Full opinion text
OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW MILLER, Judge. Appellant was charged with murder and found guilty by a jury. Appellant filed an application for probation and the jury assessed punishment at life imprisonment and a $10,000 fine. The Dallas Court of Appeals reversed and remanded on the ground that the trial court had erred by admitting evidence of unadjudicated offenses during the punishment phase of the trial. Murphy v. State, 700 S.W.2d 747 (Tex.App.—Dallas, 1985). We granted the State’s petition for discretionary review on the following ground for review: “The trial court properly ruled appellant’s extraneous bad acts could be introduced into evidence during the punishment phase of trial in response to appellant’s application for probation.” We will affirm the decision of the Court of Appeals. Prior to trial appellant filed a sworn application for probation pursuant to Art. 42.-12 § 3a(a), V.A.C.C.P. During the punishment phase of the trial appellant testified in his own behalf. The following is all the evidence offered by appellant during punishment: “Q. (by appellant’s attorney) State your name for the record, again, please. A. (by appellant) Gary Murphy. Q. You are one and the same person who was just found guilty by this jury, just a few minutes ago? A. Yes, sir. Q. Have you ever before been convicted of a felony offense in this or any other state or a federal jurisdiction? A. No. Q. Have you ever been placed on the felony probation in this or any other state or federal jurisdiction? A. No.” In rebuttal the State offered five witnesses to testify to unadjudicated offenses committed by appellant prior to the present offense. Gladys Work testified that appellant assaulted her and stole her purse on September 15, 1983. Officer R.W. Dobbs told the jury that he arrested appellant for driving while intoxicated on September 20, 1983. Two days later appellant led state troopers on a 25 mile car chase according to the testimony of Trooper Richard Shea. Marie Holt testified that appellant assaulted her on January 27, 1984. On the same day, Officer I.C. Hale found appellant sitting near his wrecked vehicle sniffing paint. Appellant objected to the preceding evidence because it involved acts of misconduct on the part of appellant that were not final convictions. Appellant’s objections were overruled, and the jury was allowed to consider these incidents when assessing punishment. In its brief in support of its petition for discretionary review, the State attacks the Court of Appeals holding in two respects; that the unadjudicated offenses are independently admissible because they are relevant to show probable future conduct of the appellant, and that Art. 37.07 as interpreted by Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), allows such punishment evidence on the issue of probation. Taking the second attack first: Allaben, supra, dealt with the admissibility of defensive evidence concerning the defendant’s post-offense psychiatric treatment as it related to the defendant’s application for probation. The Court held that it was error to exclude such evidence, stating, id. at 519: “Evidence to be offered at the hearing on punishment pursuant to the provisions of Article 37.07, Section 2(b), Vernon’s Ann. C.C.P., is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.” [emphasis supplied] At the time of the defendant’s trial in Allaben, supra, and more importantly at the time of the writing of the opinion, Article 37.07, Section 2(b), V.A.C.C.P., read: “(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.” [emphasis supplied] Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. In 1967, the article was amended in one very important aspect, as follows: Section 2. (b) Except as provided in Article 37.071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment. (c) Punishment shall be assessed on each count on which a finding of guilty has been returned. Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty. (a) Regardless of the plea and 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. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged. [emphasis supplied] Acts 1967, 60th Leg., p. 1739, ch. 659, § 22, eff. Aug. 28, 1967. With this amendment a statutory prohibition against the introduction of unadjudi-cated extraneous offenses during the punishment phase of a trial as proof of prior criminal record was strictly imposed. Elder v. State, 677 S.W.2d 538 (Tex.Cr.App.1984); Ramey v. State, 515 S.W.2d 535 (Tex.Cr.App.1978). Nevertheless, prosecutors quickly invoked the above quoted and underlined portion of Allaben, supra, whenever they sought to introduce, as punishment evidence bearing upon a question of probation that was before the jury, unadjudicated extraneous offenses. Overlooking the 1967 amendment, as well as the fact that Allaben, supra, dealt with the introduction of evidence other than extraneous transactions which constituted offenses, this Court blindly adhered to the Allaben holding and it became the order of the day in this Court. In Davis v. State, 478 S.W.2d 958 (Tex.Cr.App.1972), we held it was proper to prove the defendant had committed a robbery one month before the charged offense because probation was a question before the jury and that: “While the general rule is that specific acts of misconduct by the accused which have not resulted in final convictions cannot be admitted, this court has been reluctant to exclude legally admissible evidence which is relevant to a fair determination of an accused application for probation. Allaben v. State, Tex.Cr.App., 418 S.W.2d 517; ...” [further citations omitted as not germane]; See also Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973) (Defendant's prior marijuana purchase admissible on the issue of probation, citing Allaben, supra); McCrea v. State, 494 S.W.2d 821 (Tex.Cr.App.1973) (Permissible to ask defendant if he had ever been addicted to any drug because the issue of probation was before jury, citing Allaben, supra); Holmes v. State, 502 S.W.2d 728 (Tex.Cr.App.1973) (Proper to establish that defendant had been in the drug abuse unit of a Veteran’s Administration hospital because probation was before the jury, citing as one justification, the holding in Allaben, supra). See also cases cited in Holmes, supra, at 729. Although our rationale does not entirely comport with that of the Court of Appeals’, we still agree with their initial holding that admission of the extraneous offenses violated Art. 37.07, § 3, V.A.C.C.P. Thus, whatever support Allaben might have given the State’s position at the time it was written, the 1967 amendment to Art. 37.07, supra, rendered it of no precedential value on the narrow issue of admissibility of unadjudicated extraneous offenses solely to meet a defendant’s application for probation. We find the State’s second attack on the Court of Appeals’ holding to be without merit. The State also contends, notwithstanding