concurring and dissenting.
Although I agree with the majority opinion that “the court of appeals was correct in its conclusion that the allegation of serious bodily injury is an enhancement [of punishment] provision and proof of it is to be reserved for the punishment phase of a DWI trial in the event of conviction,” (Pages 120-121 of majority opinion, footnote 3 deleted), and thus is neither a distinct and separate offense nor a lesser included offense, I do so for different reasons. For reasons that I will give, and in the interest of judicial economy, I vote to remand this cause to the trial court for a new punishment hearing. To the majority’s failure to do so, I respectfully dissent.
I believe that to better appreciate what is before us we should recognize what Hon. Richard Alley, the attorney who represents Douglas Scott Wilson, henceforth appellant, in this cause, has presented in the following causes. Alley also represented the defendants on direct appeal in the following causes, all of which cases I find are related to this cause.
On June 29, 1988, this Court refused the petition for discretionary review that was filed by Alley on behalf of Joseph Scharb-*126rough in this Court’s cause number 0894-87. Also see Scharbrough v. State, 732 S.W.2d 445 (Tex.App.-2nd 1987). In that cause, the defendant was charged with driving while intoxicated. The State alleged, in an “enhancement of punishment” paragraph of the information, that at the time appellant committed the driving while intoxicated offense he “knowingly had an open container of an alcoholic beverage, to-wit: one can of beer in his immediate possession.” These allegations comport with the provisions of Art. 6701/-1, V.A. C.S. The defendant claimed in the trial court and on appeal that this alleged two separate and distinct offenses, driving while intoxicated and driving while intoxicated with an open container, or that driving while intoxicated was a lesser included offense of driving while intoxicated while in possession of an open container of an alcoholic beverage, and as such the information was subject to his motion to quash. The court of appeals rejected the defendant’s contention. This Court refused the defendant’s petition for discretionary review without comment or written opinion.
Under Art. 6701/-1, a person convicted of driving while intoxicated, and it is also alleged and proved that he then knowingly had an open container of an alcoholic beverage in his immediate possession when he committed the offense, in addition to whatever punishment he might be assessed for the driving while intoxicated offense, if he is placed on probation, a mandatory condition of probation is that he will spend 30 days in the county jail. In Scharbrough, the defendant was found guilty of driving while intoxicated and assessed 90’ days confinement in the Tarrant County Jail, probated for 24 months, and a $400 fine. Because the trial judge also found the “container” or “enhancement of punishment” allegation was “true”, a condition of probation was added that required the defendant to serve 30 days’ confinement in the Tarrant County Jail. Alley correctly pointed out in his petition for discretionary review that a defendant would probably be better off working out a “deal” for the minimum punishment, or as close to the minimum of 6 days as possible, thereby avoiding the stringent conditions of probation and a 30 day jail sentence. Alley also correctly pointed out that “a literal reading [of the statute] makes a first offender with a half-can of beer in his possession do three times the jail time compared to a person who has been convicted three times [of driving while intoxicated].” Perhaps when it dawns on our Legislature, and special interest groups, as it did on Alley, that the offense of driving while intoxicated is at the present time a civil offense that carries criminal penalties, and should be placed in the Penal Code and not in the civil statutes, a penal statute that will comport with due process and due course of law will be drafted by our Legislature.
The court of appeals first correctly pointed out in its opinion of Scharbrough that the enhancement of punishment provisions found in the Penal Code are inapplicable to the offense of driving while intoxicated because driving while intoxicated is actually a civil offense that carries criminal penalties, with its own built-in enhancement provisions, which is found in the civil statutes and not the penal statutes of this State. For reasons it gave, the court of appeals rejected the defendant’s contentions that the information was subject to his motion to quash.
In another opinion handed down on the same day that Scharbrough was handed down, the Second Court of Appeals, in its unpublished opinion of Thomas v. State, No. 2-86-245-CR, July 1, 1987, rejected similar contentions presented by Alley. The petition for discretionary review that Alley filed was refused by this Court on July 13, 1988, without comment or written opinion. See Thomas v. State, Texas Court of Criminal Appeals No. 0913-87.
Before the Second Court of Appeals decided the above cases, it had already decided the case at Bar on June 11, 1987, in an unpublished opinion. See Wilson v. State, Tex.App.-2nd No. 2-86-227-CR. The main difference between the allegations in the above cases and the allegations in this cause is that here the State alleged in the information that the defendant drove an automobile while intoxicated and, to en*127hance punishment, alleged that the offense resulted in serious bodily injury.
