dissenting.
On original submission, a majority of a panel of this Court, sua sponte, rather than see a miscarriage of justice occur, ordered appellant’s conviction reversed because an extraneous offense had been improperly admitted into evidence during his trial. For whatever reason, the appellant’s court appointed attorney on appeal failed to raise the issue in a ground of error. See Art. 40.09, Sec. 9, V.A.C.C.P. However, the panel found, pursuant to former Art. 40.09, Sec. 13, V.A.C.C.P.,1 unassigned error, and held that the extraneous offense had been improperly admitted into evidence at appellant’s trial, and ordered appellant’s conviction reversed. The extraneous offense consisted of evidence and testimony that the appellant had made a false declaration on a United States Treasury form, which is a felony offense. See 18 U.S.C. Sec. 922(a)(6).2 The majority of the Court today *680has summarily concluded, without citation of authority or discussion, that the erroneous admission into evidence of the extraneous offense “does not constitute fundamental error that should be considered in the interest of justice.” In its opinion, it also chastises the panel for having even considered the issue. The opinion states: “Because the issue was not raised by appellant before this Court, the panel should not have considered it.” (Emphasis Added). For reasons hereinafter stated, I must respectfully dissent to the majority opinion.
Prior to the enactment of the present Code of Criminal Procedure, it was not uncommon for attorneys for the State and the defendant to file with the Clerk of this Court their respective briefs shortly prior to oral argument, or to do so as late as after the defendant’s attorney had approached the podium to make his argument. There was then no particular format for an appellate brief to be in. See Title 10 of the 1925 Code of Criminal Procedure. Whatever pluses or minuses the former Code may have had, the Legislature of this State ordered its demise when it enacted the present Code of Criminal Procedure, which became effective January 1,1966. Unquestionably, one of the purposes of the Legislature’s enactment of Art. 40.09, V.A.C.C.P., which governs among other things the filing of briefs, was to give trial courts an opportunity to grant a new trial without the necessity of a defendant having to pursue a full appeal, where the trial judge recognized that eventually the conviction would be reversed. A trial judge, in making the determination whether or not a new trial should be granted, was given by the very wording and terms of Art. 40.09, Sec. 12, V.A.C.C.P., unlimited discretion in making that decision.3 His decision to grant a new trial was not reviewable by this or any other court. Because the decisions of trial judges granting new trials are unreported, we are not apprised of how many new trials may have been granted because a conscientious trial judge found “fundamental error” or “error reviewable in the interest of justice.” I must believe, knowing and having known many such conscientious trial judges, that many new trials were granted for either of those reasons. Nevertheless, if a trial judge previously had the power, after reviewing error in the interest of justice, to grant a new trial, does it not follow that in this instance where the former provisions are applicable to this cause that this Court likewise has that same power? Or, to put it another way: where error is egregious to the point of being a glaring kind of error, is it not incumbent upon one or more judges of an appellate court to sua sponte raise and discuss such error?
The majority by its above statement, “Because the issue [of the admission into evidence of an extraneous offense] was not raised by appellant before this Court”, implies that this Court has never, sua sponte, considered and ruled on such a contention. That is not so. This Court has in the past expressly reviewed such error as the panel did in this cause either “in the interest of justice” or as “unassigned error.” In Jones v. State, 470 S.W.2d 874 (Tex.Cr.App.1971), Presiding Judge Onion, who was the author of the unanimous opinion, first stated that such error as here could not be considered as a raised ground of error. However, Judge Onion then expressly stated the following: “Nevertheless, we have examined the record ...,” and thereafter discussed the issue. In Randolph v. State, 499 S.W.2d 311 (Tex.Cr.App.1973), then Commissioner Keith, the author of the opinion which was unanimously approved by the Court, first pointed out that the defendant’s brief did not comply with the statute. He then expressly stated: “However, in the interest of justice, we have reviewed the record carefully but do not find error presented.” (312). In Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973), the ground of error con*681cerning the admission into evidence of extraneous offenses had the same defect as noted in Jones and Randolph, supra. However, Judge Odom, the author of the unanimous opinion, stated the following: “Nevertheless, the record in its entirety has been reviewed and we will discuss this contention.” (315). In Nichols v. State, 511 S.W.2d 269 (Tex.Cr.App.1974), the defendant’s brief was untimely filed. One of his grounds of error concerned the contention the trial court had erred by admitting into evidence an extraneous offense. Judge Roberts, the author of the unanimous opinion, stated the following: “his contention will be considered in the interest of justice. See Art. 40.09, Secs. 9 and 13, Vernon’s Ann.C.P.” (270). Thus, contrary to the remark that Judge Clinton made in his dissenting opinion in Bell v. State, 620 S.W.2d 116, 128 (Tex.Cr.App.1981), “Thus, what is reviewable ‘in the interest of justice’ seems to depend on the particular collective judgment of the affected members of the Court at any given moment,” I find that when it comes to this Court’s considering the admission into evidence of extraneous offenses, as “error reviewable in the interest of justice,” depends not on the collective majority on a given day, but instead whether a collective majority has simply failed to adhere to stare decisis, as that term is defined in 1261 Black’s Law Dictionary (1979), on a given day.
