Ex Parte Nolden

360 S.W.2d 151 (1962)

Ex parte Fleming NOLDEN, Jr.

No. 34657.

Court of Criminal Appeals of Texas.

June 6, 1962.

Rehearing Denied October 10, 1962.

*152 Frank B. Kelley, Williams & Darden, San Antonio, for appellant.

Charles J. Lieck, Jr., Crim. Dist. Atty., H. F. Garcia, First Asst. Crim. Dist. Atty., A. J. Hohman, Jr., John G. Benavides, Asst. Crim. Dist. Attys., San Antonio, and Leon B. Douglas, State's Atty., of Austin, for the State.

BELCHER, Commissioner.

The relator is confined in the penitentiary under a life sentence assessed by a jury on his plea of guilty in February 1938, for the offense of rape.

By writ of habeas corpus presented in accordance with Art. 119, Vernon's Ann. C.C.P., he seeks his release on the ground that he was denied his constitutionally guaranteed right to due process of law.

Hearing was had before a District Judge at the conclusion of which the writ was granted and made returnable before this Court.

There are no undisputed facts which sustain the relator's contention that the conviction is void. Under the holdings of this Court, the conviction may not be attacked as void on the sole ground that the defendant was under 17 years of age at the time of his trial. The right of an accused under 17 years of age to be tried as a juvenile may be waived. Ex parte White, 50 Tex.Cr.R. 473, 98 S.W. 850; Fifer v. State, 90 Tex.Cr.R. 282, 234 S.W. 409; Ex parte Munoz, Tex.Cr.App., 209 S.W.2d 767.

The relief prayed for is denied.

Opinion approved by the Court.