dissenting.
I respectfully dissent to this Court’s majority opinion’s overruling the sixth point of error that is presented on behalf of Clarence Allen Lackey, henceforth appellant, that the evidence is insufficient to support the jury’s affirmative finding “[that] there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat of society.” See Art. 37.071(b)(2), V.A.C.C.P.
In ruling that the evidence is sufficient, does the majority opinion not owe an explanation to the citizens of Lubbock County why this Court ruled that Jim David Huffman, a former resident of Lubbock County, should not die but now rules that Clarence Allen Lackey, another former resident of Lubbock County, should die, especially given the fact that the facts of this cause are weaker than those found in Huffman’s case that would authorize the State inflicting a premature death?
Contrary to most supreme courts of this Nation, however, this Court does not make either a proportionality or comparison review of death sentences, and also does not on its own make an independent review of a particular death sentence. If the issue of the sufficiency of the evidence to sustain the jury’s affirmative answer to special issue number 2 is presented to this Court by the defendant, then this Court will review same; otherwise, although it can do so, it is not required to do so, and, according to my research to date, has never done so in the past. See Banda v. State, 768 S.W.2d 294 (Tex.Cr.App.1989), fn. 2.
Thus, when the issue is raised, this Court resolves the issue on a case-by-case basis. However, cases which this Court has reversed for insufficiency of the evidence, as to the second special issue, should be used for guidance in resolving the issue. See Kunkle v. State, 771 S.W.2d 435 (Tex.Cr.App.1986). In this instance, appellant presents the issue, but the majority opinion rejects his contention that the evidence is insufficient to sustain the jury’s affirmative answer to the second special issue. In light of what this Court has done in several other cases, in setting aside the jury’s affirmative answer to special issue number 2, I disagree.
Just recently in Burns v. State, 761 S.W.2d 353 (Tex.Cr.App.1988), this Court reversed the trial court’s judgment of conviction and sentence of death because the trial judge refused to admit into evidence certain evidence that was deemed to be “mitigating” evidence. This Court observed the following:
Over the past dozen years this Court has articulated its standard for appellate review of sufficiency of evidence to support an affirmative answer to special issue two in a number of ways. We have consistently said we view the evidence in the light most favorable to the jury’s answer, e.g., Starvaggi v. State, 593 S.W.2d 323, 325 (Tex.Cr.App.1979) (footnote deleted), without clearly explicating what view of the evidence would be the *124most favorable in light of the jury’s constitutional function to weigh any proffered evidence in mitigation. In other instances, seemingly more mindful of that function, we have held that the evidence was such that ‘the jury was justified in finding that the aggravating factors outweighed the mitigating factors[,]’ e.g., Duffy v. State, 567 S.W.2d 197, 209 (Tex.Cr.App.1978); Demouchette v. State, 591 S.W.2d 488, 492 (Tex.Cr.App.1979); thus suggesting ‘a more substance review’ than had been conducted in other cases. See Dix, Appellate Review of the Decision to Impose Death, 68 Geo.L.J. 97, 151 (1979). As if to disown that notion, however, the Court has at least on one occasion combined these two pronouncements, finding that ‘the evidence, viewed in a light most favorable to the verdict, is sufficient for the jury to have found that the mitigating factors introduced by appellant did not outweigh the aggravating factors and that there is a probability that appellant would commit acts of violence that would constitute a continuing threat to society.’ Green v. State, 682 S.W.2d 271, 289-90 (Tex.Cr.App.1984) (footnote deleted). Recent decisions have abandoned altogether the inquiry whether the evidence would justify a jury finding that aggravating factors outweighed mitigating. Instead, the Court has begun to apply an unadulterated Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard, beginning with Fierro v. State, 706 S.W.2d 310 (Tex.Cr.App.1986). A typical articulation of the standard appears in Harris v. State, 738 S.W.2d 207, at 225-26 (Tex.Cr.App.1986):
‘When we view the facts, we must evaluate the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have made the finding beyond a reasonable doubt.’
