(dissenting).
Presiding Judge WOODLEY has painted with a master’s hand a picture of the majority’s views. His brush is broad and his strokes are bold, full of facts, details and law, resulting in a picture that is likely to overwhelm the casual viewer (or reader). Like many pictures, though, even good ones, there are areas that are merely glossed over, including the one upon which the case at bar must, in my opinion, turn.
The majority simply fails to come to grips with the real issue presented, or to construe the main thrust of appellant’s argument in connection therewith as required. See Article 40.09, Sec. 9, V.A.C. C.P.
It is clear that appellant is not relying upon his briefly stated ground of error. He contends that the trial court erred in permitting him to be impeached at the guilt stage of the proceedings by the use of a void 1957 felony conviction from the State of Louisiana in that at the time of such conviction he was indigent, without counsel, and had not waived the right to counsel.
This appeal thus presents, apparently for the first time in this jurisdiction, the question of whether the rationale of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, bars and excludes the use of a prior felony conviction offered by the State to impeach the credibility of an accused testifying in his own behalf absent a clear showing that the conviction was not obtained in violation of the rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
I would hold that the principle and rationale of Burgett does so apply and that under the circumstances presented, the constitutional error was not harmless error under the doctrine of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.
After the State had rested its case in chief at the guilt stage of the bifurcated trial under the provisions of Article 37.07, V.A.C.C.P. and before the appellant took the stand, he requested the court to instruct the State not to refer to or allude to a 1957 Louisiana conviction since he had not been represented by counsel at the time and had been indigent.1 The court responded by remarking that the State would be limited to proper methods of impeachment acting in good faith.
*76On cross-examination at the trial which commenced on March 18, 1969, the appellant was asked:
“Q. Have you ever been convicted in this state or any other state in the past ten years of a felony offense?
“A. No, sir, I haven’t.” (emphasis supplied)
The State then inquired about a prior December 17, 1957, Louisiana conviction and he was shown State’s Exhibit #3 which contained exemplified copies of an information charging the theft of an automobile of the alleged value of $350.00, “a statement of the case,”2 a sentence reflecting a conviction on December 17, 1957, and the assessment of punishment at 10 years’ confinement in the Louisiana state penitentiary, a photograph and a set of fingerprints.
It is obvious that at this point, even if the State’s contention is correct, the appellant’s answer was truthful — he had not been convicted of a felony in the past ten years.
• In the jury’s absence appellant testified on examination by his counsel. He denied he had been convicted of a felony in Louisiana, but admitted he had been the subject of juvenile delinquency proceedings in that state at which time he was without counsel, was not informed of counsel, did not waive counsel and none was appointed. He further testified that if he was the person named in State’s Exhibit #3, he did not at the time have counsel nor waive the right to counsel.
State’s Exhibit #3, relating to a pre-Gideon conviction, was silent as to counsel. Further, the trial court’s attention was directed to the fact that the Louisiana felony conviction was based on an information, not an indictment, and that there had been no showing as to Louisiana law; and the presumption, in absence of such showing, is that the law is the same as in Texas.3 The court overruled appellant’s objection and permitted the introduction of State’s Exhibit #3 before the jury for the purpose of impeachment.3A A fingerprint expert subsequently testified the fingerprints contained therein were identical with known prints of the appellant. A limiting charge on the impeachment testimony was given.
At the penalty stage of the proceedings, when the appellant refused to stipulate, State’s Exhibit #3 was re-offered as part of the appellant’s “prior criminal record.” See Article 37.07, supra. It was available to the jury for the purpose of assessing punishment.
In Burgett 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. 1447, [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 *77right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.
“The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ within the meaning of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.”4
In Subilosky v. Commonwealth of Massachusetts, 412 F.2d 691, the United States Court of Appeals, First Circuit, noted the problem but did not reach the substance of the contention in view of the threshold question concerning the failure to exhaust state remedies.
In Shorter v. United States, 412 F.2d 428, the Ninth Circuit Court of Appeals avoided the question of whether the rationale of Burgett is violated by the prosecution’s use of prior convictions obtained without counsel for impeachment purposes. The question was not decided because, even though the prosecution had threatened to use the infirm 1958 and 1959 prior convictions from Louisiana, the defendant had taken the stand and admitted such convictions as a part of trial strategy “to soften the anticipated blow” without waiting to see whether the prosecutor would change his mind. In a vigorous dissent Judge Roger D. Foley, relying in part upon People v. Coffey, 1967, 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, argued: “The rule, as I see it, is that a prior conviction, void under Gideon, cannot be used for any purposes, proof of guilt, enhancement of punishment or impeachment, without denying due process.”
