompanied by an affidavit by a probation officer, along with attached
supporting documents incorporated by reference. CR1 12-136. The request
addressed to the Governor of Iowa—sworn to by Kim Griffith, Prosecuting
Attorney—recites the following:
7
Pursuant to the Iowa Code Section 820.23, I hereby request
issuance of a requisition for the extradition of Trevino Darnell Fox
who stands convicted of the crime(s) of:
FECR145468: Ct. I: Possession of Marijuana With Intent
to Deliver, and
Ct. II: Failure to Affix Drug Tax Stamp;
FECR165748: Failure to Appear-Voluntary Absence;
SRCR116395: Failure to Appear for BEP I Assault D/A
Causing Injury
by final judgment and sentence of the First Judicial District, Court of
Black Hawk County, State of lowa, but who since conviction and
release on probation, as more fully appears in the attached
judgment /sentence /order, failed to abide by probation, as appears
from the attached:
Sentencing Order(s), Probation Violation Report; and
Warrant(s) for Arrest; and who is now a fugitive from justice, known
to be in the city of Austin county of Travis, State of Texas. The ends
of justice require that the fugitive be returned to Iowa.
In my opinion, the facts stated in the attached Probation
Violation Report are true and correct and would result in revocation of
probation.
I nominate Sheriff Tony Thompson or Designee to be appointed
agent( s) to bring the fugitive back to Iowa and I certify that these
proposed agent(s) have not private interest in the arrest
and return to Iowa of his fugitive. This application for requisition is
not made to enforce a private claim.
CR1 12. In turn, this sworn request is supported by an affidavit, dated September
30, 2014, which recites the following:
I, Nick McGivern, being duly sworn, state that I am a Probation
/ Parole Officer II in Black Hawk County, Waterloo Iowa. In my
official investigation, I have determined that the approximate
8
circumstances surrounding the commission of the offense charged in
this case are as follows:
Report of Violation of Probation. The Defendant is in the
custody of the Milwaukee County, Milwaukee Wisconsin
Police Department.
The following supporting documents are attached and
incorporated by this reference:
Probation Violation Report, a certified copy of which is
attached.
Warrant for Arrest, a certified copy of which is attached.
Judgment I Sentencing Order, a certified copy of which is
attached.
The following material identifying the Defendant is attached
and incorporated by this reference:
XX Fingerprint card (copy)
XX Photograph
___Physical Description of Defendant
___No Identification Material Available
CR1 13 (emphasis in original).
With regards to the charge of Possession of Marijuana With Intent to
Deliver, the supporting documentation incorporated by reference includes the
following: the trial information, supplemental trial information, the sentence, a
violation report, an order for warrant and addendum, a revocation order, another
violation report, an arrest warrant, and an order for warrant, all filed in the matter
of State v. Trevino Fox, cause number FECR145468, Black Hawk County, Iowa.
CR1 14-32. With regards to the offense of Assault Domestic Abuse Causing
9
Injury, the supporting documentation includes the following: the trial information,
the judgment and sentence, an order for warrant, a probation violation and
addendum, an arrest warrant and addendum, an order for “PPV” warrant and
addendum, an order modifying probation, an order for warrant, and an arrest
warrant, all filed in the matter of State v. Trevino Fox, cause number
SRCR116395, Black Hawk County, Iowa. CR1 33-52. With regards to the offense
of Failure to Appear—Voluntary Absence, the supporting documentation includes
a complaint and arrest warrant, filed in the matter of State v. Trevino Fox, cause
number FECR165748, Black Hawk County, Iowa. CR1 53-5.
The supporting documentation also includes the following items: a
fingerprint card, purportedly verified on September 16, 2014, by a custodian of
records for the Iowa Department of Public Safety, Division of Criminal
Investigation, Bureau of Identification; an “Arrest History,” twenty-three pages in
length, apparently compiled by the Black Hawk County Sheriff’s Office; and
printouts of applicable sections of the Iowa Code that pertain to Appellant’s
underlying offenses. CR1 56-136.
