concurring and dissenting.
I agree with and concur in the majority’s disposition of Grunsfeld’s first three points. I respectfully dissent from the majority’s holding that the trial court committed reversible error in admitting evidence of extraneous offenses during the punishment phase of Grunsfeld’s trial. Accordingly, I would affirm.
The majority hold that article 37.07, section 3(a) of the Texas Code of Criminal Procedure forbids the introduction of extraneous offense evidence during the punishment phase of a trial. This section, which was amended in 1989, provides, in pertinent part, 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 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 a suspended sentence that has occurred prior to trial, or any 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.
Tex.Code Crim.Proc.Ann, art. 37.07, § 3(a) (Vernon Supp.1991) (hereafter referred to as “the statute”) (emphasis added to reflect amendatory language). This amendment took effect on September 1, 1989. Prior to the amendment, this section read as above, exclusive of the emphasized portion. Tex. Code Crim.Proc.Ann. art. 37.07, § 3(a) (Vernon 1981).
CONSTRUCTION OF ARTICLE 37.07, SECTION 3(a)
1. Presumptions.
In construing an amendment, courts must presume that the legislature intended to change the law and should construe the amendment in a way that gives effect to a change rather than one that renders the amendment useless. Ex parte Trahan, 591 S.W.2d 837, 842 (Tex.Crim.App.1979). Courts must also presume that the legislature intended that effect be given to the entire statute. Ex parte Austin, 746 S.W.2d 226, 236 (Tex.Crim.App.1988); Tex. Gov’t Code Ann. § 311.021(2) (Vernon 1988). The legislature is presumed to have intended a just and reasonable result and to have favored the public interest over any private interest. Lindsay v. Papageorgiou, 751 S.W.2d 544, 547 (Tex.App—Houston [1st Dist.] 1988, writ denied); Tex. Gov’t Code Ann. § 311.021(3), (5) (Vernon 1988).
2. Construction Guidelines.
To assist courts in construing statutes, the Code Construction Act provides the following nonexclusive list of factors a court may consider:
*174(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.
Tex.Gov’t Code Ann. § 311.023 (Vernon 1988). Unlike the majority who discuss only the legislative history, I will now review each of the pertinent guidelines separately.
a. The object sought to be attained.
As a starting point, this Court must remember that the legislature is presumed to have changed the law and should construe the statute to give effect to a change. Ex parte Trahan, 591 S.W.2d at 842. To ascertain the legislative intent in enacting this amendment, this Court must first look to the language of the statute itself. Faulk v. State, 608 S.W.2d 625, 631 (Tex.Crim.App.1980). The legislature’s objective in amending the statute can be learned from looking at the amendatory language itself. The statute now states that evidence may be admitted as to “any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character.” Tex.Code Crim.Proc.Ann. art. 37.07, § 3(a) (Vernon Supp.1991) (emphasis added). The word “including” is a term of enlargement and not of limitation or exclusive enumeration. Tex.Gov’t Code Ann. § 311.005(13) (Vernon Supp.1991). By using the term “including,” the legislature sought to broaden the scope of admissible evidence at the punishment phase of a non-capital trial.
b. The circumstances under which the statute was amended.
In interpreting the pre-amendment version of the statute, the Court of Criminal Appeals has held that evidence of bad acts is inadmissible at the punishment phase of a trial unless the defendant first opens the door to such evidence. Murphy v. State, 777 S.W.2d 44, 64 (Tex.Crim.App.1989) (op. on reh’g). In a concurring opinion, Judge Duncan stated: “If the Legislature wants the jury to have access to evidence beyond that authorized by Art. 37.07, § 3(a), supra, it should pass legislation to that effect. It is not this Court’s function to authorize an expansion of the statute beyond its language.” Id. at 71 n. 1 (Duncan, J., concurring). This Court must presume that, in amending the statute, the legislature knew the circumstances and conditions affecting or relating to the amendment, including prior court decisions. Welch v. Welch, 369 S.W.2d 434, 437 (Tex.Civ.App. — Dallas 1963, no writ). Aware that the Court of Criminal Appeals narrowly construed the statute because of its restrictive language, the legislature, the only governing body with authority to do so, took the initiative and amended the article to broaden the scope of admissible evidence at the punishment phase of trial.
c.The legislative history.
I do not dispute the majority’s factual discussion of the legislative history; I only disagree with the conclusions they draw therefrom. In my view, the legislative history reveals a compromise. As initially proposed, the amendment was as broad as article 37.071(a),1 which places only a constitutional limitation on evidence admissible at the punishment stage of a capital trial. Because this proposed bill obviously met opposition, a compromise resulted.
