Ex Parte Williams
628 S.W.2d 454
Tex. Crim. App.
1982
Check Treatment

*1 454 appellant drove

her car into a ditch while she was intoxicat

ed, State, see v. Perez 954 State,

Cr.App.1968); Sandoval v.

S.W.2d 458 Mixon v.

State, State, 153,

Holder v. 172 Tex.Cr.R. State, (1962); Capps v. 171 Tex. 579,

Cr.R. (1962); Harrison State, 329,

v. 171 Tex.Cr.R.

(1961); State, 269, v. Fancher 167 Tex.Cr.R. State, (1958); Morgan v. 442, (1957),

Tex.Cr.R. but prove, in this circumstantial certainty a moral that she had public

driven on a highway, the car road or

a necessary element of the offense of driv while v. intoxicated. See Shaw

supra; v. Ford Johnson supra; Moore v. 158 Tex.Cr.R.

234, (1953). reason, For

we are required judgment to reverse the acquittal

and order an entered. U.S. 1, States,

Burks v. United S.Ct. (1978); L.Ed.2d Greene Mas 19, 98

sey, 437 U.S. S.Ct. 57 L.Ed.2d 15

(1978). reversed, judgment and we order

the trial court to enter a of ac- judgment

quittal cause. Austin, Huttash, Atty.,

Robert State’s the State. Billy Ray WILLIAMS. OPINION

Court of Criminal McCORMICK, En Banc. Judge. is an original application

March to this Court submitted pursuant trial court On Y.A.C.C.P. as an adult petitioner was certified adjoined.” (sic) driveway; private could ditch is have came from a (sic) yard which could have came *2 pro- in the criminal ings as defense County. On Court of Rusk the Juvenile that possible is ceedings. was indicted September Petitioner has this time. malice at of murder with trial was held for the offense otherwise. plea entered a aforethought. Petitioner 29, 1973, was sen- guilty on October in Ex presented was situation similar confinement. fifty years’ tenced to Alexander, 598 S.W.2d parte hearing, tes evidentiary At the App.1980). is conviction alleges his Petitioner Alexander nor neither timony showed an exam he was not accorded because re of trial could at the time attorney his of his indict ining trial before the return had been an if there thus, never member ment, the district addition, sheet intro Court, the docket This trial. acquired jurisdiction over him. Alexan not sustain Menefee, into evidence parte in Ex duced on the first notation examining trial since the Cr.App.1977),held that an der’s burden after the vital was from a date district court is the second docket sheet before the set indictment. This Court step determining whether return adult, required that, and is post should be tried as an in a conviction out 54.02(h). Code, the alle burden of Family V.T.C.A. Section proceeding, examining trial to relief Failure to hold such an entitle the gations which found in effect The Court petitioner. before an indictment returned any subsequent voids offered in that the evidence Pierce, (Tex.Cr.App. to sustain insufficient 621 S.W.2d was was 1981); Lantroop, proving that he burden of Alexander’s State, 603 Hernandez v. not accorded an not met at bar has in the case Petitioner (Tex.Cr.App. Sanders, Gilbert, (Tex.Cr.App.1979); Ex Rains, do involved Testimony that the individuals sup The evidence before us does not examining trial whether an not remember port petitioner’s claim. The district proving to equivalent was held is case, county attorney, who heard examining trial. there was no testi defense counsel all Alexander, supra. evidentiary hearing they fied examining trial could not remember if an his failed to sustain having Petitioner he was held. The testified that is denied. his proof, burden of did not even know what an sheet, would anything, was. The docket if dissenting. ONION, Presiding Judge, an exam tend to substantiate the fact that involving post-convic- proceeding, ining The docket sheet trial was held. corpus, writ of application for shows that on provisions brought was under judge, sitting 11.07,V.A.C.C.P. as an adult. On fol- of murder was convicted Petitioner date, Dis was taken before guilty plea October lowing his Judge Gladney. trict At that J. C. was as- punishment his subsequently Judge Gladney re the docket sheet shows (50) years’ imprisonment. fifty sessed at ceived the of certification from indict- now contends complaint. Judge Petitioner juvenile court and the arrest, the district ment was void and gave issued a warrant of Gladney he him because try to petitioner and without magistrate’s warning time of the age at the $25,000. Finally, Judge Glad- was set bond at and that he at offense and repre ney appointed attorney by the dis- examining trial not afforded juvenile proceed- in the sented trict after he was and has not waived ex court for trial as amining an adult trial. This is true whether 2338-1, V.A.C.S., time he He was indicted. further effect, contends