See also Alexander v. State, 740 S.W.2d 749, 761 (Tex.Cr.App.1987). (‘... applying the ‘rational trier of fact’ test....’); Livingston v. State, 739 S.W.2d 311, 340 (Tex.Cr.App.1987) (‘... whether the evidence ... would lead any rational trier of fact to make the finding ...'). Thus has the Court narrowed its focus on appeal to ‘whether a rational trier of facts could have found the elements of Art. 37.-071(b)(2), supra, beyond a reasonable doubt[,]’ Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987), opining that this appellate standard will adequately serve to ‘make certain that the death sentence is not ‘wantonly or freakishly’ imposed[.]’ Id., at 63. (footnote deleted). See also Beltran v. State, 728 S.W.2d 382, 389-90 (Tex.Cr.App.1987); Cockrum v. State, 758 S.W.2d 577 (Tex.Cr.App., 1988). (Pages 355-56 of opinion.)
In footnote 4 of the opinion, the following was also stated:
Thus, also, have we abandoned any pretense of this Court balancing mitigating and aggravating evidence so as to determine, independently of the jury's verdict, the ‘appropriateness’ or ‘justness’ of imposition of the death sentence in a given case. See Dix, supra at 150-51_
In Bums, the Court used the general “Jackson v. Virginia ” standard of review and concluded that the evidence was sufficient to sustain the jury’s affirmative answer to special issue number 2.
I personally am not so sure what to make out of the above, given the fact that only four judges of this Court joined the Bums, supra, opinion, which was handed down on October 19, 1988, and the fact that five judges of this Court just recently joined all of the opinion of Lane v. State, 743 S.W.2d 617 (Tex.Cr.App.1987), in which the majority opinion in that cause, in rejecting the defendant’s contention that the evidence was insufficient to sustain the jury’s affirmative finding to the second special issue, stated the following, albeit implicitly giving lip service to the general “Jackson v. Virginia ” standard, see footnote 10, at page 629:
We balanced the evidence on both sides of this sufficiency question, considering the evidence at both stages of the trial. Fierro v. State, 706 S.W.2d 310 (Tex.Cr.App.1986).
*125On the appellant’s side of the issue, he testified that the shooting was accidental as a result of the ‘hair trigger’ of his firearm. The State’s eye-witnesses disputed appellant’s version of his actions in shooting the victim. The State’s firearm expert proved that appellant’s weapon was far too stable to be considered as having a ‘hair trigger.’
On the State’s side of the case, there was the testimony of the eye-witnesses to the shooting. In addition, there was the testimony of the appellant’s cellmate. The cellmate reported the statements made by the appellant in jail. Considering all of the evidence, it reached the level of sufficiency which was described in Williams v. State, 674 S.W.2d 315 (Tex.Cr.App.1984), and Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976) (footnote deleted). We overrule the appellant’s fifty-first point of error. (630).
What is puzzling, at least to me, is the fact that Judge White, who authors this majority opinion, also authored the Lane majority opinion, but nowhere in this opinion does he mention the balancing test that he used in Lane. If one is to be consistent, shouldn’t one continue to subscribe to the same test?
Contrary to many jurisdictions whose statutes require the jury to find in the affirmative at least one of several enumerated aggravating circumstances, see, for example, Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), which concerned our neighboring sister State of Louisiana’s capital murder statute, Texas does not permit jurors to use the aggravating versus the mitigating circumstances test; it instead uses special issues in deciding the issue whether the defendant should live or die. See Art. 37.071, V.A.C.C.P. Also see Fearance v. State, 771 S.W.2d 486 (Tex.Cr.App.1988) (Teague, J., dissenting opinion.)
However, as Judge Clinton pointed out in Bums, this Court does not always use the same test in judging the sufficiency of the evidence as it relates to special issue number 2. Has this Court, however, reached the point where not only is the issue to be decided on a case by case basis, but depending on which test the author of the opinion decides to pull from his “cheat sheets” will determine the test that governs the issue in that cause?
This time Judge White has decided to use the following test: “The jury’s verdict should be reversed only if we find it to be irrational or unsupported by more than a ‘mere modicum’ of evidence.” (Page 116 of opinion.) But, when it comes to deciding the sufficiency of the evidence as to the jury’s affirmative finding on the second special issue, what does this mean? If this means more than nothing, how much more than nothing is enough?
The majority opinion concludes: “We find that a rational trier of fact could have found beyond a reasonable doubt appellant would probably commit criminal acts that constitute a continuing threat to society.” (Page 116 of opinion). Apparently, what the majority found was that the evidence was more than no evidence, and that any rational trier of fact could have also answered the second special issue in the affirmative. I am unable, however, to say that if any rational trier of fact carefully considered only the evidence that went to whether there is a probability that appellant would in the future commit criminal acts of violence that would cause him to be a continuing threat to society, he would answer the special issue in the affirmative.
