Ex parte Solete

• Decision Date: 13 February 1980
• Docket Number: No. 60448,No. 1,60448,1
• Citation: 603 S.W.2d 853
• Parties: Ex parte Rogers Anthony SOLETE, Jr
• Court: Texas Court of Criminal Appeals

Page 853

603 S.W.2d 853

Ex parte Rogers Anthony SOLETE, Jr.

No. 60448.

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

Feb. 13, 1980.

Rehearing Denied Sept. 10, 1980.

Gus A. Saper, Sam W. Dick, Houston, for appellant.

Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

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

OPINION

ONION, Presiding Judge.

Appeal is taken from an order entered after a hearing in a habeas corpus proceeding in which the appellant sought discharge under an indictment charging him with capital murder.

This appeal presents the question of whether a juvenile can be re-certified to a district court for trial as an adult under V.T.C.A., Family Code, § 54.02, where upon the prior certification a district court in conducting an examining trial found no probable cause and remanded the juvenile to the juvenile court. We hold that the juvenile cannot be so re-certified.

The record shows the petitioner was sixteen (16) years old at the time of the commission of the alleged offense of capital murder (August 25, 1977). On November 1, 1977, the 313th District Court of Harris County, sitting as a juvenile court, waived jurisdiction and certified petitioner to the district court for trial as an adult. On January 12, 1978, the 208th District Court conducted an examining trial in the cause that had been transferred in accordance with said § 54.02. The court found that the State had failed to show probable cause that the petitioner had committed an offense and remanded petitioner to the jurisdiction of the juvenile court.

On February 6, 1978, the State filed a motion in juvenile court requesting it reconsider its previous proceedings, stating that the welfare of the community required adult criminal proceedings against the petitioner.

On March 17, 1978, the 313th District Court, sitting as a juvenile court, after re-assuming jurisdiction, entered an order that the State's petition to declare petitioner a delinquent child was void because it failed to allege an essential element of capital murder, the culpable mental state of "intentionally," and the court found all proceedings pursuant to that petition were void. The State's earlier motion alleged no such contention.

The petition had alleged the reasonable particularity as to time, place, and manner of the acts and the penal law or standard of conduct violated by such acts.

On the same date a "3rd Amended" petition in the same cause was filed, and on September 19, 1978 the juvenile court again waived jurisdiction and certified petitioner to the district court for trial as an adult for the same offense of capital murder. The 209th District Court assumed jurisdiction. A plea to the jurisdiction and a motion to remand the cause to juvenile court were overruled and a second examining trial was held. Probable cause was found, and the petitioner was bound over to the grand jury. On November 8, 1978, petitioner was indicted for capital murder. He then brought this petition for writ of habeas corpus in the 209th District Court seeking his discharge under such indictment. In his petition he alleged, inter alia, that the indictment was "void under the laws of the State of Texas" and in his oral argument in support of his pleadings at the conclusion of the habeas corpus hearing, petitioner's counsel cited to the court said § 54.02 of the Family Code and the holding of this court in Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977). ¹ Relief was denied, and this appeal was taken.

For the reasons stated in Menefee at p. 824, we conclude that this court may review the question presented by habeas corpus proceedings, though the questions are not the same. The indictments in both were void and the district court had no jurisdiction to proceed in either case, and habeas corpus relief is available.

In Menefee it was held that an indictment returned against a juvenile after discretionary transfer from juvenile court is void if the district court to which transfer is made fails to conduct an examining trial prior to return of an indictment in accordance with V.T.C.A., Family Code, § 54.02(g), (h), (i). The Menefee decision reviewed all the former statutes dealing with discretionary transfer and set forth certain subsections of said § 54.02 as follows:

"(g) If the juvenile court retains jurisdiction, the child is not subject to criminal prosecution at any time for any offense alleged in the petition or for any offense within the knowledge of the juvenile court judge as evidenced by anything in the record of the proceedings.

"(h) If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.

