*1 against other or ted one ” 1 SOLETE, Anthony parte Rogers Jr. Garcia, exceptional
The situation at issue No. 60448. however, was the next one in a supra, very others, train of viz.: “or child Texas, of Appeals Court of Criminal id., years age,” either at 14. of Panel No. 1. it- dispositive question that the Court 13, self raised considered in the interest of 1980. Feb. whether the act of inde-
justice was 10, Rehearing Sept. Denied 1980. cency involving with a child is “an offense grade . of assault . . committed [spouse] against any one . . . child . . age of either under 16 .” The Court
[Emphasis original.] added found that the “outlines fact testimony situation which would an as- constitute “against specified
sault” under a statute and, therefore, witness” witness,” Garcia, wife competent “the was a supra, at 15-16. We no occasion to have conclusion, finding
disturb that for our issue is manifestly different.
What must be here looked to is not statute; “involving” feature of the cer tainly instant involved an as appellant sault for drove his automobile into a car and thereby, smaller indict avers,
ment bodily did “threaten imminent Gould,” injury Tommy Lee an occupant the car along wife of Plainly one other. this is simply, not a “case for . an offense . . committed [spouse] against one the other.” Rather allegedly
it is a case for an offense commit- by appellant against ted Gould. As the panel correctly perceived, wife “the was not injured being party case tried.” rehearing State’s motion for is over-
ruled.2 enough emphasis supplied throughout by the basic bar to that 1. All not remove opinion testimony; writer of this otherwise indi- must in an ex- unless be voluntariness ceptional cated. situation. Nor, very policy given considera- different suggestion appellant’s 2. There is a that because tions, spous- persuaded the federal are we “voluntarily” exception wife testified the at is- privilege with in al dealt Trammel testimonial However, applicable. was sue as Garcia v. 906, States, 445 100 S.Ct. v. U.S. United out, correctly points supra, at also now determine our should L.Ed.2d 186 own, “Therefore, or of whether not Mrs. 38.11, ap- supra, especially since Article testimony voluntary dispos- Garcia’s pears recurring examination our to receive disqualified itive of if she the issue Legislature. Note. Historical words, In witness in this case.” willingness other mere spouse testify for the State
OPINION
ONION, Presiding Judge.
Appeal is taken from order entered corpus proceed- after a hearing in a habeas sought ing discharge which the charging cap- under an indictment him with ital murder. appeal
This presents whether a can be re-certified to a district court for as an adult Code, 54.02, upon where § prior certification a district court examining trial conducting an found no and remanded the probable cause court. We hold that juvenile cannot be so re-certified. the petitioner
The record shows was six- teen the time years old at com- capital mission of the offense of 1, 25,1977). (August murder November On 1977, the District Court of Harris 313th County, sitting waived petitioner jurisdiction and an adult. district court for trial as On 12, 1978, January District Court the 208th in the cause examining trial conducted an in accordance had been transferred found that the said 54.02. The court to show State had failed an of- petitioner had committed petitioner fense and remanded diction of the 6, 1978, On the State filed a February requesting it recon- motion in stating that previous proceedings, sider its community required the welfare of the peti- proceedings adult criminal tioner. the 313th
On March Court, after re- sitting as a an order that assuming jurisdiction, entered to declare State’s Dick, Houston, Saper, Gus A. W. Sam it failed delinquent child was void because appellant. capital allege essential element Vance, Carol Dist. F. Atty., Clyde S. murder, state of “inten- culpable mental Houston, DeWitt, III, Atty., Asst. Dist. proceed- found all tionally,” and the court Huttash, Austin, Atty., Robert State’s were void. ings pursuant to that the State. alleged no such earlier motion
contention. ONION, J., Before P. PHILLIPS reasonable alleged the had time, manner DAVIS, place, and particularity TOM JJ. as to G. dealing statutes with discretion- penal the former of the acts and law or standard subsec- conduct violated such acts. and set certain ary transfer forth 54.02 as follows: tions of said § peti date a the same “3rd Amended” On filed, retains on “(g) tion in the same cause was 19,1978 again September *3 jurisdiction petitioner