I agree with the majority opinion that the facts of this cause are bad. But isn’t that true of every single capital murder case? In Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982), this Court made it clear, didn’t it, that “To hold that the facts of this offense, standing alone, would support such a verdict, would mean that virtually every murder in the course of a robbery [or some other designated underlying offense] would warrant the death penalty. Such a construction would destroy the purpose of the punishment stage in capital murder cases, which is to provide a reasonable and controlled decision on whether the death penalty should be imposed, and to guard against its capricious and arbitrary imposition. Jurek v. State, 522 S.W.2d 934; Ju*126rek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 [1976].” (Page 603).
Thus, under Roney, it was incumbent upon the State, in addition to the facts of the case, to present additional evidence that would warrant this Court sustaining the State’s wishes to inflict upon appellant a premature death. So, besides the facts of the case, what else did the State present at the punishment stage of the trial?
In this instance, at the punishment stage of the trial, the State did not introduce any prior criminal convictions that appellant had sustained that were presumptively violent crimes. It did, however, introduce several prior burglary convictions that appellant had sustained. However, without more, these burglary convictions are not prima facie crimes of violence. See Tew v. State, 551 S.W.2d 375, 378 (Tex.Cr.App.1977); Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976). Cf. Mendoza v. State, 460 S.W.2d 145 (Tex.Cr.App.1970); Waffer v. State, 460 S.W.2d 147 (Tex.Cr.App.1970); Wisdom v. State, 708 S.W.2d 840 (Tex.Cr.App.1986). Of course, a violent act occurs through both intent and the act itself. If one is convicted of a crime such as burglary with the intent to commit rape, he has not technically committed a violent crime. The conviction, standing alone, only represents that he had the intent to commit a violent crime, but does not represent, standing alone, the fact that he committed a violent crime. See Hamilton v. State, 676 S.W.2d 120 (Tex.Cr.App.1984), and Schutz v. State, 646 S.W.2d 224 (Tex.Cr.App.1983). If one carefully observes, see page 116 of the majority opinion, some sort of effort is made to somehow make the prior burglary convictions crimes of violence by showing that the facts of this cause show that appellant burglarized the residence of the deceased, and thereafter raped and murdered her. Come on Judge White, you can do better than that, can’t you?
Other than the prior burglary convictions, the State did not present any other evidence that would go to the second special issue. I pause to emphasize that the State did not at the punishment stage of the trial present any “bad” reputation testimony or evidence. Nor did the State present any “bad” psychiatric or psychological testimony or evidence.
To counter what the State did introduce at the punishment stage of the trial, on the issue of whether there was a probability that appellant would commit criminal acts of violence in the future that would constitute a continuing threat to society, appellant had his mother testify; had a United States Probation Officer testify; had a high school teacher, who also taught the then District Attorney of Lubbock County, testify; and had Dr. Herbert Modlin, a distinguished and well known psychiatrist who is on the staff of the world renowned Menninger Clinic in Topeka, Kansas, testify, whose testimony was neither rebutted nor refuted by the State. Because I find that the mother’s testimony, the probation officer’s testimony, and the school teacher’s testimony amount to little more than “don’t kill him” type testimony, I will not discuss their testimony, but will detail Dr. Modlin’s testimony.
Dr. Modlin did an in depth study, through personal interviews and the obtaining of psychiatric and psychological records that existed on appellant, which are voluminous, in order to decide whether appellant might in the future commit criminal acts of violence that would cause him to be a continuing threat to society. Dr. Modlin concluded that the crimes that appellant committed on the night in question were completely out of appellant’s character in light of his psychological make-up. “It doesn’t make any sense at all.” Dr. Modlin further concluded that appellant was not paranoid, psychotic, was unable to be clever or dissemble facts, and any problems that appellant had, such as drinking, were curable or treatable ones.
If the purpose of the punishment stage in a capital murder case is to provide a reasonable and controlled decision on whether a defendant should be forced to undergo a premature death, and to guard against its capricious and arbitrary imposition, as this Court held in Roney, then what evidence is there in this record, out*127side of the facts of the crime itself, that would warrant any rational, trier of fact to conclude that there is a reasonable probability that appellant might in the future commit criminal acts of violence that would cause him to become a continuing threat to society?
