Full opinion text
OPINION ON PETITIONS FOR DISCRETIONARY REVIEW MALONEY, Judge. In separate cases, appellants Robert Charles Grunsfeld and Jerred J. Hunter were each convicted by a jury of aggravated sexual assault and sentenced to life imprisonment. The Court of Appeals for the Fifth District in Dallas County reversed Grunsfeld’s conviction and remanded the case for a new trial. Grunsfeld v. State, 813 S.W.2d 158 (Tex.App.—Dallas 1991). The Fort Worth Court of Appeals affirmed Hunter’s conviction in an unpublished opinion. Hunter v. State, No. 2-90-170-CR (Tex.App.—Fort Worth Aug. 30, 1991). We have consolidated these two cases, as they both seek review of the same issue. We granted the State’s Petition for Discretionary Review in Grunsfeld and Appellant’s Petition for Discretionary Review in Hunter to determine whether Article 37.-07(3)(a) V.A.C.C.P., as amended, allows admission of unadjudicated extraneous offense evidence in the punishment phase of a trial on a noncapital offense. We will affirm the decision of the Court of Appeals in Grunsfeld and reverse the decision of the Court of Appeals in Hunter. We remand both cases to their respective trial courts for a new punishment hearing pursuant to article 44.29(b) V.A.C.C.P. A brief discussion of the facts of each case is helpful in understanding the context and application of article 37.07(3)(a). The victim testified at appellant Gruns-feld’s trial that following a date with Grunsfeld, he took her to his mother’s house where he repeatedly raped her. The victim further testified that Grunsfeld assaulted her with a stun gun throughout the alleged offense. In the punishment portion of the trial, the State called a witness who testified that Grunsfeld assaulted her several months prior to the subject offense. The State also called two other witnesses who each testified that they had been raped by Grunsfeld several months after the subject offense. Grunsfeld objected claiming that the witnesses’ testimony constituted extraneous offense evidence and did not fall within article 37.07(3)(a). The trial court nevertheless allowed the testimony of these witnesses over Grunsfeld’s objection. Grunsfeld’s mother testified that Grunsfeld had never been convicted of a felony offense, thus establishing his eligibility for probation. The Dallas Court of Appeals held that the trial court erred in admitting the evidence of the unadjudicated extraneous offenses and reversed and remanded the case to the trial court. Grunsfeld. During appellant Hunter’s trial, the victim testified that she gave Hunter a ride in her automobile after a meeting which they had both attended. Upon arrival at Hunter’s supposed destination, a deserted building, the victim testified that Hunter sexually assaulted her and then drove to a second location where he sexually assaulted her again. She further testified that Hunter choked her with his arm, causing her to lose consciousness and that Hunter threatened to kill her if she reported the incident. At the punishment phase of the trial the State called D.B. who testified that on the day before the subject offense she gave appellant Hunter a ride home from a school that they both attended. When they arrived at the designated location, Hunter sexually assaulted her at gunpoint and choked her with his arm. D.B. further testified that Hunter threatened to kill anyone whom she told about the incident. Appellant Hunter timely objected to D.B.’s testimony as inadmissible under article 37.-07(3)(a) and as not relevant under the Rules of Evidence. Hunter’s mother testified that Hunter had not previously been convicted of a felony, thus establishing his eligibility for probation. The Fort Worth Court of Appeals affirmed Hunter’s conviction, holding that article 37.07(3)(a) was intended to have the same meaning and effect as article 37.071(a), consequently permitting evidence of unadjudicated extraneous offenses during punishment of non-capital offenses. The relevant portion of article 37.07(3)(a), amended effective September 1, 1989, provides: 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 any matter the court deems relevant to sentencing, including 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. Article 37.07(3)(a) V.A.C.C.P. (Vernon Supp.1991) (emphasis on portion added by amendment). The State contends that the amendment to article 37.07(3)(a) effectuates the legislature’s intent to overturn this court’s ruling in Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1989) (opinion on rehearing), by now allowing the admission of “any matter the court deems relevant to sentencing,” including unadjudicated extraneous offenses, consistent with their admission in capital cases. The State argues that the term “including” is one of inclusion, not limitation and therefore, admissible evidence is not limited to a defendant’s prior criminal record, general reputation and character, but may include anything the trial court deems relevant, including unadjudicated extraneous offense evidence. Appellants claim that the plain language of the amended provision and the legislative history support a conclusion that evidence of unadjudi-cated extraneous offenses remains inadmissible under article 37.07(3)(a). A primary tenet of statutory construction is the importance of legislative intent. Ward v. State, 829 S.W.2d 787, 790 (Tex.Cr.App.1992); Dillehey v. State, 815 S.W.2d 623, 625 (Tex.Cr.App.1991); TEX. GOV’T CODE ANN. § 311.023(3) (Vernon 1988). Such intent may be derived from the language of the statute, its legislative history and the “context of the entire law in which it is written.” Grunsfeld, 813 S.W.2d at 168. As pointed out in the State’s brief, when examining amendments to existing legislation, it is presumed that the legislature was aware of caselaw affecting or relating to the statute. Welch v. Welch, 369 S.W.2d 434, 437 (Tex.Civ.App.—Dallas 1963, no writ). In light of the legislative history and the timing of the amendment, and in an effort to ascribe meaning to each word contained in the subject provision, as amended, we agree with the Dallas Court of Appeals in Grunsfeld in construing article 37.07(3)(a), to provide that even if deemed relevant to sentencing by the trial court, evidence is not admissible at punishment, unless (1) it is permitted by the Rules of Evidence , and (2) if the evidence sought to be admitted is evidence of an extraneous offense, it satisfies article 37.