Miller v. State
| Decision Date | 11 January 1984 |
| Docket Number | No. 961-82,961-82 |
| Citation | 708 S.W.2d 436 |
| Parties | Robert Edward MILLER, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Eugene H. Lieck, San Antonio, for appellant.
Bill M. White, Dist. Atty. and Edward F. Shaughnessy, III, Ron Mata, Lawrence J. Souza and Douglas V. McNeel, Asst. Dist. Attys., San Antonio, and Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of murder and assessed life imprisonment by a jury.
On appeal the San Antonio Court of Appeals in a panel opinion reversed the conviction holding that the trial court erred in overruling appellant's pretrial plea in bar of prosection based on a statutory claim of former jeopardy under Article 30(c), V. A.P.C., as amended (Acts 1973, 63rd Leg., p. 1484, ch. 544, Sec. 2, effective Sept. 1, 1973). Miller v. State, 640 S.W.2d 404 (Tex.App.--San Antonio 1982).
We granted the State's petition to consider the correctness of the decision of the Court of Appeals.
Following indictment, appellant filed two pretrial pleas in bar of prosecution based on former jeopardy. Both were overruled. In his initial ground of error appellant contended the trial court erred in overruling his plea based on Article 30(c), V. A.P.C. (1925), as amended in 1973, arguing the State was prohibited from subsequently prosecuting him for any offense merely alleged in an adjudication petition filed in juvenile court, pointing out that he had been indicted for the same murder offense which had been earlier alleged in the adjudication petition filed in juvenile court. 1 The Court of Appeals answered this contention by stating:
We adopt both the reasoning and holding of the Court of Appeals, and accordingly its judgment is affirmed.
The appellant, convicted of murder and assessed life imprisonment by a jury, has played the game of courts and won. He has beaten the system.
The opinion of a panel of the San Antonio Court of Appeals reversing the conviction is left standing by today's majority. The now 26-year-old appellant, who was 16 years old at the time of the alleged offense, cannot now be tried in any state court, adult or juvenile, for the 1974 murder of which the jury convicted him, the sufficiency of which evidence to sustain the conviction is not challenged by the appellant. After almost 10 years and proceedings involving six separate sets of appellate opinions, the appellant goes free because a statute, one of the oddities of the originally enacted Family Code, provided that mere allegation of an offense in a petition for adjudication for juvenile delinquency filed in juvenile court would bar forever prosecution as an adult in district court, even if there was no adjudication, conviction or other action in juvenile court.
Following his conviction in district court in 1978, appellant gave notice of appeal. On appeal the San Antonio Court of Appeals in a panel opinion reversed the conviction holding that the trial court erred in overruling appellant's pre-trial plea in bar of prosecution based on a statutory claim of former jeopardy (not involving former acquittal or conviction) under Article 30(c), V. A.P.C., as amended (Acts 1973, 63rd Leg., p. 1484, ch. 544, § 2, effective Sept. 1, 1973). Miller v. State, 640 S.W.2d 404 (Tex.App.--San Antonio 1982).
The Court of Appeals stated:
At first blush the opinion of the Court of Appeals may seem well reasoned, but upon closer examination it is clear that the appellate court below reached an erroneous conclusion.
Article 30(c), relied upon by the Court of Appeals, was twice expressly repealed by the Legislature in 1975 and was not in effect at the time of appellant's 1978 trial, and could not have been in effect at the time of the alleged offense or original juvenile proceeding. Article 30(c) was in effect a procedural statute and was replaced by another procedural statute effective at the time of the trial. V.T.C.A., Penal Code, § 8.07(c), as amended 1975. Normally procedural statutes control from their effective date. The Court of Appeals, without reasoning, did not consider the 1975 legislative acts relevant to the instant cause. (See footnote #3 of Court of Appeals' opinion--Miller v. State, supra.) The court failed to explain how the appellant still had a vested right in a procedural statute repealed almost three years before trial.
The majority of this court, failing to recognize the shortcomings of the opinion, below, has warmly embraced and approved not only the result but the deficient reasoning of the Court of Appeals, without any additional reasoning or explanation. This is regrettable in view of the highly unusual result reached which will now undoubtedly spawn numerous post-conviction writs of habeas corpus.
