Ex Parte Traxler, 23236.

• Decision Date: 17 October 1945
• Docket Number: No. 23236.,23236.
• Citation: 189 S.W.2d 749
• Parties: Ex parte TRAXLER.
• Court: Texas Court of Criminal Appeals

189 S.W.2d 749

Ex parte TRAXLER.

No. 23236.

Court of Criminal Appeals of Texas.

October 17, 1945.

Commissioners' Decision.

Appeal from District Court, Walker County; Max M. Rogers, Judge.

Habeas corpus proceeding on the relation of Pete Traxler for release from custody of sheriff who was holding relator for trial under indictment. The criminal district court of Harris county entered an order discharging relator unless authorities of Lipscomb county should cause appropriate process to be issued and demand and receive relator upon notice, subject to orders to be made by district court of Walker county, to which the writ was made returnable. From an order of the district court of Walker county, remanding relator to custody, relator appeals.

Order remanding relator affirmed, and order discharging relator conditionally set aside.

J. S. Bracewell and Fentress Bracewell, both of Houston, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

On February 16, 1936, relator was, upon his plea of guilty, convicted in the District Court of Lipscomb County of the offense of robbery and his punishment was fixed at life imprisonment in the State penitentiary.

After having served about eight years of that term, he applied to the Judge of the Criminal District Court of Harris County for the writ of habeas corpus, challenging the conviction as being void, and sought his outright discharge from custody.

Under the provisions of Article 119, Vernon's Ann.C.C.P., as amended by Acts of the Forty-eighth Legislature, the writ of habeas corpus was issued, the facts developed, and the writ made returnable to this Court.

On December 20, 1944, this Court, as shown by opinion found in 184 S.W.2d 286, 289, sustained the contention that the conviction was void but refused the discharge and "ordered that he (relator) be delivered by the penitentiary authorities to the sheriff of Lipscomb County to answer in the District Court of such county to the indictment which was there originally returned against him, and under which his purported conviction was had."

Subsequent to the Lipscomb County conviction and at the November term, 1937, of the District Court of Walker County, appellant was indicted for the capital offense of robbery, alleged to have been committed in the county on the 8th day of July, 1937. On November 10, 1937, the venue of the Walker County case was, upon the court's own motion, transferred to the District Court of Fayette County, the order of transfer reciting—among other things— that appellant appeared in person and by counsel and that all motions, special pleas, and exceptions which had been filed and which were to be determined by the judge were overruled. The basis of the transfer was a finding that a fair and impartial trial, both to the State and the accused, could not be had in Walker County because of the wide publicity given by the newspapers to the case and because a companion case had theretofore been tried in that county and widely attended by the citizens of Walker County.

There is nothing in the record to show that the case was ever tried in Fayette County, after the transfer from Walker County. The inference to be drawn is that so long as relator was confined in the penitentiary under the life sentence from Lipscomb County, the State elected not to try the case. This inference is indulged by reason of the fact that on December 23, 1944, three days after the determination by this Court that the Lipscomb County conviction was void and before the issuance of mandate by this Court, there was issued out of the District Court of Fayette County a bench warrant commanding the sheriff of that county to take relator into custody from the penitentiary authorities and convey him to LaGrange, Texas, for trial of his case which—as stated in the bench warrant—had been set for February 1, 1945, in that county. The bench warrant, as shown by the officer's return thereon, was duly executed on the 26th day of December, 1944.

Such was the status when, on April 23, 1945, relator presented his application for the writ of habeas corpus to the Honorable Frank Williford, Judge of the Criminal District Court of Harris County, seeking his discharge from custody of the sheriff of Fayette County. The writ of habeas corpus was issued and set for hearing on May 1, 1945. Notices of the hearing were ordered to the prosecuting attorneys of Lipscomb, Fayette, and Walker Counties.

It appears to be relator's contention that he was entitled to his outright discharge from the custody of the sheriff of Fayette County for the following reasons, viz.:

The Walker County indictment was fatally defective because of irregularities in the organization of the grand jury which returned the indictment, in that there was no minute entry in the records of that court appointing the grand jury and because the jury commissioners who selected the grand jury were appointed at three separate terms of court during the same calendar year, in violation of Article 333, C. C.P., as amended in 1943, and of Article 2104, R.C.S., Vernon's Ann.Civ.St. art. 2104.

It was relator's further contention that, under the mandate of this Court, the District Court of Lipscomb County had exclusive jurisdiction over the relator and that such court, not having elected to exercise that jurisdiction or to try the relator or to take him into custody from the penitentiary authorities, authorized and warranted his discharge by the Criminal District Court of Harris County under the pending indictment against relator in Lipscomb County.

Jurisdiction in the Criminal District Court of...