-07(3)(a)’s definition of prior criminal record. We note that these two criteria did not come about as a result of the 1989 amendment, but were in place before the recent amendment. The only change accomplished by the amendatory language is the statutory recognition that evidence other than prior criminal record, general reputation and character is admissible. At the time of the passage of the subject amendment, this issue was questionable under this court’s original opinion in Murphy. To that extent, we agree with the State that the subject amendment was very likely directed at this court’s opinion in Murphy. Although not patently apparent from the face of the original opinion, in separate dissenting opinions thereto, both Presiding Judge Onion and Judge White construed the plurality opinion in Murphy to hold that article 37.07(3)(a), as it then existed, prohibited the admission of any evidence other than prior criminal record, general reputation, and character. Based upon this view of the court’s original opinion, it is probable that the legislature also reached the same conclusion in reading the original opinion and was prompted to amend article 37.07(3)(a) by insertion of the word “including” to clarify that the article’s list of admissible evidence was not exhaustive and other evidence is admissible so long as it is deemed relevant to sentencing. Although the amendment’s embrace of the term “including” renders the list following it nonexclusive, retention of the term “prior criminal record” and its definitional provision indicates an intent to maintain limitations on the admission of extraneous offense evidence, including unadjudi-cated extraneous offenses. There is no other apparent reason for its retention. If, as the State contends, the retained definition does not control admission of extraneous offense evidence, its retention in article 37.07(3)(a) would serve no purpose. Further, as appropriately noted by the Dallas Court of Appeals, “[i]t would not make sense that the legislature intended that extraneous, unadjudicated offenses and their details be admissible, but that prior convictions must be final before being admissible and even then that details of the underlying offenses are to be excluded.” Grunsfeld, 813 S.W.2d at 172. Why would the legislature insist that a conviction be “final,” in assurance that it comported with due process safeguards, yet admit evidence of unadjudicated offenses which have not been tested by the rigors of due process? Our construction gives meaning to the provision as a whole and accounts for each portion of the questioned article. The construction urged by the State, that evidence of extraneous offenses is now admissible despite the retained reference to and definition of “prior criminal record” would render a large portion of article 37.07(3)(a), useless, contrary to well-established rules of construction which presume that each word contained in a statute is used for a purpose. See Polk v. State, 676 S.W.2d 408, 410 (Tex.Cr.App.1984) (citations omitted); Huggins v. State, 795 S.W.2d 909, 912-13 (Tex.App.—Beaumont 1990, pet. ref’d) (concurring opinion). The State’s further contention that article 37.07(3)(a), should be applied as broadly as article 37.071(a), is also unfounded in light of the retained portions of the provision. The form of the Bill submitted to the Senate by the Senate Committee on Criminal Justice proposed deletion of article 37.-07’s references to prior criminal record, general reputation and character and the definition of prior criminal record. However, when brought up for consideration by the Senate, a floor amendment was offered and passed which reinstated those references and definition. If the legislature did not intend that extraneous offense evidence admissible at the punishment phase be limited by the term “prior criminal record”, the passage of the floor amendment would have been nonsensical. Here, the trial courts allowed evidence of unadjudicated, extraneous offenses during the punishment phase in the trials of two noncapital offenses. Pursuant to this court’s historical construction of the term “prior criminal record” the evidence of extraneous unadjudicated offenses was improperly admitted. Accordingly, we find that the trial courts in both Grunsfeld and Hunter abused their discretion in admitting evidence of unadjudicated extraneous offenses under article 37.07 § 3(a). When we find error in the proceedings of the court below, the error is reversible unless we determine “beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Harris v. State, 790 S.W.2d 568, 584 (Tex.Cr.App.1989); TEX.R.APP.P. 81(b)(2). The evidence admitted in both cases implicated appellants in offenses which were very similar in detail to the subject offenses. In light of its highly prejudicial nature, we cannot say beyond a reasonable doubt that the admission of the evidence by the trial courts did not contribute to the punishment of appellants. For the reasons herein stated, we affirm the decision of the court of appeals in Grunsfeld, reverse the decision of the court of appeals in Hunter and remand both cases to their respective trial courts for proceedings consistent with article 44.-29(b) V.A.C.C.P. MILLER, J. joins with note: Although I am satisfied that Judge MALONEY’s analysis is most adequate to resolve the issue presented herein, I also join Judge CLINTON’S concurring opinion. . The term "appellants” shall hereinafter refer to Grunsfeld and Hunter collectively. . At the time of the subject offenses, Article 37.071(a) provided in relevant part that "[i]n the [punishment phase of a capital offense], evidence may be presented as to any matter that the court deems relevant to sentence." Article 37.071(a) V.A.C.C.P. . In Murphy, we held that extraneous offense evidence was not admissible at punishment to attack the “suitability" of the defendant for probation. Murphy, 777 S.W.2d at 67 (opinion on rehearing). . Article 37.07(3)(a) was amended in 1985 to provide that evidence offered thereunder must be permitted by the Rules of Evidence. . The Dallas Court of Appeals held that: ... evidence of extraneous, unadjudicated offenses, even if deemed relevant to sentencing by the trial court, would have to meet two tests. First, it would have to be evidence permitted by the rules of evidence. Second, if it is part of a defendant’s prior criminal record, as it has been considered in the past, it must comply with the statutory definition of that term. Grunsfeld, 813 S.W.2d at 166. Although we agree with the court of appeals’ conclusion that two limiting factors apply to the admission of extraneous offense evidence, we do not see the necessity to apply them in the order recited by that court. Also, if the evidence fails to satisfy one of the limitations, we see no need to advance to an analysis of the evidence under the other limiting factor. . The State is overly broad, however, in its contention that the amendment evidenced the legislature’s disapproval of this court’s decision in Murphy, as the State fails to delineate between this court’s original opinion and its opinion on rehearing. The subject amendment was passed by Senate vote on May 28, 1989 and by House vote on May 29, 1989, three weeks before this court rendered its decision on rehearing on June 21, 1989. The State argues that the legislature’s amendment of article 37.07(3)(a) was an attempt to overturn this court’s holdings in Murphy, citing Murphy, 777 S.W.2d at 60, 61 and 64. The State further contends that "it is presumed that the legislature was aware of these holdings when it amended article 37.07(3)(a).” The State also supports its argument by pointing to Judge Duncan’s concurring opinion in which he noted that it was not the function of this court to expand article 37.07(3)(a) beyond its limiting language. The State’s reliance on this court’s holdings in Murphy on pages 60, 61, 64 and Judge Duncan’s concurring opinion all refer to our decision on rehearing, which the legislature could not possibly be "presumed” to be aware of since the opinion on rehearing was not delivered until several days after the amendment was passed by both houses and signed by the governor. . This court’s opinion on rehearing clarified that, point. On rehearing, this court stated that article 37.07(3)(a), as it then existed, "is not exhaustive in setting out evidence admissible at the punishment phase to show circumstances of the offender.” Murphy, 777 S.W.2d at 64 (opinion on rehearing). Evidence such as "family background, religious affiliation, education, employment history and the like are appropriate considerations in assessment of punishment." Id. However, the court also said that the State was "limited in form ... to prior criminal record, and opinion or reputation testimony" when presenting character evidence under article 37.