dissenting.
In appellant’s motion for rehearing he contends the panel opinion was in error in declining to review the sufficiency of the evidence to support the conviction. Appellant points to the fact that he timely raised the question of sufficiency of the evidence and urged that the record should be reviewed to determine if appellant could be retried under a new indictment alleging the same offense.
The failure to allege an offense renders an indictment insufficient to invoke the jurisdiction of the trial court. See Ex parte Cannon, 546 S.W.2d 266. Absent jurisdiction, the judgement of the trial court is void ab initio. Standley v. State, 517 S.W.2d 538; see, e.g. Reed v. State, 586 S.W.2d 870; Ex parte Roberts, 522 S.W.2d 461.
“All jurisdictional requirements must be satisfied or the court’s action, other than dismissal, is void.” See Ex parte Cannon, supra (concurring opinion). This Court stated in Emery v. State, 57 Tex.Cr.R. 423, 123 S.W. 133:
“There are three facts that seem to be absolutely necessary to the jurisdiction of the court or as jurisdictional questions: First, the court must have jurisdiction of the person; second, of the subject-matter; and, third, to render the particular judgment rendered. Otherwise, the prosecution will be void, as also the judgment.” (Emphasis added.) Id. at 134.
It is well settled that regardless of the court, it is without the power to hear a matter without the prerequisite of having jurisdiction attach:
“If the court has no jurisdiction, it should proceed no further with the case other than to dismiss it for want of power to hear and determine the controversy. In such a case, any order or decree entered, other than one of dismissal, is void.” (Emphasis added.) Hall v. Wilbarger County, 37 S.W.2d 1041, 1046 (Tex.Civ. App.—Amarillo 1931), affirmed, Tex.Civ. App., 55 S.W.2d 797.
Likewise, in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, the Supreme Court of Texas reasoned:
“. .. Since the ... district court had no jurisdiction of this particular case, what was done therein was necessarily void, for judicial action without jurisdiction is void." (Emphasis added.) Id. at 1071. See also 15 Tex.Jur.2d, Courts, Sec. 50; 16 Tex.Jur.2d, Criminal Law, Sec. 181.
*721It has been repeatedly held that where a trial court was without jurisdiction for any reason, the judgment rendered by it is void. State v. Olsen, 360 S.W.2d 398 (Tex.Sup.Ct.1962). Such a failure of jurisdictional matters cannot be removed through mutual consent of the parties, Macdiarmid v. Lawbar Petroleum, 456 F.Supp. 503 (E.D.Tex.1978); Nelson v. State, 324 S.W.2d 898, rev’d 160 Tex. 515, 334 S.W.2d 788, nor can it be waived by the failure of the defendant to object. Casias v. Texas, 503 S.W.2d 262. Rather, such a void judgment is conclusive of nothing. Ex parte Duncan, 42 Tex.Cr.R. 667, 62 S.W. 758.
This Court in Thompson v. State, 527 S.W.2d 888, said:
“The general rule in the United States is that ‘an acquittal on an indictment so defective that, ... it would not have supported a conviction or sentence .. . (is) ... insufficient to support a plea of former acquittal.’ 22 C.J.S. Criminal Law Sec. 246; accord, 21 Am.Jur.2d, Criminal Law, Sec. 172; 16 Tex.Jur.2d Criminal Law, Sec. 121.
“In 1885, the predecessor of this Court held that when an indictment is so defective that the defendant, if found guilty, would be entitled to have any judgment against him reversed, he had not been put in jeopardy, and if he was acquitted he could be tried again on a new and valid indictment. Grisham v. State, 19 Tex.App. 504 (1885).
“In 1901 this Court held that where the indictment was void because the grand jury was improperly constituted the jurisdiction of the trial court did not attach and that the appellant had not been placed in jeopardy by his first trial. Ogle v. State, 43 Tex.Cr.R. 219, 63 S.W. 1009. Just ten years later this Court again held ‘jeopardy will not attach unless there is a valid bill of indictment.’ Shoemaker v. State, 58 Tex.Cr.R. 518,126 S.W. 887. As recently as 1963, this Court stated that ‘[j]eopardy will attach only upon a good and sufficient accusatory pleading. Jurisdiction of the court trying the prior cause is an essential prerequisite where jeopardy is pleaded.’ McAfee v. State, 363 S.W.2d 941 (Tex.Cr.App.1963).” 527 S.W.2d 888 at 889.
In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 the United States Supreme Court, in a 1978 opinion, held that an accused cannot be subjected to a second trial when a conviction in a prior trial was reversed by an appellate court for lack of sufficient evidence to support such conviction. The Supreme Court held that the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.
While Thompson and authorities cited therein predated Burks its holding, that jeopardy does not attach where trial is upon a void indictment which precluded the trial court from acquiring jurisdiction, is still valid. When the trial court has failed to acquire jurisdiction it is without authority to hear the cause or make any determination therein. It follows that when trial is had on a void indictment the State is effectively deprived of an opportunity to present evidence which would support a conviction since the court is completely without authority to make any determination. Therefore, where reversal resulted in the first trial for failure of the court to acquire jurisdiction retrial should not be prohibited under the holding in Burks. The panel on original submission properly declined to review the sufficiency of the evidence to support the conviction.
I dissent.
DALLY, W. C. DAVIS and McCOR-MICK, JJ., join this dissent.