Ex parte Armes

• Decision Date: 18 April 1979
• Docket Number: No. 1,Nos. 60990,60991,s. 60990,1
• Citation: 582 S.W.2d 434
• Parties: Ex parte Jay J. ARMES, Appellant
• Court: Texas Court of Criminal Appeals

Page 434

582 S.W.2d 434

Ex parte Jay J. ARMES, Appellant.

Nos. 60990, 60991.

Court of Criminal Appeals of Texas, Panel No. 1.

April 18, 1979.

Rehearing En Banc Denied July 3, 1979.

Dick Stengel, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and William J. Ellis, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

This is an appeal from an order denying the appellant's request for habeas corpus relief. Relief was sought from a summons directing the appellant to appear as a witness in California pursuant to an order entered under Art. 24.28, V.A.C.C.P.

Cause No. 60,990 (Cause No. 32,770-205 in the trial court) contains the record from the hearing in which the appellant was ordered to appear in California as a witness. This record contains no application for habeas corpus relief nor any order denying that relief. The only order of the trial court reflected by this record is an order for a summons directing Armes to appear in California.

In Armes v. State, Tex.Cr.App., 573 S.W.2d 7, this Court considered a purported appeal from a previous order for Armes to appear in California as a witness regarding this same matter. This Court held that there is no right to a direct appeal from a court order entered pursuant to Art. 24.28, supra, compelling the witness' attendance.

The current posture of the record in Cause No. 60,990 presents nothing more than a purported appeal from an order entered pursuant to Art. 24.28, supra. No appeal lies from such an order. Cause No. 60,990 is dismissed.

Cause No. 60,991 (Cause No. 32,923-205 in the trial court) contains an application for a writ of habeas corpus and an order denying the relief sought. The record further reflects that timely notice of appeal was given.

In Armes v. State, supra, this Court also considered an appeal from the trial court's denial of habeas corpus relief. This Court, noting that the appellant was not in custody and under no restraint, held that the habeas corpus question was moot. In the present case, however, the appellant was ordered to post a $10,000 bond to ensure his appearance as a witness.

In Ex parte Trillo, 540 S.W.2d 728, this Court held that a person was under restraint for habeas corpus purposes when released on bond or bail. Thus, appellant is under restraint, and Cause No. 60,991 is properly before us.

The record reflects that on January 24, 1979, the State filed a "Petition to Secure Attendance of Witness." This petition alleged that all requisites under Art. 24.28, supra, had been complied with by the requesting state, and sought to have an order entered directing Armes to appear in San Diego County, California, on April 11, 1979, at 9:00 a. m.

Attached to the petition and incorporated by reference was a Certificate of the Superior Court of San Diego County, California, requesting the attendance of Armes to testify at a grand jury proceeding. The status of this court as a court of record and the authenticity of the judge's signature were sworn to by the clerk of the court in a separate certificate. The judge's certificate, in summary, stated that:

"1. An investigation into a certain murder was pending with the San Diego County Grand Jury;

"2. That Armes, who resides in El Paso County, Texas, is 'a necessary and material witness' in that murder investigation;

"3. That Armes is a material and necessary witness for the reasons set out in an attached affidavit;

"4. That the proper payment for transportation and per diem for the three days which the witness' presence would be required is tendered;

"5. That Armes would be protected from arrest or service of process in California and the states through which he would travel;

"6. That the State of California requests Texas to take Armes into custody and be delivered to an officer of California to assure the appearance of the witness."

An attached affidavit executed by Richard Huffman, Chief Deputy District Attorney for San Diego County, set out in detail the factual basis for the Superior Court's finding that Armes was a material witness. According to this affidavit, Armes had been hired by a San Diego citizens committee to investigate the murder now being investigated by the grand jury. The affidavit further states that after conducting his investigation in California Armes made representations that he knew who the murderer was. This affidavit detailed previous attempts to secure this witness' attendance.

A tender of proper compensation accompanied the judge's certificate. After a hearing the trial court ordered Armes to appear as a witness in California, and Armes posted a bond to secure his attendance. Armes' application for habeas corpus relief was denied, which is now the basis of this appeal.