Our system of criminal justice is designed to adjudicate responsibility in a manner such that proceedings are as fair as possible, given the inherent limitations of human nature. To that end, the Code of Criminal Procedure was enacted by the Legislature, among other reasons, “to insure a fair and impartial trial” for the litigants. Art. 1.03(5), V.A.C.C.P. Furthermore, the Legislature has commanded this Court that “no affirmance or reversal of a case shall be determined on mere technicalities or on technical errors in the preparation and filing of the record on appeal.” Art. 44.23, Id. By concluding that the appellant waived any error in the admission into evidence of the extraneous offense, I believe the majority effectively affirms the conviction on a “mere technicality”, without due regard to the “proper administration” of justice.
By the terms and wording of Art. 40.09 and Chapter 44, V.A.C.C.P., the members of this Court are not required to search through an appellate record as though they were on a search mission. However, are we as judges of the highest criminal appellate court in this State, and the second highest appellate court in this Nation regarding criminal matters, next to the Supreme Court of the United States, precluded and prohibited, when making the determination of the merits of a particular raised ground of error, from noticing errors of an egregious nature, when such error significantly draws into question the correctness of the fact finding process made at a defendant’s trial? I think not.
In this cause, appellant’s court appointed counsel raised in his appellate brief the ground of error that the evidence was insufficient to sustain the verdict of the jury. However, counsel failed to raise in his brief by a separate ground of error the extraneous offense issue, although it is patently clear from a reading of the record that the admissibility of the extraneous offense was hotly contested at trial. Because of the very nature of the raised ground of error, that the evidence was insufficient, it was necessary that each member of this Court read and study the entire statement of facts, or, at a minimum, at least rely upon the fact that the judge who had been assigned the case had read the record from beginning to end. Having done this very thing, it is now apparent to me that the panel did not write on the issue involving the admissibility of the extraneous offense simply for its own self gratification, but instead saw as I did an error of such brilliance that it almost blinded me. The panel, therefore, saw its judicial duty and discussed and resolved the issue. Given the nature of the error, was the panel wrong in doing what it did? As previously noted, it certainly had precedent for doing just what it did.
Presiding Judge White of the then Court of Appeals, this Court’s predecessor, stated over 100 years ago:
*682We do not feel called upon ... to discuss and comment seriatim upon all the grounds of error complained of; our duty seems only to require that we should notice those errors respecting which, in our judgment, there may be some question, or some contrariety of opinion as to the propriety and correctness of the ruling. In regard to the others we will simply state that the supposed grounds of error which are not noticed and commented upon may be considered as not well taken; and, consequently, as to them the rulings of the [trial] court are sustained. Early v. State, 1 Tex.App. 248 (1876).
Similarly:
. .. when it is made to appear that any legal right of the accused has been violated, unless it be such right as the accused can be presumed to have waived, or be shown by the record to have been waived when such waiver is authorized by law, or where the irregularity would be cured by verdict, then this court, as the court of last resort in cases involving life or liberty, cannot do otherwise than reverse such judgment, whatever the trouble and inconvenience — agreeably to the plain provisions of the Bill of Rights, which declares that ‘no citizen of this state shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disfranchised, except by due course of the law of the land.’ Const., art. I, sec. 19. Long v. State, 4 Tex.App. 81 (1878).