the provision of Art. 37.07, that the unadju-dicated offenses were independently admissible because they were relevant to show probable future conduct of the appellant. We therefore turn to a more traditional treatment of the admissibility of extraneous offenses. Generally, the admissibility of an extraneous offense is determined by using a two-prong test: “First, it must be determined that the extraneous offense is relevant to a material issue in the case other than the defendant’s character. [Footnote omitted.] Second, the evidence must possess probative value which outweighs its inflammatory or prejudicial effect.” Plante v. State, 692 S.W.2d 487, 491 (Tex.Cr.App.1985), citing Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983). See also Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1986) (opinion on State’s motion for rehearing), and Robinson v. State, 701 S.W.2d 895 (Tex.Cr.App.1985). In the case before us, the evidence admitted concerned appellant’s commission of unadjudicated offenses a few months prior to the commission of the instant offense. The issue upon which this evidence was admitted was whether appellant was a worthy candidate for probation. In order to determine whether the trial court erred by admitting this evidence for its intended purpose, we must apply the preceding two-prong test. First, was the evidence relevant to the issue sought to be established? “Relevancy” has been defined as “that which makes the proposition at issue more or less probable.” Garza v. State, 715 S.W.2d 642, 644 (Tex.Cr.App.1986), citing Waldrop v. State, 138 Tex.Cr.R. 166, 133 S.W.2d 969 (1940). The new Rules of Criminal Evidence, effective September 1, 1986, define the term in Rule 401: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. To be relevant, the evidence need not establish the proposed issue, but need only make its existence more or less probable. Stated another way, such evidence must at least be “a brick in the wall.” In the instant case, appellant applied for probation and testified that he was eligible. The State introduced evidence indicating that appellant would be a poor candidate for probation because he had not been able to conform his conduct to the law in the past. Whether the fact that an accused has committed criminal acts in the past makes it arguably less probable that he or she will follow the law in the future, is a question best decided on a case by case basis according to the individual facts of each case. This Court has made the observation here sought by the State, with regard to past offenses and probation applications and concerning probability that the accused will not be as apt to abide by the terms of probation, on several occasions. See McCrea, Cleveland, Davis, and Holmes, supra. But even if we were to concede that in this case the evidence was in some way relevant, we find that our determination on the second issue — whether the evidence was too prejudicial — renders the evidence inadmissible. The rules prohibiting admission of extraneous offenses arise from the general rule that an accused is entitled to be tried upon the accusation made in the State’s pleading and not on some collateral crime. See Moore v. State, 700 S.W.2d 193 (Tex.Cr.App.1985), and cases cited therein at 199. Also, admission of extraneous offense evidence, albeit relevant to many issues, is inherently prejudicial to the defendant’s right to a fair trial. Id. As was stated in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), at 100: “Limitations on the admissibility of evidence of an accused’s prior criminal conduct are imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, [emphasis added.] Given the inherently prejudicial effect of extraneous offense evidence, social policy requires that such evidence be excluded unless its probative value clearly outweighs its prejudicial effect. See Williams, supra. See also Kelley v. State, 677 S.W.2d 34 (Tex.Cr.App.1984), and Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App.1983). In the instant case, at least two factors militate against the probative value of the admitted evidence. First, although some of the offenses involved assaultive conduct, all of the offenses were unadjudicated. The probative value of an unadjudicated offense will be less than that of an offense for which defendant, by due process of law, has been convicted. Second, the offense occurred before appellant’s arrest for the instant offense. The probandum of the State, that the appellant would likely break the law in the future because he had done so in the past, was weakened by the fact that in regards to some of the extraneous offenses he had not been arrested, charged or indicted for these offenses prior to commission of the instant offense. Thus, appellant had not been brought before the law and confronted with responsibility for his actions. The evidence was also highly prejudicial. Appellant had just been found guilty of stabbing his wife to death during an argument. Two of the extraneous offenses involved assaults against other women that occurred within six months of the instant offense. The similarity of these violent crimes was clearly prejudicial beyond the mere generic idea that appellant would continue to commit crimes. On the facts of this case, the evidence introduced against appellant concerning the five acts of misconduct was beyond dispute more prejudicial to appellant than probative of his ability to abide by the laws in the future. Thus, even if we were to concede relevance under the facts of this case, the evidence should not have been admitted under Williams, supra, and the trial court erred by so doing. A determination that the trial court erred by admitting evidence of an extraneous offense does not end our inquiry. We must also determine whether the error was reversible. In cases such as the one before us, prior caselaw has been that a judgment will not be reversed for the erroneous admission of evidence unless there is a reasonable possibility that the evidence complained of contributed to the punishment assessed. Prior v. State, 647 S.W.2d 956, 960 (Tex.Cr.App.1983), and Templin v. State, 711 S.W.2d 30 (Tex.Cr.App.1986). See also Plante, supra, Bordelon v. State, 683 S.W.2d 9 (Tex.Cr.App.1985), Johnson v. State, 660 S.W.2d 536 (Tex.Cr.App.1983), and Ward v. State, 657 S.W.2d 133 (Tex.Cr.App.1983). Our current standard is embodied in Texas Rule of Appellate Procedure 81(b)(2), which states: (2) Criminal Cases. