(concurring in part and dissenting in part).
I concur in part of the majority’s interpretation of the Saving Provisions of the *868new Penal Code (Acts 1973, 63rd Leg., ch. 399, Section 6), but also dissent to much of that interpretation and to the procedure which the majority hold should be followed for determination of punishment upon a defendant’s election to be punished under the new Penal Code, under Section 6(c).
The variety of relevant factors which come into play in determining the appropriate range or ranges of punishment is great, and neither can nor should be stated in detailed elaboration in a single opinion of this Court. Nevertheless, the primary factors and an instructive outline of their relative roles can and should be made. Following the statement of the point on which I concur in the majority’s interpretation of Section 6(c) (part I), and an analysis of the points upon which I dissent to that interpretation (parts II-IX), I attempt to make such an outline of the proper procedure for the punishment stage of a Section 6(c) case (parts X — XVI), and then demonstrate its application to the instant case (part XVII).
First, however, I wish to state the issue now before this Court, interpreting Section 6(c) of Acts 1973, 63rd Leg., ch. 399, is of limited application and will affect only a small number of cases. Initially, only those cases tried after January 1, 1974, for offenses committed prior to that date are affected. Less immediately, such cases as are tried under some other saving provision with the same language are likely to be affected by today’s decision. See, e. g., Acts 1975, 64th Leg., ch. 341, Sec. 7(c) and ch. 342, Sec. 17(c).
I.
Section 6(c) of the Saving Provisions permits a defendant prosecuted after January 1, 1974, for an offense committed before that date to elect to be punished under the new Code. The majority hold this provision “was intended to apply to all cases where the ‘conduct’ constituting an old Code offense was carried forward into a new Code offense.” Under this holding every defendant whose prosecution is not dismissed under Section 6(b) may elect, upon conviction after January 1, 1974, for an offense committed before that date, to be punished under the new Act. I concur that this holding correctly states the legislative intent with respect to the scope of Section 6(c). The language of Section 6(c) states unconditionally that in an old code prosecution after January 1, 1974, not dismissed under Section 6(b), “the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.” This all-inclusive language belies any intent to limit the scope of Section 6(c). The Legislature bestowed the right of election of punishment upon the defendant in each case not dismissed under Section 6(b).
II.
While I concur in the majority’s holding with respect to the scope of Section 6(c), I challenge the judicially decreed procedures for effectuation of a defendant’s election to be punished under the new Act. Although the Legislature granted the right of election to all within the class, the Legislature did not create a procedure for giving effect to such an election. It is pure conjecture to speak of a legislative intent regarding any special procedure for effectuating such an election, because the Legislature simply did not provide any such special procedure.
The majority assert:
“. . . it is obvious the Legislature merely intended to allow [the defendant] to substitute, at his option, the new Penal Code penalty provisions for the same offense or ‘conduct’ regardless of any variance in the elements between the offense in the old Penal Code and its equivalent counterpart in the new Penal Code without the necessity of additional proof to show that the defendant, having been found guilty of an old Code offense, is also guilty of the new Code offense or ‘conduct’ which may require in and of *869itself proof of additional elements.”
(Emphasis added.)
They also assert:
“Further, we conclude that it was clearly not the intent of the Legislature by virtue of the ‘Saving Provisions’ to give the defendant in a criminal case the right, in some cases, to wait until the penalty stage of a bifurcated trial and then cast additional problems of pleadings upon the State by his election to be punished under the new Penal Code.” (Emphasis added.)
The majority make these assertions of legislative intent with respect to the procedure for effectuation of a punishment election, but they cite no authority or evidence of any such legislative intent. Contrary to the majority, it is my opinion that the Legislature, in enacting Section 6, expressed no intent whatsoever that any special procedure should be followed, but was quite obviously silent on the whole matter. The failure of the Legislature to provide any special procedure for Section 6(c) cases evidences an intent that the usual procedures, so far as possible, should be followed. The procedure should be, as nearly as possible, the same as in any other ease. General principles of law should be followed and the constitutional rights of the defendant should be accorded due respect and protection. The majority’s proposal (see part III) does not conform to those established procedures (see parts IV — VI), and in that respect violates the Legislature’s intent as evidenced by its silence on the matter. Neither does their proposal accord due protection of the constitutional rights of the defendant (see parts VII-IX).
III.
The majority set out the following procedure as the correct one for trial courts to follow upon a defendant’s election to be punished under the new Penal Code:
“Where the equivalent and only counterpart of the old Code offense for which the defendant has been convicted is found in a new Penal Code offense or ‘conduct’, no real problem of substitution of range of punishment exists. If the judge is to assess punishment, he merely uses the range of penalties under the only and equivalent counterpart in the new Code. If a jury is to assess the punishment, the judge submits the jury that range of punishment under the new Penal Code.
“If several sections of the new Penal Code cover the type of offenses or ‘conduct’ under the old Ponal Code for which the defendant is convicted, then the applicable section of the new Code must be determined from the proof if the defendant makes the written election as provided by Section 6(c) to be punished under the new Code. If the trial judge is to determine punishment, no real problem is presented. If a jury is to pass upon punishment, then the trial judge must determine from the proof which section or sections of the new Penal Code are applicable, and to submit the case to the jury under the appropriate sections of the new Penal Code.”
