White v. State

• Decision Date: 07 February 1979
• Docket Number: Nos. 56129-56131,s. 56129-56131
• Citation: 576 S.W.2d 843
• Parties: Oliver James WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 843

576 S.W.2d 843

Oliver James WHITE, Appellant, v. The STATE of Texas, Appellee.

Nos. 56129-56131.

Court of Criminal Appeals of Texas, En Banc.

Feb. 7, 1979.

Joe F. Cannon, Houston, for appellant.

Carol S. Vance, Dist. Atty., Alvin M. Titus and Jack Bodiford, Asst. Dist. Attys., Houston, for the State.

Before the Court en banc.

OPINION

ROBERTS, Judge.

These are appeals from three convictions for the offense of aggravated rape. The appellant pleaded guilty, and after a trial before the court, the trial judge assessed the appellant's punishment at fifty years' imprisonment in each case.

The record reflects that at the time of the commission of these offenses the appellant was sixteen years of age. Accordingly, the Juvenile Court of Harris County had exclusive original jurisdiction over the appellant's conduct. V.T.C.A., Family Code, Section 51.04.

However, on March 25, 1976, the Juvenile Court, after a hearing, waived its jurisdiction and transferred the appellant to the 183rd District Court of Harris County for trial as an adult. See V.T.C.A., Family Code, Section 54.02(a) and (c).

On June 9, 1976, the appellant was indicted for the offenses which form the basis of these appeals. The essential question, which we consider in the interests of justice, Article 40.09, Section 13, Vernon's Ann.C.C.P., is whether the District Court ever acquired jurisdiction of the offenses.

V.T.C.A., Family Code, Section 54.02 sets forth the requisite procedures by which a juvenile court can waive its exclusive original jurisdiction and transfer a juvenile to the appropriate District Court or Criminal District Court. V.T.C.A., Family Code, Section 54.02(h) states:

"(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."

In Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), we dealt with the issue of whether a juvenile who had been transferred to a District Court for criminal proceedings has the right to an examining trial in the District Court before indictment, and if so, whether an indictment returned prior to an examining trial in the District Court is void. We there held that a juvenile who has been certified to District Court for criminal proceedings is entitled to an examining trial in the District Court to which he is transferred, that this examining trial "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," Id. at 829, that "(t)he 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," Id., and that the indictment, having been returned prior to an examining trial, was void. We therefore reversed the judgment since the District Court had no jurisdiction to proceed on a void indictment.

In the present case, the record is devoid of any evidence that the appellant was afforded an examining trial before the indictments were returned by the grand jury. Without a showing that the appellant was in fact afforded an examining trial before the indictments were returned by the grand jury, we are unable to ascertain whether the indictments are void and hence whether the District Court had jurisdiction over the offenses.

It is well established that under Article 16.01, Vernon's Ann.C.C.P., a defendant is entitled to an examining trial before indictment. However, the return of an indictment terminates any right to an examining trial. Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976); Brown v. State,475 S.W.2d 938 (Tex.Cr.App.1971). Thus, a defendant is not always afforded an examining trial in a typical felony prosecution. In light of this, we refuse to apply a "presumption of regularity" to cases involving juvenile transfers; we will not presume that a juvenile has been afforded an examining trial in the District Court to which he is transferred. Rather, we require the record to affirmatively reflect that an examining trial has in fact been held in the District Court to which the juvenile is transferred. ¹ Cf. Matter of W. L. C., 562 S.W.2d 454 (Tex.1978). Moreover, since Article 40.09, Section 1, Vernon's Ann.C.C.P., Requires that the appellate record include a copy of "material docket entries made by the court," and the court's action in holding an examining trial should be noted on the docket sheet, Article 33.07, Vernon's Ann.C.C.P., we hold that the record affirmatively reveals that no examining trial was in fact held.

