Opinion issued March 14, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-01010-CR
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RONALD LUCERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 10
Harris County, Texas
Trial Court Cause No. 1852939
MEMORANDUM OPINION
Ronald Lucero was arrested pursuant to a Governor’s Warrant ordering his
extradition to the State of Arizona. See TEX. CODE CRIM. PROC. ANN. art. 51.13,
§ 2 (West 2006). After his arrest, Lucero filed an application for a writ of habeas
corpus, challenging the legality of his arrest. See id. § 10. The trial court granted
the application for a writ, held a hearing, and denied Lucero’s request for an order
discharging him from custody. See TEX. CODE CRIM. PROC. ANN. arts. 11.15,
11.46 (West 2005). Lucero timely filed a notice of appeal. See TEX. R. APP. P.
26.2(a)(1), 31.
We affirm.
Background
Lucero was convicted of the felony offense of kidnapping in 2000 in Bexar
County, Texas. See TEX. PENAL CODE ANN. § 20.03 (West 2011).
In December 2011, Lucero was indicted in Arizona for the felony offense of
failure to register as a sex offender. See ARIZ. REV. STAT. ANN. §§ 13-3821, 13-
3824 (2012). The indictment alleges that Lucero, “who was required by the
convicting jurisdiction, Bexar County, Texas, to register as a sex offender, failed to
register with the Sheriff of Maricopa County within ten days after the conviction or
entering and remaining in this County.” On the same day that the indictment was
signed, a warrant signed by an Arizona Superior Court judge was issued for
Lucero’s arrest in Arizona, which states that the “Court has found probable cause
. . . to believe that such offense(s) was/were committed and that the defendant
committed it/them, and reason to believe that the defendant will not appear in
response to a summons, or that a warrant is otherwise appropriate.” In response to
a request for extradition from Arizona Governor Janice Brewer, Texas Governor
2
Rick Perry signed a Governor’s Warrant for Lucero’s extradition on August 21,
2012, ordering that Lucero be returned to Arizona. See TEX. CODE CRIM. PROC.
ANN. art. 51.13, § 2.
Shortly thereafter, Lucero filed an “Application for Writ of Habeas Corpus
Challenging Legality of Arrest Under Governor’s Warrant.” See TEX. CODE CRIM.
PROC. ANN. art. 11.08 (West 2005). The trial court denied the relief requested in
his application. Lucero timely appealed.
Standard of Review
We review a trial court’s ruling on a pretrial writ of habeas corpus for an
abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.
2006); Washington v. State, 326 S.W.3d 701, 704 (Tex. App.—Houston [1st Dist.]
2010, no pet.). In conducting this review, we view the facts 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.
Analysis
In his sole issue on appeal, Lucero contends that the Arizona indictment fails
to charge him with a crime because he has not been convicted of a criminal offense
that imposes a duty to register as a sex offender and therefore has no duty to
register as a sex offender.
3
1. Arizona, not Texas, is the proper forum to determine whether Lucero
violated Arizona law
The Extradition Clause of the United States Constitution, which requires
each state to assist other states in recovering fugitives from justice, states:
A Person charged in any State with Treason, Felony, or other Crime,
who shall flee from Justice, and be found 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.
U.S. CONST. art. IV § 2, cl. 2. The Clause is written in “mandatory language”, and
“the courts of an asylum state are bound by [it], by [18 U.S.C.] § 3182[1], and,
where adopted, by the Uniform Criminal Extradition Act.” Michigan v. Doran,
439 U.S. 282, 288, 99 S. Ct. 530, 535 (1978) (internal citation omitted). The
purpose of the Clause is “to enable each state to bring offenders to trial as swiftly
as possible in the state where the alleged offense was committed” and “to preclude
any state from becoming a sanctuary for fugitives from justice of another state.”
Id. at 287, 99 S. Ct. at 534. Interstate extradition pursuant to the Clause is
1
The federal implementation of the Extradition Clause, codified at 18 U.S.C.
§ 3182, requires the executive authority of any state to which a fugitive from
another state has fled, upon demand of the executive authority of the demanding
state and production of a copy of an indictment found or affidavit made before a
magistrate, charging the fugitive with treason, a felony, or another crime, that has
been certified by the governor of the demanding state, to cause the fugitive to be
arrested and to deliver the fugitive to the agent of the executive authority of the
demanding state. 18 U.S.C.S. § 3182; see Michigan v. Doran, 439 U.S. 282, 287,
99 S. Ct. 530, 534 (1978).
4
“intended to be a summary and mandatory executive proceeding.” Id. at 288, 99 S.
Ct. at 535.
Texas has adopted the Uniform Criminal Extradition Act, codified as article
51.13, Texas Code of Criminal Procedure, which provides that “it is the duty of the
Governor of this State to have arrested and delivered up to the Executive Authority
of any other State of the United States any person charged in that State with
treason, felony, or other crime, who has fled from justice and is found in this
State.” TEX. CODE CRIM. PROC. ANN. art. 51.13, § 2; State ex rel. Holmes v.