The proposal of the majority is that the trial judge first look to the statutes and compare old code statutes with new Code statutes to determine whether the old code statute has only one “equivalent” or “counterpart” provision in the new Penal Code, or if, instead, “several sections of the new Penal Code cover the type of offense or ‘conduct’ under the old Penal Code” statute upon which the prosecution was predicated. If the latter is the case, the majority direct that a second step be taken, at which the trial court must “determine from the proof which section or sections of the new Penal Code are applicable.” Following the one or two steps, as the case may be, the trial judge, if punishment is to be assessed by jury, then submits the range or ranges of punishment in its charge.
I find flaws in both the first step and the second step which require my dissent.
*870IV.
As stated above, the majority direct the trial court first to compare new Code statutes with the old code statute upon which the prosecution was based to determine which statute or statutes of the new Code dictate the applicable punishment range or ranges. The majority do not state why the old code statute is the standard for comparison, and it is my opinion that it should not be. Instead, the trial court should determine which new Code statute or statutes are applicable by examining the facts found by the jury to be true beyond a reasonable doubt, as evidenced by their verdict of guilty and the indictment upon which the verdict rests. The following analysis demonstrates why this is true.
A defendant is convicted for a particular offense. “Offense,” in this respect, has a dual meaning. The statute defines the offense, and in referring to the statute violated the defendant is said to be convicted of the offense, “offense” being generic. A convicted defendant is also said to be convicted for the offense, referring to the specific acts committed by him, and in this meaning “offense” is not being used in the generic, but in reference to the specific events described in the indictment and found by the jury, beyond a reasonable doubt, to have occurred as so described. The indictment, as the charging instrument, connects these two. It alleges the specific conduct and describes it in such a manner that the specific acts alleged are comprehended within the generic class. That is, the indictment alleges the commission of acts in violation of a statute.
The question of whether the facts alleged constitute an accusation of the commission of an offense is a question of law for the courts. The question is answered by comparing the language of the indictment with the language of the statute. The question is whether the facts alleged are true is a question of fact for the jury, if trial is by jury, and must be proven beyond a reasonable doubt. Before an accused is convicted, both questions must be answered in the affirmative. Upon such a determination, the defendant is said to be guilty of the offense. But he is not guilty of the offense generally; he is guilty of the offense as charged in the indictment (or of some lesser included offense as submitted in the charge).
The assessment of punishment is predicated upon a finding of guilt. The range of punishment submitted to the jury, or the single punishment affixed by law, is determined uppn the facts as determined by the jury upon proof beyond a reasonable doubt. The indictment is the connecting link between the facts found by the jury and the punishment range affixed by statute. That punishment range affixed by statute to the facts found by the jury to be true is the punishment range which the defendant is entitled to have submitted to the jury. The determination of what range of punishment is appropriate for submission to the jury therefore rests upon what facts have been found by the jury.
The statute upon which a prosecution is based is of relevance to a determination of the range of punishment only insofar as it affixes a range of punishment to a described statutory offense encompassing the set of facts found by the jury. This being true, once the defendant has elected to be punished under the new Penal Code, the old code statute has no further primary role in the determination of the appropriate range of punishment. Just as in the ordinary case the facts found by the jury are laid beside the statutes to determine what range of punishment the Legislature has affixed to the conduct found by the jury to have been committed, so in a Section 6(c) case the facts found by the jury should be laid beside the statutes to determine what new range of punishment has been affixed to the conduct found by the jury to have been committed. The only difference is that in a Section 6(c) case the set of statutes against which the facts found by the jury are measured is the set of new Penal Code statutes. The old Penal Code statutes play no role in *871this stage of the process of determining the new appropriate range of punishment.
The majority are therefore in error in the scheme they have advanced. It is for this reason, in the first instance, that I dissent.
V.
As was pointed out in the above discussion (part III), the majority hold that in a case where several new Penal Code sections are found to “cover the type of offense” of which the defendant has been convicted, “the trial judge must determine from the proof which section or sections of the new Penal Code are applicable.” The majority, in stating this test, have intermingled two determinations. First is the question of which new Code statutes may be applicable; second is which range of punishment must ultimately limit the jury’s assessment of punishment. The first issue is one of law, determined in part1 by comparison of the verdict and indictment with the new Code offenses as demonstrated in IV, above. The second issue is one of fact in any case where the answer to the first issue is that more than one range of punishment may apply. As an issue of fact bearing upon punishment, it must be determined by the jury in any case where the jury is assessing punishment, and not by the trial judge as held by the majority.2 Not only must it be determined by a jury, it must also be proven beyond a reasonable doubt.3 In this respect, the conclusions, first, that the court must determine which several ranges may apply under the law applied to the facts as already found by the jury, and, second, that the jury must find further facts beyond a reasonable doubt upon which findings they are directed by the punishment charge to the ultimately controlling, single range of punishment, are in conformity with the laws governing other criminal trials, afford the defendant due process of law, and protect the constitutional rights of the accused. The proposal of the majority, that the judge examine the “proof” or evidence previously introduced without regard to the findings previously made by the jury and determine by himself which “section or sections of the new Penal Code are applicable,” on the other hand, has no precedent in the law governing criminal cases, deprives the defendant of due process by removing the determination of crucial factual issues from the jury and from effective appellate review, and deprives him of the constitutional right to demand proof beyond a reasonable doubt.
