burgett texas argued october decided november petitioner charged indictment read jury beginning trial convicted assault malice aforethought intent murder repetition offense first count charged assault counts pursuant texas recidivist statutes alleged prior felony convictions one texas burglary three tennessee forgery proved made petitioner subject life imprisonment upon convicted count one jury presence prosecution offered evidence two differing certified copies one tennessee convictions certified copy indictment prior texas prosecution admitted texas conviction evidence later sustained petitioner objection judgment struck evidence upheld petitioner objection first version tennessee conviction ground judgment showed face petitioner represented counsel violation sixth amendment made applicable fourteenth amendment overruled objection ground second version stated petitioner appeared proper person add first version without counsel explanation discrepancy two versions reference also made second version jury retired consider verdict argument counsel indication whether word used singular plural testimony heard substantive offense instructed jury consider prior offenses purpose whatsoever arriving verdict petitioner convicted appealed urging error reading jury indictment containing prior felony conviction counts failure sustain objection admission evidence second version tennessee conviction appellate upheld conviction holding error since trial instructed jury disregard prior offenses petitioner received enhanced punishment prescribed recidivist statutes held certified records tennessee conviction raise presumption petitioner denied right counsel proceeding conviction void gideon wainwright permit conviction obtained violation gideon used either support guilt enhance punishment another offense erode principle case allow unconstitutional procedure injure defendant twice pp admission evidence constitutionally invalid prior conviction inherently prejudicial said instructions disregard error made harmless beyond reasonable doubt within meaning chapman california spencer texas distinguished pp gordon gooch appointment argued cause filed briefs petitioner leon douglas argued cause respondent brief crawford martin attorney general texas george cowden first assistant attorney general carubbi lattimore justice douglas delivered opinion petitioner convicted assault malice aforethought intent murder repetition offense jury fixed punishment years texas state penitentiary appeal texas criminal appeals affirmed petitioner conviction granted certiorari petitioner charged indictment first count state alleged cut one bradley knife stabbed bradley throat intent kill pursuant texas recidivist statutes remaining counts indictment consisted allegations petitioner incurred four previous felony convictions texas conviction burglary three tennessee convictions forgery allegations found true petitioner subject term life imprisonment upon conviction offense charged count one petitioner counsel filed pretrial motion quash four counts indictment referring prior convictions failure apprise defense state attempt prove record silent action motion indictment read jury beginning trial evidence introduced four counts relating prior convictions included course trial jury present state offered evidence certified copy one tennessee convictions conviction read part came assistant state defendant proper person without counsel petitioner counsel objected introduction record ground judgment face showed petitioner represented counsel violation fourteenth amendment indication record counsel waived stated reserve ruling objection apparently give state opportunity offer convictions evidence state offered second version tennessee conviction stated petitioner appeared proper person contain additional words without counsel second version also stated said jury heard evidence argument counsel charge retired consider verdict clear however whether counsel used singular plural event explanation offered discrepancy two records petitioner counsel objected second version ground reserved ruling state offered evidence certified copy indictment prior texas case petitioner counsel indicated objection record received evidence thereafter testimony offered concerning judgment sentence prior texas case testimony given jury excused hearing continued presence conclusion hearing petitioner attorney objected texas judgment void face state law sustained objection record texas conviction stricken evidence time sustained petitioner objection first version tennessee conviction overruled objection second version conviction jury recalled testimony heard substantive offense charged next reference prior convictions instructed jury consider prior offenses purpose whatsoever arriving verdict petitioner motion new trial denied criminal appeals petitioner argued inter alia erred permitting counts two five indictment read jury beginning trial failing sustain petitioner objection admission evidence second version tennessee conviction criminal appeals held since petitioner suffered enhanced punishment provided recidivist statutes since instruction disregard prior offenses given error presented sit criminal appeals review state cases free provide procedures choose including rules evidence provided none infringes guarantee federal constitution recent cases starting gideon wainwright illustrative limitations constitution places state criminal procedures limitations sometimes touch rules evidence exclusion coerced confessions one example chambers florida exclusion evidence seized violation fourth fourteenth amendments another mapp ohio still another illustrated pointer texas case held transcript preliminary hearing excluded state criminal trial defendant lawyer hearing therefore opportunity principal witness since time left state exclusionary rule fashioned designed protect privilege confrontation guaranteed sixth amendment made applicable fourteenth result must follow gideon wainwright established rule right counsel guaranteed sixth amendment applicable virtue fourteenth making unconstitutional try person felony state unless lawyer validly waived one ruling limited prospective applications see doughty maxwell pickelsimer wainwright case certified records tennessee conviction face raise presumption petitioner denied right counsel tennessee proceeding therefore conviction void presuming waiver counsel silent record impermissible carnley cochran permit conviction obtained violation gideon wainwright used person either support guilt enhance punishment another offense see greer beto erode principle case worse yet since defect prior conviction denial right counsel accused effect suffers anew deprivation sixth amendment right admission prior criminal conviction constitutionally infirm standards gideon wainwright inherently prejudicial unable say instructions disregard made constitutional error harmless beyond reasonable doubt within meaning chapman california decision last term spencer texas relevant present problem spencer prior convictions presumptively void moreover contention guilt phase trial prejudiced introduction