-07(3)(a), as it then existed. Id. at 61 (opinion on rehearing). Following Murphy, we confirmed that evidence other than that specifically identified in the article 37.07 was admissible at punishment. Hedicke v. State, 779 S.W.2d 837 (Tex.Cr.App.1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 836 (1990). In Hedicke, we recognized that opinion evidence to prove character was also admissible although, pursuant to Murphy, evidence of specific conduct was still inadmissible. Id. at 839, 842. .The Code Construction Act provides that: ‘Includes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded. TEX.GOVT CODE § 311.005(13) (Vernon Supp. 1992). Clearly the reference to prior criminal record, general reputation and character does not amount to a list of "limitation or exclusive enumeration”. However, the Code Construction Act does not provide that use of the terms "includes” or "including” will render any following list of components immune from limitations the legislature may choose to impose. Accordingly, insertion of the term "including” does not mean that "any matter the court deems relevant to sentencing” is not subject to other limitations the legislature may see or may have seen fit to impose. . The definition of “prior criminal record” has not been modified since its inclusion in article 37.07(3)(a) in 1967. Pursuant to this definition, this court has consistently held that evidence of specific acts (good or bad), including extraneous, unadjudicated offenses are inadmissible. Hedicke, 779 S.W.2d at 839; Drew v. State, 777 S.W.2d 74 (Tex.Cr.App.1989); Murphy, 777 S.W.2d at 61 (opinion on rehearing); Elder v. State, 677 S.W.2d 538, 539 (Tex.Cr.App.1984); Ramey v. State, 575 S.W.2d 535, 537 (Tex.Cr. App.1978); Sherman v. State, 537 S.W.2d 262, 263-64 (Tex.Cr.App.1976); Lege v. State, 501 S.W.2d 880, 881-82 (Tex.Cr.App.1973); Mullins v. State, 492 S.W.2d 277, 278-79 (Tex.Cr.App.1973). We see no reason to construe that definition any differently now. . We acknowledge that numerous courts of appeal, with the exception of Grunsfeld, Jolivet v. State, 811 S.W.2d 706 (Tex.App.—Dallas 1991, pet. granted) and Blackwell v. State, 818 S.W.2d 134, 140-41 (Tex.App.—Waco 1991, pet. filed), have held that the subject amendments render article 37.07(3)(a) and article 37.071(a) virtually identical in language and therefore, in application. Slott v. State, 824 S.W.2d 225 (Tex.App.—Beaumont 1992, pet. filed); Gallardo v. State, 809 S.W.2d 540, 541-43 (Tex.App.—San Antonio 1991, pet. granted); Hubbard v. State, 809 S.W.2d 316, 319-20 (Tex.App.—Fort Worth 1991, pet. granted); Cannon v. State, 807 S.W.2d 631 (Tex.App.—Houston [14th Dist.] 1991); Hunter v. State, 805 S.W.2d 918, 920-21 (Tex.App.—Beaumont 1991, pet. granted); McMillian v. State, 799 S.W.2d 311, 313-14 (Tex.App.—Houston [14th Dist.] 1990, pet. granted); Huggins v. State, 795 S.W.2d at 911. However, none of these courts found it necessary to entertain any discussion of legislative history. Based solely upon the similarity of the language between article 37.07(3)(a) and 37.071(a), they summarily concluded that since evidence of extraneous offenses is admissible in the capital context it must also be admissible now in the noncapital context. Only Gallardo even recognized the retention in the statute of the reference to prior criminal record and its definition, but apparently dismissed its retention as meaningless. Gallardo, 809 S.W.2d at 542. .The court of appeals in Grunsfeld detailed the legislative history of the subject amendment and our own research has confirmed the accuracy of that discussion. The subject amendment was passed by the 71st Legislature as a part of a larger piece of legislation — House Bill 2335. When initially passed by the House, HB 2335 did not contain an amendment to article 37.07 § 3(a). Upon receipt of HB 2335 by the Senate, it was referred to the Senate Committee on Criminal Justice (the "Committee”). The Committee’s Report to the full Senate proposing changes to HB 2335 contained an amendment to 37.07 § 3(a) which deleted the reference to a defendant’s prior criminal record, his general reputation and character and the definition of prior criminal record. As proposed by the Committee, the amendment revised article 37.07 § 3(a) to read virtually identically to article 37.071(a). As stated by the court of appeals in Grunsfeld, "[o]bviously, the deleted language would not be needed if evidence ‘as to any matter the court deems relevant to sentencing’ was to be allowed.” Id. However, for unknown reasons, two days later when the Committee’s Report was brought up for consideration before the Senate, Senator McFarland (Senate sponsor of HB 2335 and chair of the Committee) offered a floor amendment to the form of HB 2335 proposed by the Committee’s Report. The floor amendment revised the Committee’s version of the amendment to article 37.07 § 3(a) to retain the references to a defendant’s prior criminal record, general reputation and character as well as the definition of prior criminal record. McFarland’s floor amendment passed and no further changes were made to the amendment of article 37.07 § 3(a) before final passage of HB 2335. Review of the legislative history does not reveal any explanation for this apparent change of heart. We can think of no other reasonable explanation for the retention of those references and the accompanying definition other than the intent of the legislature to maintain a limitation on the admission of extraneous offenses at punishment in a noncapital offense. As aptly stated by Judge Burgess in his concurring opinion to the court of appeals decision in Huggins, "[t]he legislature could have deleted all references to 'prior criminal record’ but chose not to do so.” Huggins, 795 S.W.2d at 913. The legislative history shows that the legislature clearly considered amending article 37.07 § 3(a) to be identical to article 37.071(a), but deliberately chose not to do so. . We note that appellants offered evidence only to establish that they were eligible for probation. Such a showing did not "open the door” to evidence of specific conduct. Murphy, 777 S.W.2d at 68. . We will not reach an analysis of the admissibility of the subject evidence under the Rules of Criminal Evidence or an analysis of its “relevancy to sentence” as determined by the trial court since we hold that the evidence of appellants’ specific conduct is inadmissible under article 37.07 § 3(a)’s definition of "prior criminal record.”
