dissenting.
I respectfully dissent from the majority’s unprecedented conclusion that the failure to include a definition of “reasonable doubt” in a punishment charge containing enhancement allegations is fundamental error. The majority’s holding erroneously elevates the trial of a punishment enhancement paragraph to the same constitutional level as a trial on guilt-innocence, and conflicts with the rationale and holding of the court of criminal appeals in a similar case.
The majority relies on the erroneous premise that proving the allegations of an enhancement paragraph beyond a reasonable doubt is comparable to proving guilt beyond a reasonable doubt. It plainly is not. While the burden of proof for both allegations is the same — reasonable doubt — all similarities end there. The sole function of an enhancement paragraph is to increase the range of punishment for repeat offenders by elevating the degree of the offense. See Tex. Penal Code Ann. § 12.42 (Vernon 1994 & Supp.1998); Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App.1984). To prove an enhancement allegation, the State must only prove beyond a reasonable doubt that it is “true” that the defendant has been convicted of the prior offense. See Ex parte Augusta, 639 S.W.2d 481, 484 (Tex.Crim.App.1982). It does not, as the majority seems to imply, require the jury to find that a defendant is “guilty” beyond a reasonable doubt of the prior offense supporting the conviction. This is a fundamental distinction that the majority apparently fails to recognize when it relies on cases that apply exclusively to the jury’s determination of guilt. See Martinez v. State, 969 S.W.2d 139, 140 (Tex.App.—Fort Worth 1998, no pet.).
I believe enhancement instructions should be treated in the same manner that the court *142of criminal appeals has mandated that we treat extraneous offense instructions.1 In Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App.1996), the court addressed extraneous offenses which, like enhancement paragraphs, may enhance punishment if proven beyond a reasonable doubt. The court held that a defendant is entitled to a definition of reasonable doubt in an extraneous offense instruction, if the defendant requests the instruction See id. at 954; see also Posey v. State, 966 S.W.2d 57, 60-61 (Tex.Crim.App.1998) (“[A] defendant must object to the charge before he may be heard to complain on appeal about ‘errors claimed to have been committed in the charge’_”). Importantly, however, the court did not hold, as it has in cases involving guilt innocence charges, that the definition was an absolute systemic requirement. Compare Mitchell, 931 S.W.2d at 954 with Reyes v. State, 938 S.W.2d 718 (Tex.Crim.App.1996), and Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). Instead, the court reasoned that, even if the definition is requested in the punishment phase in connection with an extraneous offense allegation and is improperly refused by the trial court, the refusal to submit the definition is subject to a harm analysis. See Mitchell, 931 S.W.2d at 954. Therefore, Mitchell stands for the proposition that it is not fundamental error to exclude a definition of reasonable doubt in a punishment phase charge that instructs the jury to find the existence of prior (or extraneous) offenses (or convictions) beyond a reasonable doubt.2 The majority offers no compelling reason for adopting a contrary rule to govern the exclusion of a reasonable doubt definition in an enhancement instruction.
In sum, a punishment phase charge containing extraneous offense allegations is analogous to a charge containing an enhancement allegation: they both require the jury to find the existence of another offense or conviction beyond a reasonable doubt, and they both have the purpose of enhancing punishment. The court of criminal appeals has held that the submission of a reasonable doubt definition in an extraneous offense instruction must be given only if requested, and that the omission of the definition is subject to a harm analysis. See id. I would apply the same rule to the submission of a reasonable doubt definition in an enhancement instruction, and hold that the appellant in this case waived his right to complain of the omission of the definition by failing to request it. See Posey, 966 S.W.2d at 60-61.
. The majority contends that Mitchell is "entirely distinguishable” from the present case. I strongly disagree. In fact, Mitchell is closer to the present case than the Reyes decision on which the majority relies.
. Although the court decided Mitchell shortly before Reyes, Mitchell remains good law and continues to be applied by this and other appellate courts. See Tow v. State, 953 S.W.2d 546, 548 (Tex.App.—Fort Worth 1997, no pet.); Cormier v. State, 955 S.W.2d 161, 163 (Tex.App—Austin 1997, no pet.); Splawn v. State, 949 S.W.2d 867, 873 (Tex.App.—Dallas 1997, no pet.).