dissenting.
I respectfully dissent. The majority avers “[t]he resolution of this issue has two sources.” I agree, in the general sense, these sources are the Court of Criminal Appeals and the Legislature. I disagree as to the specific sources relied upon by the majority. I believe the majority misapplies Weaver v. State, 87 S.W.3d 557 (Tex.Crim.App.2002), cert. denied, — U.S. -, 123 S.Ct. 1491, 155 L.Ed.2d 234 (2003), when they conclude “... we see no reason to make any distinction between felony or misdemeanor charging law. In other words, we believe the language just quoted from Weaver and Gibson is as applicable to prosecutions for ‘enhanced offense’ misdemeanor DWI as it is for ‘enhanced offense’ felony DWI.”
The question in Weaver was whether an intervening intoxication-related conviction under Tex. Pen.Code Ann. § 49.09(e) (Vernon 2003) was an element of the offense of felony DWI. In deciding it was not, the Court stated:
In Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App.1999), we explained:
The [two] prior intoxication-related offenses [referred to in § 49.09(b) ], whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. The prior intoxication-related offenses are elements of the offense of [felony] driving while intoxicated. They define the offense as a felony and are admitted into evidence as part of the State’s proof of its case-in-chief during the guilt/innocence stage of the trial.
Weaver, 87 S.W.3d at 560.
It is noteworthy that the Weaver Court adds the parenthetical “felony” into the quote from the Gibson Court. This accents a distinction between felony and misdemeanor DWI analysis. Robles v. State, 85 S.W.3d 211, 213 (Tex.Crim.App.2002), also acknowledged that “[p]roof of the convictions is necessary in that the prior convictions are elements of felony DWI.” Likewise Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App.2000), notes the prior offenses are required for jurisdictional purposes.
The issue before this court is whether the enhancement procedure is under Tex. Pen.Code Ann. § 12.43(b)1, as determined by the trial court through a pre-trial order, or under Tex. Pen.Code Ann. § 49.04(b)2 *516and Tex. Pen.Code Ann. § 49.09(a)3, as urged by the State. The answer is found in Tex. Pen.Code Ann. § 12.43(d) (Vernon 2003):
If the punishment scheme for an offense contains a specific enhancement provision increasing punishment for a defendant who has previously been convicted of the offense, the specific enhancement provision controls over this section.
Prior to the intoxication and alcoholic beverage offenses being moved to the Penal Code, the Court of Criminal Appeals discussed a similar issue under the old statutory scheme. In Wilson v. State, 772 S.W.2d 118, 123 (Tex.Crim.App.1989), the Court stated:
Consistent with the adoption of the language identifying offenses (“a person commits an offense”) the DWI statute also adopts the language of the Penal Code identifying enhanced punishments (“If it be shown on the trial”). For example, the provisions authorizing enhanced punishment for repeat offenders in art. 6701-í (d) and (e), supra are each prefaced with “If it is shown on the trial.... ” As previously noted, this is virtually the same language employed to introduce the availability of enhanced punishment in the Penal Code.
See also Love v. State, 833 S.W.2d 264, 265-66 (Tex.App.-Austin 1992, pet. ref'd).
The Court’s pre-trial order should be reversed and the cause remanded for trial.4 Because the majority affirms, I respectfully dissent.
. § 12.43. Penalties for Repeat and Habitual Misdemeanor Offenders
(b) If it is shown on the trial of a Class B misdemeanor that the defendant has been before convicted of a Class A or Class B misdemeanor or any degree of felony, on conviction he shall be punished by:
(1) a fine not to exceed $2,000;
(2) confinement in jail for any term of not more than 180 days or less than 30 days; or (3)both such fine and confinement.
Tex. Pen.Code Ann. § 12.43(b) (Vernon 2003).
. § 49.04. Driving While Intoxicated
(b) Except as provided by Subsection (c) and § 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Tex. Pen.Code Ann. § 49.04(b) (Vernon 2003).
. § 49.09. Enhanced Offenses and Penalties
(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated. Tex Pen.Code Ann. § 49.09(a) (Vernon 2003)
. In all likelihood, the State will prosecute under the majority's analysis. If convicted, Morgan will allege it was error to include the prior offenses in the guilt-innocence stage and then the Court of Criminal Appeals may review the matter.