Judge Foley could not conclude that the error, being of federal constitutional dimension, was necessarily harmless error.5
In Tucker v. United States (D.C.1969) 299 F.Supp. 1376, the Court held the use of constitutionally invalid prior convictions on cross-examination for impeachment purposes was error but considered it harmless error since the defendant’s testimony had been successfully impeached by prior inconsistent statements made to FBI Agents and by rebuttal testimony which rendered portions of the defendant’s testimony improbable and untrue.
In Gilday v. Commonwealth, 247 N.E.2d 396, the Supreme Court of Massachusetts decided that the error there was harmless under Chapman v. California, supra, since the invalid prior out of state conviction was “not very serious” and there was strong evidence of guilt and two other prior in-state felony convictions for serious offenses.
*78The Court concluded, however, by stating:
“In view of the existing uncertainty concerning the Burgett case, no record of prior conviction henceforth should be offered to impeach credibility unless the witness thus attacked can be shown to have had or waived counsel in the proceedings certified by the record.”
In Boley v. State, 456 P.2d 447 (Nev.) which involved the impeachment of an accused by the use of prior convictions but did not necessarily involve the Burgett rationale, the Court said: “We hold, however, in any criminal case commenced after this date in which a prosecutor in this state asks such a question and is not prepared to document the conviction, we shall review the point with great care.”
In People v. Shook, 67 Ill.App.2d 492, 214 N.E.2d 546, a pre-Burgett case, it was held that the admission of a prior conviction for impeachment purposes was improper where it had been determined that the prior conviction was a nullity.
In Re Dabney, 76 Cal.Rptr. 636, 452 P.2d 924, was a decision by the California Supreme Court. At Dabney’s trial the prosecution introduced before the jury an unconstitutionally obtained prior conviction to prove his guilt by impeaching his testimony.
Noting it had repeatedly held that prior convictions obtained in violation of Gideon cannot be used for impeachment or any other purposes, the California court concluded the admission of the prior conviction was erroneous in light of People v. Coffey and Burgett, and that the error was harmful under the standards of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The court did not believe, however, that this type of error could never be found harmless within the meaning of Chapman, though the language in Burgett and the background provided by Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, made clear “that only the most compelling showing can justify finding such error harmless beyond a reasonable doubt.”
Following the decision in the above cases, the United States Supreme Court handed down its decision in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, on June 2, 1969, holding that the Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, error there presented was harmless error. While denying that it was departing from Chapman or diluting it by inference, the majority held that “the case against Harrington was so overwhelming” that the “violation of Bru-ton was harmless beyond a reasonable doubt.” 6
*79Only recently in Johnson v. State, 9 Md. App. 166, 263 A.2d 232 (3/17/70), the Maryland Court of Special Appeals, without discussing the harmless error angle, held that the issue of a testifying defendant’s credibility is material to his guilt or innocence and interpreted Burgett to bar admission of convictions secured without the assistance of counsel or a valid waiver of that right.
Johnson’s objection was based on Bur-gett, though he did not specifically assert, as in the case at bar, that he was not afforded counsel. The Maryland court felt he thus raised a question that the trial court should have investigated further without summarily overruling such objection. Therefore, without reversing, or modifying the judgment, the case was remanded to the trial court for a hearing on the admission of the prior convictions.