Dr. Modlin, a true expert witness, who was not like some psychiatrists this Court is familiar with who profess that they can stand at the end of a football field and tell whether the defendant, who is standing at the other end of the football field, will in the future commit criminal acts of violence and that he will become a continuing threat to society, testified after an in depth study on the issue that what appellant did on the night in question was out of his character, and that appellant probably committed those acts because he had consumed a large quantity of the spirits. Dr. Modlin also testified that appellant is not paranoid or psychotic; that any drinking problem that he might have was curable; and that in his expert opinion appellant would not in the future commit acts of criminal violence that might cause him to become a continuing threat to society, and that the burglary and murder that appellant committed were spur-of-the-moment, spontaneous acts, and were not planned or calculated acts of violence. There is no evidence in the record that in the approximately two hours that consumed the period of time in which appellant committed the offense for which he has been convicted appellant committed any unrelated criminal wrongs. From appellant’s school records we learn that although he was not a very good student, he nevertheless made good grades in citizenship, which encompasses adhering to rules and regulations. We are also informed from this record that while attending school appellant did not have any behavioral or attitude problems. The record also indicates that appellant had what might be best described as an unenviable childhood. The record reflects that when appellant committed the offense he was only 23 years of age, a sufficiently early age for rehabilitation. Furthermore, appellant confessed to his girlfriend, thus demonstrating an awakened and repenting conscience. He also demonstrated remorsefulness for what he did to his victim, the deceased.
If one compares the facts of this cause and the evidence that was presented at the punishment stage of the trial with those cases which this Court has reversed for insufficient evidence on the “probability” question, see, for example, Huffman v. State, 746 S.W.2d 212 (Tex.Cr.App.1988), a Lubbock County case in which this Court held that the evidence was insufficient to sustain the jury’s answer to the second special issue, which had facts on both guilt and punishment just as bad, if not worse than those found in this cause; Roney, Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981); Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Warren v. State, 562 S.W.2d 474 (Tex.Cr.App.1978); Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App.1982); Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987); and Beltran v. State, 728 S.W.2d 382 (Tex.Cr.App.1987), as well as those cases in which our present and former Governors commuted death sentences to life imprisonment, I believe that he will agree with me that this Court’s decision today to sustain the jury’s affirmative answer to the second special issue is neither a logical nor a rational one.
I find that the majority opinion’s attempts to selectively pluck from Dr. Mod-lin’s testimony what might facially appear to be damaging evidence is an effort without meaning, unless one cares to overlook the totality of Dr. Modlin’s testimony. The same is true as to what the majority opinion plucks from appellant’s girlfriend’s testimony.
Perhaps the citizens of Lubbock County will understand why, given the facts of this cause and the facts of Huffman, this Court decided that Jim David Huffman, one of its former residents, should live, but today decides that Clarence Allen Lackey, another former resident, on facts no worse than those found in Huffman, must suffer a premature death. I, for one, don’t.
Perhaps given the fact that “Studies on the prediction of violence are consistent: clinicians are wrong at least twice as often as they are correct,” Faust and Ziskin, *128“The Expert Witness in Psychology and Psychiatry”, Science, July, 1988, it would be proper for the foreman of any death penalty jury, in deciding whether the jury should answer special issue number 2 in the affirmative or negative, to flip a coin, and, if the coin turns up heads, the defendant lives, or, if it turns up tails, he must suffer a premature death. In deciding whether the jury correctly answered special issue number 2, the Presiding Judge of this Court, on behalf of its members, could also flip a coin, and, if the coin turns up tails, the jury’s verdict will be set aside, but if the coin turns up heads, the jury's verdict will be affirmed. This would at least comport with the scientific method that the tyrannical Mexican Government under Antonio Lopez de Santa Anna used in deciding which of the 176 Texians of the ill fated Mier Expedition would be executed in February, 1843, in Salado, Mexico. Every tenth man who drew a black bean was executed. Apparently, the Mexican Government was superstitious about rounding off numbers because only 17 Te-xians were executed. By the jury and this Court using the scientific coin flipping method, we would at least easily know how and why Huffman, one resident of Lubbock County, who is just as bad, if not worse than appellant, another resident of Lubbock County, gets to live, but appellant gets to die a premature death.
I respectfully dissent to overruling appellant’s sixth point of error.