author: ONION, Presiding Judge. DOUGLAS, Judge,

text:
    Ex parte James A. MENEFEE, Appellant, v. The STATE of Texas, Appellee.
    No. 54780.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.
    Dissenting Opinion March 8, 1978.

      James A. Menefee, pro se.
    Tom Hanna,' Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal entered in a habeas corpus proceeding.

On original submission the appeal was dismissed for lack of a notice of appeal. By supplemental transcript, it has been shown that notice of appeal was timely given. The appeal is reinstated.

The question presented is apparently one of first impression. Is an indictment returned against a juvenile after a discretionary transfer from juvenile court void for the failure of the district court, to which the transfer was made, to conduct an examining trial prior to the return of the indictment?

An agreed statement of facts is in the record before us. It reflects that on February 25, 1977 the Judge of the County Court of Jefferson County, sitting as Judge of the Juvenile Court, entered an order waiving jurisdiction and transferring the cause in question to the Criminal District Court of Jefferson County.

On March 7, 1977 the Honorable Danny Doyle, attorney for petitioner, requested an examining trial for the petitioner from the said Criminal District Court in accordance with the Texas Family Code. On March 9, 1977 the Judge of the Criminal District Court, noting the above request, wrote the Juvenile Court Judge for the record of the certification and all papers in connection therewith.

Subsequent to March 9,1977 the Criminal District Judge held several conversations with petitioner’s counsel and members of the District Attorney’s staff. As a result of congestion of the court’s docket, the District Attorney’s staff was instructed to present the matter to the grand jury immediately “or notify the Court so that an examining trial could be scheduled at the earliest possible time.”

On March 24, 1977 the grand jury indicted the petitioner for murder in Cause No. 34453.

On March 31,1977 the petitioner filed his application for writ of habeas corpus alleging that the indictment was void because he had been denied an examining trial prior to the return of the indictment in violation of V.T.C.A., Family Code, § 54.02(b). Petitioner contended that he had been deprived of one of the essential steps provided by law before a juvenile can be tried as an adult — to have the District Court consider whether petitioner should be remanded to the jurisdiction of the Juvenile Court rather than being referred to the grand jury for consideration of whether an indictment should be presented. He thus urges that there has been a violation of Article 54.02, supra, and a deprivation of due process and that the indictment is void.

On April 4, 1977, acting upon an agreed statement of facts, the Judge of the Criminal District Court entered an order denying relief. On the same date notice of appeal was given. Petitioner’s counsel has filed no brief and the District Attorney has filed a brief simply adopting Attorney General’s Opinion M-1151 (1972) interpreting Article 2338-1, § 6(j), Vernon’s Ann.C.S., the forerunner of V.T.C.A., Family Code, § 54.02(b). Said opinion held that a District Court was not required to conduct an examining trial in the case of a child transferred from Juvenile Court for prosecution as an adult when no examining trial is requested and that the return of an indictment terminates the right of such juvenile to an examining trial.

At the outset we must determine whether this court may review the question presented by writ of habeas corpus. In Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977), this court wrote:

“. . . Ordinarily, in this State, when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is not available either prior to or after trial to test the sufficiency of the complaint, information, or indictment. Ex parte Jarvis, 109 Tex. Cr.R. 52, 3 S.W.2d 84 (1928); Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347 (1943); Ex parte Meers, 129 Tex.Cr.R. 465, 88 S.W.2d 100 (1935); Ex parte Beverly, 34 Tex.Cr.R. 644, 31 S.W. 645 (1895); Ex parte Williford, 50 Tex.Cr.R. 417, 100 S.W. 919 (1907); Ex parte Webb, 113 S.W. 545 (Tex.Cr.App.1908); Ex parte Wolf, 55 Tex.Cr.R. 231, 115 S.W. 1192 (1909). However, if the pleading, on its face, shows that the offense charged is barred by limitations the complaint, information, or indictment is so fundamentally defective that the trial court does not have jurisdiction and habeas corpus relief should be granted. Ex parte Hoard, 63 Tex.Cr.R. 519, 140 S.W. 449 (1911); cf. Ex parte Stein, 61 Tex.Cr.R. 320, 135 S.W. 136 (1911); People v. McGee, 1 Cal.2d 611, 36 P.2d 378 (1934); Ex parte Vice, 5 Cal.App. 153, 89 P. 983 (1907); Ex parte Connolly, 16 Cal.App.2d 709, 61 P.2d 490 (1936).”

If a juvenile who has been transferred to the District Court for criminal proceedings has the right to an examining trial before indictment, then an indictment returned prior to the examining trial is premature and void. The District Court has no jurisdiction to proceed on a void indictment, and habeas corpus relief is available.

We turn to a consideration of the question before us. The first discretionary transfer provision in Texas was enacted by amendment of § 6 of Article 2338-1, Vernon’s Ann.C.S. (Acts 1965, 59th Leg., p. 1256, ch. 577, § 3), which provided:

“Section 6. A transfer may be made of cases from one Juvenile Court to another Juvenile Court where a child under the jurisdiction of one Juvenile Court has moved from one county to another, and where it is to the best interest of such child so to do. The Juvenile Court having jurisdiction of a child may transfer the case to the Juvenile Court of the county in which the child may be then residing, and shall send transcripts of records to the Judge of the other Court, which shall be filed in the office of the clerk of such Court.
“If a child sixteen (16) years of age or older is charged with an offense which would be a felony if committed by an adult and if the Court, after diagnostic study, social evaluation and full investigation, deems it contrary to the best interest of such child or the public to retain jurisdiction, the Court may, in its discretion, certify such child for proper criminal proceedings in any court which would have jurisdiction of the offense, if committed by an adult; but no child under sixteen (16) years of age at the time the offense is committed shall be so certified and no child under sixteen (16) years of age at the time the offense is committed shall be prosecuted as an adult at any later date unless transferred by the Juvenile Court, and all such offenses committed by children not so transferred shall be subject to disposition by the Juvenile Court only. Such certification shall include the written order and findings of the Juvenile Court and shall be accompanied by a complaint against the accused in accordance with applicable provisions of the Code of Criminal Procedure of the State of Texas.
“Upon certification . to the District Judge having jurisdiction under the provisions of this Act, the District Judge shall have the powers and duties conferred upon examining magistrates by Chapter 3 of the Code of Criminal Procedure of the State of Texas. Provided that upon hearing the District Judge shall make an order committing the child to jail, discharging him, admitting him to bail, or remanding him to the custody of the Juvenile Court as the law and facts of the case may require. Provided further that if the child is held or bound over for action by the Grand Jury, the Grand Jury may return an indictment for the offense charged or may recommend that the child be remanded to the custody of the Juvenile Court. If the Grand Jury recommends that the child be returned or remanded to the custody of the Juvenile Court, no further action by the Grand Jury or future Grand Jury can be taken against the child in regard to the offense charged or the acts for which the child stood accused and which were investigated by the Grand Jury. If the Grand Jury returns an indictment, the child shall be subject to the penal laws of this State and tried in accordance with the Penal Code and the Code of Criminal Procedure as if the child were an adult." (Emphasis supplied.)

In Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966), a portion of the amendment to § 6 was held unconstitutional.

In 1967 § 6 of said Article 2338-1 was again amended (Acts 1967, 60th Leg., p. 1082, ch. 475). Said amendment provided as follows:

