Hernandez v. State , 1980 Tex. Crim. App. LEXIS 1073 ( 1980 )

STATE’S MOTION FOR REHEARING

The Majority Opinion

Appellant was a juvenile at the time he was tried. Based on Ex parte Menefee, 561 S.W.2d 822, the judgment of the trial court was reversed. The trial judge found that no examining trial was held after the juvenile court waived its exclusive jurisdiction and before the return of the indictment.

The State’s Complaint

The State respectfully contends that the Court has so expanded the Menefee doctrine as to lead into the quicksand of form without substance.

The Record

The juvenile hearing was before the district judge, the same judge who conducted the trial .

The district judge, sitting as juvenile judge, found that ‘. . . evidence was presented concerning the alleged offense upon which a grand jury may be expected to return an indictment.’ He also found all other matters to be present so as to cause him to certify appellant to the district court for trial .

Argument and Authorities

Although the juvenile judge and the district judge were not the same person in Menefee, the instant opinion allows Menefee to lead it into holding that:

(1) The juvenile judge,

(2) who is the district judge,

(3) and who, while wearing the cap of juvenile judge,

(4) finds evidence sufficient to warrant an indictment,

(5) must take off the cap of juvenile judge and put on the cap of district judge,

(6) and conduct an examining trial and hear the evidence all over again,

(7) in order to convince himself of something he already knows,

(8) so that he won’t send the juvenile back to the juvenile judge, which gets us back to (1), the place of beginning.

The State respectfully submits that such an exercise smacks of a little game-a game sort of like musical chairs. This game might be called, ‘Hey, man, which cap does the Judge have on?’

If an examining trial for a juvenile were a jurisdictional matter, then it might be logically argued that, as empty as it might appear, it was still necessary for the same judge to change caps and go through the mechanical motions of conducting a second hearing. But it is not a jurisdictional matter. Criss v. State, 563 S.W.2d 942.

If the majority of this Court had been willing to extend the holdings in Menefee and White v. State, 576 S.W.2d 843, to include the concept that the examining trial must be conducted by a person different from the judge who conducted the juvenile hearing, then and only then would this appellant have been deprived of a right.

As matters now stand, this appellant’s right to an examining trial was protected. He was deprived of nothing more than a mere empty, meaningless, mechanical procedure.

When the purpose of a rule has been fulfilled, further exercises in the name of that purpose are purposeless.

WHEREFORE, the State prays that its Motion for Leave to File a Motion for Rehearing be granted; that its Motion for Rehearing be granted, and that the judgment be in all things affirmed.

I would grant the State’s Motion for Rehearing and deny the relief sought.

DOUGLAS, TOM G. DAVIS and W. C. DAVIS, JJ., join in this dissent.