Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00656-CR
EX PARTE Trace MCKAY
From the Criminal District Court, Magistrate Court, Bexar County, Texas
Trial Court No. 2017W0541
Honorable Andrew Carruthers, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
Delivered and Filed: January 10, 2018
AFFIRMED
Appellant Trace McKay appeals the trial court’s order denying his application for writ of
habeas corpus and granting his extradition to Wisconsin. In a single issue, McKay contends the
rendition papers from the demanding state failed to comply with the statutory requirements. We
affirm the trial court’s denial of habeas corpus relief and the order of extradition to Wisconsin.
BACKGROUND
McKay was convicted in the State of Wisconsin of the following offenses: escape –
criminal arrest, possession of cocaine, possession of cocaine as a party to a crime, and felony bail
jumping. McKay was placed on extended supervision, and he subsequently violated the terms of
his extended supervision by leaving Wisconsin and taking “refuge” in Texas. Upon demand from
the State of Wisconsin, the Governor of Texas issued a Governor’s Warrant ordering Texas law
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enforcement officials to arrest McKay and deliver him into the custody of Wisconsin authorities.
McKay was arrested in San Antonio, Texas, and an extradition order issued.
In his initial application for writ of habeas corpus, which was filed on September 19, 2017,
McKay contended the Governor’s Warrant did not properly identify him. On September 21, 2017,
the trial court held a hearing on the application for writ of habeas corpus, after which the trial court
denied McKay’s request for relief. On September 22, 2017, McKay filed an amended application
for writ of habeas corpus, in which he contended his arrest and subsequent confinement were
illegal “because the documents were not in order on their face.” The trial court held a hearing on
the amended application on September 27, 2017. The trial court denied habeas relief and ordered
McKay’s extradition to Wisconsin.
This appeal followed.
STANDARD OF REVIEW AND APPLICABLE LAW
We review the trial court’s ruling on a writ of habeas corpus for an abuse of discretion.
Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In conducting our evaluation, we
view the evidence in the record in the light most favorable to the trial court’s ruling. Id. A trial
court does not abuse its discretion if its ruling lies within the zone of reasonable disagreement.
Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).
The introduction of a Governor’s Warrant that is regular on its face establishes a prima
facie case authorizing extradition of the person named in the warrant. Ex parte Smith, 36 S.W.3d
927, 928 (Tex. App.—San Antonio 2001, no pet.). The prima facie case may, however, be defeated
by defects in the supporting documents. Ex parte Mason, 656 S.W.2d 470, 471 (Tex. Crim. App.
1983); Ex parte Lebron, 937 S.W.2d 590, 593 (Tex. App.—San Antonio 1996, pet. ref’d). Our
review of the denial of habeas corpus relief in an extradition proceeding is restricted to the
following four issues: (1) whether the extradition documents on their face are in order; (2) whether
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the appellant has been charged with a crime in the demanding state; (3) whether the appellant is
the person named in the request for extradition; and (4) whether the appellant is a fugitive.
Michigan v. Doran, 439 U.S. 282, 289 (1978); Ex parte Lopez, 988 S.W.2d 788, 789 (Tex. App.—
San Antonio 1999, no pet.).
DISCUSSION
McKay contends “the Wisconsin Governor’s demand for Requisition in this case was
defective because it was not certified, sealed, or authenticated as required by State or Federal
law.” 1 Specifically, McKay argues the Requisition is not properly certified or authenticated
pursuant to Texas Code of Criminal Procedure article 51.13 section 3, 18 U.S.C.A. § 3182, or the
Rules of Evidence. The State responds, in part, that the demanding governor’s certification as to
the authenticity of the documents accompanying the Requisition and Governor’s Warrant is
sufficient to satisfy article 51.13 section 3 as well as federal law.
As a preliminary matter, we note the Rules of Evidence, except for privilege, do not apply
to “proceedings in an application for habeas corpus in extradition.” TEX. R. EVID. 101(d)(1)(C).
Therefore, we do not address McKay’s arguments relating to the Rules of Evidence.