“Sec. 6. (a) When a child under the jurisdiction of a court moves from one county to another the court may transfer the case to the court in the county of the child’s residence if the transfer is in the child’s best interest. The transferring court shall forward transcripts of records in the case to the judge of the receiving court, who shall file them in the office of his clerk.
“(b) If a child is charged with the violation of a penal law of the grade of felony and was fifteen years of age or older at the time of the commission of the alleged offense, the juvenile court may, within a reasonable time after the alleged offense, waive jurisdiction by following the requirements set out in Subsections (c) through (j) of this section, and transfer the child to the appropriate district court or criminal district court for criminal proceedings.
“(c) The juvenile court shall conduct an informal hearing under Section 13 of this Act on the issue of waiver of jurisdiction.
“(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
“(e) The juvenile court shall appoint counsel for any child who does not have retained counsel, and shall allow counsel at least ten days to prepare for the hearing. The presence of counsel at the hearing may not be avoided or waived. Appointed counsel is entitled to a fee for each day actually spent in court in the amount and from the same source as specified in Article 26.05 of the Code of Criminal Procedure, or any future amendment of that article.
“(f) The juvenile court shall give counsel access to all the records relating to the child including the report of the investigation that must precede the hearing in the possession of the court, its staff, or employees. The juvenile court may refuse to reveal the source of any information if it finds that revelation would be injurious to the child or would prejudice the future availability of similar information. If the court refuses to reveal the source of any information and the child or his counsel objects to the refusal, the court shall preserve the identity of the source and make it available to the district or criminal district court if the child is transferred for criminal proceedings.
“(g) After full investigation and hearing the juvenile court shall retain jurisdiction of the case unless it determines that, because of the seriousness of the offense or the background of the offender, the welfare of the community requires criminal proceedings.
“(h) In making the determination under Subsection (g) of this section, the court shall consider, among other matters:
“(1) whether the alleged offense was against person or property, with greater weight in favor of waiver given to offenses against the person;
“(2) whether the alleged offense was committed in an aggressive and premeditated manner;
“(3) whether there is evidence upon which a grand jury may be expected to return an indictment;
“(4) the sophistication and maturity of the child;
“(5) the record and previous history of the child;
“(6) the prospects of adequate protection of the public and the likelihood of reasonable rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.
“(i) If the juvenile court retains jurisdiction, the child is not subject to prosecution at any time for any offense alleged in the petition or for any offense within the knowledge of the juvenile judge as evidenced by anything in the record of the proceeding.
“(j) If the juvenile court waives jurisdiction it shall certify its action, including the written order and findings of the court and accompanied by a complaint against the child, and transfer the child to the appropriate district court or criminal district court for criminal proceedings. Upon transfer of the child for criminal proceedings he shall be dealt with as an adult and in accordance with the Code of Criminal Procedure. The transfer of custody is an arrest. However, the examining trial shall be conducted by the district court or criminal district court which may remand the child to the jurisdiction of the juvenile court.
“(k) If the child’s case is brought to the attention of the grand jury and the grand jury does not indict for the offense charged in the complaint forwarded by the juvenile court, the district court or criminal district court shall certify the grand jury’s failure to indict to the juvenile court. Upon receipt of the certification the juvenile court may resume jurisdiction of the child.”

Article 2338-1, supra, was replaced by V.T.C.A., Family Code, § 54.02, which reads as follows:

“(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
“(1) the child is alleged to have violated a penal law of the grade of felony;
“(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and
“(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.
“(b) The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.
“(c) The juvenile court shall conduct a hearing without a jury to consider transfer of the child for criminal proceedings.
“(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
“(e) At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. At least one day prior to the transfer hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the transfer decision. The court may order counsel not to reveal items to the child or his parent, guardian, or guardian ad litem if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.
“(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
“(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
“(2) whether the alleged offense was committed in an aggressive and premeditated manner;
“(3) whether there is evidence on which a grand jury may be expected to return an indictment;
“(4) the sophistication and maturity of the child;
“(5) the record and previous history of the child; and
“(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.
“(g) If the juvenile court retains jurisdiction, the child is not subject to criminal prosecution at any time for any offense alleged in the petition or for any offense within the knowledge of the juvenile court judge as evidenced by anything in the record of the proceedings.
“(h) If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be con ducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.
“(i) If the child’s case is brought to the attention of the grand jury and the grand jury does not indict for the offense charged in the complaint forwarded by the juvenile court, the district court or criminal district court shall certify the grand jury’s failure to indict to the juvenile court. On receipt of the certification, the juvenile court may resume jurisdiction of the case.
“(j) The juvenile court may waive its exclusive original jurisdiction and transfer a person to the appropriate district court or criminal district court for criminal proceedings if:
“(1) the person is 18 years of age or older;
“(2) the person was 15 years of age or older and under 17 years of age at the time he is alleged to have committed a felony;
“(3) no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted; and
“(4) the juvenile court finds from a preponderance of the evidence that after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:
“(A) the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person; or
“(B) the person could not be found, “(k) The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering waiver of jurisdiction under Subsection (j) of this section.
“(1) The juvenile court shall conduct a hearing without a jury to consider waiver of jurisdiction under Subsection (j) of this section.” (Emphasis supplied.)

It is clear from these enactments that the legislative intent has been that a three step procedure be followed before a juvenile, sixteen and later fifteen years old or older, is tried in district court as an adult. At each step safeguards were provided. If the juvenile court decides to retain jurisdiction at the hearing to determine if the court should waive jurisdiction and certify the juvenile for criminal proceedings, that ends the matter with regard to certification. The juvenile then will be handled as a juvenile. If there has been certification and the district court, following an examining trial, decides to remand the juvenile to juvenile court, then the juvenile will not be tried as an adult but will be subject to the jurisdiction of the juvenile court. If the juvenile, after an examining trial in district court, is bound over for action by the grand jury and the grand jury does not indict, the district court certifies such failure to indict to the juvenile court and the jurisdiction of the case is resumed by the juvenile court. Thus, at any of the three steps if there is a decision not to prosecute the juvenile as an adult, then the juvenile will not be so prosecuted.

While there have been changes in the language in the various enactments, the purpose and basic procedure has remained the same.

The question of whether an examining trial is absolutely essential to such procedure has never been ruled upon by this court. In Garza v. State, 469 S.W.2d 169 (Tex.Cr.App.1971), the defendant contended that § 6(j) of Article 2338-1, Vernon’s Ann. C.S., then in effect, made mandatory an examining trial in the procedure described. The court noted the appellate record reflected that an examining trial had in fact been held and the contention advanced by the defendant was without merit. In Dillard v. State, 477 S.W.2d 547 (Tex.Cr.App.1971), the defendant contended he had been denied an examining trial after certification from juvenile court, but the contention was without merit as the record reflected he had stipulated an examining trial was held prior to indictment.

In Winegarner v. State, 505 S.W.2d 303 (Tex.Cr.App.1974), the defendant contended the district court did not have jurisdiction to try him for murder as there had been no examining trial prior to indictment. There this court wrote:

“The record does not show that an examining trial was not held, hence nothing is presented to us for review.”

In Tatum v. State, 534 S.W.2d 678 (Tex.Cr.App.1976), the record reflected the examining trial was held in the 167th District Court of Travis County rather than in the 147th District Court of the same county to which the cause had been transferred from juvenile court. The opinion noted that Article 199, § 167(G), permitted cases to be transferred between district courts, and such transfer was not error and did not render the convictions void.

There are other cases which do not address the exact question before us but which indicate the holding of an examining trial is a part of the proper procedure to be followed. See Ellis v. State, 543 S.W.2d 135 (Tex.Cr.App.1976) (footnote # 2); Jackson v. State, 449 S.W.2d 242 (Tex.Cr.App.1969); Jackson v. State, 449 S.W.2d 245 (Tex.Cr.App.1969).

The State argues in the instant case that V.T.C.A., Family Code, § 54.02(h), provides that upon transfer of the juvenile for criminal proceedings “he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure 1965.” It then contends that Article 16.01, Vernon’s Ann. C.C.P., provides for an examining trial, but such right to an examining trial is terminated by the return of an indictment. See Harris v. State, 457 S.W.2d 903, 907 (Tex.Cr.App.1970), reversed on other grounds, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971), and cases there cited; Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974). See also Gaither v. State, 479 S.W.2d 50 (Tex.Cr.App.1972); McCullough v. State, 461 S.W.2d 404 (Tex.Cr.App.1970); Wilhelm v. State, 426 S.W.2d 850 (Tex.Cr.App.1968); Gooden v. State, 425 S.W.2d 645 (Tex.Cr.App.1968). This rule has been adhered to even in situations where an examining trial has been requested but an indictment has been returned before a hearing could be held. Solomon v. State, 467 S.W.2d 422 (Tex.Cr.App.1971); Thumann v. State, 466 S.W.2d 738 (Tex.Cr.App.1971); Ash v. State, 420 S.W.2d 703 (Tex.Cr.App.1967).

The State thus argues that if a certified and transferred juvenile is to be dealt with as an “adult” then the return of an indictment terminates the right to an examining trial even if one has been requested. This, of course, was the rationale of the Attorney General’s Opinion M-1151 (1972).

In Harris v. State, supra, it was noted in footnote # 1 that the traditional and statutory purposes of an examining trial are: (1) to determine whether there is sufficient evidence of guilt to warrant further proceedings and if not to discharge the accused (Article 16.17, Vernon’s Ann.C.C.P.), and (2) to determine if bail should be allowed, and if so, to fix the amount of bail (Article 16.01, Vernon’s Ann.C.C.P.), and (3) to perpetuate the testimony of witnesses (Article 16.09, Vernon’s Ann.C.C.P.).

