OPINION
WOODLEY, Presiding Judge.
The offense is rape by force and threats; the punishment, eight years.
Appellant filed motion, at the time of entering his plea of not guilty, requesting that the jury assess the punishment in the event a verdict of guilty was returned. He also filed written motion for probation in which he swore that he had never been convicted of a felony in this state or any other state.
Appellant’s brief sets forth two grounds of error. Ground No. 1 is: “The Court erred in admitting into evidence State’s Exhibit No. 3, the same being a record of a conviction for theft in the State of Louisiana over appellant’s objection that he was without counsel at the time of such conviction.”
Appellant cites and relies upon Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, which bars the use of a prior conviction obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, to support guilt [68]*68or enhance punishment for another offense.
The Supreme Court has not passed upon whether the rule applies where the prior conviction is used to impeach the credibility of the defendant as a witness in his own behalf or to impeach his testimony.
We hold that under the facts of this case Burgett v. Texas, supra, does not apply.
After the state had rested its case in chief and before appellant took the stand in his own behalf, appellant, through his counsel, moved the court to instruct counsel for the state not to discuss or allude to an alleged conviction had in the State of Louisiana “during the year on or about— around the year 1957, for the reason that at such time the defendant was a minor, that the proceedings had against him as a minor in the nature of petition to declare him a juvenile delinquent, that he was declared a juvenile delinquent and committed to a state training school for an indefinite period, that he did serve approximately eight months in state training school in Monroe, Louisiana as a result thereof, the defendant says that such matters are not admissible for any purpose by reason it was a civil proceeding and he was denied his right to counsel at the time and he being an indigent did not waive his right to be represented by counsel.”
The court’s ruling was:
“Counsel this is a premature motion at this point. However, I instruct the State’s Counsel that they may use only the method of impeaching questions that display and are supported by good faith and the reason for asking such question.”
On cross-examination appellant was asked and answered without objection:
“Q. (By Mr. Hancock) Have you ever been convicted of a misdemeanor involving moral turpitude in this state or any other state in the past ten years? By moral turpitude I mean stealing or perhaps beating your wife?
“A. Yes, sir.
“Q. Which?
“A. I have been convicted of two misdemeanors.
“Q. In fact, you have been convicted of both of those, beating your wife and stealing, haven’t you?
“A. Misdemeanor theft. Yes, sir.
“Q. Wasn’t that stealing?
“A. Well, you know more about law than I do.
“Q. In fact, the misdemeanor theft conviction was what date, if you know?
“A. I don’t recall the exact date.
“Q. Could it have been March 3rd of 1965?
“A. Yes, sir, probably.
“Q. What was your punishment ?
“A. Six months.
“Q. In the jail?
“A. Yes, sir.
“Q. And what was the date of your conviction for beating your wife?
“A. I don’t recall.
“Q. Could that have been February 3rd, 1964?
“A. Probably.
“Q. What was your punishment for that ?
“A. $25 fine.
“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.
[69]*69“Q. Is it a fact that on the 17th day of December, 1957, you were convicted of the offense of felony theft in the State of Louisiana, Parish of St. Charles, and received ten years in the State Penitentiary at hard labor?
“A. No, sir, it’s not.
(STATE’S EXHIBIT NO. 3 MARKED FOR IDENTIFICATION PURPOSES.)
“Q. (By Mr. Hancock) I will hand you what’s been marked as State’s Exhibit No. 3. This is purported to be a certified, exemplified copy of a judgment of conviction and sentence for the offense that I mentioned a moment ago.
“A. Yes, sir.
“Q. There is also a photograph here.
Isn’t that your picture?
“A. Yes, sir, it looks like it.
“Q. What is the date there that this picture was taken?
“A. It says July 11, 1959.
******
“Q. This State’s Exhibit No. 3 also includes an indicment for that offense, a statement of the case. Now, let’s get to the instrument. Would you mind reading this?”