The Maryland appellate court wrote:
“We hold that the Burgett principle serves to exclude evidence of a prior conviction offered for the purpose of impeaching the credibility of an accused testifying on his own behalf when it is established that such conviction was obtained absent representation by counsel or a valid waiver thereof.7 * * *
We do not think that this language (from Burgett and quoted in this opinion) can be interpreted as limiting its application to recidivist, or habitual offender or subsequent offender statutes authorizing enhanced punishment upon conviction of a current substantive offense. And we cannot say that evidence of a prior conviction to impeach the credibility of an accused testifying in his own behalf does not support guilt of the offense for which he is on trial; the question of his credibility is material to his guilt or innocence. * * * ”
In light of the above discussion I would conclude that the rationale of Burgett bars the use of a prior felony conviction for impeachment of an accused testifying in his own behalf absent a clear showing that the conviction was not obtained in violation of *80the rule announced in Gideon. The issue of credibility is material to the determination of guilt or innocence. The presumptively void prior conviction when offered for impeachment was, in effect, used to aid the establishment of guilt. In the State’s argument at the guilt stage of the proceedings the jury was told not to believe the appellant’s testimony pointing specifically to the 1957 Louisiana conviction and told to ask the bailiff for State’s Exhibit #3 for use in their deliberations. The court in the case at bar erred in admitting into evidence for the purpose of impeachment of the appellant the prior felony conviction from Louisiana. The State should have been put on notice when the record evidence of the prior pre-Gideon conviction requested and received was silent to counsel, and the appellant contended he was at such time without counsel.
While some confusion is engendered by reference to a juvenile proceedings, it is clearly indicated from the dates, etc., in the record that the appellant and the State were referring to the same Louisiana proceedings. Appellant’s counsel now acknowledges that his assumption was based on erroneous information. See footnote #1. Even, however, if there were two separate proceedings, this would not change the result. The State has no right to use the felony conviction absent a clear showing that such conviction was not obtained in violation of Gideon.
The question remaining is whether such constitutional error was harmless error.
There was a sharp conflict between the testimony of the prosecutrix and the appellant as to whether the act of intercourse was with or without her consent. The prosecutrix’s version is well described in the majority’s opinion and need not be repeated here. The appellant, who admitted making the initial advances, related the act occurred not only with her consent but with full cooperation and he detailed some of the acts of cooperation which are also mentioned in the State’s brief.
The prosecutrix had met the appellant at Bodittle’s Night Club which place she and her roommate frequented and where, on occasion, they would dance with some of the men there. When the prosecutrix first reported the alleged offense to the police she told them only that an “aggravated assault” had been committed upon her.
Dr. Byrd, a State’s witness who subsequently examined her, found some small bruises without swelling and superficial scratches on her body. . He found no trauma in the vaginal area and no indication of entry by force. He related that her vagina resembled that of a married person and that she had admitted she had had sexual intercourse three months before the alleged offense.
Dr. Seale Johnson, also a State’s witness, testified that prior to the date of the alleged offense he had treated the prose-cutrix for a sore throat and bronchitis and still later for vaginitis and bilateral bartholim cystitis which could have been caused by sexual intercourse.
He related that none of the medicines he had prescribed for her would have caused her to be “groggy or dizzy” as she claimed to have been from such medication at the time of the alleged offense unless she “overdosed it.”
The prosecutrix admitted that although a woman and her son lived across the hall from her apartment she did not attempt to scream at any time except when she told the appellant to leave shortly after his arrival.
While on cross-examination at the guilt stage of the trial the appellant acknowledged two prior misdemeanor convictions for offenses involving moral turpitude, I cannot agree, in light of the facts revealed and the sharp conflict therein that the admission of the constitutionally infirm prior conviction to impeach the appellant’s credibility was harmless error under the standards of Chapman and Harrington.
*81And this is particularly true when the question is considered with the gloss of the fact that in absence of a showing of Louisiana law, it is presumed to be the same as Texas and the prior conviction was for a felony based upon an information which is not permissible in this state.
Even if it could be argued that the error was harmless at the guilt stage of the proceedings, reversal, in my opinion, should result because of the introduction of the infirm prior at the penalty stage of the trial as a part of appellant’s prior criminal record available for the jury’s use in assessing punishment.8
The alleged offense in the case at bar occurred on April 4, 1968, and appellant’s trial commenced on March 18, 1969, well after the decision in Burgett (November 13, 1967). The question here presented is on direct appeal. I would expressly reserve the question of the retroactivity of the Burgett rationale insofar as it prohibits impeachment by the use of a prior felony conviction in absence of a clear showing that the conviction was not obtained in violation of Gideon.9
The importance of this appeal to the jurisprudence of this state lies not in the fact that it is affirmed or reversed but in the manner in which the issue so clearly raised is disposed of by this Court. The issue will not disappear because it is ignored. It is being raised daily in the trial courts of this state and in courts throughout this nation. This is the only appellate court in this state for criminal appeals and it is not unusual that the trial courts, prosecutors and defense counsel look to this Court for some guidelines in handling their day to day problems. It is incumbent upon this Court to furnish those guidelines.10 The majority holds that “under the facts *82of this case” Burgett does not apply. The reader is left to puzzle whether the majority means that Burgett does not extend to the impeachment of an accused testifying in his own behalf, or that Bur-gett does so apply but in this particular case the error was harmless constitutional error. If the majority had clearly delineated their position it would be more tenable. The majority has simply written around the issue presented.