There is, however, an additional feature to an examining trial for a juvenile who has been certified to district court for criminal proceedings. Said § 54.02(h) provides that after such examining trial the court may remand the juvenile to juvenile court, thus terminating criminal proceedings against the juvenile. While the same subsection (h) provides that the juvenile shall be dealt with as an adult, the district court in an examining trial for an adult has no authority to remand an adult to juvenile court. Thus, a juvenile in such situation has an additional right that other “adults” do not have. It is a valuable right, for it furnishes another opportunity to have the criminal proceedings against the juvenile terminated and the jurisdiction of the juvenile court resumed.

The examining trial before the district court clearly appears to be the second vital step in determining whether a juvenile should be tried as an adult. While various enactments set out above indicate the language has. been changed from the 1965 enactment until the present statute, the essence of the three step procedure has remained the same.

We conclude that the indictment, having been returned prior to an examining trial, is void, that this court has jurisdiction, that the indictment should be set aside, and the appellant accorded an examining trial.

The judgment is reversed and the cause remanded.

MOTION FOR REHEARING

DOUGLAS, Judge,

dissenting.

The majority overrules the State’s motion for rehearing without written opinion. On original submission a majority of the Court reversed the order of the district court denying habeas corpus relief and remanded the cause so that petitioner could be afforded an examining trial. At issue in this appeal is the legislative intent behind V.T. C.A., Family Code, Section 54.02(h) (Amended by Acts 1975, 64th Leg., p. 2156, ch. 693, § 16), which provides:

“(h) If the juvenile court waives jurisdiction it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.” (Emphasis supplied).

We should grant the State’s motion for rehearing and hold that the Legislature, by its enactment of Section 54.02(h), did not intend that an indictment returned against a juvenile, after waiver and transfer from the juvenile court, should be void for failure of the district court to conduct an examining trial prior to the return of the indictment.

We should not consider this question in a habeas corpus proceeding before trial. The proper remedy, if any, lies not in habeas corpus but by appeal to this Court. We have often stated that habeas corpus may not be used as a substitute for appeal. Ex parte Powell, 558 S.W.2d 480 (Tex.Cr.App.1977); Mixon v. State, 365 S.W.2d 364 (Tex.Cr.App.1963); Ex parte Eldridge, 154 Tex. Cr.R. 50, 224 S.W.2d 262 (1949). Neither may it be used, as it is in this case, to test the validity of an indictment. Ex parte Oliver, 374 S.W.2d 894 (Tex.Cr.App.1964); Ex parte Brannon, 163 Tex.Cr.R. 311, 290 S.W.2d 914 (1956). In the absence of a showing that the question should not or cannot be presented by appeal, this Court should not exercise jurisdiction. Ex parte Patterson, 317 S.W.2d 536 (Tex.Cr.App.1958). The majority is getting close to allowing several appeals in one case before and after conviction. We have enough to do without having more appeals.

This Court’s opinion in Harris v. State, 457 S.W.2d 903 (Tex.Cr.App.1970), enumerated the traditional and statutory purposes of an examining trial in adult criminal proceedings. They are:

(1) to determine whether there is sufficient evidence of guilt to warrant further proceedings and, if not, to discharge the accused (Article 16.17, V.A.C.C.P.);
(2) to determine if bail should be allowed, and if so, to fix the amount of bail (Article 16.01, V.A.C.C.P.); and
(3) to perpetuate the testimony of witnesses (Article 16.09, V.A.C.C.P.).

It is the first and last of these that immediately concern the juvenile offender, prior to transfer to the criminal district court.

While juvenile court adjudications need not conform to all the requirements of an adult criminal prosecution, such proceedings must nevertheless afford the child the benefits of due process. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To this end, Section 54.02 of the Family Code adequately ensures the perpetuation of testimony and the determination of probable cause in the juvenile court. The statute provides, in part:

“(c) The juvenile court shall conduct a hearing without a jury to consider transfer of the child for criminal proceedings.
“(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
U * * *
“(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
tl * * *
“(3) whether there is evidence on which a grand jury may be expected to return an indictment.”

Under these statutory provisions, two of the three primary functions of an examining trial have been incorporated by the Legislature into juvenile court proceedings. It was not intended that these functions be needlessly duplicated by an examining trial in the district court.

Two of the three purposes of an examining trial have already been fulfilled in the juvenile court prior to the child’s transfer to the district court for criminal proceedings. Did the Legislature intend that the district court should be required to duplicate prior findings on probable cause and preserve testimony already presented in the juvenile court? We should conclude that it did not. Neither should we ascribe to the theory that the Legislature considered a full examining trial imperative to fulfill the sole remaining function of setting or denying bail, a procedure performable by the district court, in any event, Article 2.09, V.A.C.C.P., and which does not necessitate an examining trial.

It is argued that the Legislature’s intent that an examining trial be accorded a juvenile under past waiver and transfer provisions is indicative of its intent that such proceedings be mandatory under the current statute. Article 2338-1, Section 6, V.A.T.S. (Acts 1965, 59th Leg., p. 1256, ch. 577, § 3), this State’s first discretionary transfer statute, provided in part:

“[I]f the Court, after diagnostic study, social evaluation and full investigation, deems it contrary to the best interests of such child or the public to retain jurisdiction, the Court may, in its discretion, certify such child for proper criminal proceedings in any court which would have jurisdiction of the offense, if committed by an adult .
U * * *
“Upon certification to the District Judge having jurisdiction under the provisions of the Act, the District Judge shall have the powers and duties conferred upon examining magistrates by Chapter 3 of the Code of Criminal Procedure of the State of Texas. Provided that upon hearing the District' Judge shall make an order committing the child to jail, discharging him, admitting him to bail, or remanding him to the custody of the Juvenile Court as the law and facts of the case may require.” (Emphasis supplied).

Of importance is the fact that under this statute no provision existed for the determination of probable cause or perpetuation of testimony in the juvenile court prior to waiver of jurisdiction. Thus, the task of fulfilling these functions fell to the district court to which the case was certified. This, however, was the only preliminary hearing provided for by the Legislature. The statute did not call for determinations made in one court to be needlessly duplicated in another.

The argument has also been made that from each of our two preceding waiver and transfer statutes there may be discerned a clear legislative intent that a three-step procedure be followed before a juvenile is tried in district court, and that safeguards should exist at each step. The first step, it is asserted, occurs at the waiver and transfer hearing conducted in the juvenile court. As has been noted, however, Article 2338-1, Section 6, provided for no such hearing. Thus, under the 1965 statute, the ostensible “first step” and its attendant safeguards simply did not exist. It is contended that the “second step” in this three-stage procedure is the examining trial in the district court to which the child is transferred. It cannot be assumed that this step, either, was intended by the Legislature to constitute a mandatory safeguard. It is clear that under the 1965 version of Article 2338-1, Section 6, the district court to which a juvenile was transferred was to perform the function of an examining magistrate. The shifting of that burden to the juvenile court in 1967, however, brought about significant changes in the language of its successor statute, Article 2338-1, § 6(j) (Acts 1967, 60th Leg., p. 1082, ch. 475). Article 2338-1, § 6(j) provided in part:

“(j) [Hjowever, the examining trial shall be conducted by the district court or criminal district court which may remand the child to the jurisdiction of the juvenile court.”

There are no decisions of this Court which have interpreted Article 2338-1, § 6(j) as mandating, prior to its repeal, an examining trial in the district court subsequent to transfer of jurisdiction and prior to the return of an indictment against a juvenile. Indeed, the language of Article 2338-1, § 6(j) is almost identical to that employed in Section 54.02(h) of the Family Code — language which we construe here for the first time. Thus, it has never been made clear that, under past waiver and transfer provisions, an examining trial in district court was a mandatory “second step” in the process of prosecuting a juvenile in an adult tribunal.

To require that a juvenile receive an examining trial prior to the return of an indictment against him will not only result in duplicitous proceedings, but in the review by one district judge of the findings of another. Determinations as to the existence of probable cause made by a district judge sitting as a juvenile court would necessarily be reviewed and possibly overturned by the district court to which jurisdiction is transferred. Appellate jurisdiction in criminal cases lies solely in the Court of Criminal Appeals. Texas Constitution, Article 5, Section 5. The Legislature did not intend that courts of equal dignity exercise over one another a power that is tantamount to judicial review.

