The opinion
WOODLEY, Presiding Judge
(concurring).
The státement of facts, in question and answer form, agreed by counsel to comprise a true and correct statement of facts and examined, approved and ordered filed as the statement of facts by the trial judge, reflects that after voir dire examination of the jury panel on March 20 (which ex- *258 animation is not set out) the jury was sworn and impaneled on March 21, 1964 and the court instructed counsel for the state to read the first count of the indictment. The indictment was read; the defendant .pleaded not guilty and the witnesses were placed under the rule.
The evidence introduced before the'jury is shown in said statement of facts. None of such evidence relates to the prior conviction alleged in the indictment for enhancement of punishment purposes. (It has been held that a prior conviction alleged for enhancement of punishment under Art. 62 or 63 P.C. is not an element of the primary offense.)
The court’s charge made no mention of and required no finding as to such prior conviction.-
This is explained and accounted for by the subsequently filed supplemental tram-' script and statement of facts showing that prior, to the voir dire examination of the jury panel the appellant was permitted to stipulate in open court, outside the presence of the jury, as to such prior conviction and showing that the trial court received the stipulation and .directed: “the last count of the indictment is no longer an issue of fact and will not be alluded to in any way by the state in the presence of the jury, unless, the defendant should happen to take the stand in his own behalf, in which event it would be available for impeachment purposes only. But other than that, it will not be read to the jury or mentioned in the presence of the jury.”
The trial judge should be commended for allowing the appellant to remove any possible prejudice by stipulations in advance of the trial which made it unneces- ■ sary that the jury which was to pass upon his guilt or innocence be informed that he was an ex-convict.
It is the view of the writer that the stipulation entered into before the court at the instance of counsel for appellant is properly before this court in the belatedly filed supplemental transcript and statement of facts approved by the trial judge.
I do not agree with appellant’s contention that under Art. 759a V.A.C.C.P., as amended, only the appellant could file such a statement of facts, nor do I agree that the time for the court’s approval of such a supplemental statement of facts ends with the submission of the appeal.
I concur in the overruling of the appellant’s motion for rehearing.