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. [Emphasis supplied] In the case at bar, the evidence presented during the guilt-innocence stage of the trial established that the victim and appellant had frequent quarrels during the seven years they were married. A number of quarrels involved acts of violence by the victim against appellant. Just prior to the stabbing in question, the victim and appellant argued, and the victim threatened to divorce appellant. Appellant’s testimony also shows that the victim cut appellant with the knife three times before he stabbed her. Appellant had never before been convicted of a felony and was therefore eligible for probation. As previously stated, the jury assessed the maximum punishment of life imprisonment and a $10,000 fine. The State’s entire contention concerning the extraneous offenses was that they were relevant to appellant’s application for probation. Even in view of the facts of this case, we cannot conclude beyond a reasonable doubt that the extraneous offenses made no contribution to the punishment. Thus, the trial court committed reversible error in admitting evidence of five prior acts of misconduct. Accordingly, the decision of the Court of Appeals reversing the judgment of the trial court and remanding it to that court is affirmed. McCORMICK, TEAGUE and DUNCAN, JJ., concur in the result. . In their own discussion of Allaben, the Court of Appeals distinguished the present case from the Holmes, Cleveland, Davis and McCrea cases cited above. Characterizing these cases permitting evidence of extraneous offenses to correct a false impression created by a defendant before the jury, they said that no such false impression had been created by the appellant (see summary of appellant’s evidence, in paragraph two, ante). Our reading of those cases makes it clear that whatever characterization or false impression language might have been used in them, the true basis for their holding was Allaben, supra. For a recent and authoritative discussion of the doctrine that allows the State to correct a false impression left by a defendant, see Prescott v. State, 744 S.W.2d 128 (Tex.Cr.App.1988). . See and compare current Tex.R.Cr.Evid. 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. . It may, for instance, be more probative if the extraneous offense was committed by a defendant after charges were brought against him. . We note that the current germane portion of Art. 37.07 reads as follows: Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty, (a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged. [emphasis supplied] Acts 1987, 70th Leg., ch. 1101, § 15, eff. Sept. 1, 1987. The rules of evidence arguably applicable to situations such as the case at bar are Tex.R.Cr. Evid. 608 and 609, 401 (quoted supra) through 405, and especially 404(c), which states: "(c) Character relevant to punishment. In the penalty phase, evidence may be offered by an accused or by the prosecution as to the prior criminal record of the accused....” [emphasis supplied] It would seem then that our holding today is unaffected by the promulgation of these rules.
CLINTON, Judge, dissenting. Murphy v. State, 700 S.W.2d 747 (Tex.App.-Dallas 1985), applied literally the definition of “prior criminal record,” distinguished on its facts and thus declined to be guided by a broad statement in Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967) (evidence that is relevant to the application for probation is also admissible), held Article 37.07, § 3 “controls the instant case” and, therefore, concluded: “The unadjudi-cated extraneous offense testimony admitted by the trial court was admitted in violation of article 37.07(3).” Id., at 749-750. Being in agreement with that particular rationale, but for the leading opinion by Judge Miller, like three other judges I too would concur in the resulting affirmance of the judgment rendered by the Dallas Court of Appeals. In my view, however, the Legislature has yet to provide in Article 42.12, § 3a (a), that discretion of a jury in determining an application for probation need be informed by any evidence beyond that permitted in Article 37.07, § 3 — much more evidence on the alleged “issue [of] whether appellant was a worthy candidate for probation,” including unadjudicated offenses for the ostensible purpose of showing his “probable future conduct,” slip opinion, at 6. Therefore, I must dissent to that proposition, albeit expressed by a plurality of three judges. Similar issues await decision in other causes, and more will no doubt be written then.
WHITE, Judge, dissenting. I dissent to the majority’s exclusion of extraneous offenses at the punishment stage. Not only do I disagree with the majority’s interpretation of Article 37.07, Sec. 3(a), V.A.C.C.P., but I also find their relevancy assessment untenable. Article 37.07, Sec. 3(a) states: (a) Regardless of the plea and 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. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged, [emphasis added]. The majority terms this “a statutory prohibition against the introduction of unadju-dicated extraneous offenses during the punishment phase of a trial.” However, there is no prohibitive language contained in this statute. The term “may” is permissive and the list of three types of evidence admissible at punishment is not facially exhaustive but exemplary in nature. Although evidence “may be” offered as to prior criminal record, reputation and character, any other relevant evidence can also be offered. This is how the statute was interpreted in Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), when we stated, Evidence to be offered at the hearing on punishment pursuant to Article 37.07, [citation omitted] is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible. Allaben, supra at 519. Contrary to the majority’s conclusion, Al-laben ⅛ interpretation of 37.07 was not in any way affected by the subsequent amendment which added the last sentence to this section defining “prior criminal record.” The term “prior criminal record” may have been limited, but the list of the types of evidence that may be offered is still exemplary and not exhaustive. Allaben correctly interpreted 37.07 as it was then and as it was at the time of the instant case. It is for this reason that I disagree with the majority’s discarding of Allaben and its extensive progeny. See, e.g., Wilkerson v. State, 736 S.W.2d 656, 659 (Tex.Cr.App.1987); Baxter v. State, 645 S.W.2d 812, 816 (Tex.Cr.App.1983); Thomas v. State, 638 S.W.2d 481, 483 (Tex.Cr.App.1982); Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973); McCrea v. State, 494 S.W.2d 821 (Tex.Cr.App.1973); Basaldua v. State, 481 S.W.2d 851 (Tex.Cr.App.1972); Davis v. State, 478 S.W.2d 958, 959 (Tex.Cr.App.1972); Brumfield v. State, 445 S.W.2d 732, 741 (Tex.Cr.App.1969); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969); White v. State, 444 S.W.2d 921, 923 (Tex.Cr.App.1969). Furthermore, I dissent to the majority’s determination that the inflammatory and prejudicial nature of the extraneous offenses outweighed their probative value. The court charged the jury to consider the extraneous offenses only as to appellant’s probation application. The majority holds that these extraneous offenses were irrelevant to this determination. I disagree. The first inquiry in any relevancy analysis is to pinpoint the material fact in issue. By