Indeed, the result becomes even more illogical in those counties served by a single district court and in which that court exercises juvenile jurisdiction. In these areas, the judge presiding over juvenile matters and the criminal district judge are one and the same individual. It is unreasonable to suppose that the Legislature intended a criminal district court to review, in an examining trial, the same evidence which he himself heard while sitting as juvenile judge prior to waiver and certification.

The Code Construction Act, V.A.T.S., Article 5429b-2, Section 3.01, provides in part:

“In enacting a statute it is presumed that U * * *
“(2) the entire statute is intended to be effective;
“(3) a just and reasonable result is intended;
“(4) a result feasible of execution is intended.”

See, Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975).

Here the results attendant upon a mandatory examining trial subsequent to waiver and certification and prior to the return of an indictment are neither reasonable nor feasible of execution. A requirement that three determinations be made as to probable cause (in the juvenile court, the district court, and the grand jury), that the same testimony be perpetuated in both juvenile and district courts, and that the findings of one district judge be subject to review and reversal by another is, at best, highly illogical.

The provisions of Section 54.02(h) articulate the Legislature’s intent that waiver and transfer of jurisdiction should form the dividing line between the application of the Family Code and the Code of Criminal Procedure to juvenile offenders. The statute clearly states that upon his transfer for criminal proceedings, the child is to be dealt with as an adult, subject to the provisions of the Code of Criminal Procedure. It has been held that a juvenile may waive legal rights where such waiver is knowing, voluntary, and attended by the safeguards required by Section 51.09 of the Family Code. D.A.W. v. State, 535 S.W.2d 21 (Tex.Civ.App. Houston [14th District] 1976); Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975); In re S.E.B., 514 S.W.2d 948 (Tex.Civ.App. El Paso, 1974); Moreno v. State, 510 S.W.2d 116 (Tex.Civ.App. Tyler, 1974). We should conclude that the juvenile’s right to an examining trial is not mandatory and is subject to waiver. More importantly, in determining that subsequent to certification a juvenile shall be dealt with as an adult under the Code of Criminal Procedure, the Legislature intended that he be subject to the provisions of Article 16.01 of that Code:

“The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense . . . .” (Emphasis supplied).

In decisions construing Article 16.01, it has been repeatedly held that the return of an indictment terminates a defendant’s right to an examining trial. McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974); Gaither v. State, 479 S.W.2d 50 (Tex.Cr.App.1972); McCullough v. State, 461 S.W.2d 404 (Tex.Cr.App.1970); Beshears v. State, 461 S.W.2d 122 (Tex.Cr.App.1970). We should presume that the Legislature, in choosing the wording used in Section 54.02(h) of the Family Code, was aware of this Court’s construction of Article 16.01 of the Code of Criminal Procedure. We should, therefore, conclude that when the Legislature determined that juveniles in the district court are to be treated as adults, subject to the Code of Criminal Procedure, it intended that their right to an examining trial would, like that of an adult, be terminated by the return of an indictment.

In ascertaining the intended meaning of Section 54.02(h), attention must be paid to the placement of language within the statute. It first provides that upon waiver and certification the juvenile shall be treated as an adult in accordance with the Code of Criminal Procedure. The language which follows that provision is a qualification thereof. The first qualification interposed by the Legislature is that the transfer of custody shall be equivalent to an arrest. This provision serves as a point of demarcation at which the Family Code ceases to operate and the Code of Criminal Procedure comes into play. The next sentence, “The examining trial shall be conducted by the court to which the case was transferred .”, is also a qualification upon the application of the Code of Criminal Procedure to juveniles. The Code is applicable to juveniles to the same extent as in adult proceedings with the exception that an examining trial, if any, shall not be conducted by a county court or magistrate but shall be held by the district court which assumes jurisdiction of the case. This provision does not guarantee that an examining trial shall be had; rather, it guarantees which court shall conduct the examining trial, if one is had at all. The juvenile is not thereby given the right to a compulsory examining trial but only given a procedural guarantee that it will be held, if at all, in a district court.

The reason for such qualifying language is clear. In enacting the Family Code it was the Legislature’s intent that lawyer-judges preside over juvenile proceedings. V.T.C.A., Family Code, Section 51.04. Accordingly, the Legislature ensured that if an examining trial was in fact held it would not be conducted by a non-lawyer magistrate or non-lawyer county judge who did not possess the degree of legal training as the juvenile district judge who had already issued the certification order. Moreover, such language was intended to prevent the overturning, by a county judge or magistrate, of determinations as to probable cause previously made by a district juvenile judge.

This Court wrote in Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963):

“[I]n construing a statute its subject matter, reason and effect must be looked to and when a literal enforcement would lead to consequences which the legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”

With the foregoing in mind, we should conclude that by its enactment of Article 54.02(h) the Legislature did not intend that an indictment returned against a juvenile, after waiver and transfer from the juvenile court, should be void for failure of the district court to conduct an examining trial. Such an interpretation would defeat the purpose for which the legislation was passed. Rather, the Legislature intended that an examining trial, if any, shall be conducted by the district or criminal district court to which the case is transferred, which court may then remand the child to the jurisdiction of the juvenile court if such action is deemed necessary.

It is argued that juveniles who have been transferred to the district court for criminal proceedings have an “additional right” to an examining trial not possessed by adults, and that this right is valuable in that it furnishes a final opportunity to have criminal proceedings against the juvenile terminated and the jurisdiction of the juvenile court resumed. This contention is without merit. An examining trial in an adult criminal proceeding also furnishes an opportunity for such proceedings to be terminated for lack of probable cause. But this fact does not give an adult the right to a com.pulsory examining trial, nor does it make the right which he does have any less subject to waiver. Likewise, the juvenile has no special “right” to an examining trial which he would not have if he were an adult. Following his transfer from juvenile to district court, his rights are those which are possessed by all criminal defendants and attain no special status. Once subject to the Code of Criminal Procedure, the juvenile cannot be continually wrapped in the protective cloak of the Family Code. The grand jury should not be effectively divested of jurisdiction to return an indictment after the Legislature has specifically provided that the accused is to be handled as an adult.

It is unreasonable for judges in a majority of the counties of the State to have to hold two separate hearings involving the same evidence.

The State’s motion for rehearing should be granted and the judgment should be affirmed.

      . Prior to the 1965 amendment, § 6 consisted only of the first paragraph set out above.

      . In Foster the court wrote:
      “That portion of the amendment of Section 6 of Article 2338-1 which provides ‘no child under sixteen (16) years of age at the time the offense was committed shall be prosecuted as an adult at any later date unless transferred by the Juvenile Court, and all such offenses committed by children not so transferred shall be subject to disposition by the Juvenile Court only,’ is so indefinitely framed and of such doubtful construction that it cannot be understood, either from the language in which it is expressed or from some other written law of the state, and must be regarded as wholly inoperative. Article 6 P.C.; Ex parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112.
      “Under the holding of this Court in Ex parte Meyer, 172 Tex.Cr.R. 403, 357 S.W.2d 754, and cases cited, such portion of the statute is likewise invalid because the Caption of the Act is misleading and fails to give notice that persons under 16 years of age at the time the offense was committed were to be exempted from penal laws and criminal prosecution.”

      . Subsection (j) was the provision interpreted in Attorney General Opinion M-1151 (1972).

      . A discussion of some of the language changes is found in 5 Tex.Tech L.Rev. 564 (1974).

      . In 146 Texas counties, the juvenile court is presided over by a district judge. 1976 Texas Judicial Council Report on Juvenile Probation.

      . To date, 172 counties are served by a single district court. In 146 of these counties, the district judge is also the juvenile judge. 1976 Texas Judicial Council Annual Report; 1976 Texas Judicial Council Report on Juvenile Probation.


source: Caselaw Access Project

author: PHILLIPS, Judge. ROBERTS, Judge, DALLY, Commissioner.

license: Public Domain

text:
    Lonnie Ray EDWARDS, Appellant, v. The STATE of Texas, Appellee.
    No. 53692.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.
    Appellant’s Motion for Rehearing Denied Dec. 7, 1977.

      Ebb B. Mobley, III, Longview, for appellant.
    Odis R. Hill, Dist. Atty. and Dexter A. Jones, Asst. Dist. Atty., Longview, and Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

The offense is burglary of a building; the punishment, five years.

Appellant challenges the sufficiency of the evidence to sustain the conviction.

