*1 error, appel In his ground final is insuffi
lant contends that the evidence jury’s affirmative an support
cient to issue. The punishment
swer to the second only prior appellant’s
record discloses that driving an auto was for
criminal conviction
mobile while intoxicated. leave for a short
also been absent without Army. during
time his service in the Holbrook, punishment hearing, Dr. John psychiatrist, testified that he had exam
ined and determined that he has profile and characteristics of a socio
path. Holbrook also testified that he would
expect change diagnosis little or no that, opinion, appel
in the future and in his
lant would criminal acts of violence commit
in the future that constitute a con would
tinuing Grig- Dr. James society. threat
son, gave similar testi psychiatrist,
mony. testimony, considered itself,
with the evidence of the crime
was a particularly senseless and motiveless
killing, support jury’s is sufficient
determination that would consti continuing society. Fergu
tute a threat to
son v. (Tex.Cr.App. S.W.2d 516
1978); Shippy v.
(Tex.Cr.App.1977); Moore v. (Tex.Cr.App.1976).
S.W.2d 664 judgment is affirmed. LeBLANC, parte Harold Leo Jr.
Court of Criminal
Rehearing En Banc Denied 21, 1979. Beaumont, Hawthorn,
Joseph C. pellant.
None for the State. *2 1, 1976, April appellant
On indicted County previously for the men- in Jefferson capital murder and mur- offenses of tioned appellant It der. is this indictment which ONION, Judge. Presiding seeks to have dismissed. entered appeal is an from an order corpus proceeding in a in the Crimi- habeas In Ex County nal of Jefferson de- held that a (Tex.Cr.App.1977),we nying appellant. sought He relief to to to a district court who has been transferred alleging have the indictment him has the to an proceedings for criminal capital murder and murder dismissed and to court before examining trial in the district prevent prosecution his further or convic- an indictment returned indictment and that tion of these offenses. prior the examining to trial in district an facts is in the agreed An statement conclusion, reaching that void. In record us. It reflects legislative enact- setting after forth the capital mur- have to years, we stated: through ments the County on der Jefferson and murder in enactments that “Is it clear from these time, 26, February 1975. At that a legislative intent has been been born years having on fifteen old followed before a step procedure three 7, County 1959. The Court of Jeffer- years later fifteen juvenile, sixteen and Court, sitting a Juvenile on County, son as older, court as an old or is tried in district 1975, November entered an order waiv- pro- step safeguards were adult. At each jurisdiction transferring ing the cause- If decides to vided. question to in the Criminal District Court of hearing jurisdiction retain to de- Jefferson termine if the court should waive 8, 1975, On December the Criminal Dis- diction and for crimi- examining trict an Court held trial ends matter discharged appellant because the State juve- regard to certification. cause that failed to establish juvenile. nile will handled as If then pellant had committed the of- and the dis- there has been certification fenses.1 trial, court, examining trict an following Orange County Attorney County decides to in petition February on filed a will not then the Orange alleging County Juvenile Court subject to the an as adult but will delinquent con- engaged If the juvenile court. committing forgery offense of by duct examining trial in juvenile, after February 1976. On by action trict bound over for County Orange the Juvenile found Court true allegations petition and com- the district court certifies mitted to the Texas Youth Coun- court and failure to indict finding, cil. At the time of the the offenses jurisdiction case is resumed capital allegedly murder and murder oc- Thus, any of the court. at curring County in Jefferson were within is a decision not to three if there knowledge County Orange Juve- adult, then prosecute nile Court as evidenced the record prosecuted.” be so proceedings. Juvenile Court will not page found no cause existed based Court at shows record on entry proof following the Def. docket offered and twenty-eight made later: over months return but did not pending action the Def. Juvenile Court reflect “4-17-78 Record Jury.” the Grand matter trial was held in this before indictment. pro- terminated criminal went on the state that an exam- him, ceedings we not reach the