Petition for Writ of Certiorari — Palomo v. Texas

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\ Supreme Court, U.S.

90 an 6 3 REIL E D.

- JOSEPH F. SPANIOL, JR

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

RAUL PALOMO

VS.

STATE OF TEXAS

Petition For Writ Certiorari To The

Court Of Appeals

First Supreme Judicial District

Houston, Texas

GEORGE J. PARNHAM

440 Louisiana #475

Houston, Texas 77002

713/224-3967

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

(1) Whether a person has been "charged" with a criminal

offense, within the meaning of the Extradition Clause of the

United States Constitution, when the accusing instrument

consists of an affidavit executed before a judicial officer, and

the officer’s court seal is not affixed to the instrument, thereby

rendering the affidavit void.

(1) Whether a person has received sufficient constitutional

notice of the nature and cause of the offense for which he has

been charged with, for purposes of interstate extradition, when

the defendant cannot determine from the face of the

demanding state’s charging instrument whether the defendant

is charged with a felony or misdemeanor. California v. Superior

Court of California, 482 U.S. 222, 107 S.Ct. 2433, 96 L.Ed.2d

332 (1987).

LIST OF INTERESTED PERSONS

The following persons are interested parties:

Presiding Judge At Trial

The Honorable Michael McSpadden

Attorneys for the State of Texas

Mr. Calvin Hartman

Attorney for Appellant

Mr. George J. Parnham (at trial and on appeal)

TABLE OF CONTENTS

QUESTIONS PRESENTED .

LIST OF INTERESTED PERSONS

TABLE OF AUTHORITIES .

OPINIONS BELOW .

JURISDICTION .

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

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TABLE OF AUTHORITIES

CASES

California v. Superior Court of California,

482 U.S. 222, 107 S.Ct. 2433, 96 L.Ed.2d 332 (1987)

Michigan v. Doran,

439 US. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978)

Roberts v. Reilly,

116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885)

STATUTES

U.S. Const. art. IV. sec. 2

28 U.S.C. 1257

Tex. R. App. P. 44(d)

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

PALOMO

VS.

STATE OF TEXAS

Petition For Writ Certiorari To The

Court Of Appeals

First Supreme Judicial District

Houston, Texas

OPINIONS BELOW

The Court of Criminal Appeais refused appellant’s appeal

without written order. The opinion by the Court of Appeals

was unpublished, and is set out in Appendix "A." The Court of

Appeals denied “oy motion for rehearing without a

written opinion. The decision of the district court was

unpublished, and is also set out in Appendix "A."

JURISDICTION

This is an appeal from a writ of habeas corpus attacking the

appellant’s extradition to the State of California for the offense

of theft. The district court denied habeas corpus relief on June

14, 1990. The Court of Appeals affirmed the order of the trial

court in an unpublished opinion entered on September 20,

1990. Appellant filed a motion for rehearing on September 28,

1990. Appellant’s motion for rehearing was denied without a

written opinion on October 18, 1990. The Court of Appeals

denied appellant's ony goa for review on December 12, 1990.

The Soadien ‘by the Court of Criminal Appeals to refuse

review constitutes a final decision on i writ of habeas

corpus. Tex. R. App. P. 44(d). This Court has jurisdiction

pursuant to 28 U.S.C. 1257.

STATUTES INVOLVED

U.S. Const. art. IV. sec. 2:

A person charged in any State with Treason, Felony,

or other Crime, who shall flee from Justice, and be

fuund in another State, shall on Demand of the

executive Authority of the State from which he fled, be

delivered up, to be removed to the State having

Jurisdiction of the Crime.

STATEMENT OF THE CASE

Petitioner is a Texas resident sought by the State of

California for the offense of theft. Petitioner challenged the

papers sent by California on the grounds listed above through a

writ of habeas corpus. The trial court denied relief, and

ordered the petitioner to be remanded into custody of the

Harris County Sheriff's Department to await extradition to

California. Petitioner raised the same issues in the Court of

Appeals, and in the Texas Court of Criminal Appeals.

REASONS FOR GRANTING THE WRIT

I.

