Opinion
No. 71068.
June 27, 1990.
Appeal from the Criminal District Court No. 2, Dallas County, Larry W. Baraka, J.
Gary Wayne Robinson, pro se.
John Vance, Dist. Atty., and Yolanda M. Joosten, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for State.
Before the court en banc.
OPINION
This is an application for postconviction writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P.
Applicant pled guilty to and was convicted of five separate felony offenses on February 12, 1988. In cause numbers F-87-97015-VI and F-87-97016-VI, applicant was convicted of two instances of unauthorized use of a motor vehicle, V.T.C.A. Penal Code, § 31.07, committed on May 6, 1987, and August 18, 1987, respectively. In cause numbers F-87-97012-VI, F-87-97013-VI and F-87-97014-VI, applicant was convicted of aggravated robbery, V.T.C.A. Penal Code, § 29.03. Each of the robberies was committed on September 28, 1987. Punishment was assessed at five years confinement in each of the unauthorized use of a motor vehicle convictions, and twenty years confinement for each instance of aggravated robbery, all sentences to run concurrently. Applicant took no appeal.
At the time of commission of each offense applicant was sixteen years old. On December 4, 1987, the juvenile court waived jurisdiction and transferred each cause to the criminal district court for prosecution. Pursuant to V.T.C.A. Family Code, § 54.02(h), expressly finding no good cause to conduct an examining trial, the district court on December 16, 1987, referred the matters to the grand jury. Indictment in each cause was returned on December 23, 1987.
Applicant now contends that the indictments are void, as he was not afforded an examining trial. He relies upon Menefee v. State, 561 S.W.2d 822 (Tex.Cr.App. 1977), and its progeny, which held the requirement of an examining trial to be jurisdictional.
As of September 1, 1987, § 54.02(h) of the Family Code requires the court to which a juvenile is transferred to make a determination whether "good cause exists for an examining trial."
"If there is no good cause for an examining trial, the court shall refer the case to the grand jury. If there is good cause for an examining trial, the court shall conduct an examining trial and remand the child to the jurisdiction of the juvenile court."
See Acts 1987, 70th Leg., ch. 140, p. 309, § 2, eff. Sept. 1, 1987. The same legislation appended the following language to Article 16.01, V.A.C.C.P.: "If the accused has been transferred for criminal prosecution after a hearing under Section 54.02, Family Code, the accused may be granted an examining trial at the discretion of the court." Section 5 of the amending legislation expressly provides:
"This Act applies to a transfer to a district court under Section 54.02, Family Code, that occurs on or after the effective date of this Act. If a transfer to a district court occurred before the effective date of this Act, the provisions of Title 3, Family Code, and of Article 16.01, Code of Criminal Procedure, as they existed on the date of the transfer apply to the transfer and to the examining trial of the child transferred, and the law is continued in effect for that purpose."
The juvenile court waived jurisdiction in these causes on December 4, 1987, some three months after the effective date of the amendment. Whether applicant was entitled to an examining trial was therefore contingent upon whether the district court, in its discretion, should find good cause. Whatever may comprise "good cause" in this context, applicant does not contend the district court abused its discretion here.
Nor does applicant allege that, as to the two convictions for unauthorized use of a motor vehicle, committed before the effective date of the amendment to § 54.02(h), supra, the statute violates state or federal constitutional ex post facto provisions. In any event, the amendment affects neither the definition or gravity of the crime itself nor the degree or manner of the punishment therefor. We perceive no ex post facto violation. Collins v. Youngblood, ___ U.S. ___, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798); Holt v. The State, 2 Tex. 363 (1847); Millican v. State, 145 Tex.Cr.R 195, 167 S.W.2d 188 (1942); Hill v. State, 146 Tex.Crim. R., 171 S.W.2d 880 (1943).
Menefee v. State, supra, and its progeny, are not applicable. Accordingly, the requested relief is denied.
Given the Court's holding, and why this cause was filed and set, TEAGUE, J., would put this Court's "improvidently filed and set" stamp to this cause, and then dismiss same.