This case presents a question of first impression regarding the requisites necessary to compel a person in this state to appear as a witness in a criminal proceeding in a sister state. A brief discussion of the general procedure to be used, in addition to the specific grounds of error urged by the petitioner, is thus in order.

Article 24.28, Sec. 3, supra, sets out the procedure to be used when a sister state requests the compulsory attendance of a witness in a criminal matter. This statute provides for the following steps in the courts of this state. See, New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959).

Upon the state's filing of a petition, the trial court in the county in which the witness is located sets a hearing on the Art. 24.28 request if:

1. It is shown that the demanding state has enacted a reciprocal act to Art. 24.28, supra; and 2. A judge of a court of record in that demanding state certifies under seal

(a) that the witness sought is a material witness

(b) in a criminal prosecution or grand jury investigation

(c) and will be required for a specific number of days.

See, Art. 24.28, Sec. 3(a), supra. If these requisites are met, the trial court sets a time and place for the hearing and orders the witness to appear at the hearing.

After this hearing the trial court can enter an order directing the witness to appear in the requesting state only if it determines that:

1. The witness is material and necessary to the criminal proceeding or grand jury investigation; and

2. The witness will not be caused undue hardship if compelled to attend the proceeding in the sister state; and

3. The witness is protected from arrest and service of civil and criminal process in the demanding state and all states through which the witness must pass.

Art. 24.28, Sec. 3(b), supra.

Article 24.28, Sec. 3(d), imposes the sanctions for the failure of a witness to appear in the requesting state. A prerequisite for imposition of these sanctions is that the requesting state must have tendered compensation for the trip as required by Art. 35.27, V.A.C.C.P.

Appellant contends that the facts contained in the certificate from the requesting state standing alone are insufficient to support the trial court's determination that he is a material and necessary witness. As set out above, this finding is a prerequisite to ordering the witness to appear in the requesting state.

Article 24.28, Sec. 3(b), supra, provides that the judge's certificate from the requesting state is prima facie evidence of all the facts stated therein. The appellant testified at the hearing that he had no knowledge or information regarding the investigation in an effort to rebut this prima facie showing. Appellant correctly states that there are no cases in this jurisdiction on this issue, and cites decisions of sister states in support of his contention.

The Illinois enactment of the Uniform Act to Secure Attendance of Witnesses from Without the State was interpreted in In re Grothe, 59 Ill.App.2d 1, 208 N.E.2d 581 (Ill.App., 1965). In Grothe, the court stated that the determination of whether the witness was material and necessary was to be made by the local court rather than by the court of the requesting state. The court held that the local court must refuse the request when the facts set forth in the certificate are insufficient to support a finding that the witness is material and necessary and no additional evidence is offered. See, In re Stamler, 279 App.Div. 908, 111 N.Y.S.2d 313 (Sup.Ct., 1952).

Other jurisdictions have come to the opposite conclusion in interpreting the same act, however. In re Cooper, 127 N.J.L. 312, 22 A.2d 532 (1942). In Cooper, the court observed that the question of materiality of the witness should be the decision of the requesting court as that question would turn on the law of that jurisdiction and the issues presented in that criminal proceeding. Thus, the court found that the assertion of materiality by the requesting state in the certificate was sufficient to support a finding in the local court that the witness was material and necessary. Accord, Epstein v. New York, 157 So.2d 705 (Fla.Dist.Ct.App., 1963).

The purpose of Art. 24.28, supra, is to provide for an efficient means for our courts to compel the attendance of out-of-state witnesses in criminal matters. To achieve this purpose, the Legislature also provided the necessary reciprocal procedure for sister states to gain the attendance of witnesses from this state.

To require the requesting state to again litigate in our courts its judicial finding that the witness is material and necessary would not promote the purpose of this statute. As stated by the Supreme Court in O'Neill, "Comity among the states, an end particularly to be cherished when the object is enforcement of internal criminal laws, is not to be defeated by A priori restrictive view of state power." 359 U.S. at 11-12, 79 S.Ct. at 571. Thus, this Court's interpretation of Art. 24.28, supra, should reflect the same deference to the judicial determinations made in sister states that we would expect to be given to judicial...