A motion to quash the information was also filed in this cause, which motion was denied by the trial judge. Counsel, his client, and the prosecutor entered into a plea bargain agreement that the trial judge approved, apparently with the understanding that appellant could appeal the trial judge’s ruling on the motion to quash. On direct appeal, Alley added a new contention, “that the trial court erred in finding him guilty of the offense of driving while intoxicated with serious bodily injury and punishing him therefor, when the court only arraigned him and accepted his plea to the ‘lesser included’ offense of driving while intoxicated, without allegation of serious bodily injury, all in violation of the prohibition against double jeopardy contained in U.S. CONST, amends. IV and V, TEX. CONST, art. I, secs. 3, 10, 13, 14 and 19, and TEX.CODE CRIM.PROC.ANN. arts. 37.08, 37.14 (Vernon 1981).” (Pages 1-2, opinion of the court of appeals.) In addressing appellant’s second contention, the court of appeals did not consider the provisions of Art. 44.02, V.A.C.C.P. Also see Rule 40(b)(1), Rules of Appellate Procedure.
Relying upon its decision of Bucek v. State, 724 S.W.2d 129 (Tex.App.-2nd 1987), no p.d.r., the Port Worth Court of Appeals rejected appellant’s first contention. Bu-cek was also represented by Alley, but he did not file a petition for discretionary review in that cause. The defendant Bucek was found guilty by a jury of driving while intoxicated. After hearing evidence, the trial judge assessed the defendant Bucek’s punishment at a $600 fine and “confinement for 30 days and 70 days confinement probated for two years.” (129).
The defendant Bucek made the same argument that appellant makes in this cause, that because the trial judge only “arraigned” him for driving while intoxicated, and not for driving while intoxicated that resulted in serious bodily injury, and because the jury only found him guilty of driving while intoxicated, he could only be punished for driving while intoxicated and not for driving while intoxicated that resulted in serious bodily injury. The court of appeals rejected this contention, although it is not clear from its opinion on just what legal basis it did so. It apparently held that the allegation that concerned “serious bodily injury” was not an element of the offense but was an enhancement of punishment allegation, and, as the trial judge was called upon to assess punishment, it was within his perogative to enhance the punishment.
The Port Worth Court of Appeals in Bu-cek, although acknowledging that its holding was in conflict with what the Dallas Court of Appeals had held in Rivera v. State, 716 S.W.2d 68 (Tex.App.-5th 1986), State’s p.d.r. refused February 10, 1988, motion for rehearing denied May 11, 1988, for reasons stated, it declined to follow what the Dallas Court of Appeals stated and held in Rivera.
In Rivera, without the presence of counsel for the State, the defendant entered a plea of guilty to the trial judge, but only to the allegation that he drove a motor vehicle while intoxicated. He did not plead, and was not asked to plead to the other allegation by the trial judge, that the accident he was involved in had resulted in serious bodily injury. The trial judge found him guilty “of the lesser included offense of driving while intoxicated” and assessed punishment at 30 days’ confinement in the Dallas County Jail, probated for 24 months, and a $300 fine. Thereafter, the trial judge suspected that he had been misled by the defendant, as to whether serious bodily injury had occurred. The trial judge then made an independent investigation and learned that the complainant in that cause had actually sustained serious bodily injury. Pursuant to a conference with the trial judge, without the defendant apparently being present, counsel for the defendant filed a motion for new trial, which was joined by the prosecutor, at the trial judge’s invitation. The defendant again pled guilty and was found guilty of driving while intoxicated and causing serious bodily injury. On direct appeal, the Dallas Court of Appeals set aside the second judgment of conviction and punishment on the *128ground that the double jeopardy clauses prohibited the second trial, and further found that the trial judge had expressly acquitted the defendant of the more serious offense of driving while intoxicated that resulted in serious bodily injury, and had only found him guilty of driving while intoxicated. The judgment of the first trial was ordered reinstated.
In its petition for discretionary review in Rivera, the State did not challenge the trial court’s finding at the first trial that the defendant was guilty of what it found was a lesser included offense, driving while intoxicated, nor did it at that time rely upon the Port Worth Court of Appeals’ decision of Bucek. However, by the time it filed its motion for rehearing, the attorney representing the State had found the Fort Worth Court of Appeals’ opinion of Bucek, and urged this Court to invoke and apply Bucek to that cause. This Court, however, not only refused the State’s petition for discretionary review, it also denied the State’s Motion for Rehearing, both done without written comment or opinion.
It thus appears to me that if driving while intoxicated is a lesser included offense of driving while intoxicated resulting in serious bodily injury, under Rivera appellant wins. If it is not, under Bucek the State wins.
The majority opinion of this Court holds that it is not, and also holds that it is merely an issue that should be resolved at the punishment stage of the trial. I agree with those holdings. The majority opinion relies primarily on Bucek.