filing a probation application, appellant automatically created a contested issue: his suitability for probation. In order to determine what evidence is relevant, we must first set out the fact issues presented to the jury in determining whether a defendant should be placed on probation. Because the jury’s discretion in determining suitability for probation is so broad, and the assessment more intuitive than technical in nature, the specific issues are difficult to explicitly delineate. Possibly, this is why the majority ignores this task. Although the fact issues for the jury to consider in determining a defendant’s suitability for probation are not statutorily set out, they can be gleaned from stated statutory purposes and case law. Probation is considered a privilege, not a punishment, an alternative to imprisonment where the defendant is given a chance to rehabilitate. Thus, the issues become the defendant’s rehabilitative potential, likelihood of recidivism, danger to the community, and suitability to a probationary environment. See, Art. 1.03, V.A.C.C.P.; Art. 1.26, Y.A.C. C.P.; Art. 42.12, Sec. 3, Y.A.C.C.P.; V.T. C.A., Penal Code Sec. 1.02; Baxter, supra; Thomas, supra at 483-484, fn. 6-7; Tezeno v. State, 484 S.W.2d 374, 380 (Tex.Cr.App.1972); Logan v. State, 455 S.W.2d 267, 270 (Tex.Cr.App.1970); Schulz v. State, 446 S.W.2d 872, 874 (Tex.Cr.App.1969); Coleman v. State, 442 S.W.2d 338 (Tex.Cr.App.1969); Fielding v. State, 719 S.W.2d 361, 368-370 (Tex.App.-Dallas, 1986, no pet.). Also see generally, 3 Tex.Crim. Practice Guide, Sec. 74.03[2][a], p. 74-25-26. I find that, given the facts of the instant case, the five extraneous offenses, all of which were committed within six months of the instant murder, were relevant to the determination of these issues. These extraneous offenses were probative of the nature and extent of appellant’s criminal history as it reflects on his suitability for probation. Appellant’s history is every bit as relevant as the list enumerating twelve possible conditions of probation which was given to the jury in the court’s charge (essentially the first eleven in Art. 42.12, Sec. 6(a) and that he pay a monthly probation fee). , In fact, such a charge enhanced the relevancy of the extraneous offenses. The prior offenses had significant probative value in the jury’s determination of appellant’s capability to follow these probationary conditions, especially as to his capability not to violate laws. Contrary to the majority’s determination, appellant’s past criminal conduct is very illuminating on the probability of his future recidivism. This is especially true when the numerous paint sniffing offenses denote a drug addiction likely to be repeated. Further, any possible prejudicial affect of these offenses does not outweigh their probative value. The inherent danger of confusing and prejudicing issues of guilt, which is the basis for the general rule against admission of extraneous offenses, is absent when the issue of guilt has been resolved. Appellant had already been found guilty, thus, there was no danger that these extraneous offenses were utilized by the jury in convicting appellant. Additionally, the court charged the jury to consider these offenses only as to the possibility of probation, thus precluding any possible prejudicial effect on their assessment of the term of imprisonment. Moreover, two of the five extraneous offenses concerned appellant’s paint sniffing. Two instances of paint sniffing were introduced at the guilt-innocence phase through appellant’s confession and defensive testimony. Thus, the prejudicial effect of these paint sniffing offenses are minimal. The jury had before it the task of determining whether appellant should be placed on probation. The immense probative value of the extraneous offenses is best exemplified by the instant facts. An assessment of the rehabilitative potential and criminal propensity of a man who has committed no prior bad acts and who killed his estranged wife while under the influence of sniffing paint and in a fit of rage, points toward the possibility of probation as an appropriate sentence. Such facts, as would have been before the jury without admission of the extraneous offenses, evidence a single act of directed rage not likely to be repeated. However, reality depicts a man with a history of committing violent offenses against women, paint sniffing abuse and disrespect for the law and police. These facts reflect a man with a drug addiction and a propensity for general violence which is likely to be repeated and which presents a threat to the community. Juries, comprised of law abiding citizens of the community in which the defendant, if given probation, will reside, are vested with the discretion to assess a fair and appropriate sentence. In their determination of the appropriateness of probation, they are entitled to know the defendant’s criminal history, just as the judge is provided in a pre-sentence report when he considers the same. See, Art. 42.12, Sec. 4, Y.A. C.C.P. There is nothing to show that a jury cannot be as fair and impartial as a judge or that the prior criminal history is not as every bit important to the juries’ common sense determination of the issues. The probative value of the instant extraneous offenses in the juries’ intelligent assessment of the sentencing alternatives is immense. Because the majority withdraws such probative and admissible evidence from the members of the jury, I must respectfully dissent. ONION, P.J., joins this dissent. .It is also noted that in a converse situation, where a defendant seeks to introduce mitigating evidence and is precluded from doing so by the majority’s restrictive reading of 37.07, this could arguably render the statute unconstitutional. See, Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) and footnote 4, post; Thomas, supra at 483-484, fn. 4-7. Also see, Code Construction Act, Sec. 311.021 (where there are two possible interpretations of a statute, it is to be construed to uphold its constitutionality). . For the presently applicable rules see Art. 37.-07, Sec. 3(a), V.A.C.C.P.; Tex.R.Crim.Ev., R. 404(c). . It should be noted that it is confusing that the majority first finds the extraneous offenses statutorily inadmissible under 37.07, and then feels the need to go on and apply a relevancy analysis. . The majority asserts that past criminal conduct does not prove future conduct. However, our death penalty scheme rests upon the assumption that "future dangerousness” can be determined by past conduct. See, Art. 37.