According to the majority’s construction of the statute, to be admissible at the punishment phase of a noncapital trial, evidence must both be permitted by the rules of evidence and, if it is part of a defendant’s prior criminal record, it must fit within the statute’s definition of prior criminal record. In its construction, the majority focus on the phrase “as permitted by the Rules of Evidence” which was carried for*175ward from the previous version and on the statute’s retention of the definition of prior criminal record. The majority choose to ignore the new language “as to any matter the court deems relevant to sentencing, including,” which was added by the 1989 amendment. By ignoring the amendatory language, the majority neglect the very rule of statutory construction that they set forth; namely, that each part of a statute is to be considered with every other part and that all the language should be viewed together.
In contrast, my construction gives a harmonious effect to all of the statute’s language. I agree with the majority that, as amended, the statute does not go as far as article 37.071(a).2 However, unlike the majority, I believe that the statute is now more encompassing than its predecessor and permits, within the trial court’s discretion, evidence of specific acts, good or bad, offered through testimony of live witnesses subject to cross-examination.3 Specific act evidence, offered through live testimony, is not part of a defendant’s prior criminal record; therefore, the fact that the statute defines “prior criminal record” should not in any way limit its introduction. The term “record” means “[a] written account of some act, transaction, or instrument, drawn up, under authority of law, by a proper officer, and designed to remain as a memorial or permanent evidence of the matters to which it relates.” Black’s Law Dictionary 1437 (4th ed. 1968). Specific act evidence, on the other hand, reveals a defendant’s prior conduct, good or bad, or, put another way, is a “circumstance of a defendant.” Although used interchangeably over the years, the Court of Criminal Appeals recognizes that prior criminal record and prior criminal conduct are distinct terms. See Crane v. State, 786 S.W.2d 338, 355 (Tex.Crim.App.1990). Evidence of one’s prior criminal record is character evidence per se. See Henson v. State, 794 S.W.2d 385, 396 (Tex.App.—Dallas 1990, pet. ref’d). Specific act evidence, on the other hand, is not character evidence per se. Consequently, its probative value is less than that of an offense for which a defendant has been finally convicted. See Murphy, 777 S.W.2d at 49.
Those responsible for assessing punishment need the fullest information possible concerning a defendant’s life. Murphy, 777 S.W.2d at 63 (citing Williams v. State, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949)). Because there are no discrete issues of fact to be determined at the punishment phase of a noncapital trial, the admissibility of evidence at this stage is a function of policy, not of logical relevancy. Miller-El v. State, 782 S.W.2d 892, 895-96 (Tex.Crim.App.1990); Rice v. State, 789 S.W.2d 604, 605 (Tex.App.—Dallas 1990, no pet.) (per curiam). Thus, the sentencing authority must assess punishment in light of the following goals which society seeks to achieve through sentencing: (1) deterrence of both the individual defendant and other members of society; (2) restraint; (3) rehabilitation; (4) education; and (5) retribution. W. LaFave & A. Scott, Jr., Criminal Law § 1.5 (2d ed. 1986). Those responsible for sentencing cannot fully reach any of these goals and assess the proper sentence without knowing as much information about the individual defendant as possible.
The specific act evidence in this case, if believed, shows the jury that Grunsfeld has a low potential for rehabilitation; it also reveals a high potential for future dangerousness and future recidivism which bears upon his need for restraint in order to protect society. Murphy, 111 S.W.2d at 52 (White, J., dissenting).
d. The common law or former statutory provisions, including laws on the same or similar subjects.
This guideline is helpful in understanding the reason that the legislature retained the language “as permitted by the Rules of Evidence” when it amended the statute. *176The majority heavily emphasize this language as a “limiting factor.” In the majority’s view, unadjudicated, extraneous offenses are inadmissible under the statute not only because they are not part of a defendant’s prior criminal record, but also because the rules of criminal evidence prohibit their admission. According to the majority, unadjudicated extraneous offense evidence constitutes other evidence of character under rule 404(c) and that character evidence may be proved only by: (1) reputation of the person in the community; (2) personal opinion testimony of witnesses who know the person; and (3) specific instances of conduct where a defendant’s character is an essential element of a charge. Hedicke v. State, 779 S.W.2d 837, 839 (Tex.Crim.App.1989), cert. denied, —U.S.—, 110 S.Ct. 840, 107 L.Ed.2d 836 (1990); Tex.R.Crim.Evid. 404(c), 405(a), (b).
The legislature amended the statute in 1985 to include this language contingent upon the promulgation of the rules of criminal evidence on or before January 1, 1986. The Court of Criminal Appeals approved the rules of criminal evidence on December 18, 1985, and the rules became effective on September 1,1986. At the time of the 1985 amendment, the legislature intended for this language to restrict both the substantive evidence admissible under the statute and also the manner of proof.
