The majority overrules the State's motion for rehearing without written opinion. The case of Ex parte Alexander, 598 S.W.2d 308 (Tex.Cr.App. 1980), controls. Petitioner alleged that he was a juvenile at the time of trial, that he was indicated without being afforded his right to an examining trial and that he did not affirmatively waive his right to an examining trial. The cause was transferred to the juvenile court and he was thereafter indicted and convicted. The trial court found that petitioner was not afforded and examining trial pursuant to the Family Code, Section 54.02(b)(h).
There is nothing in the record to show that the petitioner did not waive his right to examining trial. The record does not show that the petitioner waived an examining trial. A juvenile can waive his right to an examining trial. Criss v. State, 563 S.W.2d 942 (Tex.Cr.App. 1978).
In the Alexander case, this Court wrote:
"Clearly, this (is) not sufficient to prove that no examining trial was held or a waiver thereof executed."
The burden is on petitioner to show and to prove the allegations that would entitle him to relief as the Court held in the Alexander case.
The findings of the trial judge are not sufficient to grant relief because he found that petitioner was at no time "afforded an examining trial." The word "afforded" does not negate the fact that there could have been a waiver.
The relief sought should be denied.
W. C. DAVIS, J., joins in this dissent. *Page 118