EX PARTE MOLINA

No. 04-17-00012-CR.

EX PARTE Luis Alberto MOLINA.

Court of Appeals of Texas, Fourth District, San Antonio.


Attorney(s) appearing for the Case

Nicholas LaHood , Andrew Warthen , for State of Texas.

Edward Francis Shaughnessy, III , for Luis Alberto Molina, Appellant.

Sitting: Karen Angelini, Justice, Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice.


DO NOT PUBLISH

MEMORANDUM OPINION

REBECA C. MARTINEZ, Justice.

Luis Alberto Molina appeals the trial court's order denying his application for writ of habeas corpus and granting his extradition to Oklahoma. In two issues, Molina contends (1) the demanding state failed to prove that he is the person named in the request for extradition, and (2) 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 Oklahoma.

BACKGROUND

The State of Oklahoma filed an information against Molina charging him with 24 criminal counts consisting of first degree burglary, sexual battery, rape and attempted rape, larceny, blackmail, and the offense of peeping tom, allegedly committed during a period from September 25, 2015 to October 7, 2016 against multiple female victims on or near the University of Tulsa campus in the State of Oklahoma. Upon demand from the State of Oklahoma, the Governor of Texas issued a Governor's Warrant ordering Texas law enforcement officials to arrest Molina and deliver him into the custody of the Oklahoma authorities. Molina was arrested in San Antonio, Texas, and an extradition order issued on December 2, 2016. Molina filed an application for writ of habeas corpus seeking to avoid extradition. Molina challenged his identity as the person named in the extradition request and the sufficiency of the supporting requisition documents from the State of Oklahoma. After a hearing on the writ, the trial court denied Molina's request for habeas corpus relief. Molina appealed.

ANALYSIS

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 must view the evidence in the record in the light most favorable to the trial court's ruling. Id.

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 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.).

(1) Identity

Molina's application for writ of habeas corpus contains a sworn assertion that he is not the person named in the extradition request. "An accused can show he is not the person charged in the demanding state by challenging the identity of the person named in the warrant." Ex parte Smith, 36 S.W.3d at 928. "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." Id. Identity need not be proven beyond a reasonable doubt, and, because in an extradition proceeding the defendant is not on trial for commission of a crime, the rules of evidence need not be applied. 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) (photograph of defendant was sufficient to prove his identity in an extradition proceeding).

The Governor's Warrant from the State of Texas has the following description of the defendant: "Name: Luis Alberto Molina, Address: 2850 E. 8th St., #3634 Tulsa, OK 74104 . . . DOB: 5/19/1997, Race: Hispanic, Gender: Male, Height: 5'9", Weight: 180, Hair: Black, Eyes: Brown." The State of Oklahoma's extradition request includes supporting requisition papers consisting of the information and arrest warrant against Molina in Case No. CF-2016-5670, and an affidavit by James D. Dunn, Assistant District Attorney for Tulsa County, describing the defendant in that case as "Luis Alberto Molina" and as "MALE, HAIR/BLACK, EYES/BROWN, HEIGHT/5'9", WEIGHT/180, Date of Birth: 05/19/1997." In addition, a photograph of a young Hispanic male with dark hair and dark eyes is attached to Dunn's affidavit, and the photograph has the caption "Luis Alberto Molina, Date of Birth: 5/19/1997."

At the writ hearing, Deputy Claudia Moore of the Bexar County Sheriff's Department testified that the defendant "Luis Alberto Molina" was identified by the description in the Governor's Warrant and by the photograph attached to Dunn's affidavit. Deputy Moore stated her opinion that the photograph matched the appearance of Molina, who was present at the writ hearing. In addition, Deputy Moore testified that when Molina was booked following his arrest in San Antonio, Texas, he confirmed his identity as "Luis Alberto Molina," with a "date of birth of May 19, 1997" and "black hair and brown eyes," and that such identifying information matched the descriptions in the requisition papers from Oklahoma and the Texas Governor's Warrant.

Molina argues on appeal that because the photograph is not referenced in Dunn's affidavit as one of the identifiers from the demanding state of Oklahoma, the evidence is insufficient to prove his identity. However, as noted, the photograph has a caption with a name and date of birth that matches the description in Dunn's affidavit. Moreover, in addition to Deputy Moore's testimony that the photograph matched the appearance of Molina, the trial court also had the opportunity to personally compare the physical descriptions and photograph in the requisition papers to the physical appearance of Molina at the writ hearing. See Ex parte Jones, No. 04-14-00526-CR, 2014 WL 5463871, at *2 (Tex. App.-San Antonio Oct. 29, 2014, no pet.) (mem. op., not designated for publication).

Based on the record before us, we conclude the evidence in the record is sufficient to establish that Molina is the person named in the extradition request and related documents.

(2) Extradition Request

As his second ground for habeas relief, Molina asserted that the extradition request and supporting documents forwarded from the demanding state of Oklahoma do not comply with the mandatory requirements of the Uniform Criminal Extradition Act, codified in article 51.13, section 3, of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3 (West Supp. 2016). At the writ hearing, Molina objected that the extradition request was not signed by the sitting Governor of Oklahoma, as represented in the document. Molina pointed out that the extradition request and supporting documents purport to have been sent by the "Office of the Governor, State of Oklahoma" and identify the Governor as "Mary Fallin," but were actually signed by "Todd Lamb" as the "Governor of the State of Oklahoma." On appeal, Molina argues the extradition request is defective because the copy of the charging instrument is not authenticated by the "Executive Authority" of the State of Oklahoma, as required by section 3 of article 51.13. See id. The term "Executive Authority" is defined as "the Governor, and any person performing the functions of Governor in a State other than this State [Texas]." Id. at art. 51.13, § 1. Molina asserts this "defect" is sufficient to defeat the prima facie case established by introduction of the Governor's Warrant. See Ex parte Smith, 36 S.W.3d at 928.