-071(b)(2), V.A.C.C.P. In death penalty cases, extraneous criminal conduct is admissible at punishment as necessary and probative evidence of future conduct. Implicit in this rule is the common sense fact that past conduct is highly probative of future conduct. Further, there is no reasonable distinction between the juries’ consideration of future conduct in their assessment of punishment in a death penalty as opposed to a non-death penalty case. In each instance, the jury is vested with broad discretion to predict the defendant’s probable future conduct. However, some would argue that only in capital cases are extraneous offenses admissible because different policy considerations and interests are served and effectuated through the unique death penalty sentencing procedures. I find this argument specious. While a non-capital jury is not required to answer a statutorily prescribed special issue for future dangerousness, it is clear that their analysis of the appropriateness of a probationary sentence is dependent, in large part, upon a prediction of likely future conduct. Thus, future conduct is an issue to be resolved by the jury and, just as in capital cases, the criminal history of a defendant is highly probative of his future conduct. . In their relevancy analysis, the majority relies on cases which weigh relevancy issues presented at the guilt-innocence phase of trial going to prove intent, identity, knowledge, motive and design. Obviously, the highly prejudicial effect of extraneous offenses at this phase, when character is not in issue, is far different from their effect at punishment, when character is an issue.
ONION, Presiding Judge, concurring in part and dissenting in part. Appellant Murphy was convicted by a jury of the murder of his wife. At the penalty stage of the trial, after the State rested without offering evidence, the appellant testified before the jury in support of his sworn motion for probation and merely stated that he had not been previously convicted of a felony or placed on probation. He thus established his eligibility for probation. See Article 42.12, § 3a(a), V.A.C. C.P. Appellant was not cross-examined. Appellant then rested. Thereafter the State, on the issue of probation, introduced over objection five witnesses who related the details of several recent extraneous unadjudicated offenses. On appeal appellant, inter alia, complained of the admission of this evidence at his 1984 trial. The Dallas Court of Appeals, in an opinion by the late Justice James Allen, reversed the conviction on the basis of this ground (now point) of error. Relying upon the panel opinion in Ramey v. State, 575 S.W.2d 535, 537 (Tex.Cr.App.1978), the Court of Appeals found that Article 37.07, supra, established as a general rule that extraneous unadjudicated offenses are not admissible, and that the evidence of such offenses offered in the instant trial was controlled by the general rule. Elder v. State, 677 S.W.2d 538, 539 (Tex.Cr.App.1984). Distinguishing Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), on its facts, the Court of Appeals also observed that departures from the general rules had been tolerated by this Court “only where the defendant has created a false impression before the jury” and held that in the instant case no such false impression was created. The State’s petition for discretionary review was granted to determine the correctness of the decision of the Court of Appeals. Upon further consideration it is clear that the Court of Appeals, given the particular circumstances of the instant case, reached the right result and its rationale is sufficient to have justified this Court’s refusal of the State’s petition in the first instance. The plurality, while reaching the same result as the Court of Appeals, has so varied the rationale as to lay the basis for future mischief. The plurality seizes upon a 21-year-old legislative amendment to Article 37.07, V.A.C.C.P., merely defining “prior criminal record” (Acts 1967, 60th Leg., p. 1739, ch. 659, § 22, eff. Aug. 28, 1967) as the basis for now holding that the only evidence that may be permitted at the penalty stage of a bifurcated trial as limited to “prior criminal record of the defendant, his general reputation and his character.” The plurality also would find that by such amendment the 21-year-old Allaben has been “rendered ... of no precedential value on the narrow issue of admissibility of unadjudicated extraneous offenses solely to meet a defendant’s application for probation.” Allaben, of course, did not deal with unadjudicated offenses. Allaben held that the trial court should have allowed the defendant, a sex offender, to show at the penalty stage of the bifurcated trial that he had sought psychiatric treatment for sexual problems when the motion for probation was before the jury. The error was however held to be harmless. The plurality overlooks the history of the bifurcated trial system in Texas. The unitary trial system long prevailed in Texas in felony cases where the plea of not guilty was before the jury. See Article 693, V.A. C.C.P. (1925), and its forerunners. In such cases the jury determined the guilt, and if necessary, the punishment in a one stage trial with one jury charge. The unitary trial system and the language of said Article 693 was retained in § 1 of Article 37.07 in the early drafts of the State Bar Committee's work on the 1965 Revision of the Code of Criminal Procedure. In § 2 of the proposed draft was an “Alternative Procedure,” a bifurcated trial procedure, to be used only within the discretion of the trial judge and with consent of both parties in felony jury cases where the plea was not guilty. It provided that either the State or the defendant “may” independently at the penalty stage of the trial introduce evidence of the defendant’s prior criminal record, his character or reputation. Such “Alternative Procedure” was to provide an experimental basis for future legislation. The proposal was made in response to constant criticism that the unitary system blindfolded the jury as to the defendant’s prior criminal record and to the outrage of jurors who first learned of the defendant’s prior convictions after verdict and learned that such had been inadmissible. Somewhere in the legislative process a crucial phrase was deleted from § 1 of the proposed statute, and the unitary trial system was gone with the wind. The “Alternative Procedure” became “the” procedure though the 1965 version of Article 37.07, § 2, retained the “Alternative Procedure” label. The term “prior criminal record” was not defined but this oversight was corrected by the said 1967 amendment. Neither in the 1965 nor the 1967 version of the statute did the Legislature expressly state that the only evidence either party may offer at the penalty stage of trial is the defendant’s prior criminal record (as now defined), his character or reputation. It could have easily done so if that was its intention. The law was basically unchanged at the time of appellant’s 1984 trial. If the law was changed by the 1967 amendment to Article 37.07 merely defining “prior criminal record,” then the plurality fails to explain how a defendant may introduce evidence of temporary insanity caused by intoxication in mitigation of penalty, Y.T.C.A., Penal Code, § 8.04, or how a defendant may