By dismissing the error regarding the improper admission into evidence of the extraneous offense as having been “waived”, the majority also fails to do justice to the reality of our criminal justice system as it pertains to the appellate process. In this cause, appellant was represented by court appointed counsel on appeal because he was indigent and could not afford to employ counsel of his choice. Counsel on appeal was not trial counsel. For whatever reason, counsel failed to raise on appeal the material issue involving the improper admission into evidence of the extraneous offense, even though such error had been properly perfected at trial. However, I dare say there is not an attorney in this State who has handled many appeals who has not later regretted not raising a ground of error in a particular brief. Regardless, a defendant’s liberty and freedom should not depend upon the vagaries of his counsel on appeal’s abilities; especially where, as in this cause, a glaring but unraised error significantly draws into question the fact finding that was made at the trial.
So there will not be any misunderstanding of what I am attempting to point out, I emphasize the following: error reviewable in the interest of justice does not encompass just any kind of error, but encompasses error of a grievous nature. As previously pointed out, this Court has in the past considered, sua sponte, error concerning the admission into evidence of an extraneous offense. For other examples of what this Court has deemed to be fundamental error, error reviewable in the interest of justice, or constitutional error, see 4 Texas Criminal Practice Guide, Sec. 90.06[2][f]. Also see McClellan v. State, 413 S.W.2d 391 (Tex.Cr. App.1967); Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970); Sanders v. State, 482 S.W.2d 208 (Tex.Cr.App.1972); Bingham v. State, 523 S.W.2d 948 (Tex.Cr.App.1975); Young v. State, 447 S.W.2d 911 (Tex.Cr.App.1969); Baldwin v. State, 499 S.W.2d 7 (Tex.Cr.App.1973); Parker v. State, 545 S.W.2d 151 (Tex.Cr.App.1977); Misenheimer v. State, 560 S.W.2d 98 (Tex.Cr.App.1978); Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975); Thomas v. State, 474 S.W.2d 236 (Tex.Cr.App.1971); Grays v. State, 487 S.W.2d 348 (Tex.Cr.App.1972); Butler v. State, 462 S.W.2d 596 (Tex.Cr.App.1971); Lee v. State, 555 S.W.2d 121 (Tex.Cr.App.1977); Cevilla v. State, 515 S.W.2d 676 (Tex.Cr.App.1974); Rich v. State, 1 Tex. App. 206 (1876); Sutton v. State, 41 Tex. 513 (1874); Scott v. State, 31 Tex. 410 (1868); Lunsford v. State, 1 Tex.Ct.App. 448 (1876); White v. State, 1 Tex.App. 211 (1876); Tischmacher v. State, 153 Tex.Cr.R. 481, 221 S.W.2d 258 (Tex.Cr.App.1949). Attention is also directed to Judge Clinton’s recent dissenting opinion in Bell v. State, supra, where he also set out examples of when error is reviewable in the interest of *683justice, pursuant to Art. 40.09, Sec. 13, supra.
Simply because of the inherent prejudicial effects an extraneous offense has, it is only under the most limited of circumstances that this Court will uphold the admission into evidence of an extraneous offense. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). “The general rule in all English speaking jurisdictions is that an accused person is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.” Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836 (Tex.Cr.App.1953). Also see Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967, Warren, Chief Justice, dissenting opinion). Such principle has been a part of the law of this State for over 100 years. Cesure v. State, 1 Tex.App. 19 (1876). Also see Randolph v. State, 499 S.W.2d 311 (Tex.Cr.App.1973); Fore v. State, 5 Tex.App. 251 (1878); Persons v. State, 3 Tex.App. 240 (1877); Gilbraith v. State, 41 Tex. 567 (1874). One of the reasons for the general rule of inadmissibility is that the admission into evidence of an extraneous offense has a tendency to draw away the minds of the jurors from the subject in issue, the primary offense, and to excite prejudice toward the accused and mislead the jurors as to the main issue they are to resolve, that is, whether or not the accused is guilty of the criminal offense for which he is on trial. Gardner v. State, 11 Tex.App. 265, 275 (1881).