James Williams, general manager of Continental Homes, testified that on January 6, 1976, he went to 804 Hollybrook in Long-view and found a front bedroom window had been broken out of the house and a dishwasher and range were missing. He also noted the wall between the garage and kitchen had been pushed in and there was “quite a bit of transmission fluid on the floor” of the garage. The following day witness Williams went to 800 Hollybrook and found a bathroom window had been broken out, a dishwasher and range had been taken, the wall paneling in the garage had dents in it, and there was transmission fluid on the garage floor.

Don Morgan, construction manager for Continental Homes at the time of the alleged offense, testified the two houses in question were newly constructed houses that were 99 percent complete except for a few “punch up” items. Witness Morgan stated he had care, control and management of the two houses and he had not given anyone permission to enter the houses and remove appliances or fixtures. He stated he had personally cleaned up the two garages and there were no oil smudges or damage to the walls at that time and the garage doors were always kept shut. Morgan further testified that on January 7 he went to the police department in Marshall and identified a dishwasher and range as the ones removed from 804 Hollybrook. Approximately two weeks later Morgan returned to Marshall where he recovered a dishwasher and range with serial numbers matching the appliances installed in 800 Hollybrook.

Larry Bennett, sales manager for Continental Homes, testified the two houses in question had been for sale since the first of December, 1975, and the houses were unlocked between 8:00 a.m. and 5:00 p.m. during the week and were open on week-ends. Witness Bennett stated there was not an attendant with the homes while they were unlocked.

Witness Claxton testified that on January 6 he and his wife were looking at houses and they entered the house at 800 Holly-brook. The front door was locked, but the back sliding door was open so they let themselves in. Witness Claxton stated he found a billfold on the kitchen floor four to seven feet from where an electric range and dishwasher would have been installed. The billfold contained a temporary driver’s license in the name of Lonnie Ray Edwards at an address in Marshall. The billfold was turned over to the Longview Police Department and an investigation of 800 Holly-brook on January 7 showed unlawful entry from the outside through a bathroom window, a dishwasher and range had been removed, the back sliding door was open, and one of the garage doors was unlocked.

Officer Shadowens of the Marshall Police Department stated during the early morning hours of January 6 he was having breakfast and observed a white Cadillac pull up to the office of a motel across the street. One of the two occupants of the car went into the office, tried to awaken the night clerk, left the office and went around to a side door and then reentered the ear and drove off. In the turtle hull Officer Shadowens observed some household appliances. He stated the car was of the same type and color as the car depicted in State’s Exhibit 3, a photograph of a Cadillac impounded later that day by the Marshall Police Department.

Wilburn Petty testified that when he returned to his house on January 6 appellant and Gary Jones were there and a white Cadillac belonging to Jones was parked in the driveway. Witness Petty said Jones tried to sell him a new dishwasher and range that were in the trunk of the Cadillac for $125.00. He said appellant was not present at that time.

James Murff, a patrolman with the Marshall Police Department, stated that on January 6 he drove by the home of Wilburn Petty and saw an old model white Cadillac backed up on the south side of the house with appliances in the opened trunk. After relaying this information to Detective Met-calf and running a license check on the vehicle, Officer Murff returned to Petty’s house.

Detective Metcalf of the Marshall Police Department testified as a result of a contact with Officer Murff he proceeded to Wilburn Petty’s residence where he discovered a light colored Cadillac with a stove and dishwasher in the back, backed into the southwest side of the house. While making an investigation, Detective Metcalf saw Gary Jones in the house and placed him under arrest on an outstanding warrant. Metcalf stated he did not see appellant at that time, but after Metcalf left the house appellant showed up in the front yard. Detective Metcalf testified he talked with Wilburn Petty and determined appellant and Jones had arrived in the Cadillac. The Cadillac was then towed away and impounded and the appliances were removed. Metcalf stated it took more than one person to move each appliance. He further stated that he saw some type of oil leakage from the Cadillac. The serial numbers from the appliances were teletyped to local regions and an immediate response was received from Longview.

Lt. Puckett of the Longview Police Department stated he contacted the Marshall Police Department and looked at a car that had been impounded in Marshall. The car was a 1963 Cadillac that was leaking transmission fluid. He said the bumper on the car was 15 to 18 inches high and the marks on the walls of the two houses in Longview were 15 to 18 inches from the floor. The serial numbers from the appliances removed from the car matched the serial numbers on the billing invoices of the appliances installed at 804 Hollybrook.

Appellant testified at the punishment phase of the trial and denied having participated in the alleged burglary, although he stated he knew his cousin, Gary Jones, was selling stolen merchandise. Appellant admitted the billfold found in the house in Longview was his, but he said that he did not know how it got there and that the last time he saw his billfold was December 23, when he put it on Petty’s TV as was his habit when drinking with Petty.

The circumstances surrounding the instant burglary can be summarized as follows: two new houses on the same block were entered on or before January 6, 1976, and a dishwasher and range were removed from each house; it would have been difficult for one person acting alone to have removed the appliances; entry to each house was gained by breaking a window; oil and transmission fluid were found on the floor of each garage; the walls in the garages had been damaged and there were marks 15 to 18 inches from the floor; appellant’s wallet was found on the kitchen floor of 800 Hollybrook on January 6; appellant was found at the home of Wilburn Petty on January 6, and the appliances that had been removed from 804 Hollybrook were found in the trunk of the car in which appellant had arrived at Petty’s house; this car was leaking oil and transmission fluid and the bumper was 15 to 18 inches high.

In light of the unity of time and method of commission of the two burglaries, we find the recovery of appellant’s wallet on January 6 from the kitchen floor of 800 Hollybrook, together with the discovery on January 6 of the dishwasher and range removed from 804 Hollybrook in the trunk of the car which, from the evidence presented was shown to have been involved in the burglaries and in which appellant had recently been riding, to be sufficient to warrant the conclusion that appellant was present at the time of the alleged offense and participated in the burglary. Viewing the evidence in the light most favorable to the verdict, we find the evidence sufficient to sustain the jury’s finding of guilt. See and compare Dunham v. State, Tex.Cr.App., 265 S.W.2d 819; Clark v. State, 493 S.W.2d 512; Clark v. State, Tex.Cr.App., 500 S.W.2d 507; Nelson v. State, Tex.Cr.App., 505 S.W.2d 271.

Appellant’s remaining contention is that the indictment is fundamentally defective because it does not state with sufficient particularity where in Gregg County the offense occurred.

The indictment alleges in part that:

“. . . on or about the 5th day of January, A.D. 1976, and anterior to the presentment of this Indictment, in the County and State aforesaid LONNIE RAY EDWARDS, hereinafter styled actor, did then and there, with intent to commit theft, enter a habitation, without the effective consent of Don Morgan, the owner thereof, against the peace and dignity of the State.”

No motion to quash the indictment was filed; however, appellant contends that the locality of the offense is a matter of substance and the State should have pleaded which building was the subject of the instant burglary.

In Hodge v. State, Tex.Cr.App., 527 S.W.2d 289, the defendant contended an indictment for burglary of a habitation which did not specifically state where in Harris County the offense occurred was fundamentally defective and did not meet due process requirements and statutory requirements because it did not give him notice of the particular offense with which he was charged and it would not enable him to plead the judgment in bar of a subsequent prosecution for the same offense. In overruling this contention this Court held:

“[I]t is only necessary to allege the name of the county as the place where an offense was committed, (1) if the offense may be committed anywhere within the county, (2) the place where committed is not an element of the offense, and (3) the court in which the offense is tried has countywide jurisdiction.” Hodge at page 292.

In Nevarez v. State, Tex.Cr.App., 503 S.W.2d 767, involving a conviction for carrying a pistol on licensed premises, the accused had presented a timely written motion to quash the indictment on the basis that the place of licensed premises was an element of the offense, the name of the owner of the premises must be shown, and without further definition of the premises involved the accused could not properly prepare his defense and he would be unable to base a plea of jeopardy on the judgment. In finding the trial court did not err in overruling the motion to quash, we held when an offense may be committed anywhere in the county it is only necessary to allege that the offense occurred within the county, and when an offense may bé committed only in certain places designated by statute within the county, it is sufficient to allege the commission of the offense in the type or class of place without alleging the specific place within the type or class.

We find the indictment is not fundamentally defective because it does not specify with greater particularity the location of the offense.

The sentence recites the appellant “shall be confined in said Texas Department of Corrections, for 5 (five) years”. In compliance with Art. 42.09, V.A.C.C.P., the sentence is hereby reformed to reflect that appellant shall be confined for not less than two nor more than five years in the Department of Corrections.

