Opinion
No. 01-05-00109-CR
Opinion issued November 23, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from 183rd District Court, Harris County, Texas, Trial Court Cause No. 1002979.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
MEMORANDUM OPINION
This is an appeal from the denial of an application for writ of habeas corpus. In two related issues, appellant, Brandon L. Jenkins, contends that the State failed to show that he was the person sought by the demanding state of Colorado. At the hearing on appellant's application for writ of habeas corpus, the State introduced a copy of the Colorado governor's warrant, to which appellant made no objection. A governor's warrant that is regular on its face establishes a prima facie case for extradition. Ex parte Scarbrough, 604 S.W.2d 170, 174 (Tex.Crim.App. 1980); Hanks v. State, 113 S.W.3d 523, 525 (Tex.App.-Houston [1st Dist.] 2003, no pet.). The State has no further burden of proof regarding the identity of the accused once the governor's warrant is introduced, unless the issue is raised by the accused. Scarbrough, 604 S.W.2d at 174; Hanks, 113 S.W.3d at 525. In other words, the introduction of the warrant shifts the burden to the accused to show that he is not the person charged in the demanding state. See Ex parte Connelly, 479 S.W.2d 943, 944 (Tex.Crim.App. 1972). An accused's sworn statement, either in the form of an affidavit or live testimony, denying that he is the person sought by the demanding state, is sufficient to meet this burden. See Ex parte Meador, 597 S.W.2d 372, 373 (Tex.Crim.App. 1980); Ex parte Nelson, 594 S.W.2d 67, 68 (Tex.Crim.App. 1979). Once the identity issue is raised, the burden shifts back to the demanding state "to show that the person taken into custody and held for extradition is the identical person named in the warrant." Meador, 597 S.W.2d at 373; accord Hanks, 113 S.W.3d at 525. Here, the only assertion made by appellant in his sworn application for writ of habeas corpus was that "[d]efendant is not a fugitive." At the hearing on his application, appellant did not challenge that he was the person named in the request for extradition. On appeal, appellant contends that his assertion in his application that he was not a fugitive was sufficient to place his identity at issue. We disagree. In Michigan v. Doran, the United States Supreme Court held that only four issues may be raised by application for writ of habeas corpus: (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 same person named in the request for extradition; and (4) whether the petitioner is a fugitive. Michigan v. Doran, 439 U.S. 282, 289, 99 S. Ct. 530, 535 (1978). Appellant's challenge to his fugitive status was aimed at the fourth Doran issue, i.e., whether he is a fugitive. Appellant did not assert that he was not the fugitive named in the extradition papers. That is, appellant did not claim that he was not the Brandon L. Jenkins named in the governor's warrant. We conclude that appellant's allegation in his application that he is not a fugitive was not sufficient to place his identity in issue. Cf. Scarbrough, 604 S.W.2d at 174-75 (concluding that assertion in application for writ of habeas corpus that, if fugitive sought committed acts in Mississippi, then accused was not person named in governor's warrant, was assertion of innocence of crime charged and was insufficient to raise issue of identity); Hanks, 113 S.W.3d at 525 (holding that assertion that accused "was not in Jackson, Michigan at the time that the crime, if any, was committed" is not sufficient to raise issue of identity). Because appellant never raised an issue as to whether he was the person named in the governor's warrant, the burden never shifted to the State to show that he was the person sought. See Hanks, 113 S.W.3d at 525. We overrule both of appellant's issues. Accordingly, we affirm the judgment of the trial court.
In any event, a photograph of appellant was included in Colorado's request for his arrest and extradition. An affidavit by a Colorado chief deputy district attorney identified the person in the photograph as the person sought for extradition. The district court made an oral finding that appellant was the same person shown in the photograph. A photograph of the person sought to be extradited attached to the demanding state's extradition request is sufficient to show that the habeas corpus applicant is the same person named in the request. See Ex parte Henson, 639 S.W.2d 700, 701 (Tex.Crim.App. 1982) (concluding that identity was proven by authenticated photograph).