Menefee v. State

• Decision Date: 05 October 1977
• Docket Number: No. 54780,54780
• Citation: 561 S.W.2d 822
• Parties: Ex parte James A. MENEFEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 822

561 S.W.2d 822

Ex parte James A. MENEFEE, Appellant,

v. The STATE of Texas, Appellee.

No. 54780.

Court of Criminal Appeals of Texas.

Oct. 5, 1977.

Dissenting Opinion March 8, 1978.

James A. Menefee, pro se.

Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal entered in a habeas corpus proceeding.

On original submission the appeal was dismissed for lack of a notice of appeal. By supplemental transcript, it has been shown that notice of appeal was timely given. The appeal is reinstated.

The question presented is apparently one of first impression. Is an indictment returned against a juvenile after a discretionary transfer from juvenile court 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.

An agreed statement of facts is in the record before us. It reflects that on February 25, 1977 the Judge of the County Court of Jefferson County, sitting as Judge of the Juvenile Court, entered an order waiving jurisdiction and transferring the cause in question to the Criminal District Court of Jefferson County.

On March 7, 1977 the Honorable Danny Doyle, attorney for petitioner, requested an examining trial for the petitioner from the said Criminal District Court in accordance with the Texas Family Code. On March 9, 1977 the Judge of the Criminal District Court, noting the above request, wrote the Juvenile Court Judge for the record of the certification and all papers in connection therewith.

Subsequent to March 9, 1977 the Criminal District Judge held several conversations with petitioner's counsel and members of the District Attorney's staff. As a result of congestion of the court's docket, the District Attorney's staff was instructed to present the matter to the grand jury immediately "or notify the Court so that an examining trial could be scheduled at the earliest possible time."

On March 24, 1977 the grand jury indicted the petitioner for murder in Cause No. 34453.

On March 31, 1977 the petitioner filed his application for writ of habeas corpus alleging that the indictment was void because he had been denied an examining trial prior to the return of the indictment in violation of V.T.C.A., Family Code, § 54.02(b). Petitioner contended that he had been deprived of one of the essential steps provided by law before a juvenile can be tried as an adult to have the District Court consider whether petitioner should be remanded to the jurisdiction of the Juvenile Court rather than being referred to the grand jury for consideration of whether an indictment should be presented. He thus urges that there has been a violation of Article 54.02, supra, and a deprivation of due process and that the indictment is void.

On April 4, 1977, acting upon an agreed statement of facts, the Judge of the Criminal District Court entered an order denying relief. On the same date notice of appeal was given. Petitioner's counsel has filed no brief and the District Attorney has filed a brief simply adopting Attorney General's Opinion M-1151 (1972) interpreting Article 2338-1, § 6(j), Vernon's Ann.C.S., the forerunner of V.T.C.A., Family Code, § 54.02(b). Said opinion held that a District Court was not required to conduct an examining trial in the case of a child transferred from Juvenile Court for prosecution as an adult when no examining trial is requested and that the return of an indictment terminates the right of such juvenile to an examining trial.

At the outset we must determine whether this court may review the question presented by writ of habeas corpus. In Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977), this court wrote:

". . . Ordinarily, in this State, when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is not available either prior to or after trial to test the sufficiency of the complaint, information, or indictment. Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84 (1928); Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347 (1943); Ex parte Meers, 129 Tex.Cr.R. 465, 88 S.W.2d 100 (1935); Ex parte Beverly, 34 Tex.Cr.R. 644, 31 S.W. 645 (1895); Ex parte Williford, 50 Tex.Cr.R. 417, 100 S.W. 919 (1907); Ex parte Webb, 113 S.W. 545 (Tex.Cr.App.1908); Ex parte Wolf, 55 Tex.Cr.R. 231, 115 S.W. 1192 (1909). However, if the pleading, on its face, shows that the offense charged is barred by limitations the complaint, information, or indictment is so fundamentally defective that the trial court does not have jurisdiction and habeas corpus relief should be granted. Ex parte Hoard, 63 Tex.Cr.R. 519, 140 S.W. 449 (1911); cf. Ex parte Stein, 61 Tex.Cr.R. 320, 135 S.W. 136 (1911); People v. McGee, 1 Cal.2d 611, 36 P.2d 378 (1934); Ex parte Vice, 5 Cal.App. 153, 89 P. 983 (1907); Ex parte Connolly, 16 Cal.App.2d 709, 61 P.2d 490 (1936)."