establish by evidence before the jury his eligibility for probation under Article 42.12, § 3a(a), supra. Of course, there may be other examples. Article 37.07, supra, applies in many contexts. It is not limited to situations where the defendant has filed his motion requesting probation at the hands of the jury. Where that situation occurs, however, under Article 42.12, § 3a(a), supra, the sworn motion must show and the proof must support the fact that the defendant has never been convicted of a felony in this or any other state. Thus the defendant must establish eligibility for probation before the jury in order to be entitled to probation. To favorably persuade the jury to grant probation is the defendant limited to mere evidence of his eligibility? While Article 42.12, § 3a(a), supra, requires evidence of eligibility it does not prohibit other evidence by the defendant as to his background and evidence indicative of his successful completion of probation if granted. Where a motion for jury given probation is involved then any interpretation of Articles 37.07 and 42.12, supra, must be considered in light of the history of and the cases decided under the Suspended Sentence Law (Articles 776-780 inch V.A.C.C. P. — 1925) as well as the history of the Adult Probation Laws in Texas prior to the 1965 Code of Criminal Procedure (Acts 1947, 50th Leg., p. 1049, ch. 452 — codified as Article 781b, V.A.C.C.P. — 1925 and Acts 1957, 55th Leg., p. 466, ch. 226, codified as Article 781d, V.A.C.C.P. — 1925). The Suspended Sentence Law was first enacted in 1913 permitting juries to grant suspended sentences in certain felony cases under certain conditions. In 1931 judges were permitted to grant suspended sentences (Acts 1931, 42nd Leg., ch. 43, § 4 — See Article 776a, V.A.C.C.P. — 1925). Articles 776, 776a and 778, V.A.C.C.P.— 1925, provided that a defendant, before the judge or jury, as the case might be, must establish his eligibility for a suspended sentence (no prior felony conviction) and provided in the unitary trial then in existence that evidence was limited to “the general reputation of the defendant” which was interpreted to mean the reputation for being a peaceable and law-abiding citizen. See Campbell v. State, 73 Tex.Cr.R. 198, 164 S.W. 850 (1914); Long v. State, 120 Tex.Crim. 373, 48 S.W.2d 632 (1931). See generally 16 Tex.Jur.2d, Criminal Law, §§ 432-438, pp. 673-687. Probation, on the other hand, first appearing in Texas in 1947, could only be given by the trial judge, a traditional characteristic of probation. While the defendant was required to establish his eligibility for probation (no prior felony conviction) there was no express statutory limitation on the evidence to be offered on the issue involved as in the case of a suspended sentence. Probation could only be given “following conviction or a plea of guilty.” The trial court at the time could not entertain a plea of not guilty in a felony case. A jury had to be empaneled. Upon hearing guilty pleas and considering motions for probation, however, the trial court often heard evidence offered by a defendant as to his “suitability” for probation as well as his eligibility. See Roy v. State, 319 S.W.2d 705 (Tex.Cr.App.1959). See and cf. Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973). It was not unusual under the former probation statutes for a defendant to offer to the court evidence from parents, other family members, ministers, former teachers, former or prospective employers, doctors, and even probation officers, etc., all in support of his motion for probation. Reputation witnesses were also utilized by both parties as in suspended sentence cases. The most common witness was usually the defendant himself. Where the defendant sought to establish his eligibility for probation the State was permitted to show a prior felony conviction, if any, and to call witnesses as to the defendant’s “bad” reputation, and to cross-examine defense witnesses. The State was limited in impeaching the defendant or witnesses by the terms of Article 732a, Y.A.C.C.P. (1925), now Article 38.29, Y.A.C.C.P. (1965). Only final convictions, a suspended or probated sentence could be utilized for impeachment. The general rule at trial was that extraneous unadjudicated offense evidence could not be used for impeachment or otherwise on the issue of probation. Of course, where the defendant attempted to leave a false impression as to his background or opened the door by claiming he never had been in trouble with the police, had no arrest record, etc., then it was legitimate for the State to prove otherwise. Cf. Nelson v. State, 503 S.W.2d 543, 545 (Tex.Cr.App.1974); cf. also Shipman v. State, 604 S.W.2d 182 (Tex.Cr.App.1980); Carter v. State, 550 S.W.2d 282 (Tex.Cr.App.1977); Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976). In 1965 in order to secure the repeal of the supposedly abused Suspended Sentence Law it was necessary to revise the probation laws in the new Code of Criminal Procedure to permit juries to grant probation as well as judges. See now Article 42.12, § 3a(a), supra. The required sworn motion procedure of the Suspended Sentence Law found its way into the probation laws, but the statutory limitation of evidence to reputation testimony did not. These changes were all made at the same time as the original enactment in 1965 of Article 37.07, applicable at the time only to pleas of not guilty in jury cases. This history must be considered in arriving at a proper rationale. In the instant 1984 case, considering the law then applicable, Justice Allen for the Dallas Court of Appeals re-utilized the proper rationale and reached the right result. The plurality has drifted far afield in reaching the same result but in devising a strained new rationale in relying on a misinterpretation of a 21-year-old legislative amendment and seeking to undermine Allaben. I concur in the result reached but certainly not the reasoning of the plurality. . However, where the trial court utilized a pre-sentence report as authorized by the Adult Probation Laws in passing upon the question of probation the extraneous unadjudicated offenses, etc., were before the court. . The appellant offered only evidence as to his eligibility for probation — that he had not previously been convicted of a felony. This alone did not entitle the State to offer the details of extraneous unadjudicated offenses. Appellant left no false impression with the jury. The State’s witnesses used, if qualified, might have properly testified as to the appellant’s "reputation for being a peaceable and law-abiding citizen and that it was ‘bad.’ ” The State, however, did not use this approach.
