Ex Parte Allen

GUITTARD, Chief Justice.

William Wade Allen appeals the denial of his writ of habeas corpus by which he sought to avoid extradition to the state of Tennessee where he was charged with armed robbery. Allen complains that the evidence is insufficient to support the judgment and that the extradition hearing conducted before a magistrate is void. We disagree. Consequently, we affirm.

In his first ground of error, appellant contends that the evidence is insufficient to support the judgment in several respects. First he argues that the governor’s warrant issued on January 23, 1985, could not rely upon an affidavit of identification signed on January 25, 1985. The affidavit of identification is not requisite to a proper order of extradition. See Ex parte Trisler, 605 S.W.2d 619, 620 (Tex.Crim.App.1980). An affidavit such as this showing that the person detained is in fact the person sought by the demanding state is not necessary to the validity of the warrant and may be made at any time. See Ex parte Viduari, 525 S.W.2d 163, 164 (Tex.Crim.App.1975).

Appellant also complains that the indictment is insufficient in that it recites the date of the offense as, “On the_day of July. A.D. 1984.” This exact contention was expressly rejected in Ex parte Heck, 434 S.W.2d 855, 857 (Tex.Crim.App.1968).

Next appellant asserts that the State failed to show his presence in the demanding state on the date of the offense. At the hearing appellant, his wife, and a friend denied his presence in Tennessee, on that date. Nonetheless, appellant’s presence in the demanding state was alleged in the requisition signed by the Governor of Tennessee. Additionally, an “affidavit of identifying witness” and a photograph from the demanding state were introduced at the hearing. The Texas Governor’s warrant and its attached documents are sufficient to show appellant’s presence in the demanding state. Ex parte Johnson, 651 S.W.2d 439, 440 (Tex.App.—Dallas 1983, no pet.) Accordingly, we overrule appellant’s first ground of error.

In four related grounds of error, appellant attacks the order authorizing extradition because the proceedings were conducted before a magistrate rather than a district judge. Initially, appellant asserts that the magistrate’s actions were tantamount to presiding over a trial upon the merits, which is expressly prohibited by the Dallas County Magistrates Act, TEX.REV. CIV.STAT.ANN. art. 1918c, § 4(b) (Vernon Supp.1985). We disagree. The extradition hearing did not involve a ruling on any *888issue of law or fact of which the determination could result in dismissal of the case. See Kelley v. State, 676 S.W.2d 104, 107 (Tex.Crim.App.1984). We conclude that it was not a “trial on the merits” within section 4(b) of the Act, but was rather one of the “other matters” that section 4(a)(6) of the Act authorizes to be referred to a magistrate.

This conclusion is supported by Ex parte Scarbrough, 604 S.W.2d 170, 173 (Tex.Crim.App.1980), in which the Court of Criminal Appeals held that an extradition hearing was not a trial on the merits and, therefore, the applicant’s right to confrontation was not violated by introduction of the governor’s warrant and supporting papers. Further support for our conclusion is found in Scott v. State, 690 S.W.2d 256, 259 (Tex.Crim.App.1985) (magistrate may hold hearing to fix punishment pursuant to plea bargain without a specific agreement as to punishment), and Ex parte Howard, 685 S.W.2d 672, 674 (Tex.Crim.App.1985) (magistrate may hear motion to proceed to adjudication after order of unadjudicated probation).

Moreover, in the present case, any objection to the hearing before the magistrate was expressly waived by appellant. The record contains the following document:

WAIVER OF HAVING CAUSE HEARD BY DISTRICT JUDGE REQUEST FOR REFERRAL TO MAGISTRATE
NOW COMES, William Wade Allen, defendant in the above numbered and titled cause and freely and voluntarily waives his right to have said cause heard by a District Judge, and requests that said cause be heard and determined by a Magistrate, having been informed of his right to have this matter heard by the District Judge and defendant understanding this right and the possible consequences of it.
/s/John T. Boyce
Counsel for Defendant
/S/William Allen
Defendant

Article 1.14 of the Texas Code of Criminal Procedure provides: “The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.” An accused may waive extradition altogether and return voluntarily to the demanding state. TEX.CODE CRIM.PROC.ANN. art. 51.13, § 25a (Vernon 1979). Furthermore, one may waive extradition in advance as a condition of parole. Ex parte Johnson, 610 S.W.2d 757, 759-60 (Tex.Crim.App.1980); Ex parte Williams, 472 S.W.2d 779, 780 (Tex.Crim.App.1971). Consequently, we see no reason why he may not waive a hearing before the district judge and consent to determination of the matter by a magistrate. Appellant’s complaint concerning the hearing before the magistrate is, accordingly, overruled.

