Opinion issued February 14, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00808-CR
———————————
EX PARTE RICHARD VINCENT LETIZIA, Appellant
On Appeal from the County Criminal Court at Law No. 5
Harris County, Texas
Trial Court Case No. 2112524
MEMORANDUM OPINION
Appellant, Richard Vincent Letizia, appeals the trial court’s order denying his
application for a writ of habeas corpus challenging his confinement under a
governor’s warrant for extradition to Florida.1 We affirm the trial court’s order.
1
See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 10(a).
Background
The record indicates that appellant was charged, in Florida, with the felony
offenses of driving while license revoked-habitual offender and forgery. He pleaded
nolo contendere to the offenses, was found guilty, and was committed to the custody
of the sheriff of Indian River County, Florida for a term of six months to be followed
by probation for a period of two years, with the sentences to run concurrently.
However, he violated the terms of his probation, and a Florida court set a date for
sentencing. Appellant did not appear, he was sentenced in absentia to confinement
for five years in the Florida Department of Corrections, and a bench warrant was
issued for his arrest.
On July 6, 2016, appellant was arrested in Harris County, Texas. He appeared
before a Harris County magistrate and refused extradition to Florida.2 The State of
Florida applied for appellant’s extradition to Florida, stating, in part, that
“RICHARD VINCENT LETIZIA” had been convicted of felony driving while
license revoked-habitual offender, forgery, and giving a false name while arrested
or detained, had been placed on probation for driving while license revoked-habitual
offender and forgery, had violated the terms of the probation, and was to be found
2
The record and documents filed in this Court reflect that the trial court appointed
counsel to represent appellant. This attorney also represented appellant in the habeas
corpus proceeding but the record does not reflect that the trial court appointed
counsel to represent appellant in the proceeding on his application for a writ of
habeas corpus.
2
in Texas. The Texas governor’s office issued a warrant authorizing extradition of
“Richard Vincent Letizia aka Richard V. Letizia aka Richard Letizia.”3 Represented
by counsel, appellant then filed his verified application for a writ of habeas corpus,
contending that he was unlawfully restrained “under the Uniform Criminal
Extradition Act because [he was] not the same person requested in the Governor’s
Warrant for extradition.” He specifically asserted that “the picture in the Governor’s
Warrant [was] not of [appellant], and the Social Security Number listed [was] not
[his] either.”
The trial court held a hearing on appellant’s application. The State offered,
and the trial court admitted with no objection, the governor’s warrant and supporting
documents. No other documents were offered into evidence, and no testimony was
presented. At the hearing, appellant argued that, although “the name does match, the
other identifiers do not match,” and he was not the person listed in the governor’s
warrant and should not be extradited to Florida. Specifically, according to appellant,
the picture, social security number, and height included in the documents were not
his picture, social security number, or height. However, appellant stated that he
“remember[ed] being before the judge” and “took sentencing” but “[did not]
understand why [he] could have failure to appear for sentencing.” The State
3
See id. art. 51.13, § 3.
3
responded that the governor’s warrant was “prima facie evidence that it [was]
correct” and, “once it [was] admitted [was] good on its face” and “independently
sufficient.” The trial court denied appellant’s requested habeas relief and remanded
him to Florida. Appellant timely filed a pro se notice of appeal.4 And, the trial court
set a bond in the amount of $25,000, which appellant posted.
Represented by retained counsel, appellant filed a brief in this Court. After he
and the State filed their briefs, appellant’s counsel filed a motion to withdraw,
representing that appellant had informed counsel that “[a]ppellant no longer wished
for [counsel] to represent him in the [appeal].” We granted the motion, abated the
appeal, and remanded the case to the trial court to determine the issues regarding
appellant’s representation on appeal. On May 24, 2017, the trial court held a hearing
at which appellant did not appear and then revoked his bond. After a capias was
issued and appellant was arrested on February 18, 2018, the trial court held a second
hearing regarding appellant’s representation on appeal. At that hearing, appellant
4
When appellant appeared in the Harris County trial court, the proceeding was
assigned trial court cause number 2100551. Appellant filed his application for a writ
of habeas corpus and notice of appeal in that cause number. His habeas corpus
proceeding subsequently was docketed as a separate proceeding and assigned cause
number 2112524. See Greenwell v. Court of Appeals for the Thirteenth Judicial
Dist., 159 S.W.3d 645, 649–50 (Tex. Crim. App. 2005) (explaining habeas corpus
action is separate action from proceeding from which it arises); Ex parte Anderson,
902 S.W.2d 695, 695 n.1 (Tex. App.—Austin 1995, pet. ref’d) (noting habeas
corpus proceeding is separate proceeding and should be given different cause
number than criminal case by clerk of court in which habeas corpus proceeding is
filed regardless of style or cause number placed on habeas corpus petition).