The Uniform Criminal Extradition Act, codified at Article 51.13 section 3 of the Texas
Code of Criminal Procedure provides:
No demand for the extradition of a person charged with crime in another State shall
be recognized by the Governor unless in writing, alleging, except in cases arising
under Section 6, that the accused was present in the demanding State at the time of
the commission of the alleged crime, and that thereafter he fled from the State, and
accompanied by … a copy of a judgment of conviction or of a sentence imposed in
execution thereof, together with a statement by the Executive Authority of the
demanding State that the person claimed has … broken the terms of his bail,
probation or parole. The … copy of indictment, information, affidavit, judgment
1
The trial court and the parties noted on the record that the copies of the Governor’s Warrant and accompanying
documentation do not accurately reflect the presence, or lack thereof, of a raised or embossed seal. The parties agree
the Requisition, identified as page five of State’s Exhibit No. 1, does not have a seal. The parties further agreed during
the hearing that page four of State’s Exhibit No. 1, which is the Agent Appointment, does have a seal.
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of conviction or sentence must be authenticated by the Executive Authority
making the demand; provided, however, that all such copies of the aforesaid
instruments shall be in duplicate, one complete set of such instruments to be
delivered to the defendant or to his attorney.
TEX. CODE CRIM. PROC. ANN. art. 51.13 § 3 (West Supp. 2017) (emphasis added). The United
States Code provides:
Whenever the executive authority of any State or Territory demands any person as
a fugitive from justice, of the executive authority of any State, District, or Territory
to which such person has fled, and produces a copy of an indictment found or an
affidavit made before a magistrate of any State or Territory, charging the person
demanded with having committed treason, felony, or other crime, certified as
authentic by the governor or chief magistrate of the State or Territory from
whence the person so charged has fled, the executive authority of the State,
District, or Territory to which such person has fled shall cause him to be arrested
and secured, and notify the executive authority making such demand, or the agent
of such authority appointed to receive the fugitive, and shall cause the fugitive to
be delivered to such agent when he shall appear. If no such agent appears within
thirty days from the time of the arrest, the prisoner may be discharged.
18 U.S.C.A. § 3182 (emphasis added).
McKay argues the federal implementation of the extradition clause, quoted above, requires
that the demanding state’s request be “certified.” However, a plain reading of the extradition
clause shows that it is the “copy of an indictment found or an affidavit made before a magistrate
of any State or Territory, charging the person demanded with having committed treason, felony,
or other crime” that must be certified — not the request itself. Further, a plain reading of article
51.13 section 3 shows the same — it is the “copy of indictment, information, affidavit, judgment
of conviction or sentence,” rather than the request, that must be authenticated.
The documents introduced into evidence in support of the extradition consist of the
Governor’s Warrant and cover letter, Agent’s Appointment, Requisition, and Application for
Requisition with supporting documents. The Requisition signed by the governor of Wisconsin
includes the following language: “It appears by the annexed documents, which I certify are
authentic … .” Thus, the Requisition certifies to the authenticity of the documents attached to it.
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This is sufficient to meet the requirements of both article 51.13 section 3 and the United States
Code. See Ex Parte Bradley, 456 S.W.2d 370, 371 (Tex. Crim. App. 1970) (approving that the
requisition in that case expressly certifies the annexed documents “to be authentic and duly
authenticated”). In contrast to appellant’s contention, there is no requirement in either the state or
federal law requiring that the requisition itself be “certified, sealed, or authenticated.” See 18
U.S.C.A. § 3182; TEX. CODE CRIM. PROC. ANN. art. 51.13 § 3.
Nothing in the record before us reflects the documents are not what they purport to be.
Accordingly, we conclude the trial court did not err by determining the extradition documents are
on their face in order.
CONCLUSION
Based on the foregoing reasons, we overrule McKay’s sole issue on appeal and affirm the
trial court’s order denying habeas corpus relief and the extradition order to return McKay to the
State of Wisconsin.
Irene Rios, Justice
DO NOT PUBLISH
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Ex Parte Trace McKay
Combined Opinion