It is often the case that further facts than those necessary to establish guilt must be ascertained before the range of punishment may be established. In such cases the court must submit the determination of those facts to the jury in a charge presenting the ranges of punishment in the alternative, as is done in cases with enhancement allegations. In a prosecution for murder which submits only the issue of guilt or innocence at the first stage of the trial, it is proper for the court to instruct the jury at the second stage in the alternative on the ranges of punishment for murder with malice and murder without malice. It is not proper for the court to determine the issue of malice itself and upon that determination submit only one range of punishment. Why should the rule be any different when the court is unable to determine from the findings of the jury at the guilt stage of the trial, which of more than one applicable new Code punishment range should limit the jury’s final assessment of punishment? The majority advance no reason for deviating from the standard rule applicable in other cases. The same constitutional rights of the accused which demand adherence to that rule in other cases, and which are the foundation for the existence of that rule, also dictate that it be applied to Section 6(c) cases.
*872When there are elements in the new Code statute or statutes under which punishment is submitted which are not part of the facts previously found by the jury, their proof must be charged to the jury and found true before the new Code statute operates to affix a range of punishment. The scheme advanced by the majority is therefore in error for failure to submit to the jury fact issues that determine which range of punishment applies. It is for this reason, in the second instance, that I dissent.
VI.
To summarize, there are two basic flaws in the procedure outlined by the majority for effectuation of a defendant’s election under Section 6(c) to be punished under the new Penal Code.
First, the majority hold the trial judge should compare the new Code statutes with the old Code statute under which the defendant was convicted to determine which new Code provisions may affix punishment ranges to the offense. Instead, the new Code statutes should be compared with the facts found by the jury beyond a reasonable doubt at the guilt stage, as evidenced by the verdict and indictment, to ascertain which provisions may apply, as is done in all other criminal cases.
Second, the majority hold that when more than one new Code provision may apply, the trial court should look to the evidence to determine which range or ranges of punishment should be submitted to the jury. Instead, the issues of fact upon which rest the determination of which range of punishment is ultimately controlling should be submitted to the jury in an alternative charge, as is done in all other criminal cases where such an issue arises.
Each of these characteristics of the majority’s procedure constitutes a radical departure from the usual procedure in criminal cases, and is accomplished by the action of the majority of this Court with neither constitutional nor legislative mandate. It appears that the proposed procedure was conceived to give effect to a supposed legislative intent that is without foundation. In part II, above, it was pointed out that the Legislature, in granting defendants the right to elect punishment under the new Code, did not enact any special procedure for effectuating such an election. The majority, nevertheless, hypothesized a legislative intent with respect to any such procedure, as stated in the selections from their opinion quoted in II, above, to-wit: the Legislature intended that any such procedure should impose no additional burdens of pleading or proof beyond that necessary for conviction of the old code offense. To give effect to this supposed intent, the majority have removed the pleadings and requirements of proof from their established roles in the punishment stage of the criminal trial. By doing so the majority have not only prevented the imposition of any additional burdens of pleading and proof upon the State, but have in fact removed such burdens as heretofore have been demanded of the State at the punishment stage of the trial. Do the majority also assert a legislative intent to abolish such established procedural requirements?
VII.
Apart from my dissent to the majority’s interpretation and application of Section 6(c) based upon legislative intent and violation of established procedures, I have serious doubts regarding the constitutionality of their interpretation and application of that provision. These constitutional shortcomings, as I perceive them, are also a consequence of the majority’s incorrect assessment of the legislative intent as previously stated, to-wit: that any procedure for effectuating an election under Section 6(c) should impose no additional burdens of pleading or proof beyond that necessary for conviction of the old code offense. (See parts II and VI.)
The requirements of pleading and proof are cast upon the prosecution by the Constitution of Texas and the United States Con*873stitution, not by the defendant. It is the Constitution, and not the defendant, that necessarily places upon the State such additional burdens of pleading and proof as do arise in Section 6(c) cases. The Legislature expressed no intent to abolish such protective requirements, as contended by the majority, nor could any such intent be given effect to abolish those constitutional safeguards.
Neither can a Section 6(c) election reasonably be said to be a carte blanche knowing and intelligent waiver of all constitutional rights which it might be more convenient to bypass than to honor in the punishment determination. It would be proper to hold that a defendant’s Section 6(c) election constitutes a waiver of some constitutional right only where assertion of the Section 6(c) election right is in irreconcilable conflict with assertion of the constitutional right.4 Absent such a waiver, every defendant, regardless of whether he makes a Section 6(c) election or not, is entitled to the constitutional protections afforded by the requirements of pleading and proof beyond a reasonable doubt.