By the facts of this cause, evidence of appellant’s criminal intent when he took the complainant’s money was entirely circumstantial, and was tenuous at best. The only issue in the case, when appellant took the complainant’s money, was whether he took the money with the intent to keep it without supplying the promised guns, or did he intend to supply the guns as promised but lied after he realized that he would be unable to deliver the guns, and was at that time without ability to fully refund the money he had received from the complainant? When the jury was improperly informed that appellant had committed a felony offense by falsely completing the Federal firearms form, and then was left to speculate as to which of the boxes on the form contained a false answer, when he answered each question for each box in the negative, with each of the answers being prejudicial in varying degrees, the jury could not help but be clearly influenced to believe that appellant had a criminal intent when he initially accepted the complainant’s money. Such was not mere injury, but was injury of a radical or serious character. Gardner v. State, Id. The improper admission of State’s Exhibit Number 3 was error which “went to the integrity of the trial process itself,” because it could have improperly influenced the jury in deciding what would otherwise have been a close issue. Absent this improper influence, the jury might very well have concluded that at the time the appellant obtained the complainant’s money he did not have any criminal intent to defraud, but possibly an ill-conceived scheme to make a fast buck. Furthermore, the extraneous offense did not show that appellant never intended to obtain guns for his customers. It only shows that appellant is a criminal generally, in that he illegally purchased a gun, and feloniously falsified a Federal firearms form. It is this danger, that an accused will be convicted for being a criminal generally, rather than being convicted for committing the offense for which he is on trial, that the general prohibition against admitting into evidence an extraneous offense was designed to prevent. The extraneous offense should not have been admitted into evidence in this cause.
The facts of this case scream out for this error to be reviewed by this Court in the interest of justice. To the majority’s holding that the admission into evidence of the extraneous offense is not reviewable, as error reviewable in the interest of justice, I must respectfully dissent. I must also dissent to the failure of the majority to give any reason for reaching its result, other than an amorphous reference to “waiver”. The liberty and freedom of one of our eiti-*684zens, even one whose conduct may be highly suspect, as well as despicable, are too valuable to be placed on the end of a pitchfork and thereafter thrown onto the heap labeled “waiver of error by technicality.” The Court fails today to do what I and others thought it was created to do, and that is to make sure that no citizen of this State was ever deprived of his freedom “except by the due course of the law of the land.” Art. I, Sec. 19, Texas Constitution. I do not believe that this appellant has been accorded the due course of the law of this State to which he is entitled to receive.
. At the time appellant gave notice of appeal, Art. 40.09, Sec. 13, V.A.C.C.P., prior to amendment, provided in part that the Court of Criminal Appeals could review “any unassigned error which in the opinion of the Court of Criminal Appeals should be reviewed in the interest of justice.” Since the notice of appeal was given prior to the amendment to Art. 40.09, this Court is statutorily authorized to consider and review unassigned error.
. This form became State’s exhibit number 3. The form is required by the United States Government and must be completed when a person purchases a firearm, such as a shotgun. See 18 U.S.C. Sec. 922(a)(6). An offense is committed if, in completing the form, a person makes a false declaration on the form. In this instance, the jury was not informed where on the form appellant had lied when he completed the form, merely being informed that one of the declarations he made was false. Thus, the jury was left to speculate which declaration was false. A reasonable reading of the form can lead to the conclusion that the appellant 1) was under indictment for a State or Federal criminal offense carrying a punishment exceeding one year imprisonment; or 2) had been convicted of a State or. Federal criminal offense, punishable by imprisonment exceeding one year; or 3) was a fugitive from justice; or 4) was an unlawful user of, or addicted to, marihuana or a depressant, stimulant, or narcotic drug; or 5) had been adjudicated a mentally defective or had been committed to a mental institution; or 6) had been dishonorably discharged from the Armed Forces; or 7) was an illegal alien; or 8) was a person who had renounced his United States citizenship. Without question, an affirmative finding as to any *680one of the above would be highly prejudicial to an accused.
. Art. 40.09, Sec. 12, V.A.C.C.P., provided in part, as follows:
“It shall be the duty of the trial court to decide from the briefs and oral arguments, if any, whether the defendant should be granted a new trial by the trial court.”