Ex Parte Martinez
386 S.W.2d 280
Tex. Crim. App.
1964
Check Treatment

Ex parte Mike MARTINEZ.

No. 37611.

Court of Criminal Appeals of Texas.

Dec. 16, 1964.

386 S.W.2d 280

Petitioner attacks two murder convictions on his 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.

;
. We said in
, that the claim of former conviction cannot be raised on habeas corpus. See also
; and
.

The cases cited are alone authority for denying relief to petitioner on the ground of former conviction.

The same is true as to

.

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

;
;
;
, 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.

Mike Martinez, pro se.

Leon B. Douglas, State‘s Atty., Austin, for the State.

McDONALD, Judge.

Petitioner, an inmate of the state penitentiary, brings this application for writ of habeas corpus in his own handwriting. When petitioner‘s conviction reached this Court on appeal, the writer shared the view of the majority and affirmed the case, from which position he has not departed. It is my view that the Juvenile Act and all hearings thereunder are civil and not criminal in nature. It necessarily follows that I do not believe that jeopardy attaches in juvenile courts as they are without jurisdiction of felony offenses.

My views are fully set forth in the opinion written by me in

, and in my dissenting opinions upon original submission and on rehearing in
. The writer‘s views are further stated in his concurring opinion in
.

Presiding Judge Woodley concurs in the disposition of this cause, his position and reasons being stated in his original opinion upon the appeal of this case,

.

Relief prayed for is denied.

MORRISON, Judge (dissenting).

When petitioner‘s conviction reached this Court on appeal, the writer dissented to the affirmance on the grounds that petitioner had once been in jeopardy and therefore could not, as I saw it, be constitutionally tried again for the same offense. I relied upon the holding in

, which I still feel is controlling. However, since the rendition of the opinion in petitioner‘s case, this Court has had a comparable situation before us in
. Therein we said:

“To affirm this conviction in the light of the record would be to hold that, for an offense committed before he reached the age of 17 years, the offender who has committed no other offense against the law may, upon petition of the district attorney, be adjudged a delinquent child and held in custody as such, and without regard to how he may respond to the guidance and control afforded him under the Juvenile Act, be indicted, tried and convicted for the identical offense after he reaches the age of 17.

“We sustain appellant‘s contention that such a conviction violates the principles of fundamental fairness and constitutes a deprivation of due process under the 14th Amendment.”

If

, does not control, then surely what we said in
, should.

However, my brethren do not agree and this petitioner, who served his term in the State School for Boys for an offense committed when he was 13 years old, who was released and two years later was indicted for an offense growing out of the same transaction, now must continue to be confined under his life term conviction. I have stated my position fully in my dissent in

.

Petitioner is before this Court without a lawyer and only the writer to speak for him, and I respectfully dissent from the order of this Court denying the relief prayed for.