¶1concurring.
¶2I concur in the affirmance of this conviction. I would hold the order waiving jurisdiction voidable and not subject to attack for the first time in an appeal following a conviction.
¶3Appellant had been declared a delinquent in 1983. In August 1984 he was again brought into the juvenile justice system for allegedly committing the offenses referred to in Judge Cannon’s opinion.
¶4The juvenile court hearing the transfer proceeding granted the state’s motion to waive jurisdiction and transferred appellant to the district court for criminal proceedings. However, the juvenile court “retained jurisdiction on Count III.” The order, signed November 2, 1984, is silent on the court’s reason for retaining jurisdiction of this one offense. There was no appeal from the transfer order, nor was the evidence heard at the juvenile transfer proceeding made a part of the record in the criminal proceedings.
¶5Appellant did not file a plea to the jurisdiction or contest the jurisdiction of the criminal court at any time prior to this appeal. Appellant presented this jurisdictional question to us in the following manner:
The record affirmatively reflects that both Appellant and his mother (his father being unknown) were served with a proper summons informing them of the hearing scheduled to consider the Third Amended Motion to Transfer Jurisdiction from the juvenile court to the criminal court for trial as an adult.... This was the proper procedure....
The record affirmatively reflects that Appellant, his mother and his counsel were present at the transfer hearing and that his counsel had had ten day’s time in which to prepare for the hearing.... The Third Amended Motion to Transfer Jurisdiction complied with the mandatory requirement that the petition include the statutory elements of the alleged offense(s)....
The record also reflects that Appellant affirmatively waived his right to an examining trial after his certification and transfer to the criminal court as is required by law. (citations omitted).
¶6He then states “This conviction must be vacated because the juvenile court cannot both retain jurisdiction over one count in a Motion to Waive Jurisdiction and waive jurisdiction over the other count,” citing Stanley v. State, 687 S.W.2d 413 (Tex.App.—Houston [14th Dist.] 1985, no writ).
¶7The order of the juvenile court waiving jurisdiction in this case was signed prior to this court’s opinion in Stanley. I do not agree that the rule announced in Stanleyapplies here. The appeal in Stanleywas from a certification hearing, not a criminal conviction. In Stanley, this court did *132not hold the order void; we merely held that the juvenile court could not retain jurisdiction over one count and waive jurisdiction as to others. We, therefore, vacated the order waiving jurisdiction. The result of this court’s vacating the transfer order was that the criminal court never acquired jurisdiction and Stanley was entitled to be discharged from the criminal conviction which the court of criminal appeals subsequently ordered. Ex parte Stanley, 703 S.W.2d 686 (Tex.Crim.App. 1986). This, in my opinion, is drastically different from the issue presented here.
¶8Appellant, citing Johnson v. State, 551 S.W.2d 379 (Tex.Crim.App.1977); Grayless v. State, 567 S.W.2d 216 (Tex.Crim.App. 1978); and Watson v. State, 587 S.W.2d 161 (Tex.Crim.App.1979), argues that his failure to appeal from the transfer order does not preclude review by this court because the error amounts to a jurisdictional defect which can be raised at any time. However, none of those cases are on point. The record on appeal from the criminal conviction in each of those cases showed the transfer proceedings to be void. Here, the transfer proceeding was not void. “A judgment is void only when it is apparent that the court rendering judgment ‘had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.’ ” Cook v. Cameron, 40 Tex. Sup.CtJ. 293, 295 (March 18, 1987) (citing Browning v. Packe, 698 S.W.2d 362, 363 (Tex.1985)). Here, there is no contention that the juvenile court lacked jurisdiction. Errors other than lack of jurisdiction render the judgement voidable and it must be attacked within the prescribed time limits. Id. at 295.
¶9If a juvenile has been charged with multiple offenses and the state is seeking to have jurisdiction transferred to the criminal court, section 54.02 of the Family Code requires certain findings to be made by the juvenile court. Specifically, section 54.-02(f)(3) of the Family Code requires the court to determine from the facts presented “whether there is evidence on which a grand jury may be expected to return an indictment.” Surely this means that if no evidence concerning one of the alleged offenses is introduced before the juvenile judge, he cannot legally order a transfer of that offense to criminal court. However, if sufficient evidence has been introduced concerning the other charges is the juvenile court powerless to order certification? The statute is silent. The juvenile court does not have the authority to dismiss the unproven charge at that stage of the proceedings. Likewise, the juvenile court does not have the authority to order the prosecutor to dismiss that one charge. Obviously, the prosecutor should dismiss the charge to avoid a problem such as we have here. However, I cannot agree that his failure to do so renders the transfer order void.
¶10I, therefore, would hold that an order of a juvenile court which waives jurisdiction as to some offenses and retains jurisdiction as to others is voidable. It is subject to being vacated on direct appeal, as this court ordered in Stanley. It is also subject to being set aside if a plea to the jurisdiction is filed in the criminal action. However, if in answer to that plea it is shown that the criminal charge over which the juvenile court retained jurisdiction has been dismissed, the jurisdiction of the criminal court should not be affected. On the other hand, as Judge Cannon’s opinion holds, if it is shown that the juvenile court is exercising jurisdiction, the criminal court should sustain the plea.
¶11I concur in the affirmance.