Opinion
No. 63224.
January 9, 1980. Rehearing Denied February 13, 1980.
Appeal from the 52nd Judicial District Court, Coryell County, Byron L. McClellan, J.
Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
The petitioner seeks relief under the provisions of Art. 11.07, V.A.C.C.P. in this post-conviction proceeding.
The trial judge made the following findings of fact and conclusions of law:
"1. Petitioner was born October 19, 1956.
"2. On July 23, 1974, in No. 271, the State of Texas v. Howard Charles Gilbert, a hearing was held in the 52nd District Court of Coryell County, Texas, sitting as a Juvenile Court. The purpose of this hearing was to determine whether Petitioner should be certified for prosecution as an adult under Sec. 54.02 of the Family Code and whether the cause should be transferred to the District Court.
"3. After this hearing, it was ordered that the jurisdiction of the juvenile court be waived and the cause be transferred to the 52nd District Court for criminal proceedings.
"4. On July 23, 1974, Petitioner was charged by Information with the felony offense of Burglary of a Habitation. Upon Petitioner's waiver of Indictment and guilty plea, Petitioner was convicted and sentenced to ten (10) years confinement in the Texas Department of Corrections. At no time after the certification/transfer hearing, nor prior to the return of the information, was Petitioner afforded an examining trial pursuant to Family Code Sec. 54.02(b)(h) (1973).
"5. It is the conclusion of the Court that the failure to hold an examining trial in this cause rendered the Judgment and Sentence void. Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App. 1977). It is the recommendation of this Court that the Court of Criminal Appeals grant the relief sought by Petitioner."
The writer of this opinion wholeheartedly disagrees with the holding of Ex parte Menefee, supra, and the numerous cases which have followed it. Nevertheless, under the holding of the majority in that case the petitioner is entitled to the relief he seeks. The conviction is set aside.
It is so ordered.