White v. State

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). *845 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 Me-nefee, 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.

. In Winegamer v. State, 505 S.W.2d 303 (Tex.Cr.App.1974), it was intimated that this Court will indulge in a presumption of regularity of proceedings in juvenile transfer cases where the appellate record fails to reflect whether or not an examining trial was in fact conducted by the transferee District Court pursuant to the provisions of Section 54.02(h), supra. Accordingly, insofar as Winegamer, supra, is in conflict with our present holding, it is expressly overruled.

. So that our holding will not be misconstrued, we here point out that in juvenile transfer cases a pre-indictment examining trial in the transferee District Court can be waived. Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).