In his “Petition for Writ of Habeas Corpus,” Appellant alleged in part: “The
authenticity of the supporting documents cannot be supported by the Secretary of
State’s certificate which purports to certify the required documentation under
Chapter 51 of the Texas Code of Criminal Procedure, Section 3[, as] there is no
10
information or back up documents pertaining to the presence of Applicant. [sic]”
The “Petition” then noted the faulty recitation from Nick McGivern’s affidavit,
“The Defendant is in the custody of the Milwaukee County, Milwaukee Wisconsin
Police Department.” CR1 3.
At the hearing before the District Court magistrate, the State introduced the
Governor’s Warrant—“as issued by the governor of the State of Illinois [sic] and
the governor of the State of Texas”—and accompanying exhibits into evidence.
RR2 5-6; RR3 SX #1. The magistrate made a preliminary observation to the effect
that the documentation “appear[ed] regular on its face.” RR2 6. Trial counsel
objected to the faulty sworn recitation by Nick McGivern—set out above in full—
to the effect that Appellant was “in the custody of the Milwaukee County,
Milwaukee Wisconsin Police Department.” Trial counsel argued that this recital
ran contrary to the fundamental requirement that a fugitive must be in the state to
which the extradition request is directed towards, and he requested relief on this
basis. RR2 6-7; see CR1 13. In response, the State argued that this recital
constituted “an inadvertent clerical error” and was “superfluous.” RR2 8-9. In
response to some discussion by the State and the magistrate, trial counsel clarified
that his objection went to the accuracy of the documentation itself, and that
Appellant was not mounting a challenge om the issue of identity. Trial counsel
conceded that the inaccurate recital in question was in all likelihood a “clerical
11
error,” but he argued there was “no evidence to support that.” RR2 8-10.
Overruling trial counsel’s objection, the magistrate found the extradition papers to
be in order, denied habeas relief to Appellant, and ordered his return to the State of
Iowa. RR2 10-11. The following day, the trial court approved the findings and
recommendations of the magistrate. CR1 142-3. Appellant filed timely notice of
appeal. CR1 144. This appeal follows from the denial of habeas relief.
Summary of Arguments
The supporting documentation provided to the Governor of Texas by the
Governor of Iowa contained an inaccurate recital, namely, that Appellant was in
the custody of the Milwaukee, Wisconsin police department at the time of the
demand for requisition. The Governor’s Warrant was therefore invalid. The trial
court abused its discretion by denying Appellant’s request for relief by way of an
application for writ of habeas corpus.
Issue Number One
The trial court abused its discretion by denying Appellant’s application for
writ of habeas corpus.
At the hearing on the application for writ of habeas corpus, Appellant met
his burden of establishing by a preponderance of the evidence that the
documentation in support of the Governor’s Warrant contained an inaccurate
recital. It is undisputed that Appellant was not in the custody of the Milwaukee,
12
Wisconsin police department at the time of the demand for requisition. The
Governor’s Warrant was therefore invalid. The trial court abused its discretion by
denying Appellant’s request for relief by way of an application for writ of habeas
corpus.
In conducting an extradition hearing, a trial court in the asylum state may do
no more than determine whether the requisites of the Uniform Criminal Extradition
Act have been met. New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 153-5 (1998);
California v. Superior Court of California, 482 U.S. 400, 408 (1987). A governor’s
warrant that is regular on its face is prima facie evidence that the requirements for
extradition have been met. Ex parte Lekavich, 145 S.W.3d 699, 701 (Tex.App.—
Ft. Worth 2004, no pet.). Once the governor of an asylum state grants extradition, a
court considering release on habeas corpus can consider only the following: (1)
whether the extradition documents on their face are in order; (2) whether the
petitioner has been charged with a crime in the demanding state; (3) whether the
petitioner is the person named in the request for extradition; and (4) whether the
petitioner is a fugitive. Michigan v. Doran, 439 U.S. 282, 289 (1978); State ex rel.