OPINION ON STATE’S MOTION FOR REHEARING CLINTON, Judge. The issue in this cause is whether unad-judicated extraneous offenses are admissible for a jury to consider in assessing punishment and recommending probation when a defendant applies for probation, pleads not guilty but is found guilty, and then testifies in support of his application. Appellant was found guilty of murder; the jury assessed his punishment at confinement for life and, of course, did not recommend probation. After the jury returned its verdict of guilt the trial judge promptly convened a punishment hearing, and called for announcements. The prosecution announced that “the State will rest on punishment.” Thereafter, in substance the court of appeals found the following occurred: Appellant took the stand, stated his name and testified in response to only three questions that he is the person the jury had just found guilty, that he had not before been convicted of a felony offense anywhere and that he had never been placed on felony probation. The prosecution chose not to question him. Appellant rested. Then, outside the presence of the jury, understanding that the State intended to call five witnesses to testify to unadjudicated extraneous offenses allegedly committed by appellant, over his proper objection the trial judge ruled the evidence would be admissible, explaining his reasoning, viz: “[T]hat extraneous offenses, if shown to have occurred within a reasonably recent period, would be admissible in the punishment hearing, bearing on the proposition only, as to whether or not the defendant is a proper person to have on the street on probation, or should in fact, be in the penitentiary, and not bearing on any other part of the punishment.” Accordingly, the trial court permitted the prosecution to adduce evidence of five prior unadjudicated offenses, the oldest of which had been committed some six months before the instant offense, viz: a purse snatching robbery; driving while intoxicated by sniffing paint; fleeing officers in a three county chase under influence of inhaling paint; a misdemeanor assault by near strangulation, followed within an hour by an arrest for public intoxication from sniffing paint. With that, both parties closed. The charge of the court instructed the jury on its functions “if you desire in your discretion as jurors to recommend probation in this case.” The Dallas Court of Appeals noted the trial court had admitted the evidence “on the basis that it was relevant to the accused’s application for probation,” and that the State defends that ruling on the same basis. It found “currently clear that, as a general rule, evidence of unadjudicated extraneous offenses is inadmissible under article 37.07,” and held the general rule controlled in the instant case. Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), upon which the State relied, was found distinguishable on its facts in that there the defendant was offering to show he had sought psychiatric treatment for his sexual problems, and the opinion “does not deal with the admission of an unadjudicated extraneous offense.” It also alluded to “false impression” cases and “fair determination” notion of Davis v. State, 478 S.W.2d 958 (Tex.Cr.App.1972), distinguished them and concluded, “The unadju-dicated offense testimony admitted by the trial court was admitted in violation of article 37.07(3).” Murphy v. State, 700 S.W.2d 747 (Tex.App.—Dallas 1985). We granted review of that decision to examine the State’s primary contention that “an application for probation, this alone put into issue [appellant’s] suitability for probation and, as such, made relevant that evidence showing his likely future criminal conduct.” State’s Petition for Discretionary Review, p. 7. Tex.R.App. Pro. Rule 200(c)(1), (2) and (3). I. As the court of appeals observed, it is currently considered the “general rule” that neither unadjudicated bad acts, nor the details of adjudicated offenses, may be admitted at the punishment phase in a non-capital prosecution. E.g., Ramey v. State, 575 S.W.2d 535 (Tex.Cr.App.1978); Sherman v. State, 537 S.W.2d 262 (Tex.Cr.App.1976); Lege v. State, 501 S.W.2d 880 (Tex.Cr.App.1973); Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973). This general rule derives from V.A.C.C.P., Article 37.07, § 3(a), which at the time of trial in this cause read as follows: “(a) Regardless of the plea and 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. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.’’ This provision had its genesis in the 1965 Code of Criminal Procedure, wherein also, by other provisions of Article 37.07, supra, bifurcation of jury assessments of guilt and punishment was accomplished for the first time. In Allaben v. State, supra, the Court remarked that evidence admissible at the newly created punishment phase of trial: “is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.” Id., at 519. In subsequent cases the Court held unadjudicated extraneous offenses admissible on authority of Allaben, supra, where application for probation was made. For example, in Davis v. State, supra, the defendant testified at the punishment phase of trial that he had not realized his companion had intended to commit robbery until he actually pulled a gun on a loan officer. The State was allowed to rebut this testimony with evidence the defendant had committed a robbery at a loan company only a month before. This Court perceived no error, observing: “While the general rule is that specific acts of misconduct by the accused which have not resulted in final convictions cannot be admitted, this court has been reluctant to exclude legally admissible evidence which is relevant to a fair determination of an accused’s application for probation. Allaben v. State, supra; Santiago v. State, [444 S.W.2d 758 (Tex.Cr.App.(1969) ]. See also Rendon v. State, 170 Tex.Cr.R. 548, 342 S.W.2d 317; Ward v. State, 160 Tex.Cr.R. 232, 268 S.W.2d 465.” Id. at 959. In Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973), the defendant filed an application for probation and testified in support thereof, not only that he had never before been convicted of a felony, but also that he had been honorably discharged from the military and enjoyed a good work record and family life. On crossexamination the State was allowed to elicit the defendant’s admission that he had purchased marihuana on a prior occasion. Discerning no error in this, the Court observed: “The issue of probation for this [defendant], who had plead guilty to the possession of marihuana, was squarely before the jury. We are not dealing here with ... testimony which was not proper under Article 37.07, [supra]. Other issues can become involved rendering relevant testimony admissible.” Id., at 26. See also, McCrea v. State, 494 S.W.2d 821, 825 (Tex.Cr.App.1973); Holmes v. State, 502 S.W.2d 728, 729 (Tex.Cr.App.1973); Basaldua v. State, 481 S.W.2d 851, 854 (Tex.Cr.App.1972). The State maintains that the court of appeals erred in interpreting these cases, along with Davis v. State, supra, to hold that only after appellant first attempts to create a false impression as to his “suitability” for probation may the State, in the interest of obtaining a “fair determination,” respond with proof of unadjudicated specific acts of misconduct, to counter that impression. We believe a reasoned approach to resolution of this issue involves more than just a recapitulation of these particular cases. An understanding of the history of admissibility of evidence relative to punishment in Texas is also useful, and to that we now turn. II. With enactment of the first constitutionally valid suspended sentence law in 1913, see Acts 1913, 33rd Leg., p. 8, ch. 7, this Court was confronted for the first time with questions of admissibility of character evidence bearing specifically and exclusively upon a punishment issue in a unitary trial. Before that time it was “always admissible for [the accused] to prove that his character was such as to make it unlikely that he would have perpetrated the act charged upon him.” Wharton’s Criminal Evidence, § 57 (9th ed. 1884). Proof of character to this end was limited to evidence of the accused’s good reputation for a particular character trait, id., § 60, “character” being deemed essentially “convertible” with “reputation,” id., § 58; Brownlee v. State, 13 Tex.App. 255 (1882). Only after the accused had admitted evidence of his good reputation as to a particular character trait could the State respond with character evidence; and then, only in kind, with evidence the accused suffered a bad reputation for that same trait of character. See generally, Branch’s Annotated Penal Code, § 148, p. 84 (1st ed. 1916). Like the accused, the State was prohibited from adducing evidence of particular misconduct to prove character. Wharton’s, supra, § 61; Holsey v. State, 24 Tex.App. 35, 42, 5 S.W. 523 (1887); Thompson v. State, 38 Tex.Cr.R. 335, 42 S.W. 974, 977 (1897). As is the case today, the State sometimes could admit specific misconduct if its relevancy lay in its tendency to establish some material issue in the case, independent of whatever tendency it might also have had to establish some detrimental trait of the accused’s character per se. But whatever relevance specific misconduct may have had in aid of assessment of punishment was overshadowed in the unitary procedure by these rules preserving rights of the accused to a determination of his guilt or innocence absent uninvited “character/reputation” evidence. In 1913 the Legislature enacted the Suspended Sentence Law. Pursuant to that act, the accused could file written sworn application for suspended sentence in all but certain enumerated felony offenses. Should the jury assess a term of punishment not exceeding five years, and find the accused had never before been convicted of a felony, it could recommend his sentence be suspended, and the trial court was obliged to follow that recommendation. Art. 776, V.A.C.C.P. (1925). Furthermore, once an application for suspended sentence was filed, the trial court was required to “permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence[.]” Art. 778, V.A.C. C.P. (1925). For purposes of this provision, “general reputation” meant, exclusively, reputation of the accused for being peaceable and lawabiding. Campbell v. State, 73 Tex.Cr.R. 198, 164 S.W. 850 (1914); Long v. State, 120 Tex.Cr.R. 373, 48 S.W.2d 632 (1932). Evidence of a reputation for peaceableness, though a statutory consideration, was not deemed a prerequisite to jury recommendation of a suspended sentence. Martin v. State, 122 Tex.Cr.R. 174, 54 S.W.2d 812 (1932). Caselaw construing these provisions made clear that, whenever application for suspended sentence was made, the old rule prohibiting the State from initiating inquiry into the character of the accused, no longer applied. The application itself put the accused’s “reputation” in issue. E.g., Overby v. State, 92 Tex.Cr.R. 172, 242 S.W. 213 (1922). The very earliest cases, in fact, seem to indicate a belief that by putting “reputation” in issue, the statute authorized any “evidence of the character of life [the accused] has lived in the past ... to enable the jury to determine whether or not the clemency should be extended.” Williamson v. State, 74 Tex.Cr.R. 289, 167 S.W. 360, 362 (1914). See, e.g., Martoni v. State, 74 Tex.Cr.R. 90, 167 S.W. 349 (1914); Conatser v. State, 75 Tex.Cr.R. 91, 170 S.W. 314 (1914). To the extent these cases supported the proposition that specific acts could be proved in aid of the jury’s determination whether to recommend a suspended sentence, however, they were soon undermined. Beginning with Baker v. State, 87 Tex.Cr.R. 305, 221 S.W. 607 (1920), the Court opined that, though alone placing the accused’s “reputation” in issue, the new legislation did not purport to affect rules governing methods of proof. “The passage of the [Suspended Sentence] law did not change the rule touching the manner of proving the reputation.” Moore v. State, 91 Tex.Cr.R. 118, 237 S.W. 931, 933 (1922). The Court held, accordingly, that specific acts of misconduct were “not admissible as directly combating the good reputation of the accused.” Skelton v. State, 106 Tex.Cr.R. 90, 291 S.W. 238, 240 (1927). See also, Bowman v. State, 98 Tex.Cr.R. 349, 265 S.W. 1038 (1924); Pettiett v. State, 100 Tex.Cr.R. 255, 272 S.W. 473 (1925). Nor was the accused permitted to use particular acts of conduct to prove his good reputation. Wagley v. State, 87 Tex.Cr.R. 504, 224 S.W. 687 (1920); Brown v. State, 92 Tex.Cr.R. 147, 242 S.W. 218 (1922). So disinclined was the Court to allow evidence of extraneous acts that even when the accused managed to put in evidence of specific good conduct, it was ruled error to permit the State to counter with evidence of bad, over objection. Having failed to object to impermissible evidence from the accused, the Court held, the State could not compensate with otherwise impermissible evidence of its own. Johnson v. State, 91 Tex.Cr.R. 582, 241 S.W. 484 (1922) (Opinion on rehearing); Merritt v. State, 124 Tex.Cr.R. 42, 60 S.W.2d 792 (1933); Williams v. State, 130 Tex.Cr.R. 86, 91 S.W.2d 709 (1936). Cf. Jackson v. State, 155 Tex.Cr.R. 466, 236 S.W.2d 623 (1951); Seay v. State, 395 S.W.2d 40 (Tex.Cr.App.1965). The first Adult Probation Act appeared, as Art. 781b, Y.A.C.C.P., in 1947. Acts 1947, 50th Leg., p. 1049, ch. 452. Under this act only the trial court could grant probation, and then only “where the maximum punishment assessed ... does not exceed ten (10) years imprisonment.” Reminiscent of the still extant Suspended Sentence Law, the new probation statute required proof of no previous felony conviction; unlike the former, however, the probation statute did not expressly authorize admission of character evidence in any form. One possible explanation for this omission is that it was expected the trial court would routinely exercise the statutory alternative, provided in Art. 781b, § 2, supra, to direct a probation officer to “fully investigate and report to the court in writing the circumstances of the offense, criminal record, social history and present