THIS COURT SHOULD GRANT THIS PETITION TO

DETERMINE WHETHER A DEFECTIVE AFFIDAVIT

CONSTITUTES A CRIMINAL CHARGE WHICH WOULD GIVE

THE CEMANDING STATE CONSTITUTIONAL AUTHORITY TO

EXTRADITE A CITIZEN OF ANOTHER STATE.

in California v. Superior Court of California, 482 U.S.

222, 107 S.Ct. 2433, 96 L.Ed.2d 332 (1987), this Court held

where an accused is “substantially" charged with a criminal

offense in one state, extradition proceedings are summary in

nature, and all defenses concerning the technical a

should be raised in the demanding state. See also Michigan v

Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978).

However, it is also clear that at some point, a charging

instrument in the demanding state is so utterly defective as to

take the matter out of the nature of a “substantial charge" for

purposes of the constitutional obligation of one state to

surrender one of it’s citizen to another. Roberts v. Reilly, 116

U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885). The failure of

California to affix a court seal to an affidavit or complaint sworn

before a judicial officer gives this Court just such an opportunity

to draw the line.

THIS COURT SHOULD GRANT THIS PETITION TO DECIDE

THE MINIMUM LEVEL OF NOTICE A DEMANDING STATE

MUST PROVIDE IN A CRIMINAL CHARGE BEFORE IT CAN

CONSTITUTIONALLY DEMAND ANOTHER TO SURRENDER

ONE OF IT’S CITIZEN TO THAT STATE.

As urged in Petition’s First Reason For Granting This

Writ, the constitution must certainly rrovide what, at a

minimum, the demanding state must allege in an instrument

before a citizen is charged with an offense for purposes of

interstate extradition. Inherent in any minimum standards is the

constitutional right to notice of the nature and cause of

accusation. The failure of the complaint filed in California to

recited, on its face, sufficient facts or circumstances to show

whether petitioner is charged with a felony or misdemeanor

grade offense, gives this Court an opportunity to decide what

minimum ievel of notice is constitutionally required.

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CONCLUSION

For the reasons listed, above, this Court should grant this

Petition For Writ of Certiorari, and order full briefs and oral

argument on the same.

Respectfully submitted,

GEORGE J. PARNHAM

440 Louisiana #475

Houston, Texas 77002

713/224-3967

ATTORNEY FOR PETITIONER

APPENDIX "A"

Decision by Court of Appeals

Written Order by District Court

Opinion In The Court of Appea!s

For The First District of Texas

No. 01-90-00536-CR

EX PARTE RAUL PALOMO, Appellant

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 558264

This is an appeal from the trial court’s order in a habeas

corpus p es remanding appellant to custody for

extradition to the State of California to answer charges of

_ theft pol anna property with special allegations,

orgery of an endorsement. We affirm.

Initially, we note that the executive warrant of the

Governor of Texas, together with the Supporting papers,

establish a prima facie authorizing appellant’s extradition. Ex

Larson, 494 S.W.2d 179, 180 (Tex. Crim. App. 1973);

TEX CODE CRIM. P. ANN. art. 51. 13, sec.3 (Vernon 1979).

Appellant asserts two points of error. His first point of

error asserts that the supporting affidavit for the Governor’s

warrant is void and does not substantially charge him with a

crime in California because no court seal or stamp is affixed to

the jurat in the affidavit.

Appellant asserts that since no affidavit supports the

information, then the State of California has chosen to

substantially charge him with a crime through an "affidavit

executed before a magistrate." Article 51.13, sec. 3 (the

extradition request must be accompanied by either an

"information supported by affidavit" or a "copy of an affidavit

before a magistrate"). Appellant further asserts that since the

affidavit was purportedly sworn to before a California Superior

Court Judge, it is void because the jurat in the affidavit does

not have affixed to it a court stamp or seal.

The affidavit in question indicates on the top of page one

that the affiant swore to it in the Superior Court of the state of

California for the County of Los Angeles. The jurat in the

affidavit appears on page two. It is signed, and dated. The

following language appears underneath the signature line in

the jurat, "Judge of the above-entitled Court."

