Petitioner was charged in a five-count indictment, which was
read to the jury at the beginning of the trial, and convicted of
"assault with malice aforethought with intent to murder; repetition
of offense." The first count charged the assault. The other counts,
pursuant to the Texas recidivist statutes, alleged prior felony
convictions, one in Texas for burglary, and three in Tennessee for
forgery, which, if proved, would have made petitioner subject to
life imprisonment upon his being convicted under count one. In the
jury's presence the prosecution offered evidence of two differing
certified copies of one of the Tennessee convictions and a
certified copy of the indictment in the prior Texas prosecution.
The court admitted the Texas conviction into evidence, but later
sustained petitioner's objection as to that judgment and struck it
from the evidence. The court upheld petitioner's objection to the
first version of the Tennessee conviction on the ground that the
judgment showed on its face that petitioner was not represented by
counsel in violation of the Sixth Amendment made applicable to the
States by the Fourteenth Amendment. It overruled his objection on
the same ground to the second version, which stated that petitioner
had appeared "in proper person" but did not add (as did the first
version) "without counsel." There was no explanation of the
discrepancy between the two versions. Reference was also made in
the second version to the jury's having retired to consider its
verdict after "argument of counsel," but with no indication whether
the word was being used in the singular or plural. After testimony
was heard on the substantive offense, the court instructed the jury
not to consider the prior offenses for any purpose whatsoever in
arriving at its verdict. Petitioner was convicted and appealed,
urging error in the reading to the jury of the indictment
containing the prior felony conviction counts and in the failure to
sustain his objection to the admission into evidence of the second
version of the Tennessee conviction. The appellate court upheld the
conviction, holding that there had been no error, since the trial
court had instructed the jury to disregard
Page 389 U. S. 110
the prior offenses and petitioner had not received the enhanced
punishment prescribed by the recidivist statutes.
1. The certified records of the Tennessee conviction raise a
presumption that petitioner was denied his right to counsel in that
proceeding and that the conviction was void under Gideon. v.
Wainwright, 372 U. S. 335
permit a conviction obtained in violation of Gideon
used either to support guilt or enhance punishment for another
offense would erode the principle of that case and allow an
unconstitutional procedure to injure a defendant twice. Pp.
389 U. S.
2. The admission into evidence of a constitutionally invalid
prior conviction is inherently prejudicial, and it cannot be said
that instructions to disregard such error made it "harmless beyond
a reasonable doubt" within the meaning of Chapman v.
California, 386 U. S. 18
Spencer v. Texas, 385 U. S. 554
distinguished. Pp. 389 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was convicted of "assault with malice aforethought
with intent to murder; repetition of offense." The jury fixed the
punishment at 10 years in the Texas State Penitentiary. [Footnote 1
] On appeal, the Texas Court
of Criminal Appeals affirmed petitioner's conviction. [Footnote 2
] We granted certiorari, 386
Page 389 U. S. 111
Petitioner was charged in a five-count indictment. In the first
count, the State alleged that he had cut one Bradley with a knife
and had stabbed at Bradley's throat with intent to kill. Pursuant
to the Texas recidivist statutes, [Footnote 3
] the remaining counts of the indictment
consisted of allegations that petitioner had incurred four previous
felony convictions: a Texas conviction for burglary, and three
Tennessee convictions for forgery. If these allegations were found
to be true, petitioner would be subject to a term of life
imprisonment upon conviction of the offense charged in count one.
Petitioner's counsel filed a pretrial motion to quash the four
counts of the indictment referring to the prior convictions for
failure to apprise the defense of what the State would attempt to
prove. [Footnote 5
] The record
is silent as to the court's action on this motion. But when the
indictment was read to the jury at the beginning of the trial,
before any evidence was introduced, the four counts relating to the
prior convictions were included.
Page 389 U. S. 112
During the course of the trial, while the jury was present, the
State offered into evidence a certified copy of one of the
Tennessee convictions. The conviction read in part, "Came the
Assistant Attorney-General for the State and the Defendant in
proper person and without Counsel." Petitioner's counsel objected
to the introduction of the record on the ground that the judgment,
on its face, showed that petitioner was not represented by counsel,
in violation of the Fourteenth Amendment. There was no indication
in the record that counsel had been waived. The court stated that
it would reserve ruling on the objection, apparently to give the
State an opportunity to offer any of the other convictions into
evidence. The State then offered a second version of the same
Tennessee conviction which stated that petitioner had appeared "in
proper person" but did not contain the additional words "without
counsel." This second version also stated that, "After said jury
had heard the evidence, argument of counsel, and the charge of the
Court, they retired to consider of their verdict." It is not clear,
however, whether "counsel" was being used in the singular or
plural, and, in any event, no explanation was offered for the
discrepancy between the two records. Petitioner's counsel objected
to this second version on the same ground. The court again reserved
The State then offered into evidence a certified copy of the
indictment in the prior Texas case. Petitioner's counsel indicated
he had no objection, and that record was received into evidence.
