Burgett v. Texas , 88 S. Ct. 258 ( 1967 )

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.¹ On appeal, the Texas Court of Criminal Appeals affirmed petitioner’s conviction.² We granted certiorari, 386 U. S. 931.

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,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.⁴

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.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.

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 its ruling.

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, 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 offenses⁶ 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, that the 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 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, are illustrative of the limitations which the Constitution places on state criminal procedures. Those limitations sometimes touch rules of evidence.

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. In 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. 2. 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 from a silent record is impermissible. Carnley v. Cochran, 369 U. S. 506. 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) 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.

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 it⁷ 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, is not relevant to our present problem. In Spencer the prior 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 noted, “[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.” Id., at 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 erosion.

Reversed.

1 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).

2 Burgett v. State, 397 S. W. 2d 79 (1965).

3 The statutes involved here are Articles 62 and 63 of the Tex. Pen. Code (1952).

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.”

4 Tex. Pen. Code, Art, 63 (1952).

5 In petitioner’s amended motion for a new trial, which was denied by the court, he explained that the purpose of the pretrial motion was “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 herein.”

6 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. See n. 3, supra.

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 S. W. 2d 521 (1962).

7 See, e. g., Boyd v. United States, 142 U. S. 450; United States v. Clarke, 343 F. 2d 90 (C. A. 3d Cir. 1965). Cf. Waldron v. Waldron, 156 U. S. 361, 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 (C. A. 2d Cir. 1964).

What Mr. Justice Jackson said in Krulewitch v. United States, 336 U. S. 440, 445, 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 unmitigated fiction.”