As reformed, the judgment is affirmed.

ROBERTS, Judge,

dissenting.

I cannot agree that the majority has correctly decided this circumstantial evidence case. The appellant is connected with the crime by two tenuous threads, neither of which is sufficient by itself, together, or with all the other facts of the case.

First, the recovery of the appellant’s wallet on January 6 from the kitchen floor of 800 Hollybrook is deemed probative by the majority. There was no showing that it was put or otherwise left there during the commission of the burglary. In an analogous case, we held that fingerprints found at the scene of a burglary, without a showing that they must necessarily have been made at the time of the burglary, were insufficient to sustain the conviction. Bowen v. State, 460 S.W.2d 421 (Tex.Cr.App.1970). Cf. Stone v. State, 396 S.W.2d 882 (Tex.Cr.App.1965). The mere presence of the appellant’s wallet is not sufficient to sustain the verdict.

Second, the majority relies upon hearsay evidence to establish that the appellant had been riding in the car “. . . which, from the evidence presented was shown to have been involved in the burglaries.” Hearsay, of course, has no probative value. Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975). Moreover, hearsay coupled with the evidence presented to show that the car the appellant, a day after the burglary, had been riding in might have been used in the offense is insufficient to sustain the verdict.

In Culmore v. State, 447 S.W.2d 915, 916 (Tex.Cr.App.1969), the Court stated:

“In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review the evidence in light of the presumption that the accused is innocent. The court will not assume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged.”

In Jackson v. State, 536 S.W.2d 371, 375 (Tex.Cr.App.1976), we stated that “[tjhe jury is not allowed to reach a verdict based upon speculation.” The two factors upon which the majority relies are totally inadequate to exclude every reasonable hypothesis but guilt.

I would reverse the judgment and remand the case for a new trial.

DALLY, Commissioner.

OPINION ON APPELLANT’S MOTION FOR REHEARING

The appellant’s motion for leave to file a motion for rehearing reasserts his contention that the indictment is fundamentally defective and the evidence is insufficient to support the conviction. We were and we are content with our original disposition of the appellant’s complaint concerning the indictment, but the motion for leave was granted to reconsider our holding that the evidence is sufficient to sustain the conviction. After reconsideration we remain convinced that the evidence is sufficient to sustain the jury’s verdict and the appellant’s conviction for the offense of burglary-

Stolen property taken in the burglary was found in the Cadillac automobile parked at the home of Wilburn Petty in Marshall. Circumstantial evidence indicated that the automobile had been used in the commission of the burglary. Petty had known the appellant all of his life, but Petty had only known Gary Jones, the appellant’s cousin, for about one year. Petty was interrogated and testified:

“He [appellant] lived at 305 South Drive? That’s before I lived there. All right. Lonnie Edwards lived at 305 South Drive? No, sir, he was living in Harleton. Did he ever live there, 305 South Drive, did he ever live with you? Now, he’s been down there and spent the night with me. All right. Now, do you remember the day that the police officers came out to your house in January? I don’t remember the date, but I remember, I know when they come out there. Do you remember the day that there was a white Cadillac parked in your driveway? Yes, sir. And what did that Cadillac have in the trunk of it? It had a stove and a dishwasher, they said. O.K. And who brought that up there to your house? Now, I wasn’t there when they first come up there. I couldn’t explain it. I don’t know just who, which one was driving or nothing. Well how many people came up there with it? Well, when I got back to the house there was two there. And who were those two? Lonnie and, oh, I forget his name. I can’t call his name good. It’s — Gary Jones. Gary Jones, yes, sir. And did they talk to you, Lonnie and Gary? Yes, sir. And did they want to sell you anything? Well, sir, now, Gary tried to sell me that dishwasher and the stove. All right. And how much did he want for them? A hundred and twenty-five dollars is what they told me. Did you look at it to see whether it was old or new? Yes, sir. Well, I went out there and looked and it was new. It was new. Yes. Now, that night before, Lonnie Edwards hadn’t stayed there with you that night, had he? No, sir. And that day he came up there with Gary Jones? Yes, sir. Now, who owned that white Cadillac? Well, Mr. Coleman said that he had sold it to Gary Jones. O.K. Was a hundred and twenty-five dollars a pretty good price for that? I imagine. Ain’t no telling what it would have cost; ain’t no telling. If you could have had it for a hundred and twenty-five, you’d have made a good deal. Yeah, but I didn’t want it. When was it you didn’t want it, Mr. Petty, when they brought it out there or when the law came out there? I don’t want it no time. I knew it was something up or either — What suggested to you that something was up? Because it was all new stuff and it was too cheap for being, it was too cheap for being as good stuff as it was. And was Lonnie Edwards there when you and Gary were talking about the price? No, sir, I think he had went uptown somewhere. Now, I won’t be for sure, but he wasn’t there at the house. He wasn’t there at the house? How did he go uptown? I don’t know, sir, but — Aren’t you sure that he was there at the house? * * * No, sir, he wasn’t there at the house at that time, when he offered to sell it to me for that price. Was he there when the police got there? Yes, sir.”

Although there are conflicting statements in Petty’s testimony, and it is not clear and cogent testimony, it is the duty of the jury if it can, to resolve the conflicts and believe that portion of his testimony which they deem believable. From this testimony the jury could have believed that the appellant was claiming an interest in and attempting to sell the stolen property to Petty. Taking that part of Petty’s testimony and inferences which may be drawn from that testimony which support the jury’s verdict, combined with evidence of finding the appellant’s billfold in one of the houses burglarized, we hold the evidence is sufficient to support the jury’s verdict and the appellant’s conviction for the offense of burglary-

Appellant’s motion for rehearing is overruled and the judgment is affirmed.

ROBERTS, J., dissents.

Opinion approved by the Court.

      . Witness Metcalf testified as follows:
      “Q All right. And did you determine who had come up in the Cadillac? Did you talk to anybody out there at the scene?
      A Yes, sir. Mr. Petty.
      Q And who did you determine had come up in the Cadillac?
      A Lonnie Edwards and Gary Jones.
      Q And did you ask Gary Jones if that was his vehicle?
      A Yes, sir.
      * * * * * *
      Q Mr. Metcalf, after you had arrested Gary Jones and after Mr. Edwards came up to the residence, did you have an opportunity to talk with both of them in each other’s presence?
      A Yes, sir.
      Q And were they both to where they could hear what you were saying to one or the other?
      A Yes, sir.”
      The dissenting opinion states appellant’s presence in the Cadillac was established by hearsay evidence. The record is not clear as to how Metcalf determined appellant had arrived at Petty’s house in the Cadillac. According to Petty’s trial testimony, Petty was not home when the car arrived and thus he could not have known whether appellant had been in the car. Although Metcalf could not have had personal knowledge of such fact, his testimony may not have been hearsay. The burden of showing this testimony was hearsay was on the appellant. Beal v. State, Tex.Cr.App., 520 S.W.2d 907.

      . Bowen v. State, Tex.Cr.App., 460 S.W.2d 421, cited by the dissent, holds that fingerprints alone may be sufficient to convict if the evidence shows that they must necessarily have been made at the time of the burglary. That proposition is not applicable here, since the State does not rely solely on the presence of appellant’s wallet.

      . Any question as to whether the instant conviction concerns the alleged burglary at 800 Hollybrook or 804 Hollybrook is not before us inasmuch as appellant did not at any time seek a clarification, secure an instruction or request an election by the State. See Hill v. State, Tex.Cr.App., 544 S.W.2d 411.

      . The majority opinion states that “[T]he record is not clear as to how Metcalf determined appellant had arrived at Petty’s house in the Cadillac.” The majority opinion concedes that neither Petty nor Metcalf could have had personal knowledge that the appellant arrived in the Cadillac. The majority, however, fails to recognize that Metcalf testified that his conversation with the appellant during the time Met-calf was at Petty’s house was limited to the ownership of the car. Thus, Jones was the only person present who could have informed Metcalf that the appellant arrived in the Cadillac. The record, however, shows that Met-calf’s conversation with Jones during the time Metcalf was at Petty’s house was limited to the ownership of the car. Since it is clear that Metcalf did not have personal knowledge of the appellant’s arrival in the Cadillac, cf. Bright v. State, 556 S.W.2d 317 (Tex.Cr.App.1977), and that Metcalf, the appellant and Jones discussed only the ownership of the Cadillac, Metcalf’s testimony that the appellant arrived at Petty’s house in the Cadillac must necessarily be based on hearsay evidence. The appellant has discharged his burden of showing that the evidence was hearsay. Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975). Thus, the majority’s reliance on Durham v. State, supra, is misplaced.


author: ROBERTS, Judge.

text:
    Ex parte Thomas Dow JOHNSON.
    No. 56719.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 25, 1978.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an attempted appeal from an order of the trial judge denying the appellant’s writ of habeas corpus in which the appellant sought relief from two misdemeanor convictions. See Articles 11.05 and 11.09, Vernon’s Ann.C.C.P.