At this point appellant’s counsel objected, stating: “If he wants to offer it in evidence I think we should have an opportunity to look at it.”
Counsel for the state then tendered Exhibit No. 3 to defense counsel and offered it in evidence. In the jury’s absence appellant’s counsel offered the following objection, which the court overruled:
“Your Honor, the defendant objects to State’s Exhibit No. 3 for the reason it purports to be a judgment of conviction for an offense of theft, wherein it is alleged that the defendant received a sentence of ten years. It would show by its exhibit it was prosecuted upon information filed in the District Court of St. Charles Parish in Louisiana and not upon an indictment. I submit that under the law until proven otherwise is assumed to be the same as here in Texas and a person may not be prosecuted for a felony upon an information, for that reason we object to the commission of this in evidence.”
Appellant was then examined by his counsel in the jury’s absence and testified:
“Q. Mr. Simmons, are you the person named in these papers?
“A. No, sir.
“Q. Were you ever convicted of a felony in Louisiana?
“A. No, sir.
“Q. Did you ever do any sentence in the penitentiary in Louisiana?
“A. No, sir.
******
“Q. If you are the person named in these particular papers, were you represented by counsel at the time?
“A. No, sir.
“Q. You waived your right of representation by counsel?
“A. No, sir.”
and the final rulings and objections:
“THE COURT: There will be no more testimony at all — if the exhibit is received, it stands or falls as an impeachment to the witness and not for any facts alleged to be proved.
“MR. BLAINE: We object to the use of it for purpose of impeachment. The testimony before the Court now is that he was not furnished counsel. He didn’t waive it. For that reason we object. Whatever action was taken, was taken in [70]*70violation of his constitutional rights. We object to the use of it in any manner.
“THE COURT: Objection overruled.
“MR. BLAINE: Note my exception.
“THE COURT: Bring the jury in.”
Exhibit No. 3 having been received into evidence, the cross-examination of appellant before the jury proceeded as shown by the following:
“Q. I will ask you to examine State’s Exhibit No. 3, please. Would you examine that?
“After you have had the opportunity to examine No. 3, State’s Exhibit No. 3, is it still your position that the Robert Simmons mentioned in this judgment of conviction for felony theft is not you?
“A. Yes, sir.
“Q. Even though your picture is in these papers ?
“A. Well, I’m not certain that is my picture. I assume it is, but I know that’s not me.
“Q. Are you sure of that?
“A. Yes, sir.
“Q. Are you as sure that you are not the man mentioned in these papers as you are sure that that young girl consented to the act of intercourse with you?
“A. She consented. Yes, sir.
“Q. And you are also sure this is not you in these papers?
“A. Yes, sir, I am.
“Q. They fingerprinted you in the State of Louisiana Penitentiary, didn’t they?
“A. No, sir.
“Q. Were you fingerprinted in the State of Louisiana?
“A. No, sir.”
The state’s next witness was Rex Fullerton, in charge of identification and rec-cords division of the Harris County Sheriff’s Office for the last nine years of his twenty years service in the fingerprint identification field, who testified that he took appellant’s fingerprints during the noon hour. The fingerprint card was identified and introduced in evidence as State’s Exhibit No. 4, over objection of appellant’s counsel:
“ * * * the defendant would object to it, any comparison of State’s Exhibit No. 3 that was previously admitted, for the same reasons previously stated.”
Without further objection, the witness whose qualification as an expert was shown, testified that he had examined the fingerprints depicted in State’s Exhibit No. 3 with the fingerprints depicted in State’s Exhibit No. 4 and in his opinion they were the fingerprints of the same person.
The record reflects clearly that all of the evidence relating to a juvenile proceeding in the State of Louisiana was offered by the defense, not by the state; and that Exhibit No. 3 offered by the state in regard to a felony conviction in the State of Louisiana was offered after appellant had sworn in his application for probation that he had never been convicted of a felony in this state or any other state, and had testified that he had never been convicted in this state or any other state in the past ten years of a felony offense, and that it was not a fact that on the 17th day of December, 1957, he was convicted of the offense of felony theft in the State of Louisiana and had received ten years in the State Penitentiary at hard labor or that he was fingerprinted in the State of Louisiana.