CLINTON, Judge, concurring. In enacting the 1989 amendment in question to Article 37.07, § 3(a), Y.A.C.C.P. (“§ 3(a)”), the Legislature created a conundrum that has drawn several disparate, usually subjective, answers from some courts of appeals to which the riddle was posed. A textual literalist would quickly solve the enigma by applying “the literalness test” to the clear meaning of the unambiguous term “sentence” as defined and used in our statutes. See, e.g., Article 42.02, Y.A.A.C.P. (“sentencing” orders punishment carried into execution). But today in the instant causes this Court examines broader issues to find its own answers, and I agree with its results. My own effort seeks to sort out contentious positions and tenuous propositions to the end that “inconsistency is ... removed by reasonable construction.” Tex.R.Cr.Evid.Rule 101(c). I Apparently the first time an appellate court addressed amended § 3(a) the situation involved extraneous unadjudicated offenses being admitted in a punishment proceeding in which an application for probation was at issue. Huggins v. State, 795 S.W.2d 909 (Tex.App.—Beaumont 1990), PDR refused. The Beaumont Court concluded that evidence of such offenses was admissible for three separate reasons; the third implicates the central prosecutorial contention of choice for favorable solution to the problem: the “same language” theory. Accordingly, it is first considered here. A The Huggins court divided over resolution of the contention. The majority thought there is “no realistic difference or distinction” between permissive language of Article 37.071(a) and that used in the amendment to § 3(a); ergo, “evidence and proof of unadjudicated offenses at the punishment stage is admissible.” Id., at 911. The concurring opinion believed Article 37.-071 is “a completely different punishment scheme” from article 37.07, and saw “a marked difference” between actual language in the sections. Id., at 912. In its unpublished opinion in the instant Hunter cause, much like the Beaumont Court, the Fort Worth Court reasoned, viz: “We overrule Hunter’s first point because article 37.07, section 3(a) now makes admissible any evidence the court deems relevant to sentencing, [citation omitted]. The new version of the article uses the same language found in article 37.071(a) which governs capital sentencing procedures; the Court of Criminal Appeals has held that in that statute, the language allows for the admission of unadjudicated offenses, [citation omitted]. We see no reason why the legislature would incorporate the same language but give it a different meaning; and there is no evidence that they have done so. We conclude the language was intended to have the same meaning in 37.07 as it does in 37.071, thus providing for the admission of unadjudicated offenses during the punishment phase of trial. See Gallardo v. State, 809 S.W.2d 540, 541-42 (Tex.App—San Antonio 1991, pet. filed) (per curiam); Huggins v. State, 795 S.W.2d 909, 911 (Tex.App—Beaumont 1990, pet. ref’d; and McMillian v. State, 799 S.W.2d 311, 313 [Tex.App.—Houston [14th Dist.] 1990, pet. granted) (opinion on rehearing).” Slip opinion, at 2-3. Accordingly, the appellate prosecuting attorney urged, “This Court, however, need not conduct further review because the Court of Appeals’ holding is based on the decision in Huggins v. State, which this Court declined to review.” State’s Reply to PDR, at 3. In the instant Grunsfeld cause, however, the majority opinion critically reviewed McMillian, supra n. 1, and Huggins and rejected those holdings and followings then extant, e.g., Gallardo v. State, supra n. 4 (also Hubbard v. State, supra, although it does not turn on this particular holding). Grunsfeld v. State, 813 S.W.2d 158, at 171-172 (Tex.App.—Dallas 1991), PDR granted December 4, 1991. Moreover, the dissenting opinion in Grunsfeld likewise disagreed with this part of Huggins. Id., at 175, n. 2; see also Jolivet v. State, 811 S.W.2d 706, at 709 (Tex.App.—Dallas 1991) PDR granted (following Grunsfeld). In these circumstances the “same language” ratio decidendi of the majority opinion in Huggins and of the opinion in Hunter should be carefully examined, and to that purpose I now turn. 1 Article 37.07, § 3(a) was amended in 1989, by inter alia inserting the underscored phrase (“the phrase”) to cause the operative portion of the first sentence to read: “[E]vidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the trial court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character.” In its original context, the phrase is essentially a restatement of the principle that is “a presupposition involved in the very conception of a rational system of evidence.” Blakely, Article IV: Relevancy and Its Limits, 20 Houston L.Rev. 151, at 152, n. 2 (1983 Tex.R.Evid. Handbook), quoting J. Thayer, A Preliminary Treatise on Evidence at the Common Law 264-265 (1898). But it is misleading “awkward wording” in a Texas statute prescribing matters for consideration in a noncapital case. “Sentencing” is a distinct proceeding to impose and order executed in a manner prescribed that punishment already adjudged by the court in accordance with a jury verdict or court finding as to proper punishment. Articles 42.01 and 42.02, V.A.C.C.P. In Texas, “any matter relevant to sentencing” will never be “any matter relevant to punishment ” because the latter matters have been previously determined in a “punishment proceeding.” See Livingston v. State, 542 S.W.2d 655, at 661, n. 4 (Tex.Cr.App.1976); Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1976) (concurring opinion, at 297). Prosecutorial proponents of the amendment argue and, as indicated ante, some appellate courts accept that because an almost identical phrase appears in Article 37.071(a), it must have the same effect when incorporated in Article 37.07, § 3(a), i.e., unadjudicated extraneous offenses and specific acts of misconduct are now admissible in the punishment phase of a noncapi-tal case. Accord: Comment, Bringing Light to the Non-Capital Felony Punishment Phase: Article 37.07, Section 3a and Evidence of Unadjudicated Extraneous Offenses, 44 Baylor L.Rev. 101 (1992), at 109-112 ff. Whether the contention has merit depends in the first place on a proper understanding and correct construction of Article 37.071(a). That raises the question of legislative meaning in the premises. 2 Before 1965 the trial of every criminal case in Texas was a unitary proceeding in which evidence on the merits and punishment was adduced for the factfinder to render a general verdict. Thereafter an “alternate procedure” was allowed initially for noncapital felony cases but later for “all criminal cases,” except misdemeanor cases within jurisdiction of justice and municipal court and capital cases, cf. former article 37.07 (1965 with 1967); the Court made clear that the provision for introducing evidence of prior criminal record “had no application to capital cases where the death penalty was being sought.” Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968). Meanwhile, early on legal scholars and others who seek to improve criminal law were working on a model penal code that proposed a bifurcated proceeding in capital cases. The phrase in question is but a portion of more comprehensive formulation found in the Model Penal Code § 210.6(2)— even before the Supreme Court struck down extant capital punishment schemes. (The American Law Institute, Proposed Official Draft, 1962). See attached Appendix 1. Then in Furman v. Georgia (and Branch v. Texas), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court held simply and without explication that “the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Upon carefully examining the nine separate opinions supporting that holding, the consensus among interested commentators, concerned legislators and affected practitioners was that Chief Justice Burger most likely signaled an appropriate remedial approach, viz: “While I would not undertake to make a definitive statement as to the parameters of the Court’s ruling, it is clear that if state legislatures and the Congress wish to maintain the availability of capital punishment, significant statutory changes will have to be made. Since the two pivotal concurring opinions [of Justices White and Stewart, respectively] turn on the assumption that the punishment of death is now meted out in a random and unpredictable manner, legislative bodies may seek to bring their laws into compliance with the Court’s ruling by providing standards for juries and judges to follow in determining the sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed, [note omitted]. If such standards can be devised or the crimes more meticulously defined, the result cannot be detrimental.” Id., at 400-401, 92 S.Ct., at 2809, 33 L.Ed. 2d, at 442. 3 Responding to Furman v. Georgia, the State of Florida (and later other jurisdictions as well) drew on procedural provisions in the Model Penal Code. Proffitt v. Florida, 428 U.S. 242, at 248, nn. 5 and 6, 96 S.Ct. 2960, at 2964-2965, nn. 5 and 6, 49 L.Ed.2d 913, at 920, 921, nn. 5 and 6 (1976); cf. Gregg v. Georgia, 428 U.S. 153, at 193-194, n. 44, 96 S.Ct. 2909, at 2935, n. 44, 49 L.Ed.2d 859, at 886, n. 44 (1976). The Florida scheme, consisting of three statutes, is reproduced from the opinion in State v. Dixon, 283 So.2d 1 (Fla.1973). See Appendix 2. The Supreme Court of Florida generally described it as “a system whereby the possible aggravating and mitigating circumstances are defined, but where the weighing process is left to the carefully scrutinized judgment of jurors and judges.” State v. Dixon, supra, at 7. Under Florida Statutes § 921.141, F.S.A., there is “a separate sentencing proceeding,” at which “evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7) of this section.” While the statute does not expressly assign a burden of proof to either party, the Florida Supreme Court reasoned that any aggravating circumstance associated with commission of the substantive offense must necessarily be proved by the state beyond a reasonable doubt. Dixon, supra, at 9. The state and defendant or his counsel “shall be permitted to present argument for or against sentence of death.” The jury is instructed to determine whether mitigating circumstances outweigh aggravating circumstances, and then “based on these considerations” whether defendant should be sentenced to life or death; its verdict is determined by majority vote, and is “only advisory.” Regardless of the recommendation of the jury from evidence it heard, the court must weigh the particular aggravating and mitigating circumstances statutorily prescribed in deciding whether to enter a sentence of life or death; if it imposes a sentence of death the court shall make findings upon which its sentence is based as to the facts that sufficient aggravating circumstances exist as enumerated in subsection (6) and that there are insufficient mitigating circumstances as enumerated in subsection (7) to outweigh the aggravating circumstances. Id., at 5. As the Florida Supreme Court emphasized, “[T]he procedure ... is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied in light of the totality of the circumstances present.” Id., at 10; Proffitt v. Florida, supra, 428 U.S. at 248-251, 257-258, 96 S.Ct., at 2965-2966, 2969, 49 L.Ed.2d at 921-922, 926. Thus the Florida statute, similar to the Model Penal Code § 210.6(2), casts the jury in an advisory role. Compare Appendix 1 and Appendix 2. The legislative history demonstrates that § 921.141 is a “hybrid” product of compromise between legislative chambers, viz: “... [I]n return for the House’s approval of a judge and jury sentencing procedure, the Senate abandoned its insistence that the jury have a determinative role in sentencing in capital cases. While the statute retains the Senate’s philosophy that the jury should participate in the sentencing process, the jury now has the authority only to give an advisory sentence which can then be rejected by the trial judge if his findings regarding mitigating and aggravating circumstances justify such action.” Ehrhardt & Levinson, The Aftermath of Furman: The Florida Experience, 64 J.Crim.L. & C. (1973), Part II, at 15. In short, whatever evidence is “presented [to the jury] as to any matter the court deems relevant to sentence” that is not related to any of the circumstances listed in subsection (6) or (7) becomes superfluous and is redundant when the court engages in the final decision making process. 4 In Texas, like it began in Florida, the initial response to Furman v. Georgia came in the form of H.B. No. 200, mandating capital punishment for murder committed under three specific circumstances. It was muted, however, in the Senate by a complete committee substitute, the procedural aspects of which were “virtually identical” to the Florida provisions in § 921.-141. Rumbaugh v. State, 589 S.W.2d 414, at 416 (Tex.Cr.App.1979). Each bill was sent to a joint conference committee which reconciled differences by substantially discarding underlying concepts of both, while modifying procedural aspects of the Senate substitute. Acts 1973, 63rd Leg., Ch. 426, Article 3, § 1, p. 1122, at 1125 (adding Article 37.071). Immediately noticed is a significant departure from the superior role of a trial judge actually making the ultimate sentencing decision through a one-sided burdened process of receiving and weighing evidence relevant to prescribed aggravating and mitigating circumstances of the offense and of the offender in the light of judicial experience. The conference committee opted to retain “a separate sentencing proceeding” before the trial jury; but it extracted a mere snippet of language from its original definitive context, a phrase declaring that “evidence may be presented as to any matter that the court deems relevant to sentence,” as it went about fashioning a strikingly different process whereby the State now clearly has the burden to produce evidence relevant to three special issues sufficient to convince a jury beyond a reasonable doubt to return a unanimous special verdict giving an affirmative answer on each submitted issue, upon which the court “shall sentence the defendant to death.” Article 37.