"(i) If the child's case is brought to the attention of the grand jury and the grand jury does not indict for the offense charged in the complaint forwarded by the juvenile court, the district court or criminal district court shall certify the grand jury's failure to indict to the juvenile court. On receipt of the certification, the juvenile court may resume jurisdiction of the case."

Referring to statutes, past and present, the Menefee opinion stated:

"It is clear from these enactments that the legislative intent has been that a three step procedure be followed before a juvenile, sixteen and later fifteen years old or older, is tried in district court as an adult. At each step safeguards were provided. If the juvenile court decides to retain jurisdiction at the hearing to determine if the court should waive jurisdiction and certify the juvenile for criminal proceedings, that ends the matter with regard to certification. The juvenile then will be handled as a juvenile. If there has been certification and the district court, following an examining trial, decides to remand the juvenile to juvenile court, then the juvenile will not be tried as an adult but will be subject to the jurisdiction of the juvenile court. If the juvenile, after an examining trial in district court, is bound over for action by the grand jury and the grand jury does not indict, the district court certifies such failure to indict to the juvenile court and the jurisdiction of the case is resumed by the juvenile court. Thus, at any of the three steps if there is a decision not to prosecute the juvenile as an adult, then the juvenile will not be so prosecuted.

"While there have been changes in the language in the various enactments, the purpose and basic procedure has remained the same."

Referring to the right of the transferred juvenile to an examining trial, Menefee also stated:

"It is a valuable right, for it furnishes another opportunity to have the criminal proceedings against the juvenile terminated and the jurisdiction of the juvenile court resumed.

"The examining trial before the district court clearly appears to be the second vital step in determining whether a juvenile should be tried as an adult. While various enactments set out above indicate the language has been changed from the 1965 enactment until the present statute, the essence of the three step procedure has remained the same."

The right to an examining trial can be waived by a juvenile who 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 of cases. See White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979); Ex parte Hunter, 577 S.W.2d 496 (Tex.Cr.App.1979); Ex parte Chatman, 577 S.W.2d 734 (Tex.Cr.App.1979); Ex parte Rodriguez, 578 S.W.2d 750 (Tex.Cr.App.1979); Ex parte Rogers, 578 S.W.2d 752 (Tex.Cr.App.1979); Ex parte Bittick, 579 S.W.2d 12 (Tex.Cr.App.1979); Ex parte Clark, 579 S.W.2d 11 (Tex.Cr.App.1979); Ex parte Ytuarte, 579 S.W.2d 210 (Tex.Cr.App.1979); Ex parte Juarez, 579 S.W.2d 211 (Tex.Cr.App.1979); Ex parte Gloston, 579 S.W.2d 212 (Tex.Cr.App.1979); Simonton v. State, 586 S.W.2d 528 (Tex.Cr.App.1979); Watson v. State, 587 S.W.2d 161 (Tex.Cr.App.1979).

Further, in Ex parte LeBlanc, 577 S.W.2d 731 (Tex.Cr.App.1979), the juvenile who had been certified for trial as an adult was given an examining trial by a district court who found no probable cause. Four months later the grand jury returned an indictment against the juvenile. Such indictment was held void in light of Menefee. Talking in terms of the three vital steps that must be accomplished before a juvenile may be tried as an adult, this court in LeBlanc said:

"Here the State faltered at the second vital step when the court discharged appellant at the examining trial. We find that such action terminated the criminal proceedings against appellant and effectively remanded appellant to the jurisdiction of the juvenile court. To hold otherwise would render the examining trial a meaningless sham because the State could simply refuse to put on any evidence and then take the juvenile before the grand jury, thus depriving the juvenile of the valuable right of a meaningful examining trial as provided by the Legislature in V.T.C.A., Family Code, Sec. 54.02." See also Ex parte Spencer, 579 S.W.2d 242 (Tex.Cr.App.1979).

We conclude that once the 208th District Court, sitting as an examining court, found no probable cause on the first certification and remanded ...