A person who is a witness may be asked, for the purpose of impeachment, if he has not been convicted for a felony or an offense imputing moral turpitude. If he denies it, the state, by proper proof, [71]*71may show the truth of such statement so denied. Wright v. State, 103 Tex.Cr.R. 534, 281 S.W. 864.
When the time asked about is not too remote, the defendant or other witness may be asked on cross-examination if he had ever been confined in the penitentiary on a charge of crime. Lights v. State, 21 Tex.App. 308, 17 S.W. 428. (There was no objection that the prior felony conviction was too remote.)
The witness can be compelled to answer that he has been convicted for a crime imputing moral turpitude, if such is the fact, or the record of conviction can be introduced to attack his credibility. Lee v. State, 45 Tex.Cr.R. 51, 73 S.W. 407. See also Parker v. State, Tex.Cr.App., 384 S.W.2d 712, holding that where the defendant on his direct examination testified that he had never been convicted of a felony and on redirect testified fully regarding a prior conviction for burglary, question propounded on cross-examination as to whether he had been convicted for burglary and his negative answer did not warrant reversal, even though the prior conviction had been set aside and the case dismissed. See also other cases listed in 1 Branch’s Ann.P.C.2d 205, Sec. 189.
State’s Exhibit No. 3 included “exact copies of the document of commitment, photographs and fingerprints relative to one Robert G. Simmons, a former inmate of this institution, certified on October 11, 1968, by the Record Clerk of the Louisiana State Penitentiary.”
The front view “mugshot” or photograph of the Robert G. Simmons referred to in the commitment for theft to 10 years imprisonment in the State Penitentiary reflects:
“LA STATE PEN 49055 July 11, 1959”
The fingerprints in State’s Exhibit No. 3 were shown by expert testimony to be identical with the fingerprints of appellant made during the trial.
The ground of error is not predicated upon the conviction for theft being a felony or that the conviction was upon an information.1 Appellant at no time admitted having been convicted of a felony or that he was assessed a term of ten years in the Louisiana Penitentiary.
Ground of error No. 2 is: “The Court erred in refusing appellant’s requested charge to the jury at the conclusion of the evidence upon the issue of punishment.”
At the hearing before the jury on the issue of punishment it was stipulated “between appellant and his counsel and counsel for the State” that appellant (1) was convicted of aggravated assault on Nov. 21, 1967 and fined $100; (2) was convicted of carrying a pistol on or about March 10, 1968; (3) was convicted of aggravated assault on February 3, 1964, and fined $100; (4) was convicted of misdemeanor theft on March 3, 1965.
Also the state “retendered into evidence all of the evidence that had already gone before this jury concerning other prior convictions of this defendant.”
Appellant’s counsel stated that he was not willing to stipulate the Louisiana conviction, and had some testimony on that.
The court then inquired of state’s counsel : “Are you offering that exhibit to this jury for consideration?
“MR. HANCOCK: Of course, State’s Exhibit No. 3 is already before the jury. We retender that.
“THE COURT: All right, it will be received as marked.
[72]*72“MR. HANCOCK: And that is the stipulation of the state.
“THE COURT: Is that your stipulation, counsel ?
“MR. BLAINE: Yes, Sir.”
All the foregoing being offered by the state without objection, at the hearing on punishment, appellant was called as a witness in his own behalf and testified regarding his Louisiana conviction for auto theft for which he was arrested in November, 1957, when he was 18 years old. He testified that it was his understanding that he was going to appear as a juvenile and plead guilty; that he had no money or property; did not have an attorney representing him; was not offered the services of an attorney and did not tell the court he did not want an attorney.