Klevenhagen, 819 S.W.2d 539, 540, 542 n.7 (Tex. Crim. App. 1991).
The introduction of a Governor’s Warrant, regular on its face, is sufficient to
make out a prima facie case that the constitutional and statutory requirements for
extradition have been met. See Doran, 439 U.S. at 289, 99 S.Ct. at 535;
Klevenhagen, 819 S.W.2d at 542. Once a governor has granted extradition, a court
considering an application for writ of habeas corpus may only consider four issues:
“(a) whether the extradition documents on their face are in order; (b) whether the
petitioner has been charged with a crime in the demanding state; (c) whether the
petitioner is the person named in the request for extradition; and (d) whether the
petitioner is a fugitive.” Doran, 439 U.S. at 289, 99 S.Ct. at 535; see Klevenhagen,
819 S.W.2d at 543. The reviewing court may consider neither possible defenses
nor the guilt or innocence of the person charged, nor may the court review the
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demanding state’s determination that probable cause exists for the person’s arrest.
See California v. Superior Court of California, 482 U.S. 400, 407–08, 107 S.Ct.
2433, 2438 (1987); Doran, 439 U.S. at 290; 99 S.Ct. at 536; Klevenhagen, 819
S.W.2d at 543.
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, not based on proper authority, or contains inaccurate recitals. See 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 State is not
obligated to offer any of the documents supporting the Governor’s Warrant. See
Cain, 592 S.W.2d at 362. The accused opposing extradition may offer into
evidence any of the papers that were used to support the warrant in an attempt to
show a defect. See id. The accused may not, however, complain about any of the
papers which have not been offered. See id.
Lucero challenges only the requirement that he has been charged with a
crime in the demanding state, claiming that the Arizona indictment fails to allege a
crime. If this contention was true, Lucero would have rebutted the prima facie
case and the warrant would not be valid. See TEX. CODE CRIM. PROC. ANN. art.
51.13, § 3 (requiring indictment to “substantially charge the person demanded with
having committed a crime under the law of that State”); Stelbacky v. State, 22
6
S.W.3d 583, 587 (Tex. App.—Amarillo 2000, no pet.). However, it is well
established that unless the indictment is clearly void, 2 its validity must be
determined by the demanding state. See Ex parte Rosenthal, 515 S.W.2d 114, 119
(Tex. Crim. App. 1974); Stelbacky, 22 S.W.3d at 587; Ex parte McConnell, 726
S.W.2d 632, 633 (Tex. App.—Fort Worth 1987, no pet.).
Lucero argues that he was convicted in Bexar County for kidnapping
without any finding regarding the age of the victim; he therefore has no duty to
register as a sex offender in Texas; and, consequently, the allegations in the
Arizona indictment do not sufficiently allege that he committed a criminal offense.
The indictment, however, alleges that Lucero “was required by the convicting
jurisdiction, Bexar County, Texas, to register as a sex offender” and that he failed
to do so, thereby substantially charging him with the offense of failure to register
as a sex offender. See ARIZ. REV. STAT. ANN. §§ 13-3821, 13-3824. Further
2
Prior to 1985, a Texas indictment was “void” if it contained a defect of substance.
See Teal v. State, 230 S.W.3d 172, 175 (Tex. Crim. App. 2007). In 1985,
however, “the citizens of Texas and their legislature resoundingly rejected this
hypertechnical case law both by Constitutional amendment and by statute.” Id. at
176. Now, “all substantive defects in indictments are waiveable under the statutes
and these defects do not render the indictment ‘void.’” Id. at 178. Further, an
indictment is not “void” even if it “fails to allege one element of an offense or . . .
contains additional information that may indicate innocence.” Id. at 181. After
1985, it appears that an indictment is only “void” if it fails to constitute an
indictment at all because it fails to charge (1) a person, (2) the commission of an
offense, or (3) an offense for which the trial court has subject-matter jurisdiction.
Id. at 179–80. And, because no party has shown to the contrary, we presume
indictment law in Arizona is the same as Texas. See Ibarra v. State, 961 S.W.2d
415, 417 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
7
inquiry into the allegations contained in the indictment would require us to engage
in a probable cause determination, which we may not do. 3 See Doran, 439 U.S. at
290, 99 S.Ct. at 536; Klevenhagen, 819 S.W.2d at 543; Cain, 592 S.W.2d at 363.
“To allow plenary review in the asylum state of issues that can be fully litigated in
the charging state would defeat the plain purposes of the summary and mandatory
procedures authorized by [the Extradition Clause].” Doran, 439 U.S. at 290, 99 S.