Thereafter, testimony was offered concerning the judgment and
sentence in the prior Texas case. After some testimony had been
given, the jury was excused and the hearing continued out of its
presence. At the conclusion of the hearing, petitioner's attorney
objected that the Texas judgment was void on its face under state
law. The court sustained that objection,
Page 389 U. S. 113
and the record of the Texas conviction was stricken from
evidence. At the same time, the court sustained petitioner's
objection to the first version of the Tennessee conviction; but
overruled the objection to the second version of the same
conviction. The jury was then recalled, and testimony was heard on
the substantive offense charged. The next reference to the prior
convictions was when the court instructed the jury not to consider
the prior offenses [Footnote 6
for any purpose whatsoever in arriving at the verdict.
Petitioner's motion for a new trial was denied. In the Court of
Criminal Appeals, petitioner argued, inter alia,
court erred in permitting counts two through five of the indictment
to be read to the jury at the beginning of the trial, and in
failing to sustain petitioner's objection to the admission into
evidence of the second version of the Tennessee conviction. The
Court of Criminal Appeals held that, since petitioner had not
suffered the enhanced punishment provided by the recidivist
statutes, and since the instruction to disregard the prior offenses
had been given, no error was presented.
We do not sit as a court of criminal appeals to review state
cases. The States are free to provide such procedures
Page 389 U. S. 114
as they choose, including rules of evidence, provided that none
of them infringes a guarantee in the Federal Constitution. The
recent right to counsel cases, starting with Gideon v.
Wainwright, 372 U. S. 335
illustrative of the limitations which the Constitution places on
state criminal procedures. Those limitations sometimes touch rules
The exclusion of coerced confessions is one example.
Chambers v. Florida, 309 U. S. 227
The exclusion of evidence seized in violation of the Fourth and
Fourteenth Amendments is another. Mapp v. Ohio,
367 U. S. 643
Still another is illustrated by Pointer v. Texas,
380 U. S. 400
that case, we held that a transcript of a preliminary hearing had
to be excluded from a state criminal trial because the defendant
had no lawyer at that hearing, and did not, therefore, have the
opportunity to cross-examine the principal witness against him, who
since that time had left the State. The exclusionary rule that we
fashioned was designed to protect the privilege of confrontation
guaranteed by the Sixth Amendment and made applicable to the States
by the Fourteenth.
The same result must follow here. Gideon v. Wainwright
established the rule that the right to counsel guaranteed by the
Sixth Amendment was applicable to the States by virtue of the
Fourteenth, making it unconstitutional to try a person for a felony
in a state court unless he had a lawyer or had validly waived one.
And that ruling was not limited to prospective applications.
See Doughty v. Maxwell, 376 U. S. 202
Pickelsimer v. Wainwright, 375 U. S.
. In this case, the certified records of the Tennessee
conviction on their face raise a presumption that petitioner was
denied his right to counsel in the Tennessee proceeding, and
therefore that his conviction was void. Presuming waiver of counsel
Page 389 U. S. 115
a silent record is impermissible. Carnley v. Cochran,
369 U. S. 506
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
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
The admission of a prior criminal conviction which is
constitutionally infirm under the standards of Gideon v.
is inherently prejudicial, and we are unable to say
that the instructions to disregard it [Footnote 7
] made the constitutional error "harmless beyond
a reasonable doubt" within the meaning of Chapman v.
California, 386 U. S. 18
Our decision last Term in Spencer v. Texas,
385 U. S. 554
not relevant to our present problem. In Spencer,
convictions were not presumptively void. Moreover, the contention
was that the guilt phase of the trial was prejudiced by the
introduction of the evidence of prior crimes. As the Court
"[i]n the procedures before us . . . no specific federal right
-- such as that dealing with confessions -- is involved; reliance
is placed solely on a general 'fairness' approach."
Page 389 U. S. 116
385 U. S. 565
In this case, however, petitioner's right to counsel, a "specific
federal right," is being denied anew. This Court cannot permit such
a result unless Gideon v. Wainwright
is to suffer serious
The maximum penalty for a first conviction of assault with
intent to murder is 25 years; the minimum penalty is two years.
Tex.Pen.Code, Art. 1160 (Supp. 1966).
