(Dissenting).
The sole basis for the reversal of this conviction is that the jury was permitted to and did fix a punishment not authorized by law for first offenders, such enhancement being by virtue of Art. 61 P.C. because of a previous conviction for a like offense alleged and proved.
The basis for the conclusion that the prior conviction was not available to the state under Art. 61 P.C. is stated to be that the prior conviction is void because of the failure of the defendant to appear in person and plead, as required by Art. 580 C.C.P.
Stewart v. State, 137 Tex. Cr. Rep. 39, 127 S.W. 2d 903, holds that under Art. 580 C.C.P. it was error for the court to try the case in her absence, as a part of the punishment was imprisonment in jail.
Henderson v. State, also reported in 137 Tex. Cr. Rep. 18, 127 S.W. 2d, p. 903, and the authorities cited in the majority opinion are to the same effect.
The holding of my brethren goes much further and condemns the prior conviction as void. This is the same holding which was declared, in Ex parte Casas, 112 Tex. Cr. Rep. 100, 13 S.W. 2d 869, to be erroneous. See also 12 Tex. Jr. p. 518, Sec. 213.
Even though the court was without jurisdiction of the person of the accused, it appears to be the law in most jurisdictions that the defendant may waive his right to be present. See 22 C.J.S. p. 258, Cr. Law, Sec. 161.
The rulé that the defendant may waiver such right to be. *439present appears in 12 Tex. Jur. p. 518, Sec. 213. where it is also said “His absence only renders the proceeding voidable, however, and not void.” Ex parte Cassas, supra.
.. • The statute in question, Art. 580 C.C.P., requiring the presence' of the accused “at the trial” applies to “misdemeanors where the punishment or any part thereof is imprisonment in jail” as well as to felonies. Other statutes specifically provide that the defendant in a misdemeanor case may be absent during part of the trial.
He need not be present when the jury, after retirement, communicates with the court, asks and receives additional instruction, or has the testimony of a witness reproduced. Arts. 676, 677, 678 and 679 C.C.P.
His presence is not required when the verdict is received (Art. 692 C.C.P.) or when the judgment is rendered, Art. 782 C.C.P.
A different rule exists in each of these instances where the trial is for a felony.
. The question of the constitutional right of an accused to be confronted by the witnesses against him is not before us. It is not shown that any evidence was offered by the state and none was necessary. Art. 518 C.C. P.
Even so, an accused' may waive this constitutional right. Allen v. State, 16 Tex. App. 237; Robinson v. State, 82 Tex. Cr. Rep. 570, 200 S.W. 162.
This statute (Art. 518 C.C.P.) authorized the plea of guilty to be entered by the attorney for the accused. Also, as stated, the rendition of the judgment in his absence was in accord with Aft. 782 C.C.P.'It follows that the majority opinion condemning the judgment as void must rest on the stipulation that the defendant was not personally present when his plea of guilty was entered by his attorney.
Appellant accepted the judgment imposed on his plea of guilty to the prior offense, which plea was made by his attorney. He satisfied the judgment, which necessarily means that he served the jail term and paid the costs. If his presence at *440the time of the plea could be waived, it undoubtedly was waived by the defendant when he accepted and satisfied the judgment.
Art. 11 V.A.C.C.P. provides that “The defendant in a criminal prosecution for any offense, may waive any right secured to him by law except the right of a trial by a jury in a felony case when he enters a plea of not guilty.”
Even where the question is raised on appeal in a felony conviction it has been held that a defendant may waive his right to be present. Benavides v. State, 31 Tex. Cr. Rep. 173, 20 S.W. 369, and other cases cited in Ex parte Cassas (on rehearing), see also Ballou v. State, 113 Tex. Cr. Rep. 493, 22 S.W. 2d 666.
The rule as to an erroneous prior conviction is thus stated in 24 C.J.S. p. 1156 (Criminal Law, Sec. 1961) “That the prior conviction was erroneous will not prevent the operation of the statute authorizing a more severe punishment upon a subsequent conviction, unless the court in which the prior conviction was obtained had no jurisdiction.”
The prior conviction was alleged for enhancement of punishment purposes. It is but an historical fact to show the persistence of the accused and the futility of ordinary measures of punishment. related to him. It was pleaded and proved only for the purpose of guiding the jury in affixing the punishment in the event of a present conviction. Sigler v. State, 143 Tex. Cr. Rep. 220, 157 S.W. 2d 903; Ellison v. State, 154 Tex. Cr. Rep. 406, 227 S.W. 2d 545; 24 C.J.S. p. 1143.
Our decision in Sowers v. State, 157 Tex. Cr. Rep. 345, 248 S.W. 2d 949, is in line with the views expressed and should not be overruled.
Believing that the trial court did not err in permitting the jury to use appellant’s prior conviction in assessing the punishment, I respectfully enter my dissent.