COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-085-CR
EX PARTE HEATHER DAWN GRADY
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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Heather Dawn Grady appeals the trial court’s denial of her application for
writ of habeas corpus, in which she seeks to avoid extradition to Arkansas. We
affirm.
On February 26, 2009, acting on an Arkansas extradition request, Texas
issued a governor’s warrant for the arrest and extradition of “Heather Dawn
Grady aka Heather D. Grady aka Heather Grady” to stand trial in Arkansas on
106 charges, including theft and identity fraud. The extradition request
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… See Tex. R. App. P. 47.4.
includes the fugitive’s mug shot, fingerprints, and physical description and a
probable-cause affidavit executed by an Arkansas circuit court judge. The
extradition request also identifies the fugitive as “Heather (Grady) Domilise.”
Appellant, who was apparently arrested sometime earlier and held in the Parker
County jail, filed an application for writ of habeas corpus to challenge her
extradition, arguing that “there is not probable cause to believe that she
committed a crime in the demanding State or is one and the same person the
subject of the requisition and warrant of the demanding State.”
At the hearing on Appellant’s application, Appellant asserted that her true
name is Heather Dawn Grady Domilise. Weatherford Police Officer Beth
Turnbow testified that she had eighteen years’ training and experience in the
comparison of fingerprints and that she had testified before the trial court many
times. She compared the fingerprint card in the Arkansas extradition request
with prints she had taken from Appellant that morning and testified that both
sets of prints were made by the same person. Turnbow also testified that
Appellant is the person depicted in the photograph in the extradition request.
The trial court denied Appellant’s habeas application. Appellant filed this
appeal, and we ordered the case submitted without briefs. See Tex. R. App.
P. 31.1.
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In Michigan v. Doran, the United States Supreme Court held that only four
issues may be raised by application for writ of habeas corpus to defeat
extradition: (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. 439 U.S. 282, 289, 99
S. Ct. 530, 535 (1978). Appellant raises only the third issue, identity.
An accused person facing extradition can show she is not the person
charged in the demanding state by challenging the identity of the person named
in the warrant. Ex parte Scarbrough, 604 S.W.2d 170, 174 (Tex. Crim. App.
1980). Once identity is placed in issue, the burden shifts back to the
demanding state to show that the person being held for extradition is the
identical person named in the warrant. Ex parte Martinez, 530 S.W.2d 578,
579 (Tex. Crim. App. 1975). Identity need not be shown beyond a reasonable
doubt. Ex parte Shoels, 643 S.W.2d 761, 762 (Tex. App.—San Antonio 1982,
no pet.). Photographic evidence is sufficient to establish identity, Ex parte
Nelson, 594 S.W.2d 67, 68 (Tex. Crim. App. 1979), as is fingerprint evidence.
Ex parte Smith, 36 S.W.3d 927, 928–29 (Tex. App.—San Antonio 2001, no
pet.).
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In this case, the State presented both photographic and fingerprint
evidence to show that Appellant is the same person named in the Arkansas
extradition request. Further, the trial court was able to compare for itself
Appellant’s physical appearance at the hearing to the photograph and physical
description in the extradition papers. We therefore hold that the evidence is
sufficient to establish Appellant’s identity as the fugitive named in the
extradition request.
Appellant’s allegation in her application that there is “not probable cause
to believe she committed a crime in the demanding State” will not support a
writ of habeas corpus. When a judicial officer in a demanding state has found
probable cause to arrest, the asylum state may not review that finding because
it is clothed with the traditional presumption of regularity. See Hunter v. State,
697 S.W.2d 854, 855 (Tex. App—Corpus Christi 1985, no pet.) (citing Doran,
439 U.S. at 290, 99 S. Ct. at 536 (holding that once the governor of the
asylum state has acted on a requisition for extradition based on the demanding
state’s judicial determination that probable cause exists, no further judicial
inquiry may be had on that issue in the asylum state)); see also Ex parte Helber,
No. 05-95-00810-CR, 1995 WL 605415, at *4 (Tex. App.—Dallas Oct.13,
1995, pet. ref’d, untimely filed) (per curiam) (not designated for publication)
(holding order finding probable cause and instructing district clerk to issue an
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arrest warrant satisfies the requirement of a judicial determination of probable
cause to arrest, which is the reason for the requirement of an arrest warrant in
cases where the charging instrument is an affidavit before a magistrate from
the demanding state). The extradition request contains the affidavit of an
Arkansas circuit court judge, averring, “I find that there is sufficient probable
cause to support the charges filed against the said Heather (Grady) Domilise in
the Circuit Court of Cross County, Arkansas, First Judicial District.” Thus, we
may not review Appellant’s probable-cause allegation, and it cannot support a
writ of habeas corpus.
We affirm the trial court’s denial of Appellant’s application for writ of
habeas corpus.
PER CURIAM
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 2, 2009
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