waived and certified offense for prosecution at time court for an adult for to the district trial as any offense the or for alleged in same offense of murder. The capital the juvenile the knowledge of within the jurisdiction. 209th District Court assumed anything in evidenced judge court jurisdiction motion to pleaA to the and a proceedings. the the record of cause to were juvenile remand the court “(h) juvenile juris- the waives If court examining a second trial was overruled and in the specifically it shall state found, the held. Probable cause and was certify its reasons for waiver and order grand was bound to the over action, and including the written order 8,1978, petitioner November jury. On court, transfer the findings of and capital indicted for He then murder. court for criminal appropriate to the brought writ of habeas the child for proceedings. On transfer of seeking in the 209th corpus District Court be dealt proceedings, he shall criminal discharge his under In his such indictment. with with as an adult and in accordance alia, alleged, he the in inter Procedure, Texas Code dictment was “void the laws of the custody is an ar- The transfer of 1965. of Texas” and in argument State his oral shall be con- examining rest. The trial support pleadings of his at the conclusion of case was court which the ducted to corpus hearing, petitioner’s habeas transferred, which remand may counsel cited to the 54.02 of the court said § court. jurisdiction juvenile to the of the Family of this court holding Code brought to “(i) If the child’s case is (Tex. parte in Ex 561 822 S.W.2d and attention denied, Relief Cr.App.1977).1 and this jury does not indict was taken. appeal forwarded charged complaint For reasons stated in Menefee at court or juvenile the district p. may we conclude that this court certify the district court shall review the presented by habeas juve- failure grand jury’s to indict corpus proceedings, though questions certifica- receipt On of the nile court. are not the same. The in both indictments tion, resume were void and the no district court had case.” diction of the case, jurisdiction proceed in either corpus statutes, present, relief is Referring past habeas available. opinion Menefee stated: In Menefee it was an indict- held that “It is clear from these enactments ment returned a after dis- legislative been that intent has cretionary transfer is from procedure before step three be followed if void the district court to which transfer juvenile, sixteen and later fifteen to conduct made fails an older, tried court as an old or in district prior to return of in accord- step pro- were 54.02(g), safeguards At each ance adult. (h), (i). The Menefee reviewed all If the court decides decision vided. give remedy, urged ending in order to effect to the 1. If it be strued can that in view of the seeking rights prayer application protect person habeas for a writ of corpus there was a of issues to dou limitation under it.” relief etc., jeopardy, process, us, due note ble that Article I would the trial From the record before 11.04,V.A.C.C.P.,provides: presented. well knew the issue "Every provision relating the writ of corpus favorably shall habeas be most 856 jurisdiction
retain
hearing
at the
to de-
been followed
a number of cases. See
termine if the court should waive
576
843 (Tex.Cr.App.
S.W.2d
diction
1979);
(Tex.
for crimi-
Jones v.
another opportunity to have the criminal discharged step ap- vital when the court proceedings against termi- pellant examining trial. We find at the nated of the that such action terminated the criminal court resumed. proceedings against appellant and effec-
“The before the examining tively jurisdic- trial district remanded to the court clearly appears to be the second tion of the court. To hold other- examining vital step determining juve- whether a wise would render the trial a nile meaningless should be tried as an adult. While sham because the State put various enactments set out above indicate could refuse on evi- simply language changed has been from the before dence and then take statute, present 1965 enactment until the grand jury, depriving thus step procedure the essence of a right meaningful the three nile of the valuable examining provided by Legis- has remained the same.” as trial Code, V.T.C.A., Family lature in 54.- right examining The to an trial can parte Spencer, 02.” also Ex by juvenile be waived a who has been certi (Tex.Cr.App.1979). court, fied to the district but such waiver must be in accordance with Fami We the 208th conclude once 51.09(a). Court, ly sitting Criss v. 563 District as an § court, (Tex.Cr.App.1978). such on the first Absent found no waiver, there trial must be an certification and remanded the case or the has from is void. Menefee barred stated, prayed For the reasons the relief again certifying juvenile for trial is void and charge. adult on that for is The indictment particular granted. is ordered is set aside and the To otherwise would mean that each hold juvenile court. remanded time remanded court after an It is so ordered. grand district court or the refusal of a banc. Court en Before the indict, jury to court could re-certify tinue to another district area, hoping in a
