dissenting.
I respectfully dissent, because I conclude that reversible error occurred when the trial court admitted evidence of a prior DWI charge over Holland’s objections.
Over three years prior to his arrest in the instant DWI case, Holland was arrested on another DWI charge. The prior case was dismissed upon his plea of guilty to the Class C misdemeanor of reckless driving. Assuming arguendo that the reckless driving complaint, information, and judgment of conviction were admissible to show a “final conviction material to the offense charged” under TEX.CODE CRIM.PROC. ANN. art. 37.07 § 3(a) (Vernon Supp.1991), I conclude that admission of the evidence relating to the prior DWI charge was in contravention of TEX.R.CRIM.EVID. 403. The probative value of this evidence was substantially outweighed by its danger of unfair prejudice.
The documents admitted relating to the earlier DWI charges included a jail record with a cryptic note saying “DWI (0.12%).” This note apparently indicated that Holland had a breath alcohol concentration over the legal limit of .10, as the DWI complaint and information in the prior case, charged Holland with having a breath alcohol concentration of at least .10. When the DWI complaint, information, and jail documents were tendered as evidence, Holland objected on the basis that the prejudicial value would outweigh the probative value and inflame and prejudice the jury against him. The objection was overruled and the exhibits were admitted.
Included among these several exhibits was the State’s motion to dismiss the prior DWI charge, which read, in pertinent part:
The defendant in this case did not appear or act intoxicated on the video. The breath score which was relatively low is not conclusive. The fact that the test was run twice and this office did not receive both test analysis forms.[sic] This office considers a failure to submit all test results to this office for our consideration a must. However, this defendant did enter a plea to the lesser charge of Reckless Driving.
It was generally impermissible to reveal the circumstances of any final prior conviction prior to the 1989 revision of article 37.07 § 3(a), because only final convictions were admissible to show the prior criminal record, and offenses not resulting in conviction were usually inadmissible at the punishment stage. Murphy v. State, 777 S.W.2d 44 (Tex.Crim.App.1988), Walker v. State, 610 S.W.2d 481, 483 (Tex.Crim.App. [Panel Op.] 1980). The majority opinion in the case at bar concludes that Murphy was overruled when the legislature added the phrase “any matter the court deems relevant to sentencing” to article 37.07 § 3(a). I find it unnecessary to decide whether Murphy is the controlling law, because article 37.07 only allows admission of evidence which is permitted under the Rules of Evidence.
Evidence that the defendant committed an extraneous offense is not admissible unless the commission of the extraneous offense is “clearly proved” and the accused is shown to be the perpetrator. Castillo v. State, 739 S.W.2d 280, 289 (Tex.Crim.App.1987); McCann v. State, 606 S.W.2d 897, 900-01 (Tex.Crim.App. [Panel Op.] 1980); Govan v. State, 671 S.W.2d 660, 663 (Tex.App.—Houston [1st Dist.] 1984, pet. ref’d). I conclude that the combination of the prior DWI complaint, information, and note on the jail book-in card showing “DWI (0.12%)” from some unidentified source are insufficient to “clearly prove” that Holland previously drove while intoxicated or even that the prior conviction for reckless driving was alcohol related, as urged by the State on appeal. This is particularly true in this case, since the State’s motion to dismiss the prior DWI showed that it (previously) did not believe it had reliable proof that Holland was driving while intoxicated. The proof that Holland had previously driven while intoxicated or that he was under *227the influence of alcohol when he drove recklessly was weak, and substantially outweighed by the prejudice to Holland; therefore, I conclude that the trial court erred in admitting evidence of the previous DWI charge. See TEX.R.CRIM.EVID. 403.
Furthermore, I am unable to conclude that Holland was not harmed by admission of the prior DWI evidence. See TEX. R.APP.P. 81(b)(2). Additional matters were presented to the jury that would not have come in had the DWI charges not been admitted. First, the State was allowed to question Holland about the prior DWI case, thereby obtaining his admission that he had consumed three beers on the day of that arrest.1 Second, admission of the extraneous DWI evidence apparently gave the State the notion that it had a steady green light to discuss the dismissed DWI in its jury argument, and it was not even deterred by the trial court’s sustaining defense objections to the argument. The State argued as follows:
Probation is for somebody who doesn’t have a prior offense also. Now, based on the eligible [sic] for probation as you heard and as is in the Charge that will be given to you, all they have to say is they’ve never been convicted of a felony offense. And then you’re eligible for probation. However, my feeling is with a DWI if he’s had priors I don’t think he should be eligible.
