Hernandez v. State

603 S.W.2d 848, 1980 Tex. Crim. App. LEXIS 1073

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of aggravated rape of a child. V.T.C.A., Penal Code, Secs. 21.09 and 21.03. The jury assessed punishment at confinement for ten years in the Texas Department of Corrections.

On September 19, 1979, this Court in an unpublished per curiam opinion ordered the trial court to determine whether the appellant, who was sixteen years old at the time of the offense, had received an examining trial as required by Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977); White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979), and Ex parte LeBlanc, 577 S.W.2d 731 (Tex.Cr.App.1979).

The trial court was also ordered to determine that, if no examining trial had been held, whether or not the appellant had waived the required examining trial in a manner consistent with V.T.C.A. Family Code, Sec. 51.09(a). See Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

The trial court found that no examining trial was held after the juvenile court waived its exclusive jurisdiction and before the return of the indictment. The trial court also found that there was no effective waiver of an examining trial by the appellant. We find these conclusions of the trial court fully supported by the record.

In this case, the Juvenile Court for Jim Wells County was presided over by the Judge of the 79th Judicial District Court. Thus, both the transferor court and the transferee court were presided over by the same district judge.

The facts of this case should be contrasted however with those found in Ex parte Guzman, 589 S.W.2d 461 (Tex.Cr.App.1969), where the District Court of San Patricio County after sitting as a juvenile court waived its exclusive original jurisdiction and transferred the defendant to the 36th Judicial District Court of San Patricio County as an adult. In Guzman, an informal examining trial was found to have taken place prior to committing the defendant to jail and setting bond. The defendant in Guzman having received the benefit of Ex parte Menefee and its progeny was denied relief.

In the instant case, it appears that neither an examining trial nor an effective waiver was obtained prior to the return of the indictment against the appellant. It is clear therefore that the indictment returned against the appellant was void and that the District Court of Jim Wells County had no jurisdiction to proceed in the absence of a valid indictment. Ex parte Menefee, supra; White v. State, supra; Jones v. State, supra; Ex parte LeBlanc, supra.

The judgment is reversed and the indictment ordered dismissed.

DALLY, J., dissents.

Before the court en banc.