The appellant contends that he was denied his right to counsel and that his guilty pleas were involuntary and improperly induced by the prosecutor. We dismiss the appeal.

On September 13, 1977, the appellant pleaded guilty before the court to the misdemeanor offenses of driving while intoxicated and unlawfully carrying a weapon. The trial judge assessed the appellant’s punishment at sixty days’ confinement in the county jail for each conviction. On September 16, 1977, the appellant filed an application for writ of habeas corpus. On October 3, 1977, the trial judge filed findings of fact and conclusions of law and denied the writ. Notice of appeal was filed on October 12, 1977.

The trial judge’s order and the record as a whole clearly reveal that the trial judge refused to issue a writ of habeas corpus and refused to hold a hearing on the issues raised by the writ. Cf. Ex parte Crosley, 548 S.W.2d 409 (Tex.Cr.App.1977); Mayes v. State, 538 S.W.2d 637 (Tex.Cr.App.1976). No appeal lies from the trial court’s action. Ex parte Crosley, supra; Mayes v. State, supra; Nichlos v. State, supra. Also, since the appellant is not attempting to contest the validity of a felony conviction, the habeas corpus proceeding is not governed by the provisions of Article 11.07, Vernon’s Ann.C.C.P., and this Court will not take original jurisdiction of the writ. See Ex parte Phelper, 433 S.W.2d 897 (Tex.Cr.App.1968).

The county and district courts have original jurisdiction in habeas corpus proceedings when a petitioner attacks the validity of a misdemeanor conviction. Articles 11.05 and 11.09, Vernon’s Ann.C.C.P. Where the trial judge issues the writ but denies the relief requested, a petitioner has a right to appeal the order denying the petitioner’s requested relief. Ex parte Crosley, supra; Ex parte Phelper, supra; Mayes v. State, supra. However, where the trial judge denies the writ, a petitioner’s remedy is to “. . . present his application to another judge having jurisdiction.” (Footnote omitted). Mayes v. State, supra at 639.

However, we are confident that once the trial judge is aware that the appellant’s writ is not a proceeding under Article 11.07, Vernon’s Ann.C.C.P., the trial judge will accord the appellant a hearing on his application for habeas corpus.

The appeal is dismissed.

      . See Vernon’s Ann.Civ.St., Article 67017 — 1.

      . See V.T.C.A., Penal Code, Section 46.02.

      . See Mayes v. State, 538 S.W.2d 637 (Tex.Cr.App.1976); Nichlos v. State, 158 Tex.Cr.R. 367, 255 S.W.2d 522 (1953).

      . The trial judge’s findings of fact, according to the court’s order, were based only on the personal knowledge of the trial judge.


author: ODOM, Judge.

text:
    Ex parte Curtis James SMITH.
    No. 54805.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 22, 1978.
    Duncan F. Wilson, Austin, for appellant.
    Ronald D. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a habeas corpus proceeding brought to secure a reduction of bail pending appeal.

Article 44.34, V.A.C.C.P., provides that the record on a habeas corpus appeal, “when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge.” The record before us contains a transcript of instruments on file in the trial court and the transcribed court reporter’s notes from the hearing. Although the transcript is certified by the clerk, the transcribed reporter’s notes are certified by neither the clerk nor the judge, as required by Art. 44.34, supra.

This case is distinguishable from both Ex parte Sims (No. 55139, 2/15/78) and Ex parte Henderson (No. 57115, 2/15/78), in which no transcription of the court reporter’s notes was in the record on appeal. Inasmuch as the transcribed reporter’s notes were presented to the trial court for the appellate record, the duty placed on counsel by the majority in Sims and Henderson was here carried out. But inasmuch as they are not properly certified, and inasmuch as Art. 44.34, supra, places the duty on the clerk or judge to so certify that record, we hold the appeal should be abated for proper certification of the record.

Furthermore, the instruments in the record reflect that in the primary offense out of which this bail proceeding was initiated, counsel was appointed for appellant upon his pauper’s oath. For this additional reason the appeal should be abated to afford him a proper record. See Ex parte Sawyer, Tex.Cr.App., 543 S.W.2d 143.

The appeal is abated.


author: DOUGLAS, Judge.

text:
    Ex parte Michael PAGE.
    No. 56148.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 22, 1978.
    Jimmy Phillips, Jr., Angleton, for appellant.
    Ogden Bass, Dist. Atty. and A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from the action of the trial court in denying relief prayed for in a pre-conviction writ of habeas corpus petition.

Petitioner was indicted for delivery of a dangerous drug, namely, phentermine. Bail was set at $10,000.00.

In Riddle v. State, Tex.Cr.App., 560 S.W.2d 642 (1977), we held that phenter-mine is a controlled substance but not a dangerous drug. Since there is no penalty for its possession or delivery, no prosecution may be legally sustained for the delivery of it.

The order of the trial court setting bail is set aside and petitioner is ordered released from custody, because of this indictment, without bail.


text:
    Ex parte David Allen RUSSELL.
    No. 56962.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 22, 1978.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted, on his plea of guilty to the court, of the offense of unlawfully attempting to obtain from a registered pharmacist a controlled substance, to-wit: dilaudid, by the use of a false and forged prescription, and was assessed a five year term of imprisonment on February 7, 1975. No appeal was perfected in this cause.

Petitioner filed his application for writ of habeas corpus contending that the indictment in the instant case failed to allege an offense, and the trial court entered findings of fact and conclusions of law recommending that the writ of habeas corpus be grant-ed. We agree.

The disposition of this case is governed by Moore v. State, Tex.Cr.App., 545 S.W.2d 140. There we held that the criminal attempt provisions set forth in V.T.C.A., Penal Code Sec. 15.01, do not apply to the Controlled Substances Act (Art. 4476-15, Vernon’s Ann.Civ.Stat.). The indictment in the instant ease is substantially similar to the State’s pleading in Moore v. State. Therefore, since the criminal attempt provisions of the Penal Code do not apply to violations of the Controlled Substances Act, the indictment in the case at bar fails to allege a proper offense. See also Ex parte Barns, 547 S.W.2d 631 (Tex.Cr.App.1977); Baker v. State, 547 S.W.2d 627 (Tex.Cr.App.1977); Ex parte Lopez, 549 S.W.2d 401 (Tex.Cr.App.1977).

The petitioner may, of course, challenge fundamentally defective indictments by way of post-conviction habeas corpus. See Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975); Ex parte Lopez, supra, and cases cited therein.

For the reasons stated, the writ of habeas corpus is granted, and the conviction in trial court no. C74-9660-HQM is set aside, and the indictment is ordered dismissed.


author: DOUGLAS, Judge. ONION, Presiding Judge,

text:
    Joe Earl THOMAS, Jr., Petitioner, v. Clarence STEVENSON, presiding Judge, 24th District Court, Victoria County, Texas, Respondent.
    No. 57615.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 22, 1978.
   OPINION

DOUGLAS, Judge.

The question presented is, does the Texas Court of Criminal Appeals have jurisdiction to issue writs of mandamus to compel speedy trials under the recent amendment to Article 5, Section 5 of the Texas Constitution?

The petitioner is an inmate in the Texas Department of Corrections serving a life sentence for the offense of attempted murder from Victoria County. On April 29, 1977, he was indicted in Victoria County for two offenses of burglary of a habitation in Cause Nos. 9025 and 9026. He alleges that detainers based upon these indictments were filed against him with the Texas Department of Corrections and that he has filed several requests with the trial court to obtain a speedy trial on these pending charges, but has received no response to his requests. He filed a petition for a writ of mandamus with the Texas Supreme Court, which transferred the case to this Court so that we might determine if we have jurisdiction to issue writs of mandamus to compel speedy trials concurrent with that of the Texas Supreme Court. See Article 1733 and 1734, V.A.C.S.