4
stated that he would “like to continue on pro se,” and the trial court admonished him
regarding the dangers and disadvantages of self-representation. Appellant has filed
his pro se appellant’s brief and reply brief in this appeal, and the State has filed an
appellee’s brief in response.
Standard of Review
We review a trial court’s ruling on a pretrial application for a 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 and defer to the trial court’s implied findings
that are supported by the record. See Washington, 326 S.W.3d at 704 (citing Ex parte
Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006)). The applicant has the
burden to prove his claims by a preponderance of the evidence. Id. at 706; Ex parte
Graves, 271 S.W.3d 801, 803 (Tex. App.—Waco 2008, pet. ref’d).
Discussion
In his first and second issues, appellant contends that his arrest on July 6, 2016
was unlawful and unreasonable and he is not the person identified in the governor’s
warrant.
Texas has adopted the Uniform Criminal Extradition Act. See TEX. CODE
CRIM. PROC. ANN. art. 51.13; Ex parte Koester, 450 S.W.3d 908, 911 (Tex. App.—
5
Houston [1st Dist.] 2014, no pet.). Under article 51.13, “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. Once the governor of the asylum state grants
extradition, a person may challenge the extradition only through an application for
a writ of habeas corpus. See id. art. 51.13, § 10(a); Ex parte Chapman, 601 S.W.2d
380, 382–83 (Tex. Crim. App. 1980). And, “[b]ecause extradition is a summary,
mandatory executive proceeding, the review undertaken in the habeas corpus
proceeding is limited in scope.” Ex parte Rhodes, 494 S.W.3d 753, 755 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d). “The ‘sole purpose’ of habeas corpus review
‘is to test the legality of the extradition proceedings.’” Id. (quoting Echols v. State,
810 S.W.2d 430, 432 (Tex. App.—Houston [14th Dist.] 1991, no pet.)).
Once a governor’s warrant has been issued, a court considering release on an
application for a writ of habeas corpus can decide only whether (a) the extradition
documents on their face are in order, (b) the applicant has been charged with a crime
in the demanding state, (c) the applicant is the person named in the request for
extradition, and (d) the applicant is a fugitive. Michigan v. Doran, 439 U.S. 282,
289, 99 S. Ct. 530, 535 (1978); see Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim.
App. 2000); Ex parte Koester, 450 S.W.3d at 911. The reviewing court may not
6
consider possible defenses or the guilt or innocence of the person charged, and may
not review the demanding state’s determination that probable cause exists for the
person’s arrest. See Ex parte Koester, 450 S.W.3d at 911.
In his application, appellant asserted that he was “not the same person
requested in the Governor’s Warrant for extradition,” specifically, that “the picture
in the Governor’s Warrant [was] not of [him], and the Social Security Number
listed” was not his social security number. At the hearing on his application,
appellant acknowledged that “the name” matched but contended that “the other
identifiers” did not match. He asserted that the picture, social security number, and
height included in the governor’s warrant documents were not his picture, social
security number, or height. On appeal, he contends that he is “not the person in the
Governor’s Warrant identifiers,” that is, “[t]he picture, birth date, height, social
security number, previous address and list of violations ARE NOT the appellant.”
The introduction of a governor’s warrant, regular on its face, establishes a
prima facie case that the requirements for extradition from this State to another state
have been met. See Doran, 439 U.S. at 289, 99 S. Ct. at 535; State ex rel. Holmes v.
Klevenhagen, 819 S.W.2d 539, 542 (Tex. Crim. App. 1991); Ex parte Koester, 450
S.W.3d at 911. Article 51.13, section 3 requires that an extradition request from the
demanding state be accompanied by either (1) a copy of an indictment, (2) an
information supported by an affidavit, (3) an affidavit made before a magistrate
7
together with a warrant, or (4) a copy of a judgment of conviction or sentence
together with a statement the person has escaped from confinement or broken the
terms of his bail, probation, or parole. TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3.