Holmes v. Klevenhagen, 819 S.W.2d 539, 542-3 (Tex.Crim.App. 1991); Ex parte
Lekavich, 145 S.W.3d at 700. Once the governor’s warrant, regular on its face, is
introduced into evidence, the burden shifts to the accused to show the warrant was
not legally issued, was not based on proper authority, or contains inaccurate
13
recitals. Ex parte Cain, 592 S.W.2d 359, 362 (Tex.Crim.App. 1980); Ibarra v.
State, 961 S.W.2d 415, 417 (Tex.App.—Houston [1st Dist.] 1997, no pet.).
The only appropriate vehicle for challenging arrest pursuant to a governor’s
extradition warrant is through the filing of an application for writ of habeas corpus.
Ex parte Chapman, 601 S.W.2d 380, 382-3 (Tex.Crim.App. 1980). A petitioner
may contest his extradition in a writ of habeas corpus on the basis of any of the
four issues identified by the Supreme Court in Doran. Ex parte Sanchez, 642
S.W.2d 809, 811 (Tex.Crim.App. 1982). The petitioner bears the burden to prove
he is entitled to the relief he seeks by a preponderance of the evidence. Kniatt v.
State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006). “A prima facie case can be
defeated or supported by the supporting papers introduced, regardless of which
party may have offered the supporting papers into evidence.” Cain, 592 S.W.2d at
362, citing Ex parte Lancaster, 501 S.W.2d 904 (Tex.Crim.App. 1973); Ex parte
Brown, 450 S.W.2d 647 (Tex.Crim.App. 1970).
The trial court’s ruling on a pretrial writ of habeas corpus is subject to
review for abuse of discretion. Kniatt, 206 S.W.3d at 664; Washington v. State, 326
S.W.3d 701, 704 (Tex.App.—Houston [1st Dist.] 2010, no pet.). In conducting this
review, the facts are viewed in the light most favorable to the trial court’s ruling.
See Kniatt, 206 S.W.3d at 664; Washington, 326 S.W.3d at 704. If the documents
from the demanding state do not meet the requirements of the Uniform Criminal
14
Extradition Act, the warrant should not issue and the applicant is entitled to a
discharge. Sanchez, 642 S.W.2d at 811.
In the instant cause, Appellant objected to the inaccurate recital contained in
the affidavit of Nick McGivern: “The Defendant is in the custody of the
Milwaukee County, Milwaukee Wisconsin Police Department.” CR1 13. This
recital “served to defeat the prima facie case established by the Governor's
Warrant.” Ex parte Cain, 592 S.W.2d at 362. Appellant has met his burden and
proven by a preponderance of the evidence that he was entitled to relief. The trial
court abused its discretion by denying the application for writ of habeas corpus.
PRAYER
WHEREFORE, PREMISES CONSIDERED, for the reasons stated above,
Appellant prays that this Court find the judgment of the trial court to have been in
error, and that this Court reverse the judgment of the trial court and order the
immediate discharge of Appellant. Appellant prays for any and all other general
relief to which he may be entitled.
Respectfully submitted,
__/s/ Paul M. Evans__________
Paul M. Evans
811 Nueces Street
Austin, Texas 78701
(512) 569-1418
(512) 692-8002 FAX
SBN 24038885
paulmatthewevans@hotmail.com
15
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Appellant’s Brief was delivered by e-service facsimile to the office of the District
Attorney of Travis County—mailing address P.O. Box 1748, Austin, TX 78767,
physical address 509 W. 11th Street, Austin, TX 78701—on the 25th day of March,
2015.
___/s/ Paul M. Evans_____________
Paul M. Evans
CERTIFICATE OF COMPLIANCE
Relying on the Microsoft Word 97-2003 Document word count utility, I
hereby certify that the present document contains 2,277 words, counting all
contents specifically delineated for inclusion in the applicable word count under
Tex. Rule App. Proc. § 9.4(i)(1).
___/s/ Paul M. Evans_____________
Paul M. Evans
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