The opinion
ON PETITIONER’S MOTION FOR REHEARING
WOODLEY, Judge.
The writer failed to point out a distin-guishment between this case and Garza v. State, Tex.Cr.App., 369 S.W.2d 36 , which should foreclose any question but that petitioner is not entitled to relief on the ground of former jeopardy.
Garza pleaded former jeopardy in his trial for murder and the question was before this Court on his appeal.
*280 Petitioner attacks two murder convictions on liis plea of guilty by habeas corpus, though no plea of former jeopardy was filed, no appeal was taken and the judgments of conviction are final.
This Court has held that a plea of former jeopardy may be waived by failure to plead it and that Art. 508, C.C.P., relating to such plea, is constitutional. Hamilton v. State, 115 Tex.Cr.R. 243 , 29 S.W. 2d 393 ; Ex parte Hunt, 118 Tex.Cr.R. 163 , 40 S.W.2d 134 . We said in Ex parte Beggs, 170 Tex.Cr.R. 162 , 339 S.W.2d 527 , that the claim of former conviction cannot be raised on habeas corpus. See also Ex parte Spanell, 85 Tex.Cr.R. 304 , 212 S.W. 172 ; and Pitner v. State, 44 Tex. 578 .
The cases cited are alone authority for denying relief to petitioner on the ground of former conviction.
The same is true as to Ex parte Martinez, Tex.Cr.App., 386 S.W.2d 280 .
What has been said is not to be construed as suggesting that petitioner relies upon former jeopardy or that relief was granted Garza on that theory.
Garza’s plea of former jeopardy on his trial for murder was on the ground that he was indicted for the identical crime for which he had been adjudged and committed as a juvenile delinquent. Only the question of the Juvenile Court proceeding being civil in nature, and the jurisdiction of the Juvenile Court to enter a judgment which would prevent prosecution under an indictment precluded Garza from successfully pleading former jeopardy.
While the distinguishment may be discreet, the writer concluded and remains convinced that because Garza had been committed and confined under a judgment of the Juvenile Court upon , a petition alleging the identical and only offense he had committed, whereas an adult could have been at liberty under bond, Garza was denied due process and was entitled to relief on appeal.
On the other hand, in the cases of Martinez v. State, 171 TexCr.R. 443, 350 S.W.2d 929 ; Perry v. State, 171 Tex.Cr.R. 282 , 350 S.W.2d 21 ; Lopez v. State, 171 Tex.Cr.R. 552 , 352 S.W.2d 106 ; Huitin v. State, 171 Tex.Cr.R. 425 , 351 S.W.2d 248 , and other cases cited therein, the crime charged in the indictment was not that alleged in the petition upon which the defendant had been adjudged and committed as a juvenile delinquent. Unless these cases are wrong, petitioner is not entitled to discharge.
Petitioner’s motion for rehearing is overruled.