Gower v. State , 169 Tex. Crim. 81 ( 1960 )

DAVIDSON, Judge,

(dissenting).

I remain convinced that the original opinion correctly disposed of this case.

Following is my additional observation:

In granting the state’s motion for rehearing and affirming this case my brethren rely upon Brady v. State, 119 Tex. Cr. R. 178, 44 S. W. 2d 373. It is my opinion that the Brady case is not susceptible of the construction given thereto by my brethren.

The Brady case made no reference to nor did it give application to Art. 64, C. C. P., under which jurisdiction is expressly retained in the court which first acquires jurisdiction. It can hardly be said, therefore, that that case is authority for the proposition that Art. 64, C. C. P., has no application in the instant case.

However, if the Brady case is controlling in this case it is wrong and ought to be overruled, for, upon its face, it shows that it authorizes jurisdiction in a criminal case to be established by presumption. It is there said:

“Under such circumstances, the presumption will be indulged that the proper transfer was made.”

Jurisdiction of a court to try and to enter a judgment in a criminal case must be shown. It can never be indulged or presumed.

Such indulgence and presumption are made manifest here, because the information in this case bears no evidence of having ever been filed in County Court at Law No. 3.

In its final analysis, then, here is a conviction for an offense with no information having been filed in or transferred to the court in which the trial was held.

The jurisdiction of County Court at Law No. 3 is wholly lacking.

I respectfully dissent to the affirmance of this case.