He further testified that he served no time at the Louisiana State Penitentiary at Angolo, Louisiana, but was confined in the Louisiana Correctional Institution at DeQuincy for a little over a year and was released.
Following the cross-examination of appellant in regard to the Louisiana conviction, the state offered in evidence appellant’s motion for probation in which he swore that he had never been convicted of a felony, appellant’s counsel stating that he had no objection.
The charge requested and refused found in the record on appeal sought to have the jury instructed:
“You have heard testimony concerning a conviction for the offense of theft in Louisiana in 1957. If you believe from the evidence that at the time of such conviction the defendant was indigent and unable to employ counsel and that he was not furnished counsel nor waived his constitutional rights to counsel, then you will not consider such conviction for any purpose.”
The requested charge made no distinction between whether the conviction for theft was the juvenile proceeding shown by evidence elicited from appellant by his counsel, or the felony conviction which appellant denied.
The requested charge refused by the court is not shown to have been presented prior to the reading of the charge at the punishment hearing. Whitaker v. State, Tex.Cr.App., 421 S.W.2d 905; see cases under Note 47, Article 36.15 Vernon’s Ann.C.C.P.
Even so, the refusal of such requested charge under the evidence is not reversible error.
There is no doubt that appellant’s counsel acted upon erroneous information in referring to a juvenile proceeding. The testimony of appellant leaves no doubt as to the source of such erroneous information.
We note in this connection that upon appellant’s testimony the court submitted the motion for probation and counsel for appellant urged in argument that the jury find that appellant had never before been convicted of a felony in this or any other state, and recommend that he be granted probation.2
Assuming that the rule in Burgett, supra, is extended to impeachment and that under such rule a defendant or any other witness who testifies and swears that he has never been convicted of a felony cannot be impeached by introduction of evidence such as the commitment, photographs and fingerprints showing his testimony is false when [73]*73he testifies that if he was convicted of a felony and sentenced to a term of ten years in the Louisiana Penitentiary, he was indigent and without counsel, the error in the admission in evidence of State’s Exhibit No. 3, though tainted, is harmless error. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, in which Mr. Justice Douglas, speaking for the majority, stated:
“Our decision is based on the evidence in this record. The case against Harrington was not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton3 can constitute harmless error, we must leave this state conviction undisturbed.”
This court has cited and relied upon Harrington v. California and in cases such as this should welcome the seeming relaxation of the rule in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, as a step in the right direction.
The prosecutrix, a 17 year old employee of a leading Houston law firm, shared a two room apartment with her life long friend Gale_In the afternoon of April 3, Gale, having lost her job, moved out. Prosecutrix, who had no automobile, had arranged to move the next day.
The prosecutrix had been recently released from the hospital and was taking tranquilizers prescribed by her doctor.
The following statement of facts is quoted from appellant’s brief: “The complaining witness, 17 years of age at the time of the offense, had casually known the Appellant for approximately three and one-half months, having met him at Bodittle’s Night Club. On the night of the alleged rape she was asleep upon the floor of her apartment when she was awakened by a loud banging upon the door, opened it slightly and saw the Appellant standing there. He pushed the door open, pushing her against the wall and entered, closing the door behind him. She asked him what he was doing there and he inquired of the whereabouts of her roommate, Gale. She told him that Gale was spending the night elsewhere. At this time someone knocked upon the door, the Appellant went to the door, opened it and the complaining witness saw a girl’s hand into which the Appellant dropped some keys and again shut the door. Prior to the knock upon the door she told the Appellant to get out, that she didn’t want him there, but he stated he was going to spend the night with her and she replied, ‘No, you’re not’. She asked him who the girl was to whom he had given the keys and he first stated, ‘None of your business’, but subsequently told her it was Marsha, a girl that the complaining witness knew. The Appellant sat down and she told him to get up and leave, she felt real bad, having been dead asleep, but he made it clear he wasn’t leaving. She told