¶1DISSENTING OPINION
¶2The majority opinion correctly recites the sequence of events in this cause, and I shall not restate them other than to mention that the jury retired to consider their verdict, after appellant’s objection was overruled, and returned a verdict into court finding appellant guilty as charged.
¶3After the return of the verdict, the court inquired: “Does the defendant elect for the Court or for the Jury to assess the punishment?” Counsel for appellant responded with the following statement: “As I understand the Article, your Honor, we do not make an election. The Court assesses the punishment. We do not make an election.”
¶4The jury was discharged and the court proceeded to hear evidence on the question of the punishment to be assessed in the case. Appellant objected on the ground that the court was erroneously proceeding under Art. 37.07 of the Code of Criminal Procedure, which is “inapplicable to all cases except those cases involving capital offenses or wherein the accused had plead not guilty.”
¶5At the hearing before the court it was shown by stipulation of the parties that appellant had been previously convicted of a misdemeanor offense of drunken driving (not alleged in the indictment) and also of a felony offense of drunken driving. Appellant, by such stipulation, did not waive his objection to the admissibility of the evidence but again renewed his objection, on the ground that Art. 37.07 “has no application to this cause, in that the defendant has plead guilty,” and made further objection to the evidence of the misdemeanor conviction on the ground that it was for “a crime not involving moral turpitude” and “not encompassed even within Art. 37.07.”
¶6After hearing the evidence, the court fixed appellant’s punishment at five months in jail and pronounced sentence in the cause.
¶7Two grounds of error are presented by appellant in his brief filed in the trial court in support of his motion for a new trial.
¶8The first ground urged is, in substance, that the court erred in utilizing the alternate procedure provided by Art. 37.07 of the code in determining appellant’s guilt and the *32punishment to be assessed, for the reason that such article has no application to a felony case where the plea is “Guilty.”
¶9The second ground is that, for the same reason, the court erred in permitting evidence to be offered of appellant’s prior criminal record. It is also urged that if Art. 37.07, supra, were applicable to the case the court erred in admitting evidence of the prior misdemeanor conviction for driving while intoxicated, which is an offense not involving moral turpitude. It is insisted that the phrase, “prior criminal record,” used in Art 37.07 does not encompass misdemeanor offenses not involving moral turpitude.
¶10To pass upon the errors urged by appellant it is necessary to consider certain articles of the Code of Criminal Procedure.
¶11Art. 37.07 of the code reads, in part, as follows:
“Verdict must be general; separate hearing on proper punishment
“(1) The verdict in every criminal action must be general. When there are special pleas on which a jury is to find, it must say in its verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, it must find that the defendant is either guilty or not guilty.
“(2) Alternate procedure.
“(a) In felony cases less than capital and in capital cases where the State has made it known that it will not seek the death penalty, and where the plea is not guilty, the judge shall, before the argument begins, first submit to the jury the issue as to the guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed; provided, however, that in the charge which submits the issue of guilt or innocence there shall be included instructions showing the jury the punishment provided by law for each offense submitted.
“(b) If a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense charged where the same is not absolutely fixed by law to some particular penalty except when the defendant, upon the return of a finding of guilty, requests that the punishment be assessed by the same jury. In the event the defendant elects to have the jury fix the punishment in cases where the punishment is fixed by law, the court shall instruct the jury that if they find the defendant is the same person who was convicted in the prior conviction or convictions alleged for enhancement, they should set his punishment as prescribed by law.
“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.”
¶12Art. 26.14 of the code reads as follows:
“Jury on plea of guilty
“Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment Is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 and 37.07 shall have waived his right to trial by jury.”
¶13Art. 1.13 of the code reads, in part, as follows:
“Waiver of trial by jury
“The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon *33entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. … ”
¶14It is apparent to the writer, from reading the above statutes, that it was the intention of the legislature to provide for an alternate procedure, in certain felony cases, whereby there would be a separate determination of the guilt of an accused and the punishment to be assessed.
¶15Upon a finding of “Guilty,” it becomes the responsibility of the judge to assess the punishment except where the defendant requests that the punishment be assessed by the same jury.
¶16Regardless of whether the punishment be assessed by the judge or by the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation, and his character.
¶17While Art. 37.07 refers only to certain felony cases where the plea is “Not guilty,” I think that such article — when read in connection with Art. 26.14 of the code — is also applicable to cases where the plea is “Guilty.”
¶18Art. 26.14, by its own terms, applies to felony cases where a plea of guilty, or nolo contendere, is entered, and provides that “a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”
¶19The reference in Art. 26.14 to the waiver of a trial by jury, in accordance with Art. 37.07, clearly evidences an intention of the legislature that the provisions of Art. 37.07 shall be applicable to felony cases where there is a plea of guilty.
¶20The writer thinks that Art. 37.07 is applicable to felony cases enumerated therein where a plea of guilty has been entered by the accused.
¶21In the instant trial, appellant waived his right to have the jury assess the punishment, and it became the responsibility of the trial judge, since appellant did not request the jury to assess his punishment.
¶22I would overrule ground of error #1.
¶23I would also overrule appellant’s ground of error #2.
¶24The prior misdemeanor conviction for driving while intoxicated, although not for an offense involving moral turpitude, was admissible as a part of appellant’s “prior criminal record,” under the provisions of Art. 37.07, I think.
¶25To be admissible under this provision of the statute it is not necessary, in my judgment, that the prior misdemeanor conviction be for an offense involving moral turpitude, as would be required if it were offered for the purpose of impeachment under Art. 38.29 of the code.
¶26I dissent to the reversal and would affirm the judgment.