-071(a)-(e); see Comment, House Bill 200, supra, at 419, nn. 81 and 82; In light of that comparative view, that the Florida statute and the Texas Senate committee substitute to H.B. 200 provided “evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated [in designated subsections],” while the conference committee simply provided “evidence may be presented as to any matter that the court deems relevant to sentencing,” reflects only that the respective legislatures compromised disparate proposed solutions to constitutional deficiencies in “standards” seen by certain Justices of the Supreme Court in extant death penalty schemes. Each process serves to circumscribe the discretion of the court to receiving evidence relevant to those matters of consequence in the respective ultimate determinations to be made, i.e. the weighing process in Florida, and the special issue process in Texas. In the latter, however, the phrase has no special significance; the authority it purports to grant already exists: “It is thus axiomatic that the court should receive evidence that will lead to resolution of those critical [read “material”] facts and reject evidence that will not.” Blakely, Article IV: Relevancy and Its Limits. 20 Houston L.Rev 151-152, 153-155 (1988 Tex. R.Evid. Handbook). Those “matters” are prescribed by article 37.071(b). In the seminal Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), affirmed 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Court did not even mention the phrase in discussing abstractly certain matters deemed proper for consideration by the jury in a capital case, including “prior criminal conduct,” viz: "... In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct.” Id., at 939-940. Whether the late Judge Morrison actually contemplated the underscored term to include unadjudicated offenses is a moot point in light of decisions such as Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979). Obviously impressed that in affirming Jurek v. State, supra, the Supreme Court declared, inter alia, “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine,” the Court elaborated, viz: “Nothing in Art. 37.071, supra, requires that there be a final conviction for an extraneous offense to be admissible at the punishment phase of the trial. Evidence of other crimes ... falls within the range of 'prior criminal conduct.’ Such ‘prior criminal conduct’ is clearly relevant to the jury’s deliberation on the special issues submitted to it at the punishment phase of a capital murder trial.” Id., at 709. Accord: Garcia v. State, 581 S.W.2d 168, at 178-179 (Tex.Cr.App.1979); Wilder v. State, 583 S.W.2d 349, at 369 (Tex.Cr.App.1979); Green v. State, 587 S.W.2d 167, at 169 (Tex.Cr.App.1979); Rumbaugh v. State, supra, at 418. And since then “relevant information” includes evidence in mitigation of the death penalty. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). 5 Since 1965, in various versions Article 37.07, V.A.C.C.P., has provided that for purposes of assessing punishment “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.” For historical developments behind that formulation, see Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1988-1989) (Onion, P.J., concurring and dissenting, at 54) (opinion on rehearing, at 58-61); Hedicke v. State, 779 S.W.2d 837, at 840-841 (Tex.Cr.App.1989); see also Historical Note to Article 37.07. Construing the initial provision in the 1965 version, however, the Court opined: “Evidence to be offered at the hearing on punishment pursuant to Article 37.07, Section 2(b) ... is by no means limited to the defendant’s prior 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 v. State, 418 S.W.2d 517, at 519 (Tex.Cr.App.1967) (on trial for committing sodomy, testimony of defendant himself that he had since been under care of psychiatrist for sexual problems should have been admitted but not reversible error). Even though the excluded testimony was in the nature of mitigating evidence rather than revealing an extraneous offense, unless under its dicta one was somehow deemed relevant to probation, the Court consistently upheld the rule that unadjudi-cated extraneous offenses were inadmissible in assessing punishment. Murphy v. State, 777 S.W.2d 44, at 46-47 (Tex.Cr.App.1988) (Allaben undermined in 1967 when “prior criminal record” defined to include, e.g., “a final conviction in a court of record”); see also Id., at 61-64 (opinion on rehearing). In 1985 the Legislature vested in this Court “full rulemaking power” to adopt and promulgate rules of evidence in trials of criminal cases (with an exception not applicable here) to remain in effect until “disapproved” by the Legislature, Acts 1985, 69th Leg., Ch. 685, p. 5136, §§ 5-9, and therein amended § 3(a) of Article 37.07 by inserting “as permitted by the Rules of Evidence” to become effective when the Court promulgated a body of rules of evidence, id., § 8(b); we timely accomplished the task and ordered the Rules of Criminal Evidence thus formulated to become effective September 1, Í986. Accordingly, the affected part of § 3(a) then provided: “... 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 manifest intent, as well as effect, of that amendment is to condition admission of evidence as to matters prescribed under § 3(a), on germane Rules of Criminal Evidence. One such rule provides: “In the penalty phase, evidence may he offered by an accused or by the prosecution as to the prior criminal record of the accused. Other evidence of his character may be offered by an accused or by the prosecution. Nothing herein shall limit provisions of Article 37.071, Code of Criminal Procedure.” Rule 404(c). The relationship between § 3(a) and Rules 404(c) and 405(a) thus stood until 1989 — with one unrelated exception demonstrating that the Legislature well knows how to “disapprove” a rule of evidence this Court promulgated. Then, in § 4.04 of a lengthy comprehensive bill designed to reform the executive component of the criminal justice system and establish the Texas Department of Criminal Justice, the Legislature tucked the phrase away in an amendment to § 3(a). Acts 1989, 71st Leg., Ch. 785, p. 3471, Article 4, § 4.04, at 3492. The act originated and passed the House of Representatives as House Bill No. 2335. After it reached the Senate there were some intriguing machinations surrounding the bill. The chairman of the Committee on Criminal Justice produced a complete committee substitute (C.S.H.B. No. 2335) containing a § 4.03 that inserted the phrase at issue, repealed by omission the “record,” “reputation” and “character” provisions and introduced an evidentiary disclaimer, so that as formally drafted those additions and deletions in operative parts appeared thus: “[Ejvidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing. This subsection may not be construed as authorizing the introduction of evidence seized in violation of the United States Constitution or the Texas Constitution [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 trial, or any final conviction material to the offense charged].” The substitute was reported favorably May 17, 1989. But on May 19 when he called it up for second reading the chairman offered another complete substitute, Floor Amendment No. 1., § 4.04 of which restored the evidentiary matters omitted in former § 4.03, deleted the evidentiary disclaimer and also added the “mitigating factor” quoted in note 16, ante. Senate Journal, 71st Leg. Regular Session, 1535 at 1551; see Grunsfeld, supra, at 167. 