For the reasons stated, I dissent.
. Appellant’s counsel also stated at the time that the conviction resulted from juvenile proceedings which he now acknowledges was based on erroneous information.
. The very brief “statement of the ease” appears to have been filed several weeks after conviction and was apparently designed for the use of penitentiary authorities. It reflects appellant was 18 years old at the time of the conviction.
. See Holcombe v. State, Tex.Cr.App., 424 S.W.2d 635; Melancon v. State, Tex.Cr.App., 367 S.W.2d 690; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906; Green v State, 165 Tex.Cr.R. 46, 303 S.W.2d 392. A conviction for a felony cannot be had in Texas without an in-dietment. Art. I, Sec. 10, Texas Constitution, Vernon’s Ann.St. Further, in view of such presumption it is noted that the plea of guilty to a non-capital felony before the court would have required counsel regardless of indigency. See Article 1.13 (former Article 10A), V.A.C.C.P.
. It should further be remembered that the issue of probation is not properly before the jury at the guilty stage of the proceedings. Stephens v. State, Tex.Cr.App., 417 S.W.2d 286.
. The prior convictions in Burgett were alleged for enhancement in the indictment under the provisions of Article 63, Vernon’s Ann.P.C. The trial was a unitary one under the former Code of Criminal Procedure. See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. While the prior convictions in Bur-gett were actually withdrawn under appropriate jury instructions to disregard and were not utilized for enhancement, the Supreme Court nevertheless considered their admission into evidence “inherently prejudicial.”
. In his dissent Judge Foley called attention to the action of the United States Supreme Court in Bates v. Nelson, 393 U.S. 16, 89 S.Ct. 50, 21 L.Ed.2d 21, wherein the judgment in Bates v. Wilson, 385 F.2d 771, was vacated and remanded to the Court of Appeals, Ninth Circuit, for further consideration in light of Burgett. See also Bates v. Dickson (N.D.Cal.S.D.1964) 226 F.Supp. 983. The majority in a “Memorandum on Petition for Rehearing” disagreed with Judge Foley’s interpretation of Bates v. Nelson, supra.
Further, in his dissent Judge Foley stated: “I am impressed by the fact that although the Texas Court of Criminal Appeals affirmed the conviction because Burgett did not in fact suffer enhancement of punishment, and because the jury was instructed to disregard the prior convictions, the Supreme Court did not take the same view. Twice Justice Douglas stressed that the accused ‘suffered anew’ the denial of his right to counsel.”
. The dissent in Harrington accused the majority of overruling Chapman and holding that constitutional error in the trial of a criminal offense may be held harmless if there is “overwhelming” untainted evidence to support the conviction.
Thus it would seem that a mere “contribution” to a conviction by way of tainted evidence would not prevent application of the harmless error rule where the evidence of guilt is so overwhelming that the conviction would have resulted “beyond a reasonable doubt” anyway.
It may be remembered that in Chapman it was held that some federal constitutional error might be harmless error but only when the Court is “able to declare a belief that it was harmless beyond a reasonable doubt.” In laying down such rule the Chapman Court specifically rejected the California “miscarriage of justice” rule saying California courts had neutralized the rule “by emphasis, and perhaps overemphasis, upon the court’s view of ‘overwhelming evidence.’ ” The Court, instead, adopted the rule upon Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, where the Court said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”
If Harrington does not depart from Chapman or dilute it by inference as claimed by its majority, those courts who cite Harrington and seek to avoid reversible constitutional error by emphasis and perhaps overemphasis of their own view of overwhelming evidence may well be neutralizing the Harrington doctrine just as the California courts neutralized the “miscarriage of justice” rule.
