(concurring in part and dissenting in part).
Appellant’s initial contention is that the court erred in permitting him to be impeached by a prior void misdemeanor conviction for unlawfully carrying a pistol.
After his direct examination, the State, in absence of the jury, informed the court that it wanted “to test this man’s credibility by the question as to moral turpitude.” There was then some discussion of a prior marihuana conviction where appellant had been granted probation and a conviction for unlawfully carrying a concealed weapon. The court warned the prosecutor to act in good faith and to check the court records as to the latter conviction.
Subsequently, on cross-examination the prosecutor inquired where the appellant got the gun used in the alleged offense, how often he carried it, etc., and then inquired:
“Q Isn’t it true you have a prior conviction for carrying a gun ?
“A Yes, sir.
“Q So carrying a gun—
*774“MR. GARZA (Defense Counsel): Your Honor, I don’t think he can argue about it from there.
“THE COURT: This is the gun in question ?
“MR. HENRICHS (Prosecutor): Yes, sir, we are talking now about the gun in question.
“Q When you first saw Ignacio . did you not say you had a gun at that time ?
“A I sure did. ...”
If appellant’s objection had been that the prior conviction was not a final felony conviction nor a final misdemeanor conviction involving moral turpitude, it would have been a good objection since only those convictions may be used to impeach a witness, Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971), and since a conviction for unlawfully carrying a pistol is not a misdemeanor conviction involving moral turpitude. Thomas v. State, 482 S.W.2d 218 (Tex.Cr.App.1972); Coker v. State, 71 Tex.Cr.R. 504, 160 S.W. 366 (Tex.Cr.App.1913).
However, appellant’s objection after the question was already answered was a general one, which in itself is not entirely understandable. It is further observed that he failed to secure a ruling from the court on his objection, made no request for a jury instruction to disregard, etc. Further, the contention now urged on appeal that he was at the time of such conviction indigent, without counsel and did not waive counsel, was never advanced during the trial on the merits. It is clear, without citing numerous authorities, that there are many reasons why nothing is presented for review.
Despite the foregoing, the majority reaches out unnecessarily and establishes a broad, new, dangerous rule not advanced by either party in order to answer appellant’s contention, throwing judicial restraint to the winds. In doing so, the majority relies upon testimony developed at'a hearing on a motion for new trial, which motion had already been overruled by operation of law. The motion for new trial was filed January 26, 1973. The hearing was not held until March 16, 1973. While the trial court may extend the time for filing or amending a new trial motion, the court cannot extend the time for passing on such motion (20 days), Article 40.05, Vernon’s Ann.C.C.P. Thus, the motion was overruled by operation of law 20 days after it was filed. St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969).
The testimony relied upon by the majority, which was developed at such hearing, was the fact that the punishment assessed in the prior 1963 misdemeanor conviction was a $100.00 fine, and thus did not involve imprisonment, although the statute (Article 483, Vernon’s Ann.P.C.) under which the conviction occurred authorized imprisonment and the full range of possible penalty was available to the judge who assessed the penalty.
Nevertheless, the majority boldly asserts :
“We hold that prior final convictions which are otherwise admissible may be used for the purpose of impeachment or enhancement of punishment even though obtained while the defendant was not represented by counsel and had not waived counsel, so long as the punishment assessed in the prior convictions did not include imprisonment.”
And despite the actual wording of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), quoted in the majority opinion, the majority goes on to say that the rule described above was within the requirements of Argersinger. I could not disagree more.
Argersinger held that, absent a knowing and intelligent waiver of counsel, no person may he imprisoned for any offense, whether it is classified as petty, misde*775meanor or a felony, unless he was represented by counsel at his trial.
And most importantly, the Supreme Court added:
"Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.” (Emphasis supplied).
It is clear from the above quoted language that the validity under Argersinger of a counselless conviction of an indigent defendant in a misdemeanor case where a fine only is imposed is dependent upon the above-stated requirements in absence of an affirmative waiver of counsel. How can it be seriously argued that such requirements were generally complied with in all pre-Ar-gersinger cases where the range of punishment involved imprisonment and a fine only assessed? See and compare Olvera v. Beto, 429 F.2d 131 (5th Cir. 1970).
Argersinger did not address itself to the retroactivity of its holding, and the decision did not involve the use of a prior void conviction which had been used for enhancement of punishment or for impeachment.
It is true that this court has held Argersinger to be fully retroactive. Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Ex parte Olvera, 489 S.W.2d 586 (Tex.Cr.App.1973). A reading of these cases and others cited in the majority opinion does not reveal the fact that the imprisonment imposed in those cases was a material factor in determining retroactivity of the Argersinger decision.
Under today’s new rule, an accused who was convicted of a misdemeanor pre-Ar-gersinger without counsel where the trial judge or jury had the full range of possible penalties, including imprisonment, before it for consideration and who decided under the circumstances of the case that a fine only was the appropriate punishment, can have that conviction used against him again for enhancement of punishment in another case or for the purpose of impeachment. On the other hand, under the rule announced today, if a defendant was convicted of a misdemeanor, pre-Argersin-ger, without counsel, and the assessor of punishment determined that the proper punishment was imprisonment, then such conviction cannot be used for enhancement of punishment or for impeachment.
Which type of such prior conviction really has the greatest bearing on the credibility of the accused in a future case when he is a witness in his own behalf? The question answers itself.
The logic of the new rule escapes me, and just why this case was chosen as a vehicle for importing such a rule into our jurisprudence is difficult for me to understand. In the instant case, if a proper objection had been interposed, the prior conviction would have been inadmissible since it did not involve a final misdemean- or conviction involving moral turpitude, and thus was not available for impeachment. Yet the instant case is seized upon to lay down a new rule which, hopefully, would not normally involve the particular type of conviction here involved. And the new rule further reaches out to affect enhancement of punishment, which is not here involved. Color me amazed.
For the reasons stated, I concur in the result reached as to the first ground of error, but dissent to the establishment of the new rule discussed.
ROBERTS, J., joins in this opinion.