dissenting.
Respectfully, I dissent to the majority’s sustaining of appellant’s point of error two, holding that the trial court abused its discretion in admitting testimony regarding an alleged attempted murder. I give strong consideration to the fact that appellant chose to take the stand and testify to events and circumstances resulting in his indictment and trial. Appellant wanted the jury to believe that the discharge of the weapon was non-voluntary conduct, thus a defense. See *68Adanandus v. State, 866 S.W.2d 210, 229 (Tex.Crim.App.1993).
The majority concludes that the trial court abused its discretion in admitting testimony regarding the alleged attempted capital murder, holding that “[T]he previous attempted capital murder charge did not show relevance apart from character conformity and, thus, is not admissible under Rule 404(b).” The majority determines that even though appellant admitted that he had previously shot someone under circumstances amounting to criminal conduct, that evidence was not admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
It is not the role of this appellate court to second guess the evidentiary decision made by the Trial Judge, Olen Underwood, Judge Presiding.
“Evidence is ‘relevant’ that has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1991) (opinion on rehearing); Tex. R.Crim. Evid. 401. “[Although relevant, ‘[ejvidenee of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.’” Montgomery, 810 S.W.2d at 386; Tex.R.Crim. Evid. 404(b). “Evidence of ‘other crimes, wrongs, or acts’ ‘may, however, be admissible’ if it has relevance apart from its tendency ‘to prove the character of a person in order to show that he acted in conformity therewith.’ ” Montgomery, 810 S.W.2d at 387; Tex.R.Crim. Evid. 404(b). Proof of intent or absence of accident are admissible purposes for which extraneous offense evidence is relevant beyond its tendency “to prove the character of a person in order to show that he acted in conformity therewith.” Id. Such evidence is therefore admissible, “subject only to the trial court’s discretion nevertheless to exclude it ‘if its probative value is substantially outweighed by the danger of unfair prejudice-’ ” Montgomery, 810 S.W.2d at 387; Tex.R.Crim. Evid. 403.
The ultimate question is whether the extraneous offense tends to disprove the appellant’s explanation of the primary offense. The presence or absence of similarity is not entirely determinative of the admissibility of the extraneous offense. If the extraneous offense is relevant in tending to disprove the defensive theory, it should be admissible.
Halliburton v. State, 528 S.W.2d 216, 219 (Tex.Crim.App.1975) (op. on motion for reh’g).
“When the accused claims self-defense or accident, the State, in order to show the accused’s intent, may show other violent acts where the defendant was an aggressor.” Robinson v. State, 844 S.W.2d 925, 929 (Tex.App.—Houston [1st Dist.] 1992, no pet.).
“[T]he trial court must be given wide latitude to exclude, or, particularly in view of the presumption of admissibility of relevant evidence, not to exclude misconduct evidence as he sees fit.” Montgomery, 810 S.W.2d at 390. “[A]n appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement.” Id. at 391.
The majority overlooks that on direct examination appellant placed intent at issue by claiming that the shooting was accidental in nature, free of criminal intent. Appellant injected the defense of non-voluntary conduct in the case, see Tex Penal Code Ann. § 6.01(a) (Vernon 1994), and in order to refute or disprove this defense it became relevant to prove that on another occasion appellant had shot or shot at two other people, intentionally and knowingly. Halliburton, 528 S.W.2d at 219. As provided by Rule 404(b), these prior offenses, originally charged as two counts of attempted murder, were admissible to refute appellant’s defense. Albrecht v. State, 486 S.W.2d 97, 103 (Tex.Crim.App.1972); Robinson, 844 S.W.2d at 929.
At trial, appellant objected to the evidence as “highly prejudicial” and “irrelevant.” Thus, the zone of reasonable disagreement has been triggered. It is here that the trial court’s discretion comes into play and appellate courts should refrain from trial judge *69role-play by overanalyzing this area of discretion.
Here, appellant injected the defense of non-voluntary conduct and innocent intent in the trial, contradicting the testimony of Deputy Bailey that appellant aimed directly at him and fired. There were no other witnesses to the shot fired by appellant. And other than the gunshot wound suffered by appellant from Deputy Bailey’s return fire, there was no physical evidence to corroborate Deputy Bailey’s testimony: Deputy Bailey was not wounded by the shot, his patrol car was not damaged, and the bullet was not recovered. The State had no other convincing evidence to establish the ultimate issue of intent, the only contested issue in the ease.
The probative value of appellant’s prior offenses to show that appellant had pointed a gun at somebody and pulled the trigger,1 was not particularly prejudicial in combination with the other evidence. While similar in intent, the fact situation of the offense in the primary case was different: the victim was a peace officer and the shooting occurred after a high speed chase. Only the type of offense and a brief sketch of the prior offenses was elicited at trial. The evidence was not of such a nature that the court’s limiting instruction to disregard the evidence for any but its proffered purpose would have been ineffective, and a limiting instruction was included in the charge.
Appellant also complains in his second point of error that the Attempted Murder charge was a deferred conviction and as such could not be shown at trial, and in his third point of error that his misdemeanor conviction for Reckless Conduct could not be shown because it is not a crime of moral turpitude.
On cross-examination, appellant testified, “I was being charged with two counts of attempted murder.” The appellant also testified that appellant was never tried on those charges, and got probation for an attempted murder, which he was currently serving, and a misdemeanor conviction for Reckless Conduct.
Rule 404(b) provides that “evidence of other crimes, wrongs, or acts” is admissible for other purposes than to show the character of a person in order to show that he acted in conformity therewith. Tex.R.Crim. Evid. 404(b). Here, as previously discussed, the evidence that appellant had been charged with two attempted murders was admissible to show his intent and the absence of accident. Unlike Rule 609, Rule 404(b) does not require a conviction as a prerequisite to admissibility of the evidence.
I find no abuse of discretion by the trial court in admitting the extraneous alleged attempted murder evidence.
. The instant offense and the prior offenses were similar in intent, and probative on that issue, despite differences in the fact situations. See Ransom v. State, 503 S.W.2d 810 (Tex.Crim.App.1974).