. The Maryland court further stated:
“We hold that it is encumbent upon the defendant, when his objection to evidence of a prior conviction is on the ground that the conviction was constitutionally void to state his reasons to the court to enable it properly to determine the issue. This may be done by him out of the presence of the jury. The court shall then conduct a hearing out of the presence of the jury. At the hearing the State shall first have the burden of producing evidence of a prior conviction, unless admitted by the defendant, sufficient to justify a finding by the court that the defendant has suffered such previous conviction. Code, Art. 35, § 10 provides one method to accomplish this. When this showing has been made the defendant must produce evidence tending to establish that his constitutional right to counsel was infringed in the prior proceeding at issue. Having already elected to testify, he may assert under oath that he was without counsel in the prior proceeding and did not waive the right to counsel. He is, of course, subject to cross-examination by the State on the point. The burden is then upon the State to prove by clear and convincing evidence that the defendant’s constitutional right to counsel was not infringed at the prior proceeding. We observe that if proof of the prior conviction is by a certificate, under the seal of the clerk of the court wherein such proceedings were had, stating the fact of the conviction and for what crime, or by any other admissible record of the proceedings establishing the conviction, and such evidence does not affirmatively show that the defendant was represented by counsel, the conviction is presumptively void. 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. The State then must rebut the presumption, if it can. * * * The court shall make a finding on the basis of the evidence thus produced and shall exclude from the trial on the merits any prior conviction found to be constitutionally invalid. Any prior conviction found to be constitutionally valid shall be admitted in evidence as going to credibility if relevant to the issue. As the admission of evidence vel non is a matter exclusively for the court, in a jury trial, no evidence with respect to the constitutionality of the conviction shall be presented to the jury. * * * ”
. In Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732, 740, it was said:
“Further, where the defendant has taken the stand at the guilt stage of the proceedings and any part of his prior criminal record is properly used for impeachment or is otherwise legally introduced, the same need not be re-introduced at the hearing on punishment. Such evidence may be properly considered by the judge or jury assessing the penalty.”
The question may well be raised that if the introduction of a constitutionally infirm prior conviction for impeachment at the guilt stage of the trial is harmless error can an instruction to disregard at the penalty stage be sufficient in light of Burgett’s holding that the instructions there were not adequate, even when as here the prior conviction is limited by the court’s charge to impeachment purposes at the guilt or first stage of the bifurcated trial? Note that the majority points out the appellant failed to ask to have exhibit as to the prior conviction withdrawn from the jury at the penalty stage. Would such an instruction have served any purpose in light of Burgett where there were such instructions?
. For a discussion of retroactivity, see In Re Dabney, supra; 20 Baylor Law Review 473.
.If a defendant has been previously convicted in violation of the rule announced in Gideon v. Wainwright, supra, and is subsequently tried for another offense, how does he, if he desires to testify at such trial, avoid impeachment by use of such void conviction and thus avoid suffering anew from his Sixth Amendment right to counsel? Must he give up the right to testify in his own behalf to prevent impeachment? I think not. Cf. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732. If he takes the stand in his own behalf he is placed on the horns of a dilemma. If on cross-examination he is asked if he has been previously convicted of a felony and he answers “yes,” then he is left to explain the lack of counsel, etc., and the matter is then squarely before the jury. If he answers “no” on the ground that his prior felony conviction was a nullity due to the deprivation of the constitutional right to counsel then is the State permitted to introduce record evidence of his previous conviction, silent as to counsel, in order to impeach him? If the State is so authorized, then the presumptively void prior conviction is before the jury and it is doubtful that a jury instruction to disregard would be regarded *82as sufficient to prevent harmful error. See Burgett v. Texas, supra.
Certainly where the defendant, before he testifies, calls the trial court’s attention to the fact that a prior conviction was obtained in violation of Gideon and the State is in possession of record evidence of such conviction which is silent as to counsel, the court should make further inquiry and not permit impeachment by use of such prior in absence of a showing that the defendant had counsel at the time or had affirmatively waived the same.
Suppose an accused’s prior felony conviction had been reversed on appeal and he had never been tried. May the State ask him on cross-examination if he has ever been convicted of a felony and upon his negative answer be permitted to impeach him knowing the circumstances surrounding the conviction? I think not. May a successfully completed probation be utilized in the same manner? I think not. If the prior conviction is clearly too remote and not available for impeachment, may the State nevertheless ask the accused if he has ever been convicted of a felony and be allowed to then impeach him if he gives a negative answer for being a liar or leave him to explain if he answers affirmatively? If such procedure is permissible, then the prohibition against the use of remote convictions is effectively destroyed.