Ellis v. State

• Decision Date: 10 November 1976
• Docket Number: No. 53228,53228
• Citation: Ellis v. State, 543 S.W.2d 135 (Tex. Crim. App. 1976)
• Parties: Virgle ELLIS, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 135

543 S.W.2d 135

Virgle ELLIS, III, Appellant, v. The STATE of Texas, Appellee.

No. 53228.

Court of Criminal Appeals of Texas.

Nov. 10, 1976.

Arthur J. Brender, Jr., Fort Worth, court appointed, for appellant.

Tim Curry, Dist. Atty., Marvin Collins, James G. Bennett and Jack J. Strickland, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant plead guilty and was convicted for appravated robbery. Punishment was assessed by the jury at eighty-five years.

The record reflects that on January 31, 1975, appellant and Willie Earl Mathis, acting together, and using and exhibiting pistols, robbed Norman Johnson, manager of a grocery store in Fort Worth, of money. Charles Johnson, father of Norman Johnson, was shot and killed by Mathis in the course of the robbery.

At the time of the offense appellant was over the age of fifteen years, but under seventeen years of age, he having been born February 14, 1959. He was also under seventeen on the date of the trial, January 19, 1976.

Appellant initially contends that the trial court had no jurisdiction over him since he was a juvenile under the age of seventeen years at the time of the offense and 'the record contains no order indicating that the Juvenile Court of Tarrant County, Texas, waived jurisdiction and certified appellant for criminal prosecution.'

V.T.C.A. Penal Code, Sec. 8.07, Age Affecting Criminal Responsibility, provides in part as follows:

'(a) Except as provided by Subsection (c) of this section, a person may not be prosecuted or convicted for any offense that he committed when younger than 15 years.

'(b) Except as provided by Subsection (c) of this section, a person who is younger than 17 years may not be prosecuted or convicted for any offense, unless the juvenile court waives jurisdiction and certifies him for criminal prosecution.'

The exceptions provided in Sub-section (c) have no application to the instant case.

V.T.C.A. Family Code, Sec. 54.02, Waiver of Jurisdiction and Discretionary Transfer to Criminal Court, in Sub-section (a) provides:

'(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:

'(1) the child is alleged to have violated a penal law of the grade of felony;

'(2) the child was 15 years of age of older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and

'(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.'

The remaining provisions of Art. 54.02 set forth the procedure to be followed by the juvenile court if such a hearing and determination is to be had.

Included in the appellate record are the transcript, a supplemental transcript, and the statement of facts. The latter includes in addition to the transcription of the court reporter's notes at the trial on guilt and punishment the transcription of his notes of evidence at an examining trial prior to indictment, held October 7, 1975. The transcript, as distinguished from the supplemental transcript, does not contain an order waiving jurisdiction by the juvenile court and transferring same to the district court. However, the supplemental transcript, filed in this Court the same day as the original and the statement of facts, does contain such an order. This order of waiver of jurisdiction of the juvenile and transferring jurisdiction over him and this case was signed February 26, 1975 by Hon. Scott Moore, Judge of the Juvenile Court of Tarrant County, after a full hearing. We have examined it, and we find that it fully and completely complies with all the provisions of V.T.C.A. Family Code, Sec. 54.02, supra. The order waived jurisdiction over appellant and the instant offense, and transferred jurisdiction to the Criminal District Court No. 4, Tarrant County. After appellant's brief was filed in the trial court, that court directed that the order be filed in that court and forwarded to this Court in the supplemental transcript.

The statement of facts reflects that on October 7, 1975, Hon. Gordon L. Gray Judge of Criminal District Court No. 4 of Tarrant County, conducted an examining trial in that court on complaints filed against appellant and Willie Earl Mathis involving the instant robbery case to determine whether they should be bound over for grand jury action. The fact that the district court had been given jurisdiction of this matter is established by Judge Gray's ¹ opening remarks as follows:

'THE COURT: We have the case of Willie Earl Mathis and Virgle Ellis III. They have both--the Juvenile Court waived jurisdiction in both of these cases, and I have the copy of the order signed by Judge Scott Moore, so we will have the examining trial . . .'

At the conclusion of the hearing, during which there was testimony of the hearing in juvenile court, Judge Gray stated:

'Okay, I will accept jurisdiction in both cases from the Tarrant County Juvenile Court, and I will bind these two over to the grand jury, and hold them without bond.'

In his supplemental brief, appellant challenges the propriety of this Court considering the order of waiver and transfer of jurisdiction since the record does not show that it was filed in the trial court at the time of the trial. Regardless of whether the order of the juvenile court was actually on file with the papers in the case, the record reflects that the juvenile court had waived jurisdiction over appellant and had transferred it to the district court in which all subsequent criminal proceedings were had, and that the district court had such order in its possession and acted on the waiver and transfer and assumed jurisdiction when the examining trial was conducted before indictment was returned.

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