Each document serves the purpose of demonstrating that the person whose surrender
is sought was charged in the regular course of the judicial proceedings of the
demanding state. Ex parte Rosenthal, 515 S.W.2d 114, 119 (Tex. Crim. App. 1974);
Ex parte Rodriguez, 943 S.W.2d 97, 99 (Tex. App.—Corpus Christi–Edinburg 1997,
no pet.). Once a governor’s warrant, regular on its face, is introduced into evidence,
the burden shifts to the applicant to show that the warrant was not legally issued,
was not based on proper authority, or contains inaccurate recitals. See Ex parte Cain,
592 S.W.2d 359, 362 (Tex. Crim. App. 1980); Ex parte Koester, 450 S.W.3d at 911.
At the hearing on appellant’s application for a writ of habeas corpus, the State
introduced, and the trial court admitted with no objection, a copy of the governor’s
warrant with supporting documents. In an “Affidavit in Aid of Extradition,” an
assistant state attorney in Indian River County, Florida stated that “Richard Vincent
Letizia” was charged with the offenses of felony driving while license
revoked-habitual offender, forgery, and giving a false name while arrested or
detained; pleaded nolo contendere to the charges and was sentenced on February 9,
2006; a “Violation of Probation Report, Affidavit and Warrant” were filed; “[o]n
August 4, 2006, [he] admitted to the Violation of Probation, the Judge accepted the
8
admission and sentencing was set for October 05, 2006”; and that day he “was
sentenced in absentia” to five years in the Department of Corrections, and a bench
warrant was issued for his arrest. The supporting documents also include an
“Application for Requisition” in which the same assistant state attorney stated that
“Richard Vincent Letizia” had not “completed his sentence” and had been arrested
under a fugitive warrant in Texas. Attached to the requisition were certified copies
of the Florida trial court documents, including copies of the judgments and
sentences, naming Richard Vincent Letizia, for the offenses of driving while license
revoked-habitual offender and forgery, and a bench warrant for the arrest of “Letizia,
Richard V,” issued by a circuit judge of Indian River County, Florida.5
“To raise the issue of identity, the [applicant] must deny under oath that he is
the person named in the warrant.” Hanks v. State, 113 S.W.3d 523, 525 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). Appellant, therefore, had to make a sworn
statement, either through live testimony or an affidavit, denying that he was the
person sought by the demanding state, Florida. See Ex parte Meador, 597 S.W.2d
372, 373 (Tex. Crim. App. 1980); Hanks, 113 S.W.3d at 525. Appellant did not
testify at the hearing on his application for a writ of habeas corpus or present any
5
Each “Violation of Probation” warrant is styled “State of Florida vs. Richard
Vincent Letizia” and includes a photograph and a physical description. At the
hearing, the trial court had an opportunity to compare the photographs and physical
descriptions set out in extradition documents to the physical appearance of appellant
at the hearing on his application for a writ of habeas corpus.
9
evidence, such as his own sworn statement, on the issue of his identity. The
allegations in his application for a writ of habeas corpus were not evidence. An
“application for the writ, although sworn to, is but a pleading and does not prove
itself.” Ex parte Wells, 332 S.W.2d 565, 565 (Tex. Crim. App. 1960); see Ex parte
Taylor, 690 S.W.2d 33, 34 (Tex. App.—Beaumont 1985, no pet.) (holding filing of
application for writ of habeas corpus, sworn to by appellant, “was not in itself
sufficient to raise the issue of identity”); see also State v. Guerrero, 400 S.W.3d 576,
583 (Tex. Crim. App. 2013) (“[I]n all habeas cases, sworn pleadings are an
inadequate basis upon which to grant relief . . . .”). Accordingly, appellant did not
meet his burden to show that he was not the person named in the governor’s warrant.6
We overrule the portion of issue two that challenges the denial of the application for
a writ of habeas corpus on the basis that he is not the person identified in the
governor’s warrant.
6
Reporter’s records of hearings held after the trial court’s ruling on appellant’s
habeas application have been filed in this proceeding, and appellant has filed
numerous affidavits. Although the Texas Rules of Appellate Procedure allow for
supplementation of an appellate record, supplementation may not be used to create
a new appellate record or develop arguments or evidence not developed during the
proceedings leading to the trial court’s ruling. See Whitehead v. State, 130 S.W.3d
866, 872 (Tex. Crim. App. 2004); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.