VIII.
In any case where facts other than those found by the jury at the guilt stage must be ascertained before punishment may be assessed,5 the Constitution requires that the State prove those additional facts beyond a reasonable doubt. The majority have not provided for protection of this constitutional right.6
The Supreme Court in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, held:
“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
The fact that the issues here under discussion relate only to the determination of what range of punishment shall be considered by the jury does not remove them from the rule that the requisite facts for the assessment of punishment must be proven beyond a reasonable doubt. In the recent case of Mullaney v. Wilbur, - U.S. -, 95 S.Ct. 1881, 44 L.Ed.2d 508, the Supreme Court considered the applicability of the reasonable doubt standard of proof to the issue of “heat of passion” in homicide prosecutions under the law of Maine. The Court held:
“Petitioners, the warden of the Maine Prison and the State of Maine, argue that . Winship should not be extended to the present case. They note that as a formal matter the absence of the heat of passion on sudden provocation is not a ‘fact necessary to constitute the crime ’ of felonious homicide in Maine. In re Winship, 397 U.S. at 364, 90 S.Ct. [1068,] at 1073 [25 L.Ed.2d 368] (emphasis supplied). This distinction is relevant, according to petitioners, because in Winship the facts at issue were essential to establish criminality in the first instance whereas the fact in question here does not come into play until the jury already has determined that the defendant is guilty and may be punished at least for manslaughter. In this situation, petitioners maintain, the defendant’s critical interests in liberty and reputation are no longer of paramount concern since, irrespective of the presence or absence of the heat of passion on sudden provocation, he is likely to lose his liberty and certain to be stigmatized. In short, petitioners would *874limit Winship to those facts which, if not proved, would wholly exonerate the defendant.
“This analysis fails to recognize that the criminal law of Maine, like that of other jurisdictions, is concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability. Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor. Because the former are less ‘blame-worth[y],’ State v. Lafferty, Del., 309 A.2d [647,] at 671, 673 (concurring opinion), they are subject to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates the interests found critical in Winship.
“The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty.”
In giving effect to a defendant’s election to be punished under the new Penal Code, the determination of which of several penalty ranges may apply, upon the basis of finding additional facts which will establish which new Code provision affixes a range of punishment to the conduct committed, must be upon the basis of finding such controlling facts upon proof beyond a reasonable doubt. The scheme advanced by the majority fails to provide for protection of this established constitutional right.7 It is for this reason, in the third instance, that I dissent.
IX.
In certain cases, the facts alleged in the indictment, and found by the jury true beyond a reasonable doubt, will constitute an offense not only under the old code statute, but also under a comparable provision of the new Penal Code. In such a situation, it may accurately be said that the new Code provision affixes a range of punishment to the offense for which the accused was found guilty. (Cf. part IV, above.) When this is so, no further facts need be found than those determined at the guilt stage, in order to ascertain which range of punishment is appropriate for submission to the jury upon a Section 6(c) election, and the defendant is entitled to submission of that range of punishment affixed by the new Code provision to the facts alleged in the indictment and proven beyond a reasonable doubt.
The State is certainly to be held to be on notice of the Saving Provisions’ authorization to the accused to be punished under the new Penal Code in cases where it affixes a punishment to the offense charged.
It has been held consistently that when the State relies upon facts not in the bare description of the offense to secure penalties other than those affixed by statute to the offense alleged in the indictment, those *875other facts must themselves be alleged in the indictment. See Dunn v. State, 128 Tex.Cr.R. 229, 81 S.W.2d 87. This has been held true where the State seeks enhancement on the basis of prior misdemeanors under Article 61, Y.A.P.C. (see Colvin v. State, 172 Tex.Cr.R. 310, 357 S.W.2d 390); or on the basis of a prior non-capital felony under Article 62, V.A.P.C. (see Schmeideberg v. State, Tex.Cr.App., 415 S.W.2d 425); or on the basis of two prior noncapital felonies under Article 63, V.A.P.C. (see Simmons v. State, Tex.Cr.App., 493 S.W.2d 937, 940; Alvarez v. State, Tex.Cr.App., 472 S.W.2d 762; Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697); or on the basis of a prior capital felony under Article 64, V.A. P.C. (see Whittle v. State, 179 S.W.2d 569). It also has been held that if enhancement is sought under the Narcotic Drug Act, Article 725b, Sec. 23, V.A.P.C., the indictment must inform the accused of the basis of the State’s claim for enhancement of punishment. See Aranda v. State, Tex.Cr.App., 506 S.W.2d 221, 224; Gomez v. State, 126 Tex.Cr.R. 30, 280 S.W.2d 278. It also was held with regard to the shoplifting statute, Article 1436e, V.A.P.C., in Sullivan v. State, 172 Tex.Cr.R. 156, 354 S.W.2d 168: “While it is true that the statute does not mention the state’s pleadings in providing for increased punishment or a felony, it is essential that such conviction be properly alleged if the state seeks to enhance the punishment or create an offense based on a prior conviction.” (Emphasis added.) Also, in a prosecution for murder the presence or absence of malice relates only to punishment (Foster v. State, Tex.Cr.App., 493 S.W.2d 812), and “any punishment in excess of five years [for murder] is illegal unless the indictment alleges that the killing was done with malice aforethought, said element being indispensable for a greater penalty.” Lee v. State, Tex.Cr.App., 503 S.W.2d 244.
