Ex Parte Williams , 1982 Tex. Crim. App. LEXIS 833 ( 1982 )

OPINION

McCORMICK, Judge.

This is an original application for habeas corpus which was submitted to this Court by the trial court pursuant to the provisions of Article 11.07, Y.A.C.C.P. On August 3, 1973, petitioner was certified as an adult by the Juvenile Court of Rusk County. On September 5, 1973, petitioner was indicted for the offense of murder with malice aforethought. Petitioner entered a plea of guilty on October 29, 1973, and was sentenced to fifty years’ confinement.

Petitioner alleges his conviction is void because he was not accorded an examining trial before the return of his indictment, and thus, the district court never acquired jurisdiction over him. This Court, in Ex parte Menefee, 561 S.W.2d 822 (Tex. Cr.App.1977), held that an examining trial before the district court is the second vital step in determining whether a juvenile should be tried as an adult, and is required by V.T.C.A. Family Code, Section 54.02(h). Failure to hold such an examining trial before an indictment is returned in effect voids any subsequent indictment. Ex parte Pierce, 621 S.W.2d 634, 635 (Tex.Cr.App. 1981); Ex parte Lantroop, 604 S.W.2d 116 (Tex.Cr.App.1980); Hernandez v. State, 603 S.W.2d 848 (Tex.Cr.App.1980); Ex parte Kirkwood, 599 S.W.2d 829 (Tex.Cr.App. 1980); Ex parte Gilbert, 593 S.W.2d 685 (Tex.Cr.App.1980).

The evidence before us does not support petitioner’s claim. The district judge who heard the case, the county attorney, and the appointed defense counsel all testified at the evidentiary hearing that they could not remember if an examining trial was held. The petitioner testified that he did not even know what an examining trial was. The docket sheet, if anything, would tend to substantiate the fact that an examining trial was held. The docket sheet shows that on August 3, 1973, the county judge, sitting as judge of the juvenile court, certified petitioner as an adult. On the same date, petitioner was taken before District Judge J. C. Gladney. At that time, the docket sheet shows Judge Gladney received the order of certification from the juvenile court and the complaint. Judge Gladney issued a warrant of arrest, gave the magistrate’s warning to petitioner and set bond at $25,000. Finally, Judge Glad-ney appointed the attorney who had represented petitioner in the juvenile proceedings as defense counsel in the criminal proceedings. It is possible that an examining trial was held at this time. Petitioner has not proved otherwise.

A similar situation was presented in Ex parte Alexander, 598 S.W.2d 308 (Tex.Cr.App.1980). At the evidentiary hearing, testimony showed that neither Alexander nor his attorney at the time of trial could remember if there had been an examining trial. In addition, the docket sheet introduced into evidence did not sustain Alexander’s burden since the first notation on the docket sheet was from a date after the return of the indictment. This Court set out that, in a post conviction habeas corpus proceeding, the burden of proof of the allegations which entitle the petitioner to relief is upon the petitioner. The Court found that the evidence offered in Ex parte Alexander, supra, was insufficient to sustain Alexander’s burden of proving that he was not accorded an examining trial.

Petitioner in the case at bar has not met his burden of proof. Ex parte Sanders, 588 S.W.2d 383 (Tex.Cr.App.1979); Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.1977). Testimony that the individuals involved do not remember whether an examining trial was held is not equivalent to proving that there was no examining trial. Ex parte Alexander, supra.

Petitioner having failed to sustain his burden of proof, his application is denied.