Opinion
No. 05-11-00477-CR
Opinion Filed August 24, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. W-000021.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
Edward Wayne Larkins filed an application for writ of habeas corpus seeking to avoid extradition to Wyoming. Following a hearing, the trial court denied appellant the relief requested. In a single issue, appellant contends the evidence is legally insufficient to support the trial court's decision to deny the writ. We affirm the trial court's order. Only four issues may be raised by application for writ of habeas corpus. They are whether: (1) the extradition documents on their face are in order, (2) the petitioner has been charged with a crime in the demanding state, (3) the petitioner is the same person named in the request for extradition, and (4) the petitioner is a fugitive. See Michigan v. Doran, 439 U.S. 282, 289 (1978). A Governor's Warrant that is regular on its face establishes a prima facie case for extradition. See Ex parte Johnson, 651 S.W.2d 439, 440 (Tex. App.-Dallas 1983, no pet.). The burden then shifts to the petitioner to show the warrant was not legally issued, that it was issued on improper authority, or that the recitals in the warrant are inaccurate. See Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980) (op. on reh'g). We review a trial court's decision to deny habeas corpus relief for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). Appellant bears the burden to prove he is entitled to the relief he seeks by a preponderance of the evidence. Id. We review the evidence presented in the light most favorable to the trial court's ruling. Id. To challenge identity, the accused must raise the issue of his identity as the fugitive named in the Governor's Warrant. Ex parte Scarbrough, 604 S.W.2d 170, 174 (Tex. Crim. App. [Panel Op.] 1980). To do this, the accused must deny under oath that he is the person named in the warrant. See Ex parte Connelly, 479 S.W.2d 943, 944 (Tex. Crim. App. 1972). If the accused properly raises the issue of identity, the burden shifts to the State to show he is the person named in the Governor's Warrant. See Ex parte Martinez, 530 S.W.2d 578, 579 (Tex. Crim. App. 1975). If, however, the accused does not deny under oath that he is the person named in the warrant, the burden remains on him to show he is not that person. See Ex parte Connelly, 479 S.W.2d at 944. In this case, appellant neither filed a sworn affidavit denying he is the person named in the warrant nor testified during the hearing that he is not the person named in the warrant. Rather, appellant relies upon the Governor's Warrant, itself, as raising the issue of identity. Appellant argues that because the affidavit accompanying the Governor's Warrant recites a different social security number from the number appellant provided to the Grayson County Sheriff's Office when he surrendered, the evidence is insufficient to show he is the person named in the warrant. Thus, appellant asserts, the burden shifted to the State to prove he was the person named in the Governor's Warrant. Appellant contends that although the State pointed out the social security number in the warrant was incorrect, the State assumed it was a typographical error rather than offering proof of appellant's identity. Appellant did not deny under oath he is the person named in the warrant; therefore, the burden remained upon him to show he is not that person. See Ex parte Connelly, 479 S.W.2d at 944. Appellant's reliance on the Governor's Warrant did not satisfy this burden. The affidavit of William H. Monahan, a witness coordinator in Wyoming, is contained in the supporting papers of the Governor's Warrant. The affidavit contains a copy of a photograph issued by the Grayson County Sheriff's Office identified as Edward W. Larkins whose date of birth is August 20, 1958. Monahan identified the photograph as depicting the person charged in Wyoming of the felony offense of false affidavit of payment by contractor. In the affidavit, signed on February 17, 2011, Monahan avers, "Affiant has been in regular contact with the victim in this case, . . . and upon showing the photograph to the victim, the victim positively identified the photo to be the same Edward W. Larkins as the person charged in this matter, with whom [the victim] has met." A State of Wyoming felony warrant for Edward Wayne Larkins with a date of birth of August 20, 1958 issued on September 1, 2010. We conclude appellant did not overcome the prima facie showing of identity established by the Governor's Warrant. Therefore, the trial court did not abuse its discretion in denying him habeas corpus relief. See Kniatt, 206 S.W.3d at 664; Ex parte Connelly, 479 S.W.2d at 944. We resolve appellant's sole issue against him. We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.
See generally Tex. Code Crim. Proc. Ann. art. 51.13 (West 2006).