These pleading requirements flow from the constitutional right of the accused to know the nature and cause of the accusation against him. Article I, Section 10, Texas Constitution; Sullivan v. State, supra.
When the State, instead of seeking a new indictment (1) that would give notice of any aggravating facts upon which reliance would be placed for greater punishment, and (2) upon which a verdict of guilty as charged in the indictment would constitute a finding beyond a reasonable doubt that the aggravating facts charged were true, elects to proceed upon the indictment charging facts constituting an offense under some comparable provision of the new Penal Code, the State should be bound by its pleading, and not permitted to rely upon facts not alleged in the indictment to secure submission of a greater range of punishment than that affixed by the new Code offense alleged in the indictment relied upon.
The majority, instead of restricting the State to its pleadings in those cases where the indictment and verdict rendered thereon are a sufficient predicate under the new Penal Code for assessment of punishment on the guilty verdict, hold that the Section 6(c) election releases the State from the constitutional requirements of pleading, and authorizes submission of punishment upon any new Code theory of aggravation supported by some evidence. Under such a holding, the indictment and requirements of pleading become irrelevant to the punishment proceeding.
It is for this reason, in the fourth instance, that I dissent.
X.
In the above discussion I have set out the grounds for my dissent and the reasons why the procedure adopted by the majority is inadequate. I will now endeavor to outline a procedure which is adequate and explain why it is correct.
The starting point for determining the appropriate procedure is an examination of the language of the Saving Provisions and the legislative intent. As explained above, the Legislature intended that every defend*876ant tried after January 1, 1974, for an offense committed before that date has the right, under Section 6(c), to elect to be assessed punishment under the new Penal Code (see part I). With regard to the procedure that a trial court should observe following such an election, however, the Legislature made no special provisions. The Legislature’s silence on this question should be taken as indicative of an intent that the usual procedures and requirements governing the punishment hearing in any other case, so far as possible, should govern in a Section 6(c) punishment proceeding (see part II). In determining what procedural steps should be followed, due respect and protection also must be accorded the constitutional rights of the defendant. It would be unreasonable to assume that a defendant upon making a Section 6(c) election also intends to make a knowing and intelligent waiver of all constitutional protections (see part VII). It would be proper to hold that such an election constitutes a waiver of a constitutional right only where it is obvious that the right waived is in irreconcilable conflict with the assertion of the Section 6(c) right to elect punishment under the new Penal Code (see part XIII). These, then, are the conditions that the Section 6(e) punishment hearing procedures must satisfy: (1) the same procedures that govern other cases shall apply, except that (2) when application of those procedures to a Section 6(c) case operate to deprive a defendant of a constitutional right, the procedure must be altered to the minimum degree possible to accord protection of that right, provided, however, that (3) when the assertion of the constitutional right is in irreconcilable conflict with assertion of the Section 6(c) right, the assertion of the latter waives the protections of the former.
For ease of explanation and greatest clarity, this analysis will take as its model a case where trial at both stages is by jury. The procedure at the punishment stage of the usual case is clear. A verdict of guilty has been returned, either for the offense charged in the indictment or for a lesser included offense. The indictment may or may not have alleged facts other than those submitted at the guilt stage of the trial, relevant only on the issue of punishment. Thus, the trial judge will be confronted with one of four situations: (1) a verdict of guilty as charged in the indictment, with no further facts bearing on punishment alleged in the indictment; (2) a verdict of guilty for a lesser included offense, with no further facts bearing on punishment alleged in the indictment; (3) a verdict of guilty as charged in the indictment, with additional facts bearing on punishment alleged in the indictment; or (4) a verdict of guilty for a lesser included offense, with additional facts bearing on punishment alleged in the indictment.
In the first situation, the trial judge should examine the facts found by the jury beyond a reasonable doubt, as evidenced by the verdict'and indictment, and submit the range of punishment affixed by the statute defining the statutory offense encompassing and prohibiting the conduct described by those facts (see part IV, paragraph 4). To look to other facts not found by the jury to have been proven beyond a reasonable doubt would violate the defendant’s right to require the State to sustain its burden of proof beyond a reasonable doubt (cf. part VIII; see part XIV). To look to facts not alleged in the indictment would violate the defendant’s right to notice and to put the State to its burden of pléading (cf. part IX; see part XIII). /
In the second situation, the trial judge should examine the facts found by the jury beyond a reasonable doubt, as evidenced by the verdict and that portion of the indictment upon which the verdict of guilty of the lesser included offense was predicated, and submit the range of punishment affixed by the statute defining the statutory offense encompassing and prohibiting the conduct described by the facts so found by the jury (see part IV, paragraph 4). Once again, to look elsewhere or to direct the jury to look elsewhere in determining the range of punishment would violate the de*877fendant’s constitutional rights as above stated. Also, to inject into the determination of the proper range of punishment, either by consideration by the judge or instruction to the jury, some fact issue already determined adversely to the State by the jury’s implied acquittal of the greater charged offense would violate the defendant’s constitutional protection against double jeopardy (see part XV).