Ct. at 536. Rather, “[i]f we accept as true every fact alleged [in the indictment],
[appellant is] properly charged with [failure to register as a sex offender] under
[Arizona] law,” which “ends the inquiry into the issue whether or not a crime is
charged for purposes of the Extradition Act.” Superior Court of California, 482
U.S. at 409, 107 S.Ct. at 2439. Whether Arizona can successfully prosecute
Lucero is a matter to be determined by a court in that jurisdiction. See Stelbacky,
22 S.W.3d at 588; McConnell, 726 S.W.2d at 634.
2. Lucero has not satisfied his burden of proving that the Arizona
indictment failed to charge him with committing a crime
Lucero contends that the Arizona indictment fails to charge him with a
crime. According to Lucero, he was convicted in Bexar County for kidnapping
3
“An accused’s only recourse in challenging probable cause in the demanding state
arises if the documents supporting the Governor’s Warrant are insufficient to
establish that a judicial determination of probable cause has been made in the
demanding state.” Ex parte Cain, 592 S.W.2d at 363. Here, both the return of an
indictment by a grand jury and the statement in the warrant that the warrant was
issued upon probable cause reflect a judicial determination of probable cause in
the demanding state.
8
without any finding regarding the age of the victim; he therefore has no duty to
register as a sex offender in Texas 4; the allegations in the Arizona indictment thus
fail to charge him with the commission of a crime; and, consequently, he cannot be
extradited based on the faulty Arizona indictment.
Even if we could consider Lucero’s argument, an applicant for a writ of
habeas corpus bears the burden of proving his allegations by a preponderance of
the evidence. See Washington v. State, 326 S.W.3d 701, 706 (Tex. App.—Houston
[1st Dist.] 2010, no pet.). The applicant also must ensure that a sufficient record is
presented to show error requiring reversal on appeal. See id.
During the hearing on his application for a writ of habeas corpus, Lucero
showed a copy of the Bexar County judgment to the trial court. Neither Lucero
nor the State offered any other records or documents from his conviction for
kidnapping in Bexar County. Therefore, although Lucero cites to both the
reporter’s and the clerk’s records from the kidnapping case out of Bexar County,
4
Lucero also argues that he has no duty to register as a sex offender under Arizona
law. State’s Exhibit No. 1 is a copy of the sex offender registration statute in
Arizona. Pursuant to Arizona law, a person must register as a sex offender if the
person has been convicted of an offense in a jurisdiction outside of Arizona that
has the same elements of either Arizona’s unlawful imprisonment or kidnapping
statutes, the victim of the unlawful imprisonment or kidnapping was under 18
years of age, and the offense was not committed by the victim’s parent. See ARIZ.
REV. STAT. ANN. § 13-3821 (2012). Lucero argues that for this provision to
require a convicted person to register, the judgment in the case must incorporate
the age of the victim. Because it is unnecessary to the outcome of this appeal, we
will not address this argument or address whether Arizona’s indictment authorizes
prosecution pursuant to the “same elements” provision.
9
no such records were presented to the trial court and no such records appear in the
appellate record in this case. As a result, Lucero has established, at most, that the
Bexar County judgment does not contain an affirmative finding that his kidnapping
victim was younger than 17 years of age. 5
Pursuant to the Code of Criminal Procedure, however, a person convicted of
kidnapping must register as a sex offender if the judgment contains an affirmative
finding that the victim was younger than 17 years of age at the time of the offense
or if the order in the hearing or papers in the case contain such an affirmative
finding. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(E) (West Supp. 2012);
see also Rodriguez v. State, 93 S.W.3d 60, passim (Tex. Crim. App. 2002) (holding
that retroactive application of sex offender registration statute does not violate Ex
Post Facto Clauses of United States and Texas Constitutions).
Accordingly, by failing to introduce the transcript of the hearing and the
complete clerk’s record from the kidnapping case, Lucero has failed to provide a
sufficient record to prove that he is not required to register as a sex offender in
Texas based on an affirmative finding in the order in the hearing or the papers in
the case, and he has therefore failed to show that the allegations in the Arizona
indictment are deficient. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(E)(ii);
5
We make no determination regarding the effect, if any, of the judgment’s
description of the offense that Lucero was convicted of as “kidnapping – minor”
rather than “kidnapping.”
10
Cain, 592 S.W.2d at 362; Washington, 326 S.W.3d at 706. Consequently, Lucero
failed to rebut the prima facie case for extradition created by the introduction of the
Governor’s Warrant in evidence. See Doran, 439 U.S. at 289, 99 S. Ct. at 535;
Klevenhagen, 819 S.W.2d at 542.
Conclusion
Because Lucero’s argument would require us to review the Arizona
indictment’s probable cause determination and because he failed to provide a
sufficient record to show error requiring reversal on appeal, we overrule his sole
point of error.
We affirm the judgment.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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