6 It is a truism in statutory construction that meaning of “same language” used to express a notion in one context does not necessarily carry forward to a different setting. The sense in which a phrase is used in one act is not conclusive in its significance when used in another; the spirit, purpose and scope of the particular phrase must be examined to determine its meaning. See 67 Tex.Jur.3d Statutes § 108 (1989), at 686. Such an examination has been conducted ante, and the results are indicative of different meanings in the respective conceptual and practical contexts. In the Model Penal Code, the phrase is permissively coupled with examples of matters deemed “relevant to sentence,” e.g., “the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition and any of the aggravating and mitigating circumstances enumerated in [designated subsections of § 210.6].” In the Florida statute, it is permissively related to mandatory matters limited in aggravation and unlimited in mitigation declared “relevant to sentence” in § 921.141(1), (6) and (7). The erstwhile Texas Senate substitute tracks the Florida statute. While the model penal code does not assign burdens of proof, judicial gloss on the Florida statute, and thus the Senate substitute, dictates that any aggravated circumstance related to the substantive offense must necessarily be proved beyond a reasonable doubt. In each formulation the trial judge finally weighs the “circumstantial evidence” in making the ultimate decision as to imposing sentence of life or death. A hybrid product of legislatively engraft-ed language in several sentences from the Senate substitute with an innovative creation of the conference committee, Article 37.071 allows evidence “as to any matter the court deems relevant to sentence." That “awkward wording” even had to be translated for the bench and bar to “punishment, see note 9, ante, that is, relevant to material matters bearing on one or more special issues which the State must prove and a unanimous jury must find beyond a reasonable doubt. Id., (a), (b) and (c). Such statutes are required to be based on and each has passed muster on considerations of constitutional dimension demanded by the Eighth Amendment, including now permitting a “reasoned moral response” to mitigating evidence. Proffitt v. Florida, Jurek v. State, and Penry v. Lynaugh, all supra. Because the purpose is to provide a jury with “all possible relevant information about the individual defendant whose fate it must determine,” Jurek, supra, evidence of, inter alia, extraneous offenses are admissible. Hammett v. State, supra. Unlike the Florida and initial Senate committee schemes in which the jury verdict is merely advisory, in Texas as a matter of law the jury determination of requisite issues and independent effect of mitigating evidence mandates the penalty or punishment the court must impose in its sentence. Article 37.071(e), supra. In nearly every noncapital case, on the other hand, depending on the situation, either judge or jury may assess punishment. Article 37.07, §§ 2(a) and (b), 3(a); ante, at 529. The judge may order an investigative report contemplated by Article 42.12, § 9, V.A. C.C.P., to be considered by the court. Article 37.07, § 3(d). Although Article 37.-07, § 3(a), now allows evidence “as to any matter the court deems relevant to sentencing,” including certain formerly prescribed matters and newly added matters such as “adjudication of delinquency,” see note 15, ante, “factor in mitigating punishment,” see note 16, ante, and “availability of community corrections facilities,” ibid., there is no burden of proof on the “issue” of punishment; nothing in the article requires the judge to inform the court or the jury of any requisite issue it must determine or otherwise what it is obliged to do with such evidence. Indeed, § 3(d) merely provides that upon considering the investigative report and the evidence adduced at hearing, the judge shall announce the decision “as to the punishment to be assessed” by the court; whereas § 3(b) provides merely that “the jury has the responsibility of assessing the punishment,” with “such additional instructions as may be necessary,” and in common practice none touches on any “issue” or “obligation” conditioning its assessment of “punishment” in terms of years and fine, if any. The verdict of the jury is to be included in the judgment of the court, and the defendant shall be punished according to its verdict. Article 42.01, § 1, item 8. V.A.C.G.A.P. A sentence is that part of the judgment ordering the punishment be carried into execution in the manner prescribed by law. Article 42.02. But provisions in Article 37.07 related to “punishment” fail to identify all “matters relevant to sentencing,” viz: particularly the matter of probation in that sentence is not imposed, and as to other matters in that before pronouncing sentence the judge must or may take into consideration many other relevant matters withheld from the jury, e.g., Article 42.12, § 9, Articles 42.01-42.03 and 42.07-42.08, V.A.C.C.P. That is to say, the jury will not necessarily decide all terms and conditions of whatever sentence the judge actually imposes. 7 Given the “unique nature of the death penalty for purposes of Eighth Amendment analysis,” the Supreme Court has consistently cautioned courts that its decisions in capital cases are of “limited assistance” in determining lesser punishments. Rummel v. Estelle, 445 U.S. 263, at 273, 100 S.Ct. 1133, at 1138, 63 L.Ed.2d 382, at 390 (1980); see Beck v. Alabama, 447 U.S. 625, at 637, 100 S.Ct. 2382, at 2389, 65 L.Ed.2d 392, at 403 (1980) (significant constitutional difference between death penalty and lesser punishments); Gardner v. Florida. 430 U.S. 349, at 357-358, 97 S.Ct. 1197, at 1204, 51 L.Ed.2d 393, at 401 (1977) (death penalty different kind of punishment from any other imposed in this country). Upon consideration of all factors germane to the spirit, purpose and scope of the phrases appearing in Article 37.071(a), and in Article 37.07, § 3(a), respectively, the only rational conclusion is that the “same language” theory will not determine the sense in which the phrase was meant to be used and applied in the latter, and I would so hold. Accordingly, to the extent that the decision of the Beaumont Court in Huggins rests on that theory, it should be disapproved; because the ratio decidendi of the decision from the Fort Worth Court in the instant Hunter cause is based solely on that theory, and the State urged us to rely on it, see ante, at 527-528, I concur with the Court in reversing the judgment. B In Huggins, the Beaumont Court did not expressly relate disposition to the fact that probation was implicated below, see note 1, ante; instead, its decision seems to concentrate on other considerations in generally assessing punishment. 