The main flaw that I find with the majority opinion and Bucek is that both overlook the provisions of Art. 36.01(a)(1), V.A.C. C.P., or they attempt to equate the pleading of causing serious bodily injury in a driving while intoxicated case to pleading a prior misdemeanor conviction for enhancement of punishment purposes pursuant to the provisions of V.T.C.A., Penal Code § 12.43(a), without taking into consideration the provisions of Art. 36.01(a)(1) or Art. 37.07, V.A.C.C.P., the pertinent case law on the point, or the fact that we are not dealing with enhancement of punishment under the Penal Code, but are dealing with enhancement of punishment pursuant to a civil statute.
I will assume for purposes of argument that the information in this cause is substantially the same as the one that is set out in Bucek, 724 S.W.2d at 130.
A careful reading of the provisions of Art. 6701/-1 makes it clear to me that there is but one offense and that is the offense of driving while intoxicated. See subsection (b). The allegations of the information in this cause make it clear to me that that is the offense the State charged appellant with committing. The statute also provides for enhancement of punishment where the defendant has been convicted of at least two prior driving while intoxicated offenses. Punishment may also be enhanced, if it is alleged and proved that another person suffered serious bodily injury as a direct result of the driving while intoxicated offense or that at the time the defendant committed the offense of driving while intoxicated he knowingly had an open container of an alcoholic beverage in his immediate possession. It also appears that punishment can be further enhanced under the statute if both serious bodily injury and knowingly possessing an open container are pled and proved.
Thus, I agree with the majority opinion, and must disagree with Alley’s contention, that because appellant was “arraigned” only on the primary offense the trial judge was not authorized to find him guilty of driving while intoxicated and to enhance his punishment for driving while intoxicated that resulted in serious bodily injury.
V.T.C.A., Penal Code § 1.03(b), provides: “The provisions of Titles 1, 2, and 3 of this Code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.” Art. 6701/-1 does not classify the offenses defined therein in the terms employed in V.T.C.A., Penal Code §§ 12.03 and 12.04, but instead employs a *129punishment scheme based on the defendant’s previous driving while intoxicated convictions and other circumstances surrounding the offense. Thus, subchapters B and C of Title 3 of the Penal Code (§§ 12.21-12.34), specifying ordinary misdemeanor and felony punishments, are not applicable in prosecutions for driving while intoxicated. Furthermore, Art. 6701Z-1 is a special statute and contains its own enhancement of punishment provisions. The enhancement allegation “serious bodily injury” is not an element of the primary offense. See and compare Bell v. State, 504 S.W.2d 498 (Tex.Cr.App.1974).
This is not to say that this Court’s decisions, that are in the ballpark on the issue, are helpful in resolving the issue, because they aren’t. At this time, a major conflict appears to exist between this Court’s decisions of Guiterrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1980), and Platter v. State, 600 S.W.2d 803 (Tex.Cr.App.1980). The issue whether to resolve that conflict is presently before this Court in Jones v. State, Tex.Cr.App. No. 0038-89, see appellant’s petition for discretionary review, granted this date. Also see Jones v. State, 762 S.W.2d 330 (Tex.App.-3rd, 1988).
I have assumed for argument purposes that the information here is substantially the same as the one set out in Bucek, supra. In this instance, the provisions of Art. 36.01(a)(1) were not complied with, and because it was an “enhancement” allegation, Art. 36.01(a) should have been invoked. See Bell v. State, supra.
Appellant was never arraigned by the trial judge on the “enhancement” allegation. This occurred without objection from appellant. The trial judge simply considered both guilt and punishment during one proceeding, pursuant to appellant’s plea of nolo contendere to the primary charge of driving while intoxicated.
Therefore, what is the effect of the failure of the defendant to plead to the “enhancement” paragraph in this cause? It is now axiomatic that in order to enhance punishment, pursuant to enhancement allegations, it is mandatory for the defendant to plead thereto and the evidence must establish the allegation. See Ex parte Sewell, 742 S.W.2d 393, 395 (Tex.Cr.App.1987), and Warren v. State, 693 S.W.2d 414, 415 (Tex.Cr.App.1985). Also see Peoples v. State, 459 S.W.2d 868 (Tex.Cr.App.1970), and Trammell v. State, 445 S.W.2d 190 (Tex.Cr.App.1969). Failure to comply with the provisions of Art. 36.01 constitutes reversible error. Peltier v. State, 626 S.W.2d 30, 31 (Tex.Cr.App.1981). In this instance, the record is clear that appellant never pled to the “enhancement” allegation, nor was he called upon to plead to the “enhancement” allegation. Thus, the issue regarding enhancing appellant’s punishment in this cause was never joined.
Therefore, because the trial judge assessed punishment, because appellant never entered a plea to the “enhancement” allegation, and because the trial judge never made a finding on the “enhancement” allegation, I do not vote to affirm the judgment of the court of appeals, but instead vote to remand this cause to the trial court for a new punishment hearing.