CONCURRING AND DISSENTING OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
MANSFIELD, Judge,concurring and dissenting.
I join the opinion of the Court as to its disposition of appellant’s second question for review. An open file policy does not provide notice to the accused that the State intends to use evidence of extraneous offense(s) at trial; it merely provides notice that the State has knowledge of extraneous offenses committed by the accused. Appellant, having filed the timely request under Rule 404(b), was entitled to be informed by the State as to its intent to use such evidence as part of its case in chief.
I dissent to the Court’s disposition of appellant’s first question for review. Texas Penal Code § 20.04(c) — formerly § 20.04(b) — places the burden on appellant to prove, by a preponderance of the evidence, at the punishment phase of the trial, that he voluntarily released the complainant in a safe place, in order to reduce the offense from a first degree to a second degree felony. Section 20.04(b), in effect at the time of the offense in this matter, stated that an offense under § 20.04 is a felony of the first degree unless the actor voluntarily releases the victim alive and in a safe place, in which event it is a felony of the second degree. Section 20.04(b), however, unlike its successor, Section 20.04(c), did not require that evidence of safe release be introduced at the punishment phase by appellant. Thus, such evidence could have been introduced at any time during the trial. However, the only evidence introduced with respect to this issue was limited testimony during the guilt/innocence phase that the complainant was released at her mother’s house, presumably, but not necessarily, a safe place. Appellant did not meet his burden of proof on the issue of safe release, as the court of appeals correctly, in my opinion, held.