Under the Sixth Amendment to the United States Constitution, a defendant in a criminal case is entitled to a speedy trial. Defendants incarcerated in other penal institutions, outside of the demanding prosecution forum, have a right to compel the disposition of pending charges where detainers are lodged against them. See Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Braden v. Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). See also Article 1.05, V.A.C.C.P.; Article 1, Section 10, Texas Constitution.

Prior to the recent amendment of Article 5, Section 5, supra, the Supreme Court of Texas exclusively issued writs of mandamus to compel speedy trials. See Articles 1733 and 1734, supra; Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971); Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969), cert. denied 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970); Ex parte Turman, 26 Tex. 708 (1863); Wilson v. Bowman, 381 S.W.2d 320 (Tex.1964).

The jurisdiction of the Texas Court of Criminal Appeals to issue such writs of mandamus has been previously limited by the provisions of Article 5, Section 5, supra, which provided that this Court and the judges thereof “shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue writs of mandamus as may be necessary to enforce its own jurisdiction.”

Under this constitutional provision, the Court could only issue writs of mandamus to enforce its appellate jurisdiction but not the power to issue writs of mandamus generally. See Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393 (1927); Ex parte Boehme, 158 Tex.Cr.R. 597, 259 S.W.2d 201 (1953); Ex parte Rubison, 170 Tex.Cr. 314, 340 S.W.2d 815 (1960); Eaves v. Landis, 96 Tex.Cr.R. 555, 258 S.W. 1056 (1924); Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970); State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1974); Ex parte Norvell, 528 S.W.2d 129 (Tex.Cr.App.1976); Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974); Walker v. State, 537 S.W.2d 36 (Tex.Cr.App.1976).

However, the 65th Texas Legislature adopted Senate Joint Resolution No. 18, Acts 1977, p. 3359, which proposed to amend Article 5, Section 5. This amendment was approved by the voters of Texas and became effective January 1, 1978. It is as follows:

Subject to such regulations as may be prescribed by law, regarding criminal matters, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, cer-tiorari, and other such writs as may be necessary to protect its jurisdiction or enforce its judgments.” (Emphasis supplied).

The amendment when proposed was to provide the Texas Court of Criminal Appeals with additional power to grant extraordinary writs in cases regarding criminal matters.

Before the adoption of the amendment this Court had mandamus and prohibition power under the Constitution to enforce its own judgments. This authority was also inherent at common law. See State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (Tex.Cr.App.1961); State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974); Ex parte Norvell, supra; Smith v. Blackwell, supra.

We therefore conclude that the additional provisions in the amendment gave this Court authority to issue extraordinary writs including the power to issue writs of mandamus to compel a speedy trial in a criminal case.

Having determined the jurisdictional issue, it is apparent that petitioner has stated sufficient facts to raise a prima facie claim that he is being denied a speedy trial as provided for in the Constitutions of this State and the United States. It will thus be the duty of the respondent judge to set for trials Cause Nos. 9025 and 9026 at the earliest date possible consistent with the orderly performance of the court’s other duties, but not later than sixty days from the date in which this judgment becomes final. See Fariss v. Tipps, supra. Should a motion to dismiss the indictment be filed by the prosecutor and granted by the trial court, this case shall become moot, but absent such a dismissal motion, we assume that the respondent will act in accordance with the instructions set out herein, and the writ of mandamus will issue only in the event of noncompliance with this opinion.

IT IS SO ORDERED.

ONION, Presiding Judge,

concurring.

I concur in the results reached, but I would go further and point out the legislative history of Senate Joint Resolution No. 18 (Acts 1977, 65th Leg., p. 3359), which proposed an amendment to Article V, § 5 of the State Constitution, and which was. adopted on November 8,1977 by the voters of Texas and became effective January 1, 1978. That legislative history shows that Senate Joint Resolution No. 18 was drafted, among other things, to expressly give the Court of Criminal Appeals the authority to issue writs of mandamus to compel speedy trials in criminal cases in this State. This writer and other members of this court appeared before legislative committees of both the Senate and the House to explain its provisions, and to point out that under the then existing constitutional provisions the Court of Criminal Appeals, the court of last resort for criminal matters in this State, did not have the authority to issue writs of mandamus to compel speedy trials in criminal cases.

Article V, § 5 of the State Constitution, as amended 1966, provided in part:

“The Court of Criminal Appeals shall have appellate jurisdiction co-extensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.
The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and render such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction. . (Emphasis supplied.)

Under such constitutional provision and decisional law, this court could only issue the writ of mandamus to protect its appellate jurisdiction or its original jurisdiction to issue the writ of habeas corpus. Thus when a defendant in a criminal case sought a writ of mandamus to compel a speedy trial, he could not obtain one from the court of last resort in criminal cases because neither this court’s appellate jurisdiction nor its original jurisdiction to issue the writ of habeas corpus was in need of protection. Such defendant was required to apply to the Supreme Court of Texas, a court of generally civil jurisdiction, for the needed mandamus since such court, as noted by the majority, had the general authority to issue the writ of mandamus. This was true despite the fact that the Court of Criminal Appeals would be the court to determine later on appeal whether the defendant had been in fact deprived of a speedy trial.

It was in part to correct this anomaly that Senate Joint Resolution No. 18 was drafted to give this court original jurisdiction not only to issue writs of habeas corpus but writs of mandamus, procedendo, prohibition and certiorari. That portion of Senate Joint Resolution No. 18 here involved provides:

“Subject to such regulations as may prescribed by law, regarding criminal law matters, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, cer-tiorari, and such other writs as may be necessary to protect its jurisdiction or enforce its judgments. . . . ” (Emphasis supplied.)

In the drafting it was decided to additionally include a catch all clause “and other such writs as may be necessary to protect its jurisdiction or enforce its judgments.” Care should be taken to understand that the phrase “as may be necessary to protect its jurisdiction or enforce its judgments” has reference only to “and other such writs” and is not a limitation upon the authority of the court to issue writs of habeas corpus, mandamus, procedendo, prohibition or certiorari. One important limitation, however, is that the court’s authority to issue such above described writs is limited to “criminal matters.” This limitation was the subject of a committee substitute to said Senate Joint Resolution by Senator Bill Meier of Euless, sponsor of the joint resolution, early in the legislative process, to counter claims that without such limitation the Court of Criminal Appeals might use its newly granted writ powers in civil law matters. This limitation may have, wittingly or unwittingly, restricted this court’s authority to issue writs of habe-as corpus. Formerly under the prior constitutional provision the power of the court to issue the writ of habeas corpus was not limited to “criminal matters.”

With these observations, I concur with the result reached.

      . In Pope v. Ferguson, supra, the Supreme Court held that it did not have mandamus jurisdiction to compel a dismissal of criminal charges, and we concur at this time with the rationale of Pope.

      However, we note that as of July 1, 1978, the provisions of the new Texas Speedy Trial Act go into effect, thus specifically mandating the necessity for speedy trials in criminal cases, otherwise requiring that the indictments be dismissed or quashed. See Articles 32A.01 and 28.061, V.A.C.C.P.
      We need not determine in this case whether the authority of Pope v. Ferguson, supra, will remain valid after the effective date of this new legislation requiring speedy trials. See and compare Ex parte Trillo, 540 S.W.2d 728 (Tex.Cr.App.1977); Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977).

      . Senate Joint Resolution No. 18 also proposed increasing the number of judges on the Court of Criminal Appeals from five to nine judges with the authority to sit in panels of three in all cases with the exception of death penalty cases.

      . This same language is found in the 1891 amendment to Article V, § 5 of the State Constitution creating the Court of Criminal Appeals.

      . This same situation existed where the defendant sought a writ of mandamus to compel a speedy trial in a probation revocation hearing. See Fariss v. Tipps, 463 S.W.2d 176 (Tex.Sup.Ct.1971).

      .The original jurisdiction of the Court of Criminal Appeals to issue writs of habeas corpus under the prior constitutional provision was unlimited. State ex rel. Wilson v. Briggs, 171 Tex.Cr.App. 479, 351 S.W.2d 892 (1961); Ex parte Cvengros, 384 S.W.2d 881 (Tex.Cr.App.1965); Ex parte Degener, 30 Tex.App. 566, 17 S.W. 1111 (1891); Ex parte Kearby, 35 Tex.Cr.R. 531, 34 S.W. 635 (1896); Ex parte Kearby, 35 Tex.Cr.R. 634, 34 S.W. 962 (1896). See and cf. Ex parte Hofmayer, 420 S.W.2d 137 (Tex.Sup.Ct.1967).