Miller v. State

708 S.W.2d 436, 1984 Tex. Crim. App. LEXIS 573

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 1984
• Docket: 961-82
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

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 conclude, therefore, that the provisions of art. 30(c) controlled at the time of the trial of this cause and that under its terms the State was precluded from prosecuting appellant for or convicting him of any offense alleged against him in the petition for adjudication in the juvenile court. Accordingly, prosecution as an adult was in violation of the former jeopardy explicit in art. 30(c). Appellant’s initial ground of error is sustained.”

We adopt both the reasoning and holding of the Court of Appeals, and accordingly its judgment is affirmed.

1 . There is no question in this case that the same murder offense alleged in the indictment was the same offense alleged in the petition for adjudication of delinquency.