Criss v. State
| Decision Date | 12 April 1978 |
| Docket Number | Nos. 57320-57323,No. 2,s. 57320-57323,2 |
| Parties | Frankie Gene CRISS, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Before ONION, P. J., and DOUGLAS and ODOM, JJ.
These are appeals from orders revoking probation.
Appellant, at the age of 16 years, was charged with acts constituting criminal offenses, and on November 15, 1976, the juvenile court entered an order waiving jurisdiction and transferring appellant to the criminal courts for prosecution. V.T.C.A. Family Code, Sec. 54.02. On November 23 appellant and his attorney waived his right to an examining trial. Sec. 54.02(h), supra. On December 22 he waived his right to prosecution by indictment (Art. 1.141, V.A.C.C.P.), waived his right to trial by jury, agreed to stipulations of evidence (Art. 1.15, V.A.C.C.P.), judicially confessed to the four offenses charged against him, and pled guilty to the informations charging unauthorized use of a motor vehicle, burglary of a building, and two burglaries of habitations. He was found guilty by the court in all four cases, assessed ten years in each, and placed on adult probation. Art. 42.12, V.A.C.C.P.
One condition of appellant's probation was that he commit no offense against the laws. On May 4, 1977, the State filed motions to revoke probation alleging appellant committed the offense of retaliation (V.T.C.A., Penal Code Sec. 36.06) by intentionally and knowingly threatening to harm Annie Farrell by pointing a gun at her because she was a witness for the State in a case in which his girlfriend was charged with burglary. After a hearing on August 1, 1977, the court revoked the probation and pronounced sentence in each of the four cases.
It is appellant's single complaint on appeal that the original convictions are void because the criminal accusations were insufficient to invoke the jurisdiction of the trial court. It is not the language of the accusations that appellant challenges, but rather, the failure of the trial court to conduct an examining trial after the transfer from the juvenile court and prior to the filing of the informations. Sec. 54.02(h), supra. Citing Ex parte Menefee, Tex.Cr.App., 561 S.W.2d 822, appellant argues that an examining trial is an essential jurisdictional step in the process of bringing a juvenile to trial as an adult.
The State in reply distinguishes Menefee, supra, and asserts that the juvenile's right to an examining trial may be waived in accordance with the provisions of V.T.C.A. Family Code, Sec. 51.09(a), and that such a waiver was executed here.
Sec. 51.09(a), supra, provides:
"Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court proceedings that are recorded."
In the record of each cause appears this waiver together with the order of the criminal district court to which appellant had been transferred:
WAIVER OF EXAMINING TRIAL
NOW COMES FRANKIE GENE CRISS, the above named defendant in person and with his attorney, and respectfully requests the court to allow him to waive his right to an examining trial before this court as to whether said Defendant should be certified to the Dallas County Grand Jury for further proceedings herein in accordance with the applicable statutes. Said Defendant having already been certified to this Court by the Judge of the Juvenile Court of Dallas County, Texas, and fully aware that he is entitled to an examining trial by this Court as a matter of law and that in an examining trial this Judge has authority to remand said Defendant to the jurisdiction of the Juvenile Court or that waiving this right he might be indicted by said Grand Jury to stand trial as an adult herein, now waives his rights to an examining trial and agrees that the Dallas County Grand Jury may hear and consider this case as though said Defendant were 17 years of age as of the date of the alleged offenses.
The waiver was signed by appellant and his attorney. The trial judge signed the following order:
ORDER
The above Waiver having been made and filed by said Defendant and his attorney in open Court, and the Court being of the opinion that said Waiver is voluntarily and intelligently made, it is the Order of that (sic) Court that all papers and instruments contained in this cause be forwarded to the Dallas County Grand Jury for whatever action that body may deem proper in this matter.
The issue in Ex parte Menefee, supra, was whether "an indictment returned against a juvenile after a discretionary transfer from juvenile court (is) void for the failure of the district court, to which the transfer was made, to conduct an examining trial prior to the return of the indictment. This Court held, "that the indictment, having been returned prior to an examining trial, is void, . . . that the indictment should be set aside, and the appellant accorded an examining trial."
The examining trial under discussion is more than the general examining trial provided for in Article 16.01, V.A.C.C.P., which may be waived, and the right to which is terminated by the return of an indictment. See authorities cited in Menefee, supra. The examining trial here discussed is mandated by the Family Code in Sec. 54.02(h):
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Ex parte Solete
...has been certified to the district court, but such waiver must be in accordance with V.T.C.A., Family Code, § 51.09(a). Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978). Absent such a waiver, there must be an examining trial or the indictment is void. Menefee has been followed in a number o......
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White v. State
....... In Criss v. State, (Tex.Cr.App.), 563 S.W.2d 942, it was held that the examining trial provided for in the district court could be waived provided the waiver met the requirement of V.T.C.A. Family Code, Sec. 51.09. I would hold that an examining trial is not mandatory for the district court to acquire ......
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LeBlanc v. Gist
...who has been certified to district court, but such waiver must be in accordance with V.T.C.A., Family Code, § 51.09(a). Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978). Absent such a waiver there must be an examining trial or the indictment is void. Menefee has been followed in a number of......
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B------- A------- G------- v. State
...the voluntariness of appellant's waiver; therefore it could not have resulted in dismissal of the charge. See Criss v. State, 563 S.W.2d 942, 945 (Tex.Crim.App.1978) (juvenile can waive examining trial in accordance with Family Code section 51.09); see also Carter v. State, 650 S.W.2d 793, ......