Appellant also contends that the district judge’s order referring his cause to the magistrate was insufficient to confer jurisdiction on the magistrate to hear the cause. We disagree. After reciting that appellant’s written waiver, consent, and request for referral to a magistrate was approved, the judge’s order of referral states: “This cause is hereby referred to a Criminal District Magistrate of Dallas County, Texas pursuant to Article 1918c V.A.C.S.”

Appellant argues that this statement is insufficient to confer jurisdiction on the magistrate because it fails to specify the duties of the magistrate as required by TEX.REV.CIV.STAT.ANN. art. 1918c, § 4(c) (Vernon Supp.1985). In the context of this referral order, we conclude that the judge adequately specified the duties of the magistrate — i.e., to hear appellant’s application for writ of habeas corpus — so as confer jurisdiction on the magistrate to hear the cause. After approving appellant’s request to have the extradition proceeding “heard and determined” by a magistrate, the judge was not required by section 4(c) of article 1918c to direct the magistrate specifically to “hear appellant’s application” by hearing evidence, making findings of fact, formulating conclusions of *889law, recommending rulings or judgments, etc. See generally TEX.REV.CIV.STAT. ANN. art. 1918c, § 5 (Vernon Supp.1985).

Appellant further contends that the actions of the magistrate were void because his findings were not reduced to writing. However, nowhere in article 1918c, § 7(a) does such a requirement appear. In a footnote in Kelley v. State, 676 S.W.2d 104, 108 (Tex.Crim.App.1984), Judge Miller observed:

The form motions, orders, and judgment which were used in this case have created confusion. We caution the bench and bar if they are to continue to use these forms, as economy will probably dictate, that they pay attention to what is included therein. We also note that Art. 1918c, Sec. 7, clearly requires that the magistrate transmit all the papers relating to the case to the district judge for action. To avoid confusion in the future, it would be advisable for Dallas County to develop a clear mechanism for doing so, and for noting the recommendations and findings of the magistrate along with the referring court’s specific adoption or revision of same. (Emphasis added).

Although we agree that written findings and recommendations are advisable to avoid confusion, the findings need not be expressed in writing in order to satisfy the statute.1

In his final ground of error, appellant multifariously attacks the sufficiency of the Tennessee supporting papers attached to the application directed to the Governor of that state. The demand for extradition of the Governor of the State of Tennessee provides:

WHEREAS, it appears by the annexed application and copies of indictment and capias, which I certify are authentic and duly authenticated in accordance with the laws of the State of Tennessee, that under the laws of this State William Wade Allen stands charged with the crime of armed robbery committed in this State, and it has been represented and is satisfactorily shown to me that the accused was present in this State at the time of the commission of said crime and thereafter fled from the justice of this State, and has taken refuge and is now to be found in the State of Texas.... [Emphasis added.]

In Ex parte Reagan, 549 S.W.2d 204, 205 (Tex.Crim.App.1977), the court of criminal appeals held that such recitation was sufficient to authenticate all supporting papers under section 3 of the Uniform Criminal Extradition Act, TEX.CODE CRIM.PROC. ANN. art. 51.13, § 3 (Vernon 1979). We are bound by this determination. Consequently, we hold that the papers in this case are properly authenticated.

All of appellant’s grounds of error are overruled and the judgment is affirmed.

WHITHAM, J. dissents.

. We also note an apparent inconsistency between two orders, both of which were signed by the trial judge on the same day. One "specifically adopts and ratifies the action taken by Magistrate Paul Brauchle.” The other, a judgment denying the writ, recites that the judge had examined the writ and return and all documents attached and has "heard the testimony offered by both sides.” Only one order is appropriate here, and it should accurately reflect that the judgment is based on the recommendation of the magistrate, as authorized by section 7 of article 1918c. This use of apparently inconsistent forms is confusing, and should be avoided, but does not affect our disposition of the appeal.