In the third situation, the trial judge will be required to submit alternative ranges of punishment to the jury along with further fact issues, requiring proof beyond a reasonable doubt, upon the answers to which the jury will be directed to the single, ultimately controlling range of punishment. The fact issues which may be submitted will be determined by the allegations in the indictment. One of the ranges of punishment will be determined, as in the first situation discussed above, by examining the facts found by the jury at the guilt stage. Any other ranges of punishment to be submitted in the alternative will be found by hypothesizing findings adverse to the defendant on the fact issues to be submitted at this stage, and ascertaining the range or ranges affixed by the statute or statutes making the conduct or conditions described by those hypothesized facts an object of the criminal law. Again, as in the previous two situations discussed, for the trial judge to look elsewhere than stated or to direct the jury to look elsewhere for the purpose of ascertaining the controlling range of punishment would be improper and a violation of the constitutional rights of the defendant. It would also be improper for the trial judge to determine any controverted issue in the punishment allegations of the indictment and upon such determination submit only one range of punishment (see part V, paragraph 2).
In the fourth situation the trial judge may also be required to submit alternative ranges of punishment. First he must examine the facts already found by the jury and the allegations of the indictment that were reserved for the punishment stage, to determine whether the law provides any special punishment range for facts joining those already found with those alleged but not yet submitted, and also to determine whether any of the facts found adverse to the State, evidenced by the implied acquittal of the greater offense, are incompatible with the allegations not yet submitted. If the former is not the case, there is no alternative range of punishment affixed by law, and the allegations need not be submitted to the jury. If the latter is the case, it would violate double jeopardy (see part XV) to submit those issues which, by their prior verdict, the jury impliedly has found adverse to the State. Only if (1) the law does provide a special punishment range for a situation joining the lesser included offense already found with the punishment allegations and (2) the acquittal of the greater offense does not by implication preclude a finding that the punishment allegations are true, will the trial judge be authorized to submit alternative ranges of punishment. In such event, those alternative ranges will be submitted along with further issues of fact in the manner described for the third situation. As in the previous situations described, it would be improper for the trial judge to look elsewhere than described, or direct the jury to look elsewhere, or to make a determination reserved to the jury, in the execution of the procedure here described.
The above described processes state in simplified form the basic procedure followed in the ordinary ease for determination of what range or ranges of punishment should be submitted to the jury. The basic procedure in each typical situation starts with examination of the guilty verdict, the indictment, and the statutes prohibiting conduct and affixing ranges of punishment to a violation of that prohibition. This procedure, so far as possible, should also be followed in Section 6(c) cases.
XI.
In applying the first step of the usual procedure in a Section 6(c) case, the trial *878judge should ascertain whether the facts found by the jury at the guilt stage constitute an offense under a comparable provision of the new Penal Code. If there is such a provision then the judge should proceed, as in the usual case, to submit the range of punishment affixed by that provision.8 If the indictment in such case also alleges further facts not submitted at the guilt stage but bearing on punishment (e. g. a prior conviction), the judge should ascertain whether there is a provision of the new Code under which a finding that such allegations are true would affix a different range of punishment. If there is such a provision, then that range of punishment should be submitted in the alternative, along with the issue of fact and instructions on which range will ultimately limit the jury’s assessment of punishment, contingent upon the jury’s determination of the fact issue.
If, in applying the first step, the trial judge determines that no new Code offense is shown by the facts found at the guilt stage, then it is obvious that before a range of punishment may be said to be affixed by the new Code to the conduct constituting the offense, further facts must be found. Several new Code provisions may affix ranges of punishment, but the determination of which range must control cannot be made before further facts, neither alleged in the indictment9 nor, as yet, established beyond a reasonable doubt,10 are established. In such a situation the trial court must determine which comparable provisions may be applied11, and therefrom which ranges of punishment may apply, and submit them in the alternative, with appropriate instructions by which the jury, upon determining the additional fact issues submitted, will be directed to the correct range of punishment. It is this situation that requires deviation from the procedure followed in the usual case, because the variations in elements of the new Code offenses from the old code offense render the facts found by the jury in determining guilt for the old code offense insufficient to direct the trial judge to a controlling range of punishment under the new Code. Consequently, a deviation from the usual procedure is required if the defendant is to be assessed punishment under the new Code.
If, in addition, enhancement allegations are contained in the indictment, the same procedure as outlined in the first paragraph of this part should be followed to determine whether fact issues on such allegations should be submitted.
XII.