When the legislature again amended this statute in 1989 it retained this language. In retaining this language, I believe that the legislature intended that “as permitted by the Rules of Evidence” now limits only the manner of proof and no longer limits the types of evidence admissible under the statute. I reach this conclusion by looking to case law construing article 37.071(a), a statute on a similar subject. As noted earlier, this Court must presume that in amending the statute, the legislature was aware of prior court decisions relating to the amendment. Welch, 369 S.W.2d at 437. As originally drafted, the only limitation on the trial court in admitting evidence under article 37.071(a) was that the court could not admit evidence that was obtained in violation of the United States or Texas Constitutions. Through case law, the Court of Criminal Appeals grafted on another limitation to the admission of evidence, clarifying that a trial court’s discretion in the admission of evidence during the punishment phase of a capital trial extends only to the relevance of the evidence and does not alter the rules of evidence with regard to the manner of proof. Crane v. State, 786 S.W.2d 338, 354 (Tex.Crim.App.1990); Porter v. State, 578 S.W.2d 742, 748 (Tex.Crim.App.1979). Thus, I do not believe that the “as permitted by the Rules of Evidence” language poses a barrier to the admission of specific act evidence.
e. The consequences of a particular construction.
This guideline, perhaps best of all, exemplifies the weaknesses of the majority’s rationale. It is presumed that the legislature intends to change the law when it enacts an amendment and this Court has an obligation to construe the amendment in a way that gives effect to a change rather than one that renders the amendment useless. Ex parte Trahan, 591 S.W.2d at 842. The majority construe the statute in a way that effectuates no change, thus rendering the legislature’s efforts to enact the amendment useless. The majority state that they agree that the amendment expanded the matters that might be introduced if the trial court deems the same relevant to sentencing, but fail to give a clue as to what those matters might possibly be. In construing the statute, the majority focus on the “as permitted by the Rules of Evidence” language and the definition of prior criminal record. In contravention of the rules of construction, the majority construe the statute by emphasizing these “limiting factors” and ignoring and giving no effect to the amendatory language.
In contrast, I would reconcile the “limiting factors” with the amendatory language and give a reasonable construction to the statute as a whole. The first “limiting factor,” the definition of prior criminal record, is not relevant because specific act evidence is not part of a defendant’s prior criminal record. I reconcile the second *177“limiting factor,” the “as permitted by the Rules of Evidence” language, with the new language by construing its intended meaning in light of case law, known to the legislature at the time it enacted the amendment, which interprets a different statute concerning a similar subject. Unlike the majority, I harmoniously construe the whole of the statute, thus giving effect to the legislature’s presumptive intent to change the law.
CONSTRUCTION BY SISTER COURTS
Of the few courts that have decided cases under this amendment, most construe the amendment as I do and hold that evidence of unadjudicated, extraneous offenses is now admissible under article 37.-07, section 3(a). Hubbard v. State, 809 S.W.2d 316 (Tex.App.—Fort Worth 1991, no pet. h.); Gallardo v. State, 809 S.W.2d 640 (Tex.App.—San Antonio 1991, pet. filed); Hunter v. State, 806 S.W.2d 918, 920-21 (Tex.App.—Beaumont 1991, pet. filed); McMillian v. State, 799 S.W.2d 311, 313 (Tex.App.—Houston [14th Dist.] 1990, pet. granted) (op. on reh’g); Huggins v. State, 796 S.W.2d 909, 911 (Tex.App.—Beaumont 1990, pet. ref d).
EX POST FACTO LAW
Grunsfeld raises one final argument in his fifth point. He contends that even if article 37.07, section 3(a) permits the admission of specific act evidence at the punishment phase of trial, it constitutes an ex post facto law as applied here because he committed the charged offense before the effective date of the amendment. I disagree. The United States Supreme Court defines an ex post facto law as one that: (1) punishes as a crime an act previously committed, which was innocent when done; (2) makes more burdensome the punishment for a crime; or (3) deprives one charged with a crime of any defense available according to law at the time when the act was committed. Collins v. Young-blood, — U.S.—, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990). Applying the amended version of article 37.07, section 3(a) to Grunsfeld’s trial does not constitute an ex post facto application of the law as defined by the United States Supreme Court. Further, statutes or rules relating to the admission of evidence are procedural in nature and apply to pending litigation as of the effective date of the statute or rule. Tumlinson v. State, 757 S.W.2d 440, 442-43 (Tex.App.—Dallas 1988, pet. ref’d). I would overrule Grunsfeld’s fifth point of error.
I would affirm the trial court’s judgment.
ENOCH, C.J., and KINKEADE, OVARD, BURNETT, CHAPMAN and CARVER, JJ., join in the concurring and dissenting opinion.
. Tex.Code Crim.Proc.Ann. art. 37.071(a) (Vernon 1991) (hereafter referred to as article 37.071(a)).
. In this regard, I disagree with the decision in Huggins v. State, 795 S.W.2d 909, 911 (Tex. App. — Beaumont 1990, pet. refd).
. Live witnesses would be subject, of course, to the perjury laws. See McGary v. State, 750 S.W.2d 782, 784-85 (Tex.Crim.App.1988).