The defendant seeks a writ of habeas corpus on the ground that the state trial court’s application of the Texas habitual criminal statute setting a punishment of life imprisonment for a third felony conviction amounted to a denial of due process under the Fourteenth Amendment.
The indictment charged the defendant with the possession of marijuana. Vernon’s Ann.P.C. art. 63 provides that "Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary”. For purposes of enhancing the defendant’s punishment under Art. 63, the indictment also alleged that the defendant had previously been convicted for two other narcotics violations.
The defendant made a timely motion to have the primary offense tried separately from the question of the existence of the prior convictions, but the motion was denied. At the trial, the entire indictment was read to the jury including the part alleging the prior convictions, and certified copies of the judgments were received into evidence. In accepting the judgments into evidence, the trial court judge was careful to caution the jury that the prior convictions should not be confused with the question of the defendant’s guilt under the primary offense, and that those convictions should in no way influence the jury in making their determination as to whether the defendant was guilty or innocent. The jury found the defendant guilty of the primary charge and also found that he was the same person who twice previously had been convicted of felonies.
The issue raised by this case has been settled by the Supreme Court in its recent decision in Spencer v. State of Texas, 1967, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, decided subsequent to the bringing of this appeal. There the Court held that although alternative procedures available to the trial court might have established even greater protection for the defendant, in view of the limiting instructions given to the jurors the procedure challenged by the defendant in this case was not so unfair as to amount to a violation of due process. Under the authority of Spencer, therefore, we affirm.