dissenting on court’s own motion for rehearing.
The majority sets out a “consistent, if not always clear-cut rule”: victim impact and vietim character evidence are admissible at punishment in capital murder trials. Consistency and clarity are certainly laudable goals in appellate jurisprudence. But the law should come first. The problem with the majority’s “consistent and clear-cut” rule is that victim impact and victim character evidence is simply not relevant to the mitigation special issue as prescribed by the Texas Legislature. I dissent to the Court’s failure to exercise judicial restraint; I decline to legislate.
Evidence is generally admissible at punishment in capital cases in Texas if it is “relevant” to the “special issues” for consideration by the jury. Tex.Code Crim. Proc. art. 37.071; McDuff v. State, 939 S.W.2d 607, 620 (Tex.Crim.App.1997)(“[a]dmissibility [of victim impact evidence] is determined by the terms of the Rules of Criminal Evidence, particularly whether such evidence is relevant to the statutory special issues”); Bell v. State, 938 S.W.2d 35, 49 (1996)(“[d]uring the punishment phase of a capital murder trial, evidence may be presented on any matter the trial court deems relevant to answering the special issues”), cert. denied, — U.S. -, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997); Banda v. State, 890 S.W.2d 42, 61 (1994)(“[d]uring the punishment phase of a capital murder trial, evidence may be presented on any matter that the court deems relevant to answering the special issues”), cert. denied, 515 U.S. 1105, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995); Ex parte Broxton, 888 S.W.2d 23, 28 (Tex.Crim.App.1994)(extraneous offense evidence admissible “to the extent [it is] relevant to prove the special issues), cert. denied, 515 U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995).1 Evidence is “relevant” if it 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.” Tex.R.Crim. Evid. 401. And, “[a]ll relevant evidence is admissible, except as provided by constitution, by statute, by [the rules of evidence] or by other rules_” Tex.R. Cr. Evid. 402.
The majority says victim impact and victim character evidence is relevant to the following mitigation special issue:
[if the jury answered the previous special issue in the affirmative, the jury is instructed to answer the following issue:] [w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character *269and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a deáth sentence be imposed.
See Majority op. at 262 (observing victim evidence “is relevant only insofar as it relates to the mitigation issue”). Therefore, if evidence about the victim’s character or the impact of the crime on the victim’s relatives or close friends has any tendency to make more or less probable that a sufficient mitigating circumstance or circumstances will warrant a sentence of life imprisonment rather than a death sentence, then such evidence is admissible.
The majority appears to offer two explanations as to how victim evidence is relevant to the mitigation special issue. At first, the majority says victim impact and character evidence are “admissible ... to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence.” Majority op. at 262. But the “uniqueness of the victim [and] the harm caused by the defendant” are merely descriptions of what victim character and victim impact evidence are. Thus, the majority holds that victim character and victim impact evidence are admissible to show victim character and victim impact. This circular holding says nothing about how it is that such evidence is “relevant” to the mitigation special issue under the Rules of Criminal Evidence.
In further explanation, the majority says “victim-related evidence is relevant to show that the mitigating circumstances are not ‘sufficient’ to warrant imposing a life sentence.” Majority op. at 263. In other words, evidence of the victim’s character and the impact of the crime on the victim’s friends and family tends to make it more or less probable that the defendant’s mitigating evidence will not be enough to warrant a life sentence. The most obvious problem with this reasoning is that it factors in new aggravating evidence (apart from the aggravating evidence offered in support of a finding of future danger), which we have repeatedly and unequivocally said is contrary to the plain language of the mitigation special issue and inconsistent with the way the Legislature has structured the special issues.
The first two special issues serve the narrowing function of defining the class of death eligible persons and thus are the only issues to which aggravating evidence is relevant. Tex.Code Crim.App. art. 37.071 § 2(b). The mitigation issue, however, compels the jury to inquire whether there might be some reason for sparing the defendant’s life. Aggravating evidence has no relevance to this question. Id. at § 2(e).