Since the record reflects that no examining trial was held, it is clear that an examining trial could not have been held in the District Court prior to the return of the instant indictments. Under Ex parte Menefee, supra, it is clear that the indictments are void and that the 183rd District Court had no jurisdiction to proceed on the indictments. ²

The judgments are reversed and these indictments are ordered dismissed.

ONION, Presiding Judge, concurring.

I concur in the result reached by the majority opinion authored for the court by Judge Roberts. In light of some of the things said by the dissent, I feel it necessary to review the history of the various enactments dealing with the discretionary transfer of a juvenile to be tried as an adult.

Turning the clock back only a few years, we find that the age of an accused at the time of the trial and not his age at the date of the alleged offense determined whether the accused was to be tried in juvenile or adult court. Northern v. State, 152 Tex.Cr.R. 569, 216 S.W.2d 192 (1948); Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21 (1961). Thus, an accused, upon attaining the age of seventeen years, was properly tried in adult court for felony offenses committed prior to reaching that age. Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983 (1947); Roberts v. State, 153 Tex.Cr.R. 308, 219 S.W.2d 1016 (1949); Peterson v. State, 156 Tex.Cr.R. 105, 235 S.W.2d 138 (1950), cert. den. 341 U.S. 932, 71 S.Ct. 799, 95 L.Ed. 1361; Elliott v. State, 168 Tex.Cr.R. 140, 324 S.W.2d 218 (1959); Wood v. State, 171 Tex.Cr.R. 307, 349 S.W.2d 605 (1961); Perry v. State, supra; Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966).

As a result, a juvenile accused of a heinous felony offense was often declared a juvenile delinquent on the basis of the same offense, some other offense growing out of the same transaction, a revocation of a previous juvenile probation, etc., and committed to the Texas Youth Council, and later brought to trial as an adult when he reached seventeen, eighteen or nineteen years of age, and had matured in appearance, etc. See, e. g., Perry v. State, supra; Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929 (1961); Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248 (1961); Foster v. State, supra.

In Garza v. State, 369 S.W.2d 36 (Tex.Cr.App.1963), this court held that the conviction of Garza for murder violated the principle of fundamental fairness and constituted a deprivation of due process where prior to such conviction, which occurred after Garza reached the age of seventeen years, Garza had been adjudged a delinquent child on the basis of the same act of murder and held in custody as a delinquent child until his trial as an adult. Other cases where the convictions had been upheld in this court were set aside by the federal courts. Sawyer v. Hauck, 245 F.Supp. 55 (W.D.Texas, San Antonio Division, 1965); Hultin v. Beto, 396 F.2d 216 (5th Cir. 1968); Martinez v. Beto, 398 F.2d 542 (5th Cir. 1968).

It was obvious that a new approach involving fairness had to be adopted when the state judicial system was dealing with a juvenile who had allegedly committed a heinous felony offense. Thus, in 1965 the first discretionary transfer act was passed as an amendment to Article 2338-1 (See, e. g., Acts 1965, 59th Leg., p. 1256, ch. 577, § 3 (H.B. 444).). At first the transfer provisions were limited to the juveniles sixteen years old still within the jurisdiction of the juvenile court who were accused of a felony. The Legislature was, of course, concerned that other safeguards be installed before a juvenile be thrust into district court for trial as an adult. The pertinent parts of the 1965 enactment were set out in Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), and need not be requoted here. It provided a three step procedure commencing with a certification hearing in juvenile court, an examining trial in district court, and a return of the juvenile to the jurisdiction of the juvenile court if the grand jury refused to indict, in which case no further action by any grand jury could be taken against the juvenile with regard to the offense involved. At any of the three steps of the certification process the proceedings could be terminated and the matter handled solely in the juvenile court.

The said 1965 amendment provided that in regard to the examining trial aspect district judges would have the powers and duties conferred upon examining magistrates by the Code of Criminal Procedure. It further stated, "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."

The amendment was widely acclaimed as removing the old injustice and providing that the juvenile could be tried willy-nilly as an adult in view of...