[DEFENSE COUNSEL]: Objection. ...
THE COURT: Sustained.
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[PROSECUTOR]: He was not convicted of DWI. I’m sorry. I don’t mean to mislead you. Those documents are in evidence also. He was arrested for DWI, took a breath test. You can see that he blew a .12 on the breath test and then got it plea bargained down to reckless driving. All of that reflects—
[DEFENSE COUNSEL]: Object ... we’d urge for a mistrial.
THE COURT: That motion’s denied.
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[PROSECUTOR]: And then we have the DWI arrest.
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He has a history of alcohol related involvement with his vehicle, vehicle being a deadly weapon basically.
[DEFENSE COUNSEL]: Objection. ...
THE COURT: Sustained.
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[PROSECUTOR]: Reckless driving, that’s in his vehicle. Arrest for DWI, that’s in his vehicle. This DWI which he was just found guilty of, that’s also in his vehicle. All alcohol related.
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[PROSECUTOR]: What would make you think that he’s going to rehabilitate himself when he doesn’t think he did anything wrong in any of these cases, as he told you. Probation shouldn’t even be the issue or question in this case.
You look at this punishment range and you can see that the average, or roughly the average under the first offense DWI is a $1000 fine and a year in jail. That would be average for a first offense DWI on this scale right here. A $1,000 fine and a year in jail.
We know we don’t have the average first offender, do we? We have a man that’s 49 years old. He has a prior public intoxication case involved with his vehicle, getting to his vehicle. He has a DWI and you can read it, arrest, stop, blew a .12 on the case and you can read what the prosecutor said in that case. They’re in these documents, and a reckless driving charge, conviction.
He had beer cans in his car and that adds insult to injury, somebody driving in their vehicle and drinking at the same time, insult to injury. And that’s even after these prior chances. That’s after he was given a warning, stop it. He was given a second chance with that DWI arrest that ended up being dismissed.
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*228[PROSECUTOR]: The State feels that the proper punishment in this case, given that $1,000 and one year would be the average for a first offense DWI—
[DEFENSE COUNSEL]: Objection. ...
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THE COURT: Sustained.
The jury sentenced Holland to thirty days confinement and a $2,000.00 fine. The evidence at trial showed that, at 3:50 a.m., an officer noticed Holland’s automobile because its high beam headlights were on as it approached the officer coming from the opposite direction. The beams were not dimmed after the officer put on his high beams. The officer made a U-turn to follow Holland’s car, and observed that the car made a sweeping motion from an inside lane to an outside lane, then a right turn. Then, the car weaved in between the driving lane indicator and the curb, making sharp movements to avoid the curb. At that point, the officer stopped Holland and, ultimately, concluded that he was intoxicated. The officer found ten more or less empty beer cans in Holland’s vehicle.2 Holland refused the breath test.
The only evidence introduced by the State at punishment was the reckless driving/DWI evidence discussed above, and evidence that Holland had been convicted of public intoxication in a parking lot about three years prior to the instant offense. Holland testified that he had worked at General Motors for twenty-seven years, was a divorced father, his two children lived with him, both had been valedictorians in high school and were attending college with his support. He further testified that he had never been convicted of a felony and would abide by terms of probation. Despite Holland’s eligibility for probation, the jury assessed his punishment at thirty days confinement and a $2,000.00 fine. The punishment range in this case is confinement for seventy-two hours to two years with a fine of from $100.00 to $2,000.00.
Considering the record in this case, I cannot conclude that the error in admission of the DWI charges did not harm Holland. I would sustain the first point of error, reverse the judgment of the trial court, and remand for a new trial on punishment.
. It is clear that any objection to such questioning would have been fruitless, and that Holland’s testimony amounted to a denial that he was intoxicated on that prior occasion. Under such circumstances, he did not waive his prior objections to the extraneous DWI evidence.
. The information did not charge Holland with having an open container of alcohol for enhancement of punishment.