I vigorously dissent to the majority's action, and will explain my reasons:
In reviewing what has occurred, it is important to consider the complex history of this case. An outline is helpful.
April 17, 1957--Appellant's date of birth.
April 8, 1974--Date of alleged murder offense.
April 19, 1974--Two days after appellant's 17th birthday. State filed petition with the juvenile court of Bexar County seeking a declaration that appellant was a delinquent child on the basis of the murder of Leonard Sella on or about April 8, 1974. Juvenile Court orders a complete diagnostic study, social evaluation and full investigation of appellant in order to determine whether or not criminal proceedings should be instituted against him.
April 22, 1974--Appellant filed motion in limine requesting court to set aside the order requiring a diagnostic study.
May 6, 1974--State's motion to transfer and certify appellant to district court for trial as an adult filed.
May 7, 1974--Appellant's motion requesting that he be questioned only in the presence of his attorney.
June 7, 1974--Hearing held to determine whether appellant would voluntarily comply with the court's order to submit himself to complete diagnostic study.
August 12, 1974--Transfer hearing held. Juvenile court entered order (1) waiving the jurisdiction of the juvenile court (2) certifying appellant for trial as an adult (3) transferring the case to a criminal district court of Bexar County.
May 30, 1975--Court of Civil Appeals vacates August 12, 1974 order of juvenile trial court for failure of trial court to obtain a diagnostic study of appellant and orders a transfer of appellant's case to a criminal district court since appellant had reached his 18th birthday during appeal. R.E.M. v. State, 532 S.W.2d 645 (Tex.Civ.App.--San Antonio 1975)
December 3, 1975--Court of Civil Appeals on rehearing rules that juvenile court has jurisdiction to determine whether appellant should be transferred to a criminal district court and modifies its prior order by remanding case to the juvenile court. R.E.M. v. State, 532 S.W.2d 645, 649-652 (Tex.Civ.App.--San Antonio 1975), reh. den., no writ.
March 18, 1976--Juvenile Court orders a new diagnostic study of appellant.
April 1, 1976--Second transfer hearing held. Juvenile Court orders transfer of case to a criminal district court of Bexar County.
June 30, 1976--Court of Civil Appeals reverses and remands judgment of trial court for reversible error in the admission of inadmissible evidence. R.E.M. v. State, 541 S.W.2d 841 (Tex.Civ.App.--San Antonio 1976), reh. den., ref., n.r.e.
March 4, 1977--State files motion to transfer and certify appellant for trial as an adult.
March 31, 1977--Third transfer hearing held. Juvenile Court certified and transferred appellant to the 187th District Court, Bexar County, to be tried as an adult for the offense of murder.
July 20, 1977--Appellant indicted for murder of Leonard Sella on or about April 8, 1974.
July 20, 1978--Court of Civil Appeals affirms the juvenile court's certification and transfer order. R.E.M. v. State, 569 S.W.2d 613 (Tex.Civ.App.--Waco 1978), reh.den., ref. n.r.e.
August 14, 1978--Hearing on appellant's pleas in bar of prosecution (former jeopardy) No. 1 and No. 2. Court overrules such pleas in bar.
August 15, 1978--Appellant files application for writ of habeas corpus in Cause No. 78-W-263 in 227th District Court alleging illegal restraint. Hearing conducted thereon. Evidence offered the same as on pleas in bar of prosecution plus exhibits. Relief denied after hearing. Notice of appeal given to Court of Criminal Appeals.
August 22, 1978--Jury trial begins on murder indictment in district court.
August 28, 1978--Jury verdict finding appellant guilty of murder returned.
August 29, 1978--Jury assesses punishment at life imprisonment.
October 5, 1978--Life sentence imposed. Notice of appeal given.
April 25, 1979--A panel of the Court of Criminal Appeals denies habeas corpus relief in appeal from ruling in Cause No. 78-W-263 in an unpublished opinion (Cause No. 59,344).
May 21, 1979--Appellate record of murder conviction filed in Court of Criminal Appeals as No. 61,614.
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