1 The majority opinion first construes the operative part of § 3(a), reasoning that the phrase in question is “additional to and separate and independent of the ‘prior criminal record of the defendant,’ ” and also “evidence deem[ed] relevant” is “independent and separate from evidence of the defendant’s general reputation and his character;” because the definition of “relevant evidence” in Tex.R.Crim.Evid. Rule 401 focuses on that which tends “to make the existence of any fact that is of consequence to the determination of the action,” evidence of extraneous unadjudicated offenses to which defendant objected is “of consequence” to that part of the determination involving “assessment of punishment.” Id., at 911. But quaere: Precisely what may be identified as the “matter of consequence,” the existence of which any evidence of specific conduct tends to make more probable, and thus relevant? That is the exact question members of this Court debated without settling unanimously in Murphy. See Part III B, post. But, the Beaumont Court did not even recognize this is the crucial question to be answered in its first basis for overruling point of error one in favor of the State. See Huggins, at 910-911; cf. McMillian v. State, supra, at n. 1 ante. The majority opinion then addresses “an additional and separate distinct basis” for its decision, viz: the phrase “invokes the abuse of discretion test;” the trial judge did not abuse his discretion; “the solons overrule Murphy v. State, 777 S.W.2d 44 (Tex.Crim.App.1988).” Id., at 911. Suffice to say that such summary resolutions of both bases begs difficult questions of statutory construction, legislative intent raised by the very actions of “the solons” and application of rules of evidence. 2 In the instant Grunsfeld cause, writing for a majority of the Dallas Court, former Presiding Judge Onion took guidance from teachings in the Code Construction Act, id., at 166; cautioned, “We must therefore be careful not to lift out of context the new language in [the phrase] and construe it standing alone or only with certain other selected provisions of the statutes to reach a desired result,” id., at 168; viewed legislative history of the 1989 amendment in light of that Act, id., at 166-168; noted that since 1986, § 3(a) clearly shows “evidence deemed relevant” must be “that which is permitted by the Rules of Criminal Evidence,” id., at 168; proceeded to examine germane rules, i.e., Rules 401, 402, 403, 404(c) and 405, and found: “Thus, if a prior criminal record is to be used, it must comport with the definition in the statute. If ‘other evidence’ is to be used to prove character, it is limited to proof by reputation and opinion witnesses.” Id., at 169; concluded on this factor thus: “... The Rules of Criminal Evidence do not permit the introduction of extraneous, unadjudicated offenses and their details at the penalty stage of a non-capital case.” Id., at 170. Next, Judge Onion turned to § 3(a), another “limiting factor” in the definition of “prior criminal record,” id., at 170; noted the legislative evolution of the term, its tentative elimination and later restoration, indicating an intent to “retain the limitation of evidence [regarding that matter],” id., at 171; discussed the significance of the term “including,” viz: “... We agree with the State that the 1989 amendment ... expanded without enumeration other matters that might be introduced if the trial court deems the same relevant to sentencing and other requirements are met. We disagree, however, with the contention that the amendment authorized the introduction of extraneous, unadjudicated offenses and their details in view of the retention of the term ‘prior criminal record’ and its limiting definition, the history of the statute and the 1989 amendment.” Id., at 171. Accordingly, the Grunsfeld majority concluded: “We hold that the testimony was inadmissible under both the Rules of Criminal Evidence and the definition limiting the meaning of ‘prior criminal record.’ The court abused its discretion in admitting it.” Ibid. Mentioning that Grunsfeld offered evidence only to establish his eligibility for probation after the State had adduced evidence of extraneous offenses, Judge Onion pointed out that his tactic “did not cure any error or call for a different result[:] “Nothing in the 1989 amendment or its history indicate that the holding in Murphy [opinion on rehearing, at 67] was intended to be superceded.” Ibid. Having implicitly disapproved some of its rationale, Judge Onion then directly and critically reviewed the Huggins effort at statutory construction, first noting it was made sans analysis and consideration of Rule 404(c), id., at 171; and after examining its other followings, e.g., Hunter v. State, Gallardo v. State and Hubbard v. State, (all “no probation” cases), supra, rejected them, viz: “We do not find these cases controlling or persuasive. It is abundantly clear that whatever the intent of the legislature was in enacting the 1989 amendment to article 37.07, section 3(a), it was not to open the door to evidence in non-capital cases as wide as that in capital case sentencing. If that was the intent, then the legislature would not have retained the limiting language of the amendment. * * * * Further we cannot attribute to the legislature an intent to reach an illogical result. It would not make sense that the legislature intended extraneous, unadjudicated offenses and their details be admissible, but that prior convictions must be final before being admissible and even then that details of the underlying offenses are to be excluded.” Id., at 172. The dissenting opinion sought to give “a harmonious effect to all of the statute’s language,” agreeing however that, as amended, the phrase “does not go as far as article 37.071(a),” and in this regard, thus disagreed “with the decision in Huggins v. State." Id., at. 175. 3 While vacillating between proving character through opinion or reputation, the common law of England and the common law of Texas was firm that evidence of specific conduct was “inherently prejudicial” and thus admissible “only when character was an issue.” Hedicke v. State, 779 S.W.2d 837, at 840-841 (Tex.Cr.App.1989); Goode, Wellborn & Sharlot, Texas Rules of Evidence: Civil and Criminal § 405.1, 33 Texas Practice (1988) 138-139); see Murphy v. State, 111 S.W.2d 44 (Tex.Cr.App.1988-1999) (opinion on rehearing at 58-56). Because the Huggins court addressed § 3(a) coupled alone with Tex.R.Crim.Evid. Rule 401 — pretermitting, inter alia, exceptional provisions of Rule 402 (these rules); exclusionary provisions of Rule 403 (probative value versus danger of undue prejudice); special provisions of 404(c) (character relevant to punishment); limited method provisions of Rule 405(a) (reputation and opinion) — I concur with Judge Onion in his explicit and with this Court in its implicit disapproval of the first and second reasons basing the decision in Huggins, and by extension its followings identified ante, in note 2, but do not associ