It can be seen from the discussion in part XI that if the facts found by the jury at the guilt stage constitute an offense under a provision of the new Penal Code comparable to the old Code offense for which the defendant is convicted, there is no deviation from the procedure in the usual case. Only if the facts do not constitute such an offense must there be a deviation from the usual procedure by which the trial court must ascertain which comparable provisions should be submitted in the form of fact issues predicated on such comparable provisions. The usual procedure affords protection of the defendant’s constitutional rights, but when the court is required to deviate from that procedure, the deviations and cause for deviation must be examined with care to insure that those constitutional rights are accorded due respect unless it can be said an effective waiver has been made. Those constitutional rights which now must be discussed in relation to the deviation from the usual procedure are the right to demand pleading by the State, the right to demand proof beyond a reasonable doubt, and the protection against double jeopardy.
*879XIII.
All facts essential to a determination of the appropriate range of punishment must be alleged in the indictment (see part IX). These pleading requirements flow from the constitutional right of the accused to know the nature and cause of the accusation against him and may be referred to as the right to demand pleading by the State. Article I, Section 10, Texas Constitution; Sullivan v. State, supra.
When the indictment, in alleging an offense under the old Penal Code, does not allege facts constituting an offense under, the new Penal Code, the verdict of a jury finding the defendant guilty as charged in the indictment does not constitute a sufficient finding of facts to enable the trial court to ascertain what range of punishment should control the jury’s punishment deliberations after a Section 6(c) election. The defendant and the State alike have available at the commencement of trial the indictment, from which this circumstance of indeterminancy of a range of punishment can readily be recognized. The prosecution, regardless of the election of punishment, is for the old code offense; guilt is determined solely upon the elements of the old code offense; and the conviction, if one be had, is for the old code offense (Jefferson v. State, Tex.Cr.App., 519 S.W.2d 649). If upon a Section 6(c) election a new range of punishment is not attached automatically upon the basis of the guilt stage findings of fact, it is clear that no range of punishment may be affixed absent further findings of facts. Nonetheless the indictment is sufficient to support the verdict of guilty. This set of circumstances presents the following alternatives: either no Section 6(c) election may be made because the valid old Code conviction upon a valid old Code indictment has no corresponding new Code range of punishment affixed thereto, or, the defendant, in the face of an old Code conviction upon a valid old Code indictment, to which no new Code punishment is affixed, upon election to be punished under the new Code waives any objection to the lack of notice in the indictment of those facts essential to a determination of what new Code range of punishment will ultimately limit the jury’s assessment of punishment.
The first alternative would limit the scope of application of Section 6(c). The language of that provision, however, states unconditionally that in a saved old Code prosecution, “the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.” Such all-inclusive language belies any intent to limit the scope of Section 6(c). (See part I.)
The second alternative, on the other hand, renders a Section 6(c) election an automatic waiver of the right to require the State to plead its case, whenever the pleading, although adequate to support the guilty verdict, is inadequate for determination of the controlling range of punishment. If a defendant stands on his right to demand pleading, the only alternative is to deny his election to be punished under the new Code, and assess punishment under the old Code, for which purpose the indictment is amply adequate and the right to demand pleading well satisfied. If, on the other hand, a defendant does elect to be punished under the new Code despite the failure of the indictment to charge facts to which a new Code range of punishment is affixed, and thereby give him notice of what further facts may be proved in the course of establishing what range of punishment is controlling, it can only be said that the defendant, in such a case, has waived his right to demand pleading of such facts. The irreconcilable conflict of his election to be punished under the new Code with the right to demand pleading in such a case 12 *880leads to the conclusion that such an election waives that constitutional right.
XIV.
While it is true that in cases as above described irreconcilable conflict leads to the conclusion that assertion of a Section 6(c) election waives the right to demand pleading, no such conflict arises with respect to the right to demand proof beyond a reasonable doubt. The right to demand such proof is a requirement of due process, and attaches to all facts which constitute a part of the State’s case, whether to establish guilt at the first stage of the trial, or to determine punishment at the second. (See part VIII.)
Not only is the right to demand proof beyond a reasonable doubt of constitutional magnitude, but steps to protect this right do not conflict with an election to be punished under the new Penal Code. The trial court, after determining which new Code ranges of punishment may be applicable, can as easily submit the controlling fact issues to the jury with instructions on the burden of proof as it can submit the controlling fact issues in any other case where submission of alternative ranges of punishment is in order. Furthermore, in any case where further fact issues must be determined before it can be said that the new Code affixes a range of punishment to the conduct described by the facts found by the jury, but there is only one possible range of punishment, it is still necessary that those facts be submitted to the jury, because it is only upon a finding that such further facts are true that it may accurately be said that the new Code affixes a range of punishment applicable to the case.
The right to demand proof beyond a reasonable doubt, then, should be accorded due protection in every Section 6(c) case. No adequate cause can be given for its neglect.
XV.
This Court has held in Welcome v. State, Tex.Cr.App., 438 S.W.2d 99; Pope v. State, Tex.Cr.App., 509 S.W.2d 593; and Turner v. State, Tex.Cr.App., 518 S.W.2d 243, upon authority of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), that “conviction of a lesser included offense bars a prosecution for the greater offense on a new trial, even if the new trial is obtained by the defendant at his instance.” Pope v. State, supra, at 596.