evidence prior crimes noted procedures us specific federal right dealing confessions involved reliance placed solely general fairness approach case however petitioner right counsel specific federal right denied anew permit result unless gideon wainwright suffer serious erosion reversed footnotes burgett state statutes involved articles tex pen code article provides shown trial felony less capital defendant convicted offense one nature punishment second subsequent conviction shall highest affixed commission offenses ordinary cases article provides whoever shall three times convicted felony less capital shall third conviction imprisoned life penitentiary tex pen code art petitioner amended motion new trial denied explained purpose pretrial motion defendant establish previous convictions alleged enhancement admissibility read record presence jury reading record presence jury prejudicial defendant herein apparently withdrew consideration prior convictions jury since record one prior tennessee conviction forgery accepted thus article applied petitioner since forgery considered offense nature assault intent murder article applicable see supra state apparently attempt introduce records two tennessee convictions forgery indictment showed convictions occurred date invoke provisions article succeeding conviction must subsequent time previous conviction respect commission offense conviction cowan state tex cr see boyd clarke cir cf waldron waldron throckmorton holt lawrence cir dedominicis cir justice jackson said krulewitch concurring opinion sensitive area conspiracy equally applicable sensitive area repetitive crimes naive assumption prejudicial effects overcome instructions jury practicing lawyers know unmitigated fiction chief justice warren concurring full agreement opinion reasons stated therein reversing conviction case however view terse dissent entered brother harlan feel constrained add observations dissent refers decision spencer texas entire thrust dissent reminiscent decision last term placed stamp approval texas recidivist procedures case evolves dissent reminds us sit errors appeals state cases disagree statement abstract proposition dealing abstracts case dealing real denial state criminal defendant rights guaranteed federal constitution also told dissent case shows prosecutorial bad faith intentional misconduct misses mark limited review constitutional errors state criminal proceedings errors flow prosecutorial bad faith intentional misconduct concern effect errors whether constitutionally protected right criminal defendant fair impartial trial case classic example rule eroding procedural rights criminal defendant trial life liberty assume avalanche proportions burying beneath integrity process spencer approved procedure whereby state sole purpose enhancing punishment includes indictment allegations prior crimes read jury enters evidence trial prior crimes matter unrelated might charge defendant tried rule adopted spencer went far allow state enter evidence prior crimes even though defendant might willing stipulate earlier convictions case harsh rule expanded degree close barbarism addition charging petitioner principal crime assault malice aforethought intent murder indictment alleged four prior convictions one texas three tennessee despite efforts petitioner attorney quash portions indictment referring prior crimes entire indictment read jury start petitioner trial prosecutor proceeded offer evidence prior convictions petitioner attorney objected evidence one tennessee conviction certified copy conviction showed petitioner represented counsel trial judge reserved ruling objection prosecution next offered second version tennessee conviction omitted reference absence counsel show waiver counsel petitioner attorney objected trial judge reserved ruling prosecutor offered evidence certified copy indictment prior texas case received without objection occurred presence jury however petitioner attorney objected evidence concerning judgment sentence prior texas case jury excused testimony taken presence jury close evidence jury returned trial judge ruled prior texas conviction void state law addition trial judge sustained objection first version tennessee conviction overruled objection second version conviction jury returned trial continued next jury hear prior convictions brief instruction trial judge advising jurors consider prior crimes purpose jury never told however two prior convictions charged void prosecution failed offer testimony validity prior crimes charged indictment thus jury went deliberations knowing petitioner convicted imprisoned four prior felonies although one proven trial expect jury wipe memory decide petitioner guilt basis evidence assault place much faith jury ability detach reality particularly true since trial judge gave jurors slightest clue matters consumed much time trial suddenly removed consideration suggest procedure accords man charged crime due process beyond belief reversed convictions cases based unfair influences juries must deemed minor compared pervasive prejudice case long ago ruled defendant denied due process bailiff remarked presence jurors oh wicked fellow guilty anything wrong verdict correct parker gladden also reversed murder conviction two prosecution witnesses deputy sheriffs assigned accompany jury sequestered turner louisiana transgressions offend constitutional standards fairness doubted petitioner trial stripped vestiges due process jurors told prior void convictions error explained case frightful progeny spencer decision unjustified deviation settled principles fairness today placed needed limitation spencer rule nothing except outright rejection truly serve cause justice prosecutorial bad faith course irrelevant element review state criminal convictions often make even intolerable errors demand correction see miller pate napue illinois mooney holohan dissent alone viewing case solely terms prosecutor good bad faith texas criminal appeals disposed petitioner objection use prior void convictions trial cryptic observation showing bad faith part state alleging attempting prove prior convictions boswell tells us johnson observed hell paved good intentions boswell life samuel johnson great books ed view case prevail surely petitioner road prison paved good intentions record silent concerning second third tennessee convictions alleged indictment prosecution apparently offer evidence convictions however jury made aware prior crimes indictment read start trial mean express disapproval decisions parker turner joined opinions doubt practices condemned cases odds settled principles due process law however follows fortiori decisions presented case violation due process justice harlan justice black justice white join dissenting record case shows prosecutorial bad faith intentional misconduct extent prosecutor contemplated use prior convictions recidivist trial right course established spencer texas decided last term fact prior convictions turned inadmissible reasons involves later corrected trial error admission evidence sit errors appeals state cases affirm judgment state