App. 2001). Our review of the record itself is generally limited to the evidence
before the trial court at the time of the trial court’s ruling. See Whitehead, 130
S.W.3d at 872; see, e.g., Wyss v. State, No. 03-07-00515-CR, 2008 WL 4093378, at
*3 (Tex. App.—Austin Sept. 5, 2008, no pet.) (mem. op., not designated for
publication) (explaining affidavits, documents, and other material not supported by
record and attached to appellate brief are not considered on appellate review).
10
In his first issue, appellant contends that his arrest on July 6, 2016 was
unlawful and unreasonable, asserting that it was warrantless and without probable
cause or exigent circumstances that would allow an arrest without a warrant.
Appellant challenges his July 16, 2016 arrest, asserting that the arrest “by the Harris
County [Texas] Sheriff Fugitive Task Force was warrantless, with no probable cause
without any exigent circumstances to extract [him] using excessive force.”7 He,
however, did not raise these challenges to the arrest in his application for a writ of
habeas corpus or at the hearing on his application. Thus, the issue was not before the
trial court when it considered appellant’s application, and the trial court did not have
an opportunity to rule on the issue. Because his argument in his application and the
hearing on the application differs from the argument that he raises here, appellant
did not preserve the argument for our review. See TEX. R. APP. P. 33.1; see also Ex
parte Evans, 410 S.W.3d 481, 485 (Tex. App.—Fort Worth 2013, pet. ref’d)
(declining to consider argument that appellant did not raise in application for writ of
habeas corpus in trial court); see, e.g., Ex parte Yarbrough, No. 04-15-00672-CR,
7
In part, appellant relies on article 51.03 of the Texas Code of Criminal Procedure,
which provides that, “[w]hen a complaint is made to a magistrate that any person
within his jurisdiction is a fugitive from justice from another State, he shall issue a
warrant of arrest directing a peace officer to apprehend and bring the accused before
him.” TEX. CODE CRIM. PROC. ANN. art. 51.03. However, article 51.13 provides that
“[t]he arrest of a person may be lawfully made also by any peace officer . . . without
a warrant upon reasonable information that the accused stands charged in the courts
of a State with a crime punishable by death or imprisonment for a term exceeding
one year.” Id. art 51.13, § 14.
11
2016 WL 1588213, at *2 (Tex. App.—San Antonio Apr. 20, 2016, no pet.) (mem.
op., not designated for publication) (concluding, because appellant did not present
challenge, trial court did not make ruling, and nothing was presented for review on
appeal); Ex parte Mitchell, No. 04-02-00533-CR, 2002 WL 31890896, at *1 (Tex.
App.—San Antonio Dec. 31, 2002, no pet.) (mem. op., not designated for
publication) (concluding appellant did not preserve issue that his arrest was illegal
when he did not raise issue in trial court). We overrule appellant’s first issue.
In his “Issues Presented,” appellant includes issues regarding “court appointed
attorney,” the State’s briefing in this Court and actions in the trial court, and the
assignment of cause numbers in the trial court. Although referring to the Sixth
Amendment of the United States Constitution and a “violation of due process and
fundamental fairness,” appellant does not present any discussion as to how these
issues support reversal of the trial court’s denial of his application for a writ of
habeas corpus. See TEX. R. APP. P. 38.1(i) (providing appellant’s brief must contain
“clear and concise argument for the contentions made, with appropriate citations to
authorities and record”). The rule 38.1 requirement “is not satisfied by merely
uttering brief, conclusory statements unsupported by legal citations.” Muhammed v.
State, 331 S.W.3d 187, 195 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). A
failure to cite legal authority or provide substantive analysis of a legal issue
presented results in waiver of the complaint. See Stahle v. State, 970 S.W.2d 682,
12
692 (Tex. App.—Dallas 1998, pet. ref’d.). Accordingly, we conclude that these
issues have not been preserved for review in this appeal.
Considering the evidence in the light most favorable to the trial court’s ruling,
we conclude that appellant has not demonstrated that the trial court abused its
discretion in denying his application for a writ of habeas corpus.
Conclusion
We affirm the order of the trial court. We dismiss all pending motions as moot.
Russell Lloyd
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
13