J. Roger Smith, II
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Michael A. Lawrence
Public Defender's Office
1519 N. Walker Street
Princeton, West Virginia
Attorney for the Appellant
The opinion of the Court was delivered PER CURIAM.
"In habeas corpus proceedings instituted to determine the
validity of custody where petitioners are being held in connection
with extradition proceedings, the asylum state is limited to
considering whether the extradition papers are in proper form;
whether there is a criminal charge pending in the demanding state;
whether the petitioner was present in the demanding state at the
time the criminal offense was committed; and whether the petitioner
is the person named in the extradition papers." Syllabus point 2,
State ex rel. Mitchell v. Allen, 155 W.Va. 530, 185 S.E.2d 355
(1971), cert. denied, 406 U.S. 946, 92 S.Ct. 2048, 32 L.Ed.2d 333
This case is before the Court on the appellant's motion
to quash Governor Gaston Caperton's August 28, 1991, order of
extradition to the State of Texas. By order dated November 22,
1991, the Honorable John Frazier of the Circuit Court of Mercer
County denied the appellant's motion for a writ of habeas corpus.
The appellant, Patricia Sue Belcher, appeals from that final
The appellant and her husband were married in Texas in
1985. In 1991, her husband filed for a divorce. On April 8, 1991,
the husband was given temporary custody of their two children, ages
two and four. The divorce was not final at that point, and to the
best of our knowledge, is still pending in Texas. At the
conclusion of the hearing, the appellant was given time to say
good-bye to the children, but instead, "with children in tow,
Patricia Sue caught the next bus to Welch, West Virginia."
On May 24, 1991, the Potter County, Texas, grand jury
returned an indictment against the appellant for "interference with
child custody." On August 26, 1991, Texas Governor Ann Richards
requested that Governor Caperton return the appellant to Texas to
face the criminal charges. On August 28, 1991, Caperton signed the
extradition order. On November 22, 1991, Judge Frazier denied her
petition for a writ of habeas corpus. It is from this order that
the appellant seeks relief.
A review of the transcript of the November 22, 1991,
hearing before Judge Frazier discloses several relevant facts.
First, Ms. Belcher, age 24, admitted that she knew she shouldn't
have taken her children, but did anyway. It is clear that once she
realized the trouble she was in after taking the children, she
attempted to return them. The children were separated from the
father for three days. The transcript also shows that Judge
Frazier attempted to elicit why the appellant was not given any
visitation with the children. The best that he could determine was
that she had some trouble with her "nerves," that she had left the
children unsupervised several times and they had "gotten out of the
yard," and that she had "smoked pot."
The appellant's lawyer argues that the Texas extradition
papers are insufficient to permit West Virginia to extradite her to
Texas. He points out that the warrant gives no notice of whether
the charge is civil or criminal, felony or misdemeanor, and what
code section is involved. He also implies that the charged offense
is not one recognized by West Virginia; therefore, she should not
The Texas indictment states:
In the name and by the Authority of the State
THE GRAND JURORS for the County of
Potter, State aforesaid, duly organized,
impaneled and sworn as such at the JANUARY
Term A.D., 1991, of the District Court of the
320th Judicial District, in and for said
county, upon their oaths in said Court present
that PATRICIA SUE BELCHER hereinafter called
defendant, on or about the 8th day of April,
1991 and anterior to the presentment of this
indictment, in the County of Potter and State
of Texas, did then and there knowingly and
intentionally retain Johnny Allen Belcher, Jr.
and Jessica Dawn Belcher, children younger
than 18 years of age knowing that the
retention violated the express terms of a
Judgment and Order of the County Court at Law
Number 1, Potter County, Texas, disposing of
the children's custody, against the peace and
dignity of the state.
The Texas extradition request states that "under the laws of this
State, Patricia Sue Belcher stands charged with the crime of
interference with custody . . . ."