The State responds by asking this court to take judicial notice of the following facts: (i) Todd Lamb is the Lieutenant Governor of Oklahoma; (ii) Governor Mary Fallin was absent from the State of Oklahoma on November 15, 2016, the date the extradition request was signed by Todd Lamb acting as Governor of the State of Oklahoma; and (iii) Oklahoma law authorizes the Lieutenant Governor to act as the Governor when the sitting Governor is absent from the State of Oklahoma for any period of time. In support, the State cites us to the website that is the official homepage of the Oklahoma Lieutenant Governor, which states that the office is held by Todd Lamb. See https://www.ok.gov/ltgovernor/. In addition, attached to the State's brief is a certified copy of a November 10, 2016 letter signed by Governor Mary Fallin and addressed to the leaders of the Oklahoma legislature in which Governor Fallin states, "[p]ursuant to O.S. Const. Art. 6, § 15 and § 16, this letter serves as notification that I plan to travel out of Oklahoma on Sunday, November 13, 2016 at approximately 6:00 a.m. and return to our state on Thursday, November 17, 2016 around 3:00 p.m." Finally, the State refers us to article 6, section 16, of the Oklahoma Constitution and an Oklahoma Court of Criminal Appeals' decision in support of its assertion that Oklahoma law authorizes the Lieutenant Governor to act in the capacity of the Governor when the sitting governor is absent from the State of Oklahoma. See OKLA. CONST. art. 6, § 16 (providing that, in the event of the governor's "removal from the State," the office of the governor "shall devolve upon the Lieutenant Governor for the residue of the term or until the disability shall be removed"); see also Ex parte Crump, 10 Okla. Crim. 133, 135 P. 428, 434-35 (Okla. Crim. App. 1913) (holding that "removal" means absence from the state, whether permanent or temporary).

We have discretion whether to take judicial notice of an adjudicative fact "that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." TEX. R. EVID. 201(b)(2), (d) (noting judicial notice may be taken at any stage of the proceeding); Watkins v. State, 245 S.W.3d 444, 456 (Tex. Crim. App. 2008) (appellate court may take judicial notice). When judicial notice of a fact not subject to reasonable dispute supports the integrity of the fact-finder's ruling, judicial notice may properly be taken for the first time on appeal even though it was not requested in the trial court. See Davis v. State, 227 S.W.3d 766, 769-70 (Tex. App.-Tyler 2005), aff'd, 227 S.W.3d 733 (Tex. Crim. App. 2007).

Here, although the trial court was not expressly requested to take judicial notice of the above facts, in considering Molina's objection to the extradition request and supporting papers, the trial court stated on the record, "[w]ell, it appears that Todd Lamb is the lieutenant governor of the state of Oklahoma . . . and he is signing as governor." When Molina further objected that no evidence had been presented to establish that fact, the prosecutor made a proffer to the trial court as an officer of the court that Todd Lamb is the Lieutenant Governor of Oklahoma. The trial court did not expressly state on the record that it was taking judicial notice of such fact, but the court's comments suggest that it did.

Assuming the trial court did not take judicial notice of the fact that Todd Lamb is the Lieutenant Governor of Oklahoma and that we are requested to do so for the first time on appeal, we conclude that taking judicial notice of such fact is warranted under these circumstances. The fact that Todd Lamb is the Lieutenant Governor of Oklahoma is an objectively verifiable fact from the official Oklahoma Lieutenant Governor's website, which is a source whose accuracy cannot be reasonably questioned. See TEX. R. EVID. 201(b)(2). Similarly, the certified letter from Governor Fallin stating she would be absent from the state on November 16, 2016 is also a fact not subject to reasonable dispute. See id. Finally, we are expressly authorized to take judicial notice of another state's constitution and court decisions. See TEX. R. EVID. 202. Our review of article 6, section 16, of the Oklahoma Constitution and Ex parte Crump confirms that Oklahoma law authorizes the Lieutenant Governor to act in the capacity of the Governor when the sitting governor is absent from the State of Oklahoma. In Ex parte Crump, the court expressly stated that extradition warrants for fugitives from justice are one of the "time-sensitive matters that cannot be ignored" or delayed when the Governor is out of the state, and the Governor's constitutional functions "devolve upon the Lieutenant Governor, and he becomes and is de jure and de facto Governor until the absent Governor returns to the state." Ex parte Crump, 135 P. at 436. Accordingly, we hold the extradition request and requisition papers signed by the Oklahoma Lieutenant Governor, Todd Lamb, who was acting as Governor of the State of Oklahoma in Governor Mary Fallin's absence on November 15, 2016, complies with section 3 of article 51.13. TEX. CODE CRIM. PROC. ANN. art. 51.13, § 3.

CONCLUSION

Based on the foregoing reasons, we overrule Molina's issues on appeal and affirm the trial court's order denying habeas corpus relief and the extradition order to return Molina to the State of Oklahoma.


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