did not in the instant waive an or whether V.T.C.A., Family 54.02(h), appli parte Menefee, cable. Ex An evidentiary hearing was held in the *3 (Tex.Cr.App.1977); White v. upon court post-conviction trial habeas (Tex.Cr.App.1979); Jones corpus application. undisputed The evi- State, 576 S.W.2d 853 (Tex.Cr.App.1979); petitioner’s dence shows that birth date was Ytuarte, Ex Ex Buchan November he was an, Ex (Tex.Cr.App.1979); years old at the time of the commission Trahan, (Tex.Cr.App. the offense and at time of his the 1979); Hernandez v. murder trial in district October court on parte Lantroop, also Si See The record also on shows that mon ton v. 586 S.W.2d 528 1973, the county judge judge as sitting juvenile the petitioner to the 4th Judicial District Court trial as for an appears to position The take the on charge adult the murder. On 2338-1, supra, that the date before was taken said as the fact were met was in judge ap- district court where the district examining accorded trial. Reliance is an him, pointed presence counsel for the and in upon had petitioner, his counsel the county (Tex.Cr .App.1979). attorney, read to a the form enti- Guzman, in addition to certifica- the signed tled by Magistrate,” an juvenile the order court and warrant, arrest fixed bail in the amount of indictment, the record contained an undat- $25,000.00. jail and committing ed order Guzman to retired, Neither the judge, district now setting bail. was on this order attorney, nor “Sitting designation that court was could remember any Examining Testimony Court.” appears heard. It none was heard. subsequent hearing post-conviction When asked if he requested ever asked established trial, an examining for petitioner, was based which this order 16was old at the stated that he subsequent was held to the certification not because had he didn’t know- “what it court and to the return appointed attorney was.” His could not The habeas in Guz- recall whether he advised the findings in man made that Guzman had right examining to an examining fact been accorded an successfully indictment may the existence of determine attacked in a grand jury collateral to bind over Guzman Banks, (Tex.Cr.App. sup- action. This court found the record parte Jones, (Tex. ported Cr.App.1976); Standby v. and its not progeny Menefee Ytuarte, point. 579 S.W.2d 210 (Tex.Cr.App.1979). juve- An trial to be accorded a also well established that indict nile certified to be tried as an adult ment void on the court governed by Chapter the basis that 16 of the Code V.T.C.A., Family lacks where the defendant is a Criminal Procedure and 52(h), repealed which Article 2338- § V.A.C.S., as an 6(j), adult and is accorded an Guzman 16.01, V.A.C.C.P., cry facts are far from These case. Article instant jail 16.09, committing Guzman where the defines an been to have setting bail shown V.A.C.C.P., be re- requires testimony sitting as an entered district writing, and Article Y.A.C. duced to testimony at the C.P., provides: hearing established subsequent been “After the trial has was in fact there had, judge shall make an order com- peti- that the record further shows mitting jail of the defendant to the waive an exam- affirmatively tioner did or admit- proper county, discharging him ining trial. bail, ting him to and facts the law require. may the case Failure to the relief is entitled enter judge to make or an order within majority holding error in sought. The is in trial has been hours after sustain his has failed to *4 operates as of no completed finding proof. of burden probable cause and the accused shall be discharged.” TEAGUE, ROBERTS, CLINTON JJ., opinion. join in this In the instant case found he was unable to determine whether

an examining peti trial was afforded by

tioner or not. This court is not bound trial court. Ex

Hagans, Williams,

Ex parte Ramirez, McKELLIPS, ux., Appellants, et L. John Further, 261 (Tex.Cr.App.1979). pre

sumption will not procedural regularity support a conclusion tri that an al., GORDON, Appellees. Sidney et L. al was held. White rule in If the only appeals White is to direct Court El Paso. by not to collateral attacks writ where bur corpus has the Sept. 1981. den as indicated 21, 1981. Rehearing Denied Oct. (Tex.Cr.App.1 980),1 I would then conclude

has sustained “Warning by

The form read Magistrate” 3,1973 petitioner August express-

ly designed with comply shows it was no There was V.A.C.C.P.

showing that was conducted find-

testimony taken. was no order binding petition- grand

er jury. over to The amount simply

bail was endorsed on sepa- no Magistrate” form. There was setting

rate order bail. where viction See and cf. post-con- approval cited with White was