In an eight-one opinion rendered just over one year ago, with rehearing denied nearly a year ago to this date, the Court stated unequivocally that aggravating evidence is not relevant to the mitigation special issue. El-dridge v. State, 940 S.W.2d 646, 653-54 (Tex. Crim.App.1996). There, the defendant argued the mitigation issue was unconstitutional because “it assigned] no burden as to aggravating circumstances.” We were perplexed by the argument:
It is unclear what appellant means by this; we can only speculate. He might be referring to the aggravating circumstances considered under Article 37.071 § 2(b), i.e. future dangerousness. But the burden as to future dangerousness is expressly assigned to the State_ Alternatively, appellant might mean that there is a balancing of aggravating and mitigating circumstances inherent in the requirement in Article 37.071 § 2(e) of consideration of a defendant’s individual circumstances and personal moral culpability. Appellant does not explain how § 2(e) implicitly calls for aggravating circumstances when the plain language of the statute does not.
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More importantly, appellant does not explain why § 2(e) would necessarily call for a consideration of non-statutory aggravating evidence when the necessary narrowing junction has already been taken care of under § 2(b). On its face, Article 37.071 § 2(b) is the only part of the statute that involves aggravating evidence. The issue of future dangerousness is com*270pletely independent of the special issue under § 2(e). The capital jury is told that it cannot answer the special issue until it has unanimously answered the first “yes,” beyond a reasonable doubt. At this point, it is instructed to determine whether, in spite of its finding beyond a reasonable doubt that appellant would represent a continuing threat to society, the circumstances of appellant’s crime and life nonetheless call for leniency, i.e., a life sentence. The purpose of the second special issue from appellant’s perspective is not to rebut the affirmative answer to the first special issue. Rather, the purpose is to determine whether the individual circumstances of appellant’s case and background call for sparing his life, even though the jury has found that he may be a continuing threat to society. Because § 2(e) does not contemplate aggravating factors, its silence as to the burden of proof on aggravating factors does not make it constitutionally infirm.
Id. at 653-54 (emphasis added). The Court could not have stated more clearly its view that under the “plain language” of section 2(e), aggravating evidence is not relevant.
In another eight-one opinion, this one sponsored by the author of the majority today, the Court emphasized that the jury’s discretion to consider aggravating evidence must be narrowed (and has been, per the future dangerousness issue and by defining the crimes for which the death penalty may be imposed), while discretion to consider mitigating evidence should be open-ended (and is, per the statutory Penry issue):
[Ajppellant argues that the failure of the statutory Penry issue [ ] to assign a burden of proof permits open-ended discretion in violation of the Eighth Amendment.... The “open-ended” objection was leveled at Penry itself, and the United States Supreme Court responded:
“In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline it to impose the death sentence.” Penry v. Lynaugh, 492 U.S. 302, 327, 109 S.Ct. 2934, 106 L.Ed.2d 256.... The future dangerousness special issue and other non-Penry special issues, along with the specifically enumerated murder situations which constitute capital murder, limit the jury’s discretion to consider aggravating factors. As noted above, it is appropriate not to limit a jury’s discretion concerning mitigating factors.
Wolfe v. State, 917 S.W.2d 270, 278 (Tex.Crim.App.1996). Thus, if the mitigation issue allows for consideration of aggravating evidence, it is unconstitutionally open-ended.
In McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997),2 we rejected the defendant’s argument that the State should shoulder the burden of proving aggravating factors under Article 37.071 § 2(e), because that issue simply “does not involve consideration of aggravating factors”:
But the special issue under § 2(e) does not involve consideration of aggravating factors. The necessary narrowing function has already been taken care of under § 2(b). Thus, there is no burden of proof as to aggravation to assign at the § 2(b) stage of the proceedings.
Id. at 518.
In Lawton v. State, 913 S.W.2d 542, 557 (Tex.Crim.App.1995), cert. denied, — U.S. -, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996), we once again rejected an argument that the mitigation issue should assign a burden of proof “as to aggravating or to mitigating circumstances,” because that issue “does not ask the jury to consider aggravating evidence.”
