ON MOTION FOR REHEARING
WHITHAM, Justice,dissenting.
I respectfully dissent. Because I agree with appellant that the trial court committed reversible error in allowing the prosecutor to cross-examine appellant about the enhancement paragraph of the indictment at the guilt/innocence phase of the trial, I would reverse and remand.
Before 1965, when the present code of criminal procedure was enacted, the Court of Criminal Appeals had held that reading the enhancement paragraph to the jury at the commencement of the trial was not reversible error. Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811 (1954). This practice, however, caused increasing concern over the prejudicial effect on a defendant, see e.g. Lane v. Warden, 320 F.2d 179 (4th Cir.1963), and led to appeals for change *380from the legislature, Oler v. State, 378 S.W.2d 857 (Tex.Cr.App.1964). The legislature responded by enacting Tex.Code Crim. Pro.Ann. art. 36.01(1) (Vernon 1981), providing that the enhancement paragraphs of an indictment may not be read to the jury until the punishment phase of trial. Violation of this article is now held to be reversible error, Heredia v. State, 508 S.W.2d 629 (Tex.Cr.App.1974); Cox v. State, 422 S.W.2d 929 (Tex.Cr.App.1968). Under the facts of the present case the cross-examination had the same effect as a reading of the enhancement paragraph to the jury in violation of the statutory prohibition of article 36.01(1). The rationale behind this prohibition is clear; when the jury is informed at the outset of a criminal trial that the defendant has previously been convicted of other crimes, they are likely to convict a defendant not on the evidence presented at trial, but on the ground that he is a criminal generally. This is particularly true in cases where the defendant does not take the stand and his prior criminal record would not otherwise come before the jury.
In cases such as the present one, however, where a defendant testifies and is impeached with his prior criminal record, see Shipman v. State, 604 S.W.2d 182, 184 (Tex.Cr.App.1980); Reese v. State, 531 S.W.2d 638, 640 (Tex.Cr.App.1976); Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Cr.App.1972); Tex.Code Crim.Pro.Ann. art. 38.29 (Vernon 1979), the question arises regarding whether a defendant is harmed by additional cross-examination based on the enhancement paragraphs of the indictment. The majority holds that this too was proper impeachment or, if improper, was harmless. I do not agree. Instead, I conclude that the cross-examination based on the enhancement paragraphs harmed defendant, beyond being simply further evidence of his prior criminal record, and that this evidence probably contributed to the conviction. See, Esquivel v. State, 595 S.W.2d 516, 529 (Tex.Cr.App.1980).
By enacting Tex.Code Crim.Pro.Ann. art. 37.07 (Vernon 1981), providing for a separate hearing on punishment after return of a guilty verdict, it appears the legislature sought to insure that during the guilt or innocence stage of trial, the jury’s attention would be focused solely on the evidence presented as to guilt or innocence. Practices such as the one before us circumvent this purpose by shifting the jury’s attention to the punishment available for the crime. In effect, the jury was encouraged to find the defendant guilty so that the State could then punish him to a greater degree than that available under no'n-enhanced indictments. Thus, the jury’s concern was no longer whether the defendant was guilty or not guilty. It blinks reality not to recognize that the opportunity to punish appellant a minimum of fifteen years rather than a minimum of five years in light of his prior criminal record was a contributing factor to appellant’s conviction. In the present case I cannot say that the cross-examination complained of was proper, even in light of the fact that appellant’s prior criminal record was before the jury during the guilt or innocence stage of trial. I would reverse and remand.
STEPHENS, VANCE and ALLEN, JJ., concur in the dissent.