dissenting.
Once the jurisdiction of a trial court has properly been invoked to try the charged offense, the trial court is authorized to proceed to judgment on any lesser included offense determined from the offense charged and the facts of the case. See Cunningham v. State, 726 S.W.2d 151, 153 (Tex.Crim.App.1987). Therefore, in a bench trial, the trial court is authorized to find the defendant guilty of any lesser offense for which the State provides the required proof. See Shute v. State, 877 S.W.2d 314, 314 (Tex.Crim.App.1994). This is true even if consideration of the lesser included offense is not requested by either party. See Mello v. State, 806 S.W.2d 875, 877 (Tex.App.—Eastland 1991, writ refd). It also allows a district court to find a defendant guilty of only a misdemeanor, even though the district court’s jurisdiction is generally limited to felony offenses.1
Similarly, a court of appeals has authority to modify a trial court’s judgment and affirm it as modified. See Tex.R.App. P. 43.2(b). This includes reforming a trial court’s judgment to a conviction for a lesser included offense where the evidence is sufficient to prove only the lesser offense and not the greater charged offense. See Bigley v. State, 865 S.W.2d 26, 28 (Tex. Crim.App.1993).2 An offense is a lesser included offense if it is established by proof of the same or less than all of the facts required to establish the commission of the charged offense. See Tex.Code Ceim. ProC. Ann. art. 37.09(1) (Vernon 1981).
If it is shown on the trial of a misdemeanor DWI offense under section 49.04 of the Penal Code that the defendant has twice previously been convicted of operating a motor vehicle while intoxicated, the DWI offense is a third degree felony. See Tex. Pen.Code Ann. § 49.09 (Vernon Supp. 1999). If, under section 49.09, the two prior DWI convictions are elements of the felony DWI offense, as the majority opinion holds, then a misdemeanor DWI offense under section 49.04 is a lesser included offense of a section 49.09 felony DWI offense.
In this case, appellant’s indictment alleged first that he had operated a motor vehicle in a public place while intoxicated, 1.e., a section 49.04 offense, then alleged in separate paragraphs that he had two prior DWI convictions. Appellant does not challenge the sufficiency of the evidence to prove the underlying section 49.04 DWI offense. When the State failed to prove the two prior convictions during the guilt-innocence phase, even if the trial court was *27thereby not then authorized to convict appellant of the section 49.09 offense, it was authorized to convict him of the section 49.04 offense and should have done so. Therefore, even if the two prior convictions were elements of the section 49.09 DWI offense, as the majority holds, we should, at a minimum, reform the judgment to reflect a misdemeanor DWI conviction under section 49.04, affirm the judgment as to the adjudication of guilt as so modified, reverse the imposition of punishment, and remand the case for a new punishment determination.
But were the two prior DWI convictions elements of the section 49.09 offense, and were they required to be proved during the guilt-innocence phase of trial? Wherever the Penal Code identifies an offense and sets forth its elements, the provision is prefaced with the phrase, “A person commits an offense if ...,” whereas provisions setting forth mere punishment enhancements begin with the language, “If it be shown on the trial of_” See Wilson v. State, 772 S.W.2d 118, 121, 122 (Tex.Crim. App.1989). In this manner, the statutory scheme that is consistent throughout the Penal Code clearly delineates between conduct that is intended to be an offense and that which merely subjects one to enhanced punishment, the proof of which is reserved for the punishment phase of the criminal proceeding. See id. at 122-23.
Section 49.04(a) of the Penal Code provides, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” See Tex. Pen.Code Ann. § 49.04(a) (Vernon Supp. 1999) (emphasis added). By contrast, section 49.09(b) provides, “If it is shown on the trial of an offense under Section 4.9.04-, ... that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, ... the offense is a felony of the third degree.” See id. § 49.09(b) (emphasis added). Under the foregoing rationale of Wilson, section 49.09 does not define a distinct offense, as does section 49.04, but is only an enhancement provision for section 49.04.3 Because section 49.09 does not describe a distinct offense, the two prior convictions described in it can not be elements of an offense, i.e., such as would ordinarily need to be proved during the guilt-innocence phase of a trial.4
Even if they are not elements of an offense, must the two prior convictions referred to in section 49.09 nevertheless be proven during the guilt-innocence phase because they are “jurisdictional,” i.e., necessary to allege a felony that confers jurisdiction on the district court? Arguably, even though prior convictions are only jurisdictional enhancements and not jurisdictional elements, their jurisdictional nature still requires them to be proved during the guilt-innocence phase in order to authorize a trial court or jury to find a defendant guilty of a felony within the jurisdiction of the district court before moving to the issue of punishment. See, e.g., Pope v. State, 802 S.W.2d 418, 421 n. 2 (Tex.App.— *28Austin 1991, no writ).5
On the other hand, “felony” is defined in the Penal Code as an offense so designated by law or punishable by death or confinement in a penitentiary. See Tex. Pen.Code Ann. § 1.07(a)(23) (Vernon 1994). The punishment for a third degree felony is imprisonment in the institutional division of the Texas Department of Criminal Justice for two to ten years. See id. § 12.34. To the extent that an offense is a misdemeanor, such as that under section 49.04, but becomes (or is punishable as) a third degree felony through enhancements, such as under section 49.09, the offense arguably falls within the foregoing definition of a felony, and thus within the jurisdiction of a district court,6 even though its standing as a felony is not established during the guilt-innocence phase but only as a result of evidence admitted during the punishment phase. Viewed in this way, the failure to admit appellant’s prior DWI convictions into evidence until the punishment phase of his trial was not fatal to his conviction for felony DWI, and his conviction therefor can be affirmed.
. See Tex.Code Crim. Proc. Ann. art. 4.06 (Vernon 1977) ("Upon the trial of a felony case, the court shall hear and determine the case as to any grade of offense included in the indictment, whether the proof shows a felony or a misdemeanor.”); id. art. 4.05 (district courts and criminal district courts have original jurisdiction in criminal cases of the grade of felony).
. Because the present case was tried to the court, the ability to reform the judgment is not limited by whether a charge on the lesser included offense was submitted to the jury. See Bigley, 865 S.W.2d at 27; Lockett v. State, 874 S.W.2d 810, 818 (Tex.App.—Dallas 1994, writ ref'd).
. A plain reading of the prefatory phrase of section 49.09 also makes it clear that the offense actually being tried is that under section 49.04 rather than any separate offense created by section 49.09.
. The former felony DWI statute, article 67011-2, provided, in part:
Any person who has been convicted of the misdemeanor offense of driving or operating an automobile or other motor vehicle ... while intoxicated ... and who shall thereafter drive or operate an automobile or other motor vehicle ... while such person is intoxicated ... shall for each and every subsequent such violation be guilty of a felony....
Act of 1941, 47th Leg., 1941 Tex. Gen. Laws 819, repealed by Act of 1983, 68th Leg., 1987 Tex. Gen. Laws 1607. Under the language of the statute, the felony DWI offense was a different offense than the corresponding misdemeanor DWI offense; and the prior conviction was an element of the felony that had to be proved at the guilt-innocence stage of trial to authorize a conviction. See Luedke v. State, 711 S.W.2d 657, 659 (Tex.Crim.App.1986).
. See also Tex.Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon Supp.1999) (when prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held).
. See Tex.Code Crim. Proc. Ann. art. 4.05 (Vernon Supp.1999).