Burgett v. State, 397
The statutes involved here are Articles 62 and 63 of the
Article 62 provides:
"If it be shown on the trial of a felony less than capital that
the defendant has been before convicted of the same offense, or one
of the same nature, the punishment on such second or other
subsequent conviction shall be the highest which is affixed to the
commission of such offenses in ordinary cases."
Article 63 provides:
"Whoever shall have been three times convicted of a felony less
than capital shall, on such third conviction, be imprisoned for
life in the penitentiary."
Tex.Pen.Code, Art. 63 (1952).
In petitioner's amended motion for a new trial, which was denied
by the court, he explained that the purpose of the pretrial motion
"so that defendant could establish their [the previous
convictions alleged for enhancement] admissibility before they were
read into the record in the presence of the jury; same reading into
the record in the presence of the jury was prejudicial to defendant
The court apparently withdrew consideration of the prior
convictions from the jury, since only the record of the one prior
Tennessee conviction for forgery had been accepted. Thus, Article
63 could not be applied to petitioner. Further, since forgery could
not be considered as an offense of the "same nature" as assault
with intent to murder, Article 62 would not be applicable.
The State apparently did not attempt to introduce the records of
the other two Tennessee convictions for forgery, because the
indictment showed that all of the convictions occurred on the same
date. To invoke the provisions of Article 63, each succeeding
conviction must be subsequent in time to the previous conviction --
both with respect to commission of the offense and to conviction.
Cowan v. State,
172 Tex.Cr.R. 183, 355
See, e.g., Boyd v. United States, 142 U.
; United States v. Clarke,
343 F.2d 90
(C.A.3d Cir.1965). Cf. Waldron v. Waldron, 156 U.
, 156 U. S. 383
Throckmorton v. Holt, 180 U. S. 552
Lawrence v. United States,
357 F.2d 434 (C.A. 10th
Cir.1966); United States v. DeDominicis,
332 F.2d 207
What Mr. Justice Jackson said in Krulewitch v. United
States, 336 U. S. 440
336 U. S. 445
336 U. S. 453
(concurring opinion), in the sensitive area of conspiracy is
equally applicable in this sensitive area of repetitive crimes:
"The naive assumption that prejudicial effects can be overcome
by instructions to the jury . . . all practicing lawyers know to be
MR. CHIEF JUSTICE WARREN, concurring.
I am in full agreement with the opinion of the Court and the
reasons stated therein for reversing the conviction in this case.
However, in view of the terse dissent entered by my Brother HARLAN,
I feel constrained to add some observations of my own.
The dissent refers to the Court's decision in Spencer v.
Texas, 385 U. S. 554
the entire thrust of the dissent is reminiscent of that decision of
last Term which placed this Court's stamp of approval on the Texas
recidivist procedures from which this case evolves. The dissent
reminds us that "[w]e do not sit as a court of errors and appeals
in state cases." I would not disagree with that statement as an
abstract proposition. But we are not dealing with abstracts in this
case. We are dealing with a very real denial of a state criminal
defendant's rights as guaranteed by the Federal Constitution. We
are also told by the dissent that "this case shows no prosecutorial
bad faith or intentional misconduct." But this misses the mark. We
are not limited in our review of constitutional errors in state
criminal proceedings to those errors which flow from "prosecutorial
bad faith or intentional misconduct." [Footnote 2/1
] Our concern is with the effect
Page 389 U. S. 117
of those errors, whether well intentioned or not, [Footnote 2/2
] on the constitutionally
protected right of a criminal defendant to a fair and impartial
This case is a classic example of how a rule eroding the
procedural rights of a criminal defendant on trial for his life or
liberty can assume avalanche proportions, burying beneath it the
integrity of the factfinding process. In Spencer,
Court approved a procedure whereby a State, for the sole purpose of
enhancing punishment, includes in the indictment allegations of
prior crimes which are read to the jury and enters evidence at
trial of those prior crimes, no matter how unrelated they might be
to the charge on which the defendant is being tried. The rule
adopted in Spencer
went so far as to allow the State to
enter evidence on the prior crimes even though a defendant might be
willing to stipulate the earlier convictions. In this case, that
harsh rule was expanded to a degree close to barbarism.