him, ‘You either leave or there’s going to be a fight’. She was dressed in a bra, pants, panty hose and robe. She sat down on the floor and asked him why Marsha had come to the door and he said he had given her her car keys so she could leave. The complaining witness then lay down on the floor and went to sleep. The next thing she knew the Appellant was sitting beside her on the floor with his hand on her robe, pulling it. He tore her robe and she started screaming, ‘Get out of here’. He shoved her over on her back and put one hand on her throat and four fingers in her mouth to keep her from screaming. She did not bite him because he was choking her and she was scared also. He had his knees in her stomach and she was shoved up under the couch and coffee table when he said he didn’t want to hurt her and she told him to leave her alone and get out of there. He told her to go - the bedroom and she said ‘No’, but he shoved her into the bedroom and told her to take her clothes off and she again said ‘No’, and he then tore the robe off, hit [74]*74her and shoved her down on the bed and took the rest of her clothes off. He kept slapping her because she was crying. He had a sheet across her, holding her down. She didn’t kick him because he was on top of her. She didn’t strike him because she was scared. He slapped her across her breasts and stated that gave women breast cancer. This scared her because her mother had died with breast cancer. He would apologize to her immediately after slapping her and said that if she didn’t cooperate he would kill her and she believed him. He had intercourse with her. He would get up, walk off and come back, get up and walk off and come back again. She told him she was expecting her sister, so he got up and placed some furniture in front of the door and she then had no way of escape from the apartment. The most co-operation she gave him was not killing him. At about five o’clock a. m. the Appellant left, after she promised to go out with him that night. She straightened up the apartment, got dressed, picked up a butcher knife and went to a service station about one and one-half blocks away, called the police and said that she wanted to report an aggravated assault. She was ashamed to tell them she had been raped. She was later taken to the hospital and examined by a doctor who noticed that she has a small bruise below the left eye, a superficial scratch on the left ■ side of the neck, a bruise above the left knee and a superficial scratch above the right ankle and no other evidence of trauma. There was no evidence of any injury or damage to the vagina.
“The Appellant testified that upon seeing the complainant in such scanty attire, he became aroused, that he did undoubtedly tear her robe when he tried to roll her over, that she resisted at first but finally agreed to have intercourse with him but objected to moving into the bedroom upon the bed; that he never struck the complaining witness but may have scratched her when he awakened her and rolled her over. She removed all of her underwear after he had torn the bottons off the robe and she offered no resistance after his initial advances and co-operated with him. He made no threats.”
Other testimony of the prosecutrix includes the following:
“Q. By his force and by the threats that he would kill you, were you in fear of your life?
“A. I was scared to death.
“Q. Did you think that if you did not consent that he would kill you?
“A. Yes, I did.
“Q. Or harm you?
“A. Yes, I did.
“Q. If it had not been for the fact that he had this sheet across your throat, the fact that he had hit you repeatedly several times, had slapped you, had threatened to kill you, would you have engaged in this sexual act with him?
“A. I would not have. He wouldn’t have gotten through the door if he hadn’t shoved his way in.
******
“Q. And then the actual intercourse and acts took approximately one hour, is that your testimony?
“A. Yes, It was 5:00 o’clock before he left, before I could get him to leave.
“Q. Now, what finally made him leave?
“A. Because I told him that I would go out with him that night if he would just promise me to leave.
“Q. Did you have any intention of going out with him?
“A. No. I knew I didn’t have to be there. He said if I wasn’t there when he came back that night, that I would be sorry.”
Called in rebuttal, Gale - described the appearance of the prosecutrix [75]*75when she saw her at her sister’s house on April 5: “She had bruises on both of her eyes and she had a patch on her neck and she had some bruises on her leg and she was just generally sick.”
If the evidence which the state introduced at the guilt stage was harmless, it could hardly be seriously contended that its introduction at the punishment hearing would constitute reversible error, such evidence as to prior convictions having been re-offered and admitted along with evidence and stipulations as to other misdemeanor offenses, without objection.
The judgment is affirmed.