The majority now neatly “disavows” any such language in these opinions. They argue “the Supreme Court has never precluded the use of aggravating circumstances as part of the process of an individualized determina*271tion of culpability” and say “we” “recognize ... the jury may consider aggravating factors in its selection decision.” They miss the point. Supreme Court precedent does not prohibit consideration of aggravating circumstances in the context of the mitigation issue; rather, the plain language of the statute passed by the legislature does not allow for it. The legislature has the option to rewrite the statute; this Court does not.3
Apart from this caselaw, today disavowed, the other disturbing aspect to the majority’s reasoning is that it is a direct invitation to conduct a comparative worth analysis. But the majority says this is not permissible. Majority op. at 262. This is also the problem with the majority’s holding that victim evidence is relevant to rebut the defendant’s admission of mitigating evidence. Id. at 262. The majority suggests that by offering evidence of his own character or circumstances, the defendant places into issue the victim’s character or circumstances. But proper rebuttal evidence in the context of the mitigation issue should go to the defendant’s character or circumstances not the victim’s. We recognized this principle in Armstrong, supra. There, after defense witnesses testified at punishment to the defendant’s good reputation for being peaceful and law-abiding, the State called the deceased’s wife to testify, in rebuttal, that the deceased had been a peaceful and hardworking man. She testified she and the deceased had been married nearly twenty-two years and had five children. She further testified that the deceased had never missed a day of work, had been a good husband and father, had been nice to everyone including others of different races, and had enjoyed many friends. Armstrong, 718 S.W.2d at 696-97 (op. on reh’g). The State also introduced a family picture and elicited the names and ages of the children. We said the defendant correctly stated the following rule;
It is never competent for the State in the first instance to prove that the person slain was peaceable and inoffensive. Such evidence becomes admissible in rebuttal when the opposite has been testified to in behalf of the defense, or when the defendant seeks to justify the homicide on the ground of threats made by the deceased.
Id. at 695 (opinion on original submission). But the fact that defense witnesses testified to the defendant’s reputation did not raise an issue as to the reputation or character of the deceased. Id. at 696. We reaffirmed this holding on rehearing, emphasizing “the State may not introduce evidence of the deceased’s good character unless that character has somehow been placed in issue by the defendant.”4 Id. at 697 (op. on reh’g) (emphasis added).
Finally, the majority says the defendant can affirmatively waive “reliance and submission” of the mitigation issue, and thus avoid presentation of victim impact and character evidence. Majority op. at 264. But submission of the mitigation issue to the jury is legislatively mandated:
*272The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following [mitigation] issue[.]
Tex.Code crim. App. art. 37.071(e). The majority says the mitigation issue is distinguishable from other special issues (which we have held cannot be waived) because the mitigation issue does not impose a burden of proof on the State and it inures to the benefit of the defendant. Majority opinion at 264. The statute makes no exception on these grounds. In Powell v. State, 897 S.W.2d 307, 317 (Tex.Crim.App.1994), we held the defendant could not waive submission of the special issue on deliberateness:
Before the sentence of death can be imposed upon appellant a jury must affirmatively determine that appellant’s lethal conduct was “deliberate.” Art. 37.071(b)- [Ajppellant could not consent to a sentence of death that was not authorized, and in fact, is contrary to the statutory mandate. See also Casias, 503 S.W.2d at 263 (Defendant may not waive requirement that he be present at sentencing).
The fact that the State does not bear a burden on the mitigation issue does not transform the mandate that the trial court “shall instruct” on the issue into providing that it “may instruct” on it. The plain language of the statute requires that the issue be submitted and, if the other issues are answered affirmatively, that the jury consider and answer it. The majority’s holding otherwise is contrary to the face of the statute and encourages defendants to decline to offer mitigating evidence in an effort to preclude the State from offering victim impact and character evidence. And this might be advisable in order to avoid inviting the jury to engage in comparative worth analysis. For instance, a defendant who has evidence of mental retardation can forego proffering that evidence rather than bear the risk of the State responding with evidence of the brilliance and character of the victim. I still don’t understand how this evidence regarding the victim “tends to make it more or less probable” that this defendant’s mental retardation will warrant a sentence of life....
