concurring, joined by ODOM, Judge.
I must state my disagreement with the majority’s disposition of appellant’s contention that his prior 1964 Potter County conviction for felony theft was improperly admitted at the penalty stage of his trial and utilized for enhancement of punishment as part of his “prior criminal record” under the provisions of Article 37.07, Vernon’s Ann.C.C.P.
The prior conviction was alleged in the indictment for the purpose of the enhancement of punishment under Article 62, V. A.P.C. At the guilt stage of the trial, the State sought to impeach the appellant as a witness in his own behalf by using this conviction as well as six other 1965 felony-convictions. During such cross-examination, the appellant in explaining his answer stated that the Potter County conviction was void because he was without counsel at the time of the probationary revocation hearing in such case. The impeachment was accomplished over a general objection. The court’s charge at the trial’s guilt stage limited the prior convictions to the purpose for which they had been admitted — the credibility of the appellant as a witness in his own behalf.
Thereafter, the State waived and abandoned that portion alleged in the indictment for enhancement. The reason therefor is not disclosed by this record.
At the hearing on punishment, the State introduced the “prison packet” of all seven prior convictions and the testimony of a fingerprint expert that the known prints of the appellant were identical with the fingerprints attached to the “prison jacket.”
The appellant was in error in his ground of error in stating there was no objection to the introduction of this evidence. His counsel did state, “We have already stated our objection to No. 9,” (Exhibit #9, the prison packet containing record evidence of all prior convictions including the one in question). It is not clear just what previous objection to which counsel had reference. The prison packet, admitted over such objection, is silent as to counsel at the time of revocation of probation in the Potter County felony theft conviction.
In Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L.Ed.2d 319, the Supreme Court wrote:
“Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477 [16 L.Ed.2d 526]) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.”
Since Burgett, the Supreme Court has made it clear that convictions invalid under Gideon v. Wainwright may not be properly taken into consideration in assessing punishment (United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592) nor to support guilt by impeaching an accused as a witness (at least where it might influence the outcome of the case), Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed. 2d 374. See also Wood v. State, Tex.Cr.App., 478 S.W.2d 513; Ex parte Scott, 485 S.W.2d 921, (1972); Simmons v. State, 456 S.W.2d 66, 75 (Tex.Cr.App.1970 — dissenting opinion).
In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, the Supreme Court also held that the appointment of counsel *110for an indigent is required at every stage of a criminal proceeding where substantial rights may be affected and as a matter of federal constitutional law, a lawyer must be afforded such accused at a proceeding for revocation of probation or deferred sentencing. This Court wrestled with the question of the retroactivity of such decision in Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968). By the time of rehearing in Crawford, the Supreme Court had held Mempa v. Rhay was to be given retroactive application. See McConnell v. Rhay and Stilner v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2. See also Ex parte Fuller, 435 S.W.2d 515 (Tex.Cr.App.1969).
If the appellant has brought himself within the Gideon rationale, then it would appear that the prosecution should not have impeached him with an invalid conviction at the guilt stage of the trial nor, as he complains, introduced the same at the penalty stage of the trial as a part of his “prior criminal record” to enhance punishment.
In explaining his answer on cross-examination at the guilt stage of trial, appellant stated he did not have an attorney when his probation was revoked in Potter County. He did not testify that at the time he was indigent, did not have counsel and did not waive the right to counsel, nor that he had counsel and was deprived of his services. Despite the general objection at the penalty stage, no proof was offered as to appellant’s indigency, etc., at the time in question. Under these circumstances, I cannot conclude that the appellant has brought himself within the Gideon rationale. Even if it can be validly argued that he did, I perceive no reversible error. If he was improperly impeached by a void conviction, it could not have influenced the outcome of the guilt stage of the trial in light of the evidence described in the majority opinion and the other six valid prior convictions with which he was also impeached. Further, he does not complain of such impeachment. Next, any error in introduction of a wholly unconstitutional prior conviction at the penalty stage would have been harmless error in view of the circumstances of the offense and other parts of the appellant’s “prior criminal record” validly received into evidence and the penalty itself. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.
For the reason stated, I concur in the result reached by the majority, but I cannot agree to disposing of the ground of error on the basis that appellant “volunteered” information as to possible infirmity of the conviction on cross-examination at the guilt stage of the trial and that somehow to allow the appellant to subsequently complain of the use of an allegedly void prior conviction at the penalty stage would constitute a mockery of justice.