In addition to charging the petitioner with the principal crime
of "assault with malice aforethought with intent to murder," the
indictment alleged four prior convictions, one in Texas and three
in Tennessee. Despite the efforts of the petitioner's attorney to
quash those portions of the indictment referring to the prior
crimes, the entire indictment was read to the jury at the start
Page 389 U. S. 118
of the petitioner's one-day trial. The prosecutor then proceeded
to offer evidence of the prior convictions. The petitioner's
attorney objected to evidence of one Tennessee conviction because a
certified copy of that conviction showed that the petitioner had
not been represented by counsel. The trial judge reserved his
ruling on the objection. The prosecution next offered a second
version of that same Tennessee conviction which omitted any
reference to the absence of counsel, but which did not show a
waiver of counsel. The petitioner's attorney again objected, and
the trial judge again reserved his ruling. The prosecutor then
offered into evidence a certified copy of the indictment in the
prior Texas case, and it was received without objection. All this
occurred in the presence of the jury. However, when the
petitioner's attorney objected to evidence concerning the judgment
and sentence in the prior Texas case, the jury was excused and
testimony was taken out of the presence of the jury. At the close
of that evidence and before the jury returned, the trial judge
ruled that the prior Texas conviction was void under state law. In
addition, the trial judge sustained the objection to the first
version of the Tennessee conviction, but overruled the objection to
the second version of the same conviction. [Footnote 2/3
] The jury then returned, and the trial
continued. The next the jury was to hear of the prior convictions
was a brief instruction from the trial judge advising the jurors
not to consider the prior crimes for any purpose. The jury was
never told, however, that two of the prior convictions charged were
void, and that the prosecution had failed
Page 389 U. S. 119
to offer testimony on the validity of the other prior crimes
charged in the indictment.
Thus, the jury went into its deliberations knowing that the
petitioner had been convicted and imprisoned for four prior
felonies, although not one had been proven at the trial. To expect
that the jury could wipe this from its memory and decide the
petitioner's guilt only on the basis of the evidence of assault is
to place too much faith in a jury's ability to detach itself from
reality. This is particularly true since the trial judge gave the
jurors not the slightest clue as to why matters which consumed so
much time at trial were suddenly being removed from their
To suggest that such a procedure accords a man charged with a
crime due process is beyond belief. This Court has reversed
convictions in other cases based on unfair influences on juries
which must be deemed minor when compared to the pervasive prejudice
in this case. Not long ago, we ruled that a defendant was denied
due process when a court bailiff remarked in the presence of the
jurors, "Oh that wicked fellow, he is guilty"; and, "If there is
anything wrong [in the verdict], the Supreme Court will correct
it." Parker v. Gladden, 385 U. S. 363
also reversed a murder conviction because two prosecution witnesses
were deputy sheriffs who had been assigned to accompany the jury
while it was sequestered. Turner v. Louisiana,
379 U. S. 466
] If these
transgressions offend constitutional standards of fairness, can it
be doubted that the petitioner's trial was stripped of all
Page 389 U. S. 120
vestiges of due process when the jurors were told of his prior
void convictions and the error was not explained to them?
This case is the frightful progeny of Spencer
that decision's unjustified deviation from settled principles of
fairness. Today we have placed a needed limitation on the
rule, but nothing except an outright rejection
would truly serve the cause of justice.
Prosecutorial bad faith, of course, is not an irrelevant element
in our review of state criminal convictions. It can often make even
more intolerable errors which demand correction in this Court.
See, e.g., Miller v. Pate, 386 U. S.
; Napue v. Illinois, 360 U.
; Mooney v. Holohan, 294 U.
The dissent is not alone in viewing this case solely in terms of
the prosecutor's good or bad faith. The Texas Court of Criminal
Appeals disposed of the petitioner's objection to the use of the
prior void convictions at trial with the cryptic observation that
"[t]here is no showing of bad faith on the part of the state in
alleging or attempting to prove the prior convictions." Boswell
tells us that Dr. Johnson once observed that "Hell is paved with
good intentions." Boswell, Life of Samuel Johnson 257 (Great Books
ed.1952). If the good faith view of this case should prevail, then
surely this petitioner's road to prison would be paved with the
same good intentions.
The record is silent concerning the second and third Tennessee
convictions alleged in the indictment, and the prosecution
apparently did not offer any evidence on those convictions.
However, the jury had been made aware of those prior crimes when
the indictment was read at the start of the trial.
I do not mean to express any disapproval of our decisions in
I joined both of those
opinions, and I have no doubt the practices condemned in those
cases were at odds with settled principles of due process of law.
However, it follows a fortiori
from those decisions that
we are presented in this case with a violation of due process.
MR. JUSTICE HARLAN, whom MR. JUSTICE BLACK and MR. JUSTICE WHITE
The record in this case shows no prosecutorial bad faith or
intentional misconduct. To the extent that the prosecutor
contemplated the use of prior convictions in a one-stage recidivist
trial, his right to do so is, of course, established by Spencer
v. Texas, 385 U. S. 554
decided only last Term. The fact that the prior convictions turned
out to be inadmissible for other reasons involves, at the most, a
later corrected trial error in the admission of evidence. We do not
sit as a court of errors and appeals in state cases, and I would
affirm the judgment of the state court.