dissenting.
As stated by the Court of Appeals, the law in other states is presumed as the law *838of Texas when not proved to be different, Hall v. State, 619 S.W.2d 156, 158 (Tex.Cr.App.1980). Although this rule does obviate the necessity of looking to California constitutional, statutory and case law, ultimately the issue before us is resolved by an analysis of cases decided by the United States Supreme Court.
The State in its petition for discretionary review asserts that the burden should be placed on appellant to show that he did not waive indictment and that he should not be allowed to defeat the State’s attempts to introduce prior California convictions by the simple expedient of objecting on the basis that no waiver of indictment or judgmental recitation thereof appears in the “pen packet” containing the California conviction records. At first blush our previous holdings would appear to agree with the State’s position. In cases involving a collateral attack upon a prior conviction, whether that attack be made against a conviction being used to enhance punishment in an on-going trial or against a conviction via a habeas corpus proceeding, we have uniformly held that the burden of proof is upon the defendant to show by a preponderance of the evidence that the conviction was obtained in violation of the rights guaranteed him by either the United States Constitution or the Texas Constitution. See generally Chancy v. State, 614 S.W.2d 446 (Tex.Cr.App.1981); Tinney v. State, 578 S.W.2d 137 (Tex.Cr.App.1979); Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.1977); Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983). In harmonizing these cases with the controlling cases from the United States Supreme Court; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); cited in Rains, supra, and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), we should find that the defendant in the case at bar has met his burden of proof in collaterally attacking the two California convictions.
As the Court of Appeals correctly pointed out, the right to be tried on an indictment of a grand jury in a felony offense is a fundamental constitutional right guaranteed by both the Texas and United States Constitutions. See Tex. Const. Art. 1, § 10 and the U.S. Const.Amend. 5. It is no less a fundamental right than the right to be represented by counsel as guaranteed by Art. 1, § 10 of the Texas Constitution and the 6th Amendment of the U.S. Constitution. The cases dealing with the denial of right to counsel are therefore analagous for purposes of discussion in this case, which involves the right to be tried for a felony upon indictment returned by a grand jury.
In Rains, supra, a right-to-counsel habeas corpus petition, we held that the defendant had the burden of proof to show that he was indigent, he had no counsel, and he did not waive counsel. By analysis in the case at bar, the appellant’s burden of proof was to show that he was not convicted upon an indictment and that he did not waive his right to be convicted upon an indictment. Appellant successfully showed that he was not convicted upon indictment by simply objecting and pointing to the record of the California convictions which affirmatively showed that those convictions were had upon affidavit and information, not upon indictment. Concerning his second burden of proof, waiver of indictment, the holding in Rains, supra, which relied entirely upon the Supreme Court’s holding in Carnley, supra, cited with approval in Burgett, supra, is controlling. In Carnley, the Supreme Court stated “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.”1 369 U.S. at 516, 82 S.Ct. at 890. Here appellant showed that the records of the California convictions were devoid of any indication that appellant was afforded the right to be indicted by a grand jury or that he waive that right. Since “[ajnything less is not waiver,” Carnley, supra, the appellant affirmatively discharged his burden of showing that he had not waived his right to be indicted.
*839Compare Chancy, supra, wherein the defendant testified that he had no attorney at a previous trial but the judgment and sentence from the trial reflected that he in fact did have counsel; and the Court ruled that the presumption of regularity prevailed and decided, therefore, that the defendant had not met his burden of proof.
Compare also Tinney, supra, wherein the defendant attacked his two prior convictions being used for enhancement by pointing out that no transfer order appeared in the record; and, therefore, there was no showing that the district court that conducted his trial had proper jurisdiction since the indictments were returned to a different district court by the grand jury. This Court held that by simply pointing out the absence of a transfer order, the defendant failed to meet his burden of proof to show that the prior convictions were void. The purported defect did not rise to the level of a denial of a specifically enumerated constitutional right such as dealt with in Burgett, supra, and for this reason the Court’s holding was proper.
For these reasons and the reasons set forth in the opinion of the Court of Appeals, the decision of the Court of Appeals should be affirmed.
TEAGUE, J., joins.. Emphasis supplied.