If a juvenile who has been transferred to the District Court for criminal proceedings has the right to an examining trial before indictment, then an indictment returned prior to the examining trial is premature and void. The District Court has no jurisdiction to proceed on a void indictment, and habeas corpus relief is available.

We turn to a consideration of the question before us. The first discretionary transfer provision in Texas was enacted by amendment of § 6 of Article 2338-1, Vernon's Ann.C.S. (Acts 1965, 59th Leg., p. 1256, ch. 577, § 3), which provided:

"Section 6. A transfer may be made of cases from one Juvenile Court to another Juvenile Court where a child under the jurisdiction of one Juvenile Court has moved from one county to another, and where it is to the best interest of such child so to do. The Juvenile Court having jurisdiction of a child may transfer the case to the Juvenile Court of the county in which the child may be then residing, and shall send transcripts of records to the Judge of the other Court, which shall be filed in the office of the clerk of such Court.

"If a child sixteen (16) years of age or older is charged with an offense which would be a felony if committed by an adult and if the Court, after diagnostic study, social evaluation and full investigation, deems it contrary to the best interest of such child or the public to retain jurisdiction, the Court may, in its discretion, certify such child for proper criminal proceedings in any court which would have jurisdiction of the offense, if committed by an adult; but no child under sixteen (16) years of age at the time the offense is committed shall be so certified and no child under sixteen (16) years of age at the time the offense is committed shall be prosecuted as an adult at any later date unless transferred by the Juvenile Court, and all such offenses committed by children not so transferred shall be subject to disposition by the Juvenile Court only. Such certification shall include the written order and findings of the Juvenile Court and shall be accompanied by a complaint against the accused in accordance with applicable provisions of the Code of Criminal Procedure of the State of Texas.

"Upon certification to the District Judge having jurisdiction under the provisions of this Act, the District Judge shall have the powers and duties conferred upon examining magistrates by Chapter 3 of the Code of Criminal Procedure of the State of Texas. Provided that upon hearing the District Judge shall make an order committing the child to jail, discharging him, admitting him to bail, or remanding him to the custody of the Juvenile Court as the law and facts of the case may require. Provided further that if the child is held or bound over for action by the Grand Jury, the Grand Jury may return an indictment for the offense charged or may recommend that the child be remanded to the custody of the Juvenile Court. If the Grand Jury recommends that the child be returned or remanded to the custody of the Juvenile Court, no further action by the Grand Jury or future Grand Jury can be taken against the child in regard to the offense charged or the acts for which the child stood accused and which were investigated by the Grand Jury. If the Grand Jury returns an indictment, the child shall be subject to the penal laws of this State and tried in accordance with the Penal Code and the Code of Criminal Procedure as if the child were an adult." (Emphasis supplied.) ¹

In Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966), a portion of the amendment to § 6 was held unconstitutional. ²

In 1967 § 6 of said Article 2338-1 was again amended (Acts 1967, 60th Leg., p. 1082, ch. 475). Said amendment provided as follows:

"Sec. 6. (a) When a child under the jurisdiction of a court moves from one county to another the court may transfer the case to the court in the county of the child's residence if the transfer is in the child's best interest. The transferring court shall forward transcripts of records in the case to the judge of the receiving court, who shall file them in the office of his clerk.

"(b) If a child is charged with the violation of a penal law of the grade of felony and was fifteen years of age or older at the time of the commission of the alleged offense, the juvenile court may, within a reasonable time after the alleged offense, waive jurisdiction by following the requirements set out in Subsections (c) through (j) of this section, and transfer the child to the appropriate district court or criminal district court for criminal proceedings.

"(c) The juvenile court shall conduct an informal hearing under Section 13 of this Act on the issue of waiver of jurisdiction.

"(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.

"(e) The juvenile court shall appoint counsel for any child who does not...