dissenting.
Applicant is entitled to relief. The judgment should be vacated and the cause remanded for a new sentencing hearing without enhancement by a conviction since held void.
Applicant’s conviction was enhanced by a prior conviction which was set aside under pr e-Studer law on grounds it was void due to a fundamentally defective indictment. Applicant claims he should get a new punishment hearing, without enhancement by the conviction that has since been set aside as void. As far as I can tell, the majority rejects applicant’s claim because under current, post-Stu-der law, the indictment supporting the prior conviction “is not fundamentally defective and, in the absence of a pretrial objection, will support a conviction.” Majority op. at 19.
I’m not sure I follow the reasoning of the Court. I think it goes something like this: although the enhancement conviction was properly held void under the applicable pre-Studer law, applicant should have objected to its use for enhancement since it would not be held void under current post-Studer law. But the prior conviction is not subject to post-Studer law. The prior conviction is void under the law applicable to it. And no objection need be made to a void conviction.
In reaching its holding, the majority overrules Ex parte Nivens, 619 S.W.2d 184 (Tex.Crim.App.1981). The problem is, there is nothing wrong with the reasoning in Nivens; that case just happened to involve a conviction held void under the same pr e-Studer law *22responsible for rendering void the enhancement conviction in the instant case. The petitioner in Nivens was convicted of burglary, with punishment enhanced by a prior felony conviction. The prior conviction was later set aside when it was determined that the information in that case was fundamentally defective (per pre-Studer law). The petitioner sought a new trial in the burglary case on the ground the conviction was enhanced by a prior conviction that had been set aside as void. We granted relief. The reasoning underlying the holding is that a conviction enhanced by a prior conviction which is later set aside as void, whatever the reason, cannot stand. And the prior conviction need not have been the subject of an objection. Illustrative of the point that the reasoning in Nivens did not depend upon why the prior conviction was held void, the Court there cited as support Smith v. State, 486 S.W.2d 374 (Tex.Crim.App.1972), in which the prior conviction was set aside because the defendant had been without counsel at his probation revocation, and Ex parte Elizalde, 594 S.W.2d 105 (Tex.Crim.App.1980)(op. on reh’g), in which the prior conviction was set aside because it violated the Double Jeopardy Clause. The point to all of these cases is simply that a conviction set aside as void cannot serve as the basis for enhancing another conviction. Overruling Nivens because the prior conviction in that case was held void (and thus not in need of an objection) under law that has been since Nivens legislatively superceded is meaningless. It does not change the fact that the controlling law at the time the conviction was set aside in the instant ease rendered it void. A void conviction never calls for an objection; it is irrelevant that the conviction would not be rendered void under the current law.
I dissent.