West Virginia Code § 5-1-7 (1990), which deals with extradition of persons charged with crimes in another state, does not require specific findings of what type of crime is involved. The Code section requires that the Governor deliver to the other state "any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this State . . . the demand . . . [must be] accompanied by an affidavit or sworn evidence that the demand or application is made in good faith for the punishment of crime . . . ." W.Va. Code § 5-1-7(b) (emphasis added). Further, W.Va. Code § 5-1-7(c) requires only
that the indictment, information, or affidavit made before the
magistrate or justice must substantially charge the person demanded
with having committed a crime under the law of that state, and the
copy of the indictment, information, affidavit, judgment of
conviction or sentence must be authenticated by the executive
authority making the demand. Nothing in W.Va. Code § 5-1-7
requires that there be any greater specificity than what already
exists on the extradition form.
However, the appellant argues that she lacked notice of
what she was charged with in the indictment because no Texas Code
section was listed on the face of the warrant: It "do[es] not
state what, if any, law was broken." The Texas Penal Code
§ 25.03(a)(1) and (d) (1989) provides that:
A person commits an offense if he takes or retains a child younger than eighteen years when he . . . knows that his taking or retention violates the express terms of a judgment or order of a court disposing of the child's custody . . . . An offense under this section is a felony of the third degree.
It is clear that what is charged is a crime in Texas. A similar
statute exists in West Virginia which establishes a felony for
concealing or removing a child in violation of a court order.
W.Va. Code § 61-2-14(d) (1984).
In Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92
L.Ed. 644 (1948), the United States Supreme Court held that notice
of a specific charge and the right to be tried on that charge are
necessary to protect a defendant's procedural due process rights.
The primary purpose of an indictment is to put the accused on
notice of the offense of which he is charged so that he may prepare
a defense. Russell v. United States, 369 U.S. 749, 763-64, 82
S.Ct. 1038, 8 L.Ed.2d 240 (1962).
This Court has examined the question of extradition in
State ex rel. Mitchell v. Allen, 155 W.Va. 530, 185 S.E.2d 355, 358
(1971), cert. denied, 406 U.S. 946, 92 S.Ct. 2048, 32 L.Ed.2d 333
(1972). In Mitchell, this Court held that:
In habeas corpus proceedings instituted to determine the validity of custody where petitioners are being held in connection with extradition proceedings, the asylum state is limited to considering whether the extradition papers are in proper form; whether there is a criminal charge pending in the demanding state; whether the petitioner was present in the demanding state at the time the criminal offense was committed; and whether the petitioner is the person named in the extradition papers."
Id. at syl. pt. 2.See footnote 1
In this case, the appellant has admitted that she took
the children as charged. Thus, there is no question that she was
the person named in the extradition papers and that she was present
in the demanding state at the time the criminal offense was
committed. It is also clear from the papers that there is a
criminal charge pending in Texas. Thus, the final question is
whether the extradition papers are in proper form.
Although the inclusion of the text of Texas Penal Code
§ 25.03(a)(1) & (d) would have improved the clarity of the
extradition request, its language is sufficient for the purposes of
our extradition statute, the United States Supreme Court decision
in Cole, and our decision in Mitchell. The text of the Texas
warrant tracks the Texas statute almost word for word. There is no
question that the appellant was on notice of the offense under
which she was charged and that it was sufficient to prepare a
defense. Consequently, we conclude that the extradition papers are
This is not to say we aren't sympathetic to Ms. Belcher's
plight. It appears that she snatched her children on a whim,
without thought to the consequences, and now must pay serious
reparation by being haled back to Texas. But our decision today
reflects additional factors. First, we must uphold the law of a
sister state, even if the consequences are repugnant, if the
warrant is valid. If we do not enforce Texas law, how could we
expect Texas, or any other state, to enforce ours? Secondly, we
note that unless Ms. Belcher returns to Texas, it would be unlikely
that she would see her children again for a long time, since she
could not return to Texas to finalize the divorce or custody
proceedings, or for a visit, without being picked up on this
Accordingly, we affirm the November 22, 1991, order of
the Circuit Court of Mercer County and deny the appellant's motion
to quash Governor Caperton's extradition order.
Footnote: 1In State ex rel. Jones v. McKenzie, 179 W.Va. 300, 367 S.E.2d 769, 771 (1988), this Court held that the requisition papers from the demanding state in an extradition proceeding are the vital instruments in determining the validity of the extradition proceedings.