Judge Clinton’s words on this subject remain among the most sensical:
Before we can meaningfully approach the question of admissibility of “victim impact” evidence under the rules of evidence, we must clearly define the issue. It does not facilitate the analysis to ask whether a whole category of evidence is admissible under the rubric of “victim impact.” Instead, the trial court must take proffered evidence as it comes, inquiring on a case-by-case basis whether that evidence is relevant to any of the special issues in Article 37.071, which serves to circumscribe and define the parameters of the litigation at the punishment phase of a capital murder trial. Upon an objection to the relevance of any evidence that might be described as “victim impact,” the trial court must ask, as it would of any other evidence: Does it tend to make more or less probable that any of the special issues should be answered one way or the other? Tex.R.Cr. Evid., Rules 401 & 402. If the court concludes it is relevant, upon further objection it may be called upon to decide: Is the probative value substantially outweighed by the danger of unfair prejudice? Tex. R.Cr.Evid., Rule 403.[5]
Ford v. State, 919 S.W.2d 107, 119 (Tex.Crim.App.1996) (Clinton, J., dissenting).
Because the evidence at issue here is not relevant to the mitigation special issue, the trial court erred to admit it.6 Its admission *273affected a substantial right of appellant and thus was not harmless.7 Tex.R.App. Proc. 44.2. This case should be remanded for a new punishment hearing. I dissent.
BAIRD, J., joins.. This is distinguished from non-capital cases, where evidence is admissible as to "any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. art. 37.07 § 3(a) (regardless of whether punishment is “assessed” by judge or jury, evidence may be offered as to “any matter the court deems relevant to sentencing"). Capital punishment jurors do not "assess punishment,” but are asked to make specific fact-findings; thus, the evidence must be relevant to those fact issues.
. Two of the points of error in McFarland garnered only a plurality vote, but the Court's opinion on this issue was supported by seven judges.
. The majority cites no authority to support its holding. When faced with authority which would compel a different result, the majority predictably responds by overruling it. Cf. Proctor and Lemell v. State, 967 S.W.2d 840 (Tex.Crim.App.1998)(overruling cases contrary to holding); Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997)(overruling “Benson/Boozer line of cases); Ex parte McJunkins, 954 S.W.2d 39 (Tex.Crim.App.1997)(recalling mandate in order to overrule Ex parte Sims, 868 S.W.2d 803 (Tex.Crim.App.1993)); Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997)(DuBose v. State, 915 S.W.2d 493 (Tex.Crim.App.1996), State v. Carter, 915 S.W.2d 501 (Tex.Crim.App.1996) and Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App.1992) overruled); Ex parte Wilson, 956 S.W.2d 25 (Tex.Crim.App.1997)(overruling Ex parte Jarren, 891 S.W.2d 935 (Tex.Crim.App.1994)).
. The majority says Armstrong is distinguishable because that case involved the future dangerousness issue, not the mitigation issue:
That there is no logical link between the two types of evidence within the framework of the future dangerousness issue does not mean the same holds true for the mitigation issue. The mitigation issue concerns a defendant’s moral culpability, and to a limited extent, the victim's good character is relevant to a culpability determination.
Majority opinion at 263 fn. 18 (emphasis added). What does "a limited extent” mean? And how is the victim’s character relevant to a culpability determination? The majority's opinion illustrates how difficult it is to articulate the relevance of victim evidence without suggesting a comparative worth analysis.
. The majority’s allegiance to Rule 403 rings hollow in light of its failure to address the preliminary question of relevance under Rules 401 and 402.
. I joined the Court’s opinion in McDuff v. State, 939 S.W.2d 607 (Tex.Crim.App.1997), but in retrospect, should have been shown as concurring. At issue was testimony by the victim’s sister about the effect of the murder on her life. The Court recognized some of the impact evidence as relevant to the defendant's moral culpability. Id. at 620. But the mitigation special issue does not permit any evidence, aggravating or mitigating, that bears on the defendant’s moral culpability, only such evidence as would "warrant that a sentence of life imprisonment rather than a death sentence be imposed.” Nonetheless, the admission of such evidence in that particular case was harmless.
. As this opinion is a dissent rather than an opinion for the Court, I will not labor to set out my harm analysis.