particularly metropolitan THE OVER- DISSENTING TO OPINION that another district court and another OF THE MOTION FOR RULING than the jury differently react WRITTEN REHEARING WITHOUT original permissible, how ones. OPINION per- be many times would re-certification DALLY, Judge. permissible mitted? We hold said 54.02 of Code. motion, Court, filed on own rehearing set further this matter not Although the State does at original disposition ap- consider its tempt position sustain its on it does brief, now overrules mo- peal. not even mention it in its we earlier remand, opinion. noted the court on on its written rehearing tion for without motion, own found the fun I dissent because the *5 alleging for not the damentally defective in cases of Le- Court in this case and the culpable “intentionally” mental state of and Gist, Judge, Blanc v. proceedings pursuant all thereto were void. Court, al., County Jefferson et 603 S.W.2d A to transfer the child to a district Dissent- Opinion (Tex.Cr.App.1979, 841 court as for trial an adult does not need to for Motion Overruling of the ing meet particularities of an indictment. filed opinion, written without Rehearing (Tex.Cr. Tatum v. 534 678 S.W.2d upon and enlarge continues day) C., App.1976); In of B. Matter P. 538 54.02, Code, Family Sec. extend V.T.C.A. (Tex.Civ.App.1976). 448 also S.W.2d 5 guise of under the judicial legislation (1974). Further, Tex.Tech.Law Rev. 550 intent. legislative discovered or pleadings the instrument under which a juvenile who is for 54.02, certified trial as an perti- in V.T.C.A. adult eventually felony will be tried for a Legisla- part, written nent as it was be upon felony will or infor ture, provides: mation, not the in filed court its “(a) The waive court. The court’s order original jurisdiction and trans- exclusive attempting nullify all proceedings earlier appropriate fer district a child justify in order to has re-certification no district for crimi- court or criminal court validity. proceedings nal if: in a Petitioner second also contention alleged have vio- “(1) the is seeks relief on the basis of the constitution- of grade felo- penal law the lated jeopardy encompassed al doctrine of double ny; in both federal and state Constitutions. age or “(2) was 15 We not reach as relief is need such alleged to have at the time he older fact, granted on another basis. In adjudica- no committed the offense and petitioner may extremely doubtful if the hearing has been conducted tion corpus use the office of habeas to secure offense; cerning that discharge on basis of pre-conviction “(3) investigation full after parte Spanell, double Ex 85 jeopardy. See determines hearing (1919); 212 172 Ex Tex.Cr.R. S.W. because of the seriousness Hunt, 118 40 parte Tex.Cr.R. background of the child (1931). offense or the community proceedings terminates criminal requires welfare of the and is tan proceedings. criminal remanding the proceedings tamount to back “(b) though even no - (cid:127) (cid:127) formal order entered. of transfer has been Ex “(c) court shall conduct a LeBlanc, parte 731 (Tex.Cr.App. hearing a jury without to consider trans- 1979). holdings required are not fer of the These proceedings. child for criminal words of plain do not follow the “(d) . . . statute; holdings are contrary these “(e) (cid:127) (cid:127) (cid:127) legal principles ably point well-established “(f) . . . in dissenting opinions ed out in the “(g) court retains LeBlanc, supra; supra; parte Ex Ex diction, the child is not to criminal holdings These parte supra. prosecution at any time for offense judicial legislation. the majority amount to in the or knowledge within the strong disagreement Although we are in judge by anything as evidenced dissenting judges proceedings. the record of the recognized have the vote of “(h) court waives Kirkwood, parte the rule of law. Ex specifically it shall state Ex parte order its reasons for waiver and Ytuarte, action, including the written order and Juarez, Ex findings and transfer Gloston, 579 S.W.2d App.1979); child to appropriate court for the petitioners (Tex.Cr.App.1979). proceedings. criminal On transfer of the relief be granted were last cited cases child for proceedings, he shall be trials they did not have dealt with as an adult and in accordance being after and transferred with the Texas Code of Criminal Proce- being in prosecution as adults and before dure, 1965. The transfer custody is an dicted. arrest. The trial shall be con- *6 Gist, LeBlanc v. Now in this and in case ducted the court to which the case was Court, Jefferson Judge, transferred, which may remand the child al., majority by addi- County, supra, et (3) has held that: judicial legislation tional “(i) brought child’s case only there can be one attention of the (4) be re-certified cannot jury does not indict for the offense prosecution as an adult. charged in the complaint forwarded legislation judicial the district court or further I dissent to the criminal district court shall in this case. indulged grand jury’s failure to indict to the receipt of the nile court. On certifica- DAVIS, and W. C. DOUGLAS, G. TOM
tion, resume DAVIS, JJ., join in this dissent. diction of the case.” by judicial the Court legislation has 54.02 hold- added
ing that:
(1) mandatory. (Tex.Cr.App. Jones v. 1979); (Tex.
Cr.App.1979); 822 (Tex.Cr.App.1977). If there is a failure to find finding cause in the trial such