We are aware of no requirement that the jurat was

required to have a court stam - or seal affixed to it. Article

51.13, section 3 requires an “affidavit before a magistrate." An

affidavit before a Superior court judge is sufficient. Ex part

Mungia, 478 S.W.2d 440, 441 (Tex. Crim. App. 1972) (affidavit

sworn to before a judge of a Colorado district court was

sufficient); see also Ex parte Wammack, 482 S.W.2d 859, 860

(Tex. Crim. App. 1972) (affidavit does not have to be made

before a magistrate, and it is sufficient if it is made before a

notary public). A jurat is a certificate of a competent

administering officer that the writing is sworn to by the person

who signed it, and is sufficient if it is dated and shows the

official capacity of the administering officer. Neely v. State,

144 Tex. Crim. 92, 93, 161 S.W.2d 294 (1942) (op. on 1 reh’g):

Murphy vy. State, 132 Tex. Crim. 202, 203, 103 S.W.2d 765, 766

(1937). The jurat is sufficient because it is dated, and it shows

the official capacity of the officer taking it. The supporting

affidavit is not void or fundamentally defective.

Appellant’s first point of error is overruled.

Appellant’s second = of error asserts that the

information fails to give him proper notice of whether the

charged offense is a felony or a misdemeanor. He claims that

he does not have adequate notice of the grade or level of the

offense with which he is charged.

Article 51.13, section 3 requires only that the affidavit

"substantially charge the person demanded with having

committed a crime under the laws of that State." Here, the

extradition wpe attached to the Governor’s warrant include

copies of the statutes defining the offenses with which

appellant is charged and setting out the punishment range for

those offenses. Appellant has been put on notice of offense

with which he is charged and the precise punishment range.

Moreover, article 51.13, section 3 does not require that

appellant be informed of the particular grade or level to the

offense with which he is charged. The question is whether

2

appellant is substantially charged with a crime, and, unless

clearly void, the validity of an affidavit and its sufficiency as a

criminal pleading are left to the courts of the demanding state

and not to the courts of this state. Ex parte Powers, 391

S.W.2d 413, 414 (Tex. Crim. APP: 1965); see also California v.

Superior Court, 482 U.S. 400, 406 (1987) (extradition

proceedings are not appropriate for entertaining defenses or

determining the guilt or innocence of the charged party).

Appellant’s reliance an Adley vy. State, 718 S.W.2d 682

(Tex. Crim. App. 1985), is misplaced because it involved a

conviction under an unconstitutionally vague penal statute.

Here, we are dealing with the issuance of an executive

extradition warrant where the focus is narrower than it would

be in a trial resulting in a conviction. Powers, 391 S.W.2d at

414 (in extradition cases, unless clearly void, the validity of an

affidavit and its sufficiency as a criminal pleading will be left to

the courts of the demanding state); see also Superior Court,

482 U.S. at 407. The proper forum for the claims appellant

makes under this point is California and not Texas.

Appellant’s second point of error is overruled.

The judgment denying — habeas corpus relief and

remanding him to custody for extradition to California is

affirmed.

PER CURIAM

]

Justices Duggan, Cohen, and Price’ sitting.

Do not publish. Tex. R. App. P. 90.

Judgment rendered and opinion delivered

True Copy Attest:

Kathryn Cox

Clerk of Court

1. The Honorable Frank C. Price, former Justice, Court of Appeals, First

District of Texas at Houston, sitting by assignment.

HABEAS CORPUS

MINUTES OF THE 209 DISTRICT COURT

OF HARRIS COUNTY, TEXAS

AT MAY TERM, A.D. 1990

EX PARTE

NO. 558264 6/14, A.D. 1990

RAUL PALOMA

This day came on to be heard before me this application

for the Writ of Habeas Corpus against RAUL PALOMA, and

the said respondent JOHNNY KLEVENHAGAN, havin

produced before me the person of the said RAUL PALOMA,

proceeded to hear the said application, and after having

examined the Writ and the return of the respondent JOHNNY

KLEVENHAGAN and all papers and documents attached

thereto, and having heard the testimony offered on both sides,

I am of the opinion that the said RAUL PALOMA is legally

held in custody and under restraint of his liberty by the said

respondent JOHNNY KLEVENHAGAN.

It is therefore ordered and adjudged that the application of

the said RAUL PALOMA herein be denied, and that the said

RAUL PALOMA be and he is now hereby remanded to the

custody of the said respondent.

Signed and entered on this the 14 day of June A.D. 1990.

Michael D. McSpadden/s

JUDGE 209 DISTRICT COURT

HARRIS COUNTY, TEXAS

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