do right, is a his raised additional issue opportunity furnishes to have prosecution or conviction for the juve- murder murder offenses is barred nile terminated and the jeopardy. cause of former *3 juvenile court resumed.” cause is reversed and the The judgment Here the district held the exam- court remanded. discharged because ining trial and cause probable failed establish State DAVIS, Judge, dissenting. TOM G. committed Menefee, parte Ex The relies majority not offenses. was thus bound 822, with which I Tex.Cr.App., 561 S.W.2d jury, yet grand some over for action dissenting opinion in (see cannot agree jury grand four months later the returned goes State, and a White v. 843 S.W.2d against in question appel- the indictment arriving holding. step beyond in at its lant. Code, 54.02(h), Family V.T.C.A. Section find such indictment to void. Ex provides: parte supra; State, White v. 576 jurisdiction, juvenile “If the court waives day decided); this (Tex.Cr.App., S.W.2d its order specifically shall state in the Jones v. 853 (Tex.Cr.App., S.W.2d action, certify waiver and its reasons for decided). day this findings including the written order and While it is uncommon not nor im to the of the the child transfer proper grand to return an appropriate proceed- indict court for criminal crimi- ings. ment child for adult On transfer with as he shall be dealt we conclude that such is the Tex- in accordance adult and possible not of a be ease Procedure, 1965. as Code of Criminal of the three Leg cause The The is an arrest. transfer provided be accomplished islature has must by the examining trial shall conducted as an a be tried adult. transferred, court the case to which Menefee, supra. Here the faltered at State to the which the child may remand the second vital the court dis step when [Emphasis juvenile court.” diction of the charged appellant at the trial. supplied.] We find that such action terminated the criminal District satisfied Criminal determining is step “second vital whether effectively juris to the remanded re- an adult” diction of the court. To hold oth quired supra, v. by Menefee erwise would render the trial a an ex- supra, White when it held v. meaningless sham because State could amining on December 1975. simply put any refuse to evidence and exam- that when such concludes then take the before the not find cause trial did jury, thus depriving the appel- “effectively such finding remanded meaningful examining of a lant to the Legislature provided trial as in V.T. 54.02(h), leaves it supra, court.” Section C.A., Code, Family 54.02. § holding the ex- the discretion of holding In view of that an ex our be a amining whether there shall as to amining trial at which it determined section there is cause that the accused had shall be examining trial providing, “The prerequi offenses to which conducted site to an indictment transferred, may remand which a juvenile sought be tried as child to discharge supplied.] here [Emphasis court.” Legislature leave
That the intended to of the court matter to the discretion Ronnie CHATMAN. Joe examining trial is further conducting the Code, Family evidenced V.T.C.A. Criminal Court of 54.02(i), provides if which “shall the district failure to indict to grand jury’s 1979. Denied Rehearing En Banc majority disregards provision 54.02(h), supra, provides, “On proceed- transfer child for
ings, with as he shall dealt an adult
accordance with Texas Code of Criminal *4 [Emphasis supplied.] not-
Procedure.” As
ed in the “it is not uncom- opinion, improper grand jury
mon to re- nor
turn an indictment
charged examining trial.” accorded “the second appellant was Menefee and White step” mandated given he was of Jefferson within the discretion It was then as to whether it should remand proba- upon found, 54.02(h)
ble cause not “.
providing that such court
remand the child to the
When transferred to district was he to be 54.02(h).
“dealt with as an under Sec. adult” indictments
against appellant for murder and the grand
murder. I would hold that such action. take I dissent. KEITH,
QUENTIN Commissioner. writ of habeas application This is an DAVIS, DOUGLAS, DALLY and W. C. 11.07, to Art. corpus pursuant filed JJ., join in this dissent. Petitioner (Supp.1978). V.A.C.C.P. convicted in the 122nd aggra- County of offense Galveston rape plea guilty vated on his 20-year sentence and assessed perfected no judgment. from such judgment of Petitioner contends void conviction in the instant to conduct an cause the court failed