Padillo v. State

The sole basis for the reversal of this conviction is that the jury was permitted to and did fix a punishment not authorized by law for first offenders, such enhancement being by virtue of Art. 61 P.C. because of a previous conviction for a like offense alleged and proved.

The basis for the conclusion that the prior conviction was not available to the state under Art. 61 P.C. is stated to be that the prior conviction is void because of the failure of the defendant to appear in person and plead, as required by Art. 580 C.C.P.

Stewart v. State, 137 Tex. Cr. Rep. 39, 127 S.W. 2d 903, holds that…