The purpose of submitting fact issues at the punishment stage in those cases requiring such submission is to try those issues not yet determined, but upon which rests determination of the controlling range of punishment. If at the guilt stage certain of such issues were submitted to the jury, and found adverse to the State (as evidenced by conviction for a lesser included offense implying acquittal of the greater offense, which acquittal rests upon such adverse determination), it would violate double jeopardy to retry those issues by resubmission at the punishment stage. This is true equally where conviction and punishment are under the old Penal Code, and where after conviction under the old Penal Code election is made for punishment under the new Penal Code. In the latter case those provisions of the new Penal Code which would require a finding of facts which have already been rejected by the acquittal of the greater offense may not be submitted at the punishment stage nor resorted to for submission of the appropriate range of punishment. To do so would violate the protection against double jeopardy.
XVI.
The above discussion should offer sufficient guidance for determination of what procedure should be followed in any particular Section 6(c) case. From the length of the discussion and the number of factors which play a role in the various types of situations that could arise, it may appear that the scheme suggested is unduly complex and perhaps even unworkable. In fact, however, the decision-making process of the trial court in preparing a punishment *881charge in a Section 6(c) case is not, in any significant degree, any more complicated than in any other case.' The basic factors playing a role in either type case are the same: the facts found by the jury, evidenced by their verdict and the indictment; the set of statutes which may affix punishment to the conduct described by those facts; the constitutional rights of the defendant. All the variations in the procedures, and they are few, are the result of the fact that in a Section 6(c) case the set of statutes resorted to for determination of punishment are different from those under which the indictment was originally drawn.
The simplicity and workability of the above discussed scheme for Section 6(c) cases may be seen by examining the following diagram13 of the decision-making process of the trial court in preparing a punishment charge:
*882XVII.
The simple procedure above outlined will now be applied to the instant case.
Appellant was indicted for statutory rape under the old Penal Code, and found guilty of “rape as alleged in the indictment.” Because of legislative changes in the comparable new Code offense which vary from the facts alleged by the indictment and found by the jury, the first question before the trial court upon appellant’s Section 6(c) election must be answered “No.” (See part XVI.) Comparable new Code provisions in this case were Rape of a Child (Sec. 21.09, V.T.C.A. Penal Code) and Aggravated Rape of a Child (Sec. 21.03, V.T.C.A. Penal Code). Submission of neither of these would violate double jeopardy and both should have been submitted.
Appellant contends the trial court erred in submitting Aggravated Rape of a Child, and should have only submitted Rape of a Child, because he had not been indicted for conduct constituting aggravated rape. These objections urged by appellant are equally true with respect to the charge on Rape of a Child because facts constituting that offense also were not alleged in the indictment. The objection, if valid, would preclude submission of any new Code punishment range. Because no new Code punishment range i^ affixed to the conduct described by the facts found by the jury, as can be seen by all, the election to be punished under the new Code, in such a situation, waives the right to demand pleading of the additional facts constituting Aggravated Rape of a Child and Rape of a Child. (See part XIII.) The trial court committed no error in overruling appellant’s objections to the charge.
I concur in the affirmance of this case but dissent to the procedure endorsed by the majority.
.The determination of which statutes may be applicable may also be limited by the protection against double jeopardy. See part XV.
. See footnote 7, below.
. See parts VIH and XIV.
. See part XIII, below.
. See part V, above, and part XI, below.
. I do not understand the majority’s failure to provide protection of this valuable right, particularly in light of the lengthy dissent by the author of the majority opinion filed in Kelly v. State, Tex.Cr.App., 483 S.W.2d 467, 473—481, in which much language may be found describing the origins and reasons for requiring such a high standard of proof.
. The majority state that when several new Penal Code sections prohibit conduct of the same type as the old Penal Code offense for which a defendant is convicted, the judge may determine which section is appropriate, and submit the range of punishment under that section to the jury. Consider this situation: Under Article 524, V.A.P.C. (1925), the penalty for sodomy was two to fifteen years. Under the new Penal Code, Sec. 21.06 makes homosexual conduct punishable as a Class C misdemeanor; Sec. 21.07 makes public lewdness punishable as a Class A misdemeanor; Sec. 21.04 makes sexual abuse punishable as a second degree felony; Sec. 21.05 makes aggravated sexual abuse punishable as a first degree felony. A defendant convicted of sodomy under the old Penal Code in a trial after January 1, 1974, upon election to be punished under the provisions of the new Penal Code may expect, under the holding of the majority, to be punished for the lowest misdemeanor or the highest non-capital felony, depending solely on what the judge may determine is appropriate, subject only to review of whether there is any evidence to support that determination. The majority require neither submission of the fact issues to the jury (see part V, above), nor proof of the determining facts beyond a reasonable doubt.
. See part IX.
. See part XIII.
. See part XIV.
. See part XV.
. If, on the other hand, the new Code does affix a range of punishment to the facts found by the jury upon the guilt stage, no such irreconcilable conflict arises, and no such waiver of this constitutional right may be inferred from an election to be punished under the provision affixing such range.
. The diagram shows questions of law that must be decided by the trial judge in preparing the punishment charge. Other factors, such as whether there is any evidence raising the issue, must, of course, also be given due consideration.