concurring.
I write separately in this cause to address several points of error about which I believe a plurality of the Court protests too much.1 Points of error one and thirteen have to do with whether evidence, proffered by the State and appellant respectively, was relevant, and hence admissible, at the punishment phase of trial. The plurality expounds at far greater length than need be to resolve these points of error. In points of error six and seven, involving claimed voir dire errors, the plurality engages in an unfortunate and gratuitous attempt to harmonize impossibly dissonant caselaw. I will take up these points of error in the same order the Court does.
I.
In his first point of error appellant argues the trial court erred to admit testimony that he had been arrested, but no-billed, for the murder of Charles Wilson occurring some six months before the offense in the instant cause was committed. There is some indication in the record that the grand jury no-billed appellant because the evidence it heard tended to indicate appellant killed Wilson in defense of a third party. Thus, the grand jury likely found that appellant killed Wilson justifiably. V.T.C.A. Penal Code, § 9.33. Because this was, therefore, a lawful act of violence, appellant maintains, it was simply irrelevant to the second special issue under former Article 37.071(b), V.A.C.C.P., which inquires whether there is a probability that a defendant found guilty of capital murder “would commit criminal acts of violence” constituting a continuing threat to society. Not being a “criminal” act of violence, the killing of Wilson does not tend to make more or less probable that appellant will commit more. See Tex.R.Cr.Evid., Rules 401 & 402. Moreover, appellant contends, whatever probative value the evidence has, if any, is “substantially outweighed by the danger of unfair preju-diee[.]” Tex.R.Cr.Evid., Rule 403.
The plurality finds this contention indistinguishable from one we addressed in Burks v. State, 876 S.W.2d 877, 908 (Tex.Cr.App.1994). Op. at 807. In Burks, evidence of an extraneous offense was admitted into evidence even though prosecuting authorities had decided not to pursue the case against appellant for lack of evidence he was the culprit. We held that, so long as there was “clear proof’ appellant committed the offense, its admission was authorized under Article 37.071, supra. Id., at 909. See also Adanandus v. State, 866 S.W.2d 210, 233-34 (Tex.Cr.App.1993) (State need not prove defendant *819committed extraneous offense beyond a reasonable doubt before it is admissible to prove future dangerousness at punishment phase of a capital case). But identity is not the issue here. Appellant does not contest that he killed Wilson. The issue is, assuming the grand jury found the killing was justified, whether it is relevant to prove appellant would commit criminal acts of violence constituting a continuing threat to society. Our opinion in Burks does not help much to answer this question.
The State contends that, even if justified, Wilson’s killing has some tendency to show appellant would commit future unlawful acts of violence, and is therefore relevant -under Rule 401. The argument goes that, especially in combination with the murders committed just six months later and prosecuted herein, the killing of Wilson, even if lawful, tends to show a lack of compunction about taking human life — a nascent taste for killing which came to fruition in the instant murders. It occurs to me that it was within the trial court’s discretion to accept this inference, and rule the evidence relevant accordingly. As we said in Montgomery v. State, 810 S.W.2d 372, at 391 (Tex.Cr.App.1990) (Opinion on rehearing on Court’s own motion):
“Reasonable men may disagree whether in common experience a particular inference is available. Where there is room for such disagreement, an appellate court that reverses a trial court’s ruling on relevancy accomplishes nothing more than to substitute its own reasonable perception of common experience for that of the trial court. The appellate court effectively displaces the trial court, commandeering a function institutionally assigned elsewhere.”
We cannot say it was outside this “zone of reasonable disagreement” for the trial court to decide that even lawful violent conduct may, under the circumstances, have some tendency to make it more probable appellant would commit unlawful violent conduct in the future. Id. The trial court did not err to find the evidence relevant under Rule 401, and hence, admissible under Rule 402.
While a closer call, it is not clear that the trial court abused its discretion to refuse to exclude the evidence under Rule 403. Again, this is not a de novo review. Montgomery, supra at 392. Ordinarily we will defer to the trial judge, who is in a better position to gauge the State’s need for the evidence and weigh that against the potential for unfair prejudice. In this case, the State’s need may not have been great. On the other hand, neither was the potential for unfair prejudice. The jury was informed of the probable reason for the grand jury’s no-bill. This tends to assure that the sentencing jury will not put evidence of Wilson’s killing to any other use than to advance the inference for which the State has argued it was admissible, namely, to show appellant’s budding blood-lust. On balance, I agree that the record supports the trial court’s Rule 403 ruling.
II.
I agree that the trial court did not abuse its discretion to grant State’s challenges for cause against venirepersons Terrell and Adams, the subject of appellant’s sixth and seventh points of error respectively. But I emphatically disagree with the reasons stated in the plurality opinion. Op. at 811-13. The venirepersons were challengeable for cause because they indicated that they would not answer the second special issue affirmatively on the basis of certain evidence, even if that evidence convinced them beyond a reasonable doubt that appellant would constitute a future danger to society. This is sufficient to distinguish them from venireperson Bradley in Garrett v. State, 851 S.W.2d 853 (Tex.Cr.App.1993). Instead of relying upon this simple distinction, the plurality attempts vainly to harmonize Garrett with Fuller v. State, 829 S.W.2d 191 (Tex.Cr.App.1992). It does not work.
A
Garrett was a capital murder prosecution. There the trial court granted a State’s challenge for cause against venireperson Bradley, who had indicated that he could never answer the second special issue at the punishment phase affirmatively based on no more evidence than the facts of the capital offense itself. See former Article 37.071, (b)(2), supra. On appeal we observed, how*820ever, that a venireperson’s categorical refusal to find a capital defendant would constitute a continuing threat to society based only on the facts of the offense did not amount to a bias against the law. We reasoned:
“[TJhat the law permits jurors to find future dangerousness in some eases on the facts of the offense alone does not mean that all jurors must do so, or even consider doing so. A particular juror’s understanding of proof beyond a reasonable doubt may lead him to require more than the legal threshold of sufficient evidence to answer the second special issue affirmatively. There is nothing unlawful about that; in fact, quite the opposite.”
Garrett, supra, at 859 (emphasis in the original). Accordingly we held “that a venireman is not subject to challenge for cause merely because he indicates he would require more evidence than the legal minimum in order to answer special issue two affirmatively.” Id., at 860.
Thus, a venireperson who categorically refuses to answer the second special issue on nothing more than evidence of the capital offense itself may only be indicating that his threshold for proof beyond a reasonable doubt is somewhat higher than the minimum that the law recognizes as sufficient. Unless we are prepared to hold that jurors must always be convinced beyond a reasonable doubt on the basis of legally sufficient evidence, we cannot say that such a venireper-son has a bias against the law. He does not hold the State to a higher burden than that required by law. As long as the law permits a range of “reasonable doubt,” the individual venireperson who says he will hold the State to the high end of the range is not requiring anything that the law does not tolerate.2 Unless reasonable doubt is a fixed point— unless, in other words, the law requires a jury to affirmatively answer the special issue whenever presented with legally sufficient evidence — a venireperson who will not be convinced beyond a reasonable doubt by the facts of the offense itself is nevertheless a venireperson who can follow the law. If the State does not want that venireperson to sit on the jury, it is obliged to use one of its statutorily allotted peremptory challenges to remove him. Garrett, supra, at 861.
The testimony of the venirepersons in this cause did not show an inability to answer the second special issue on the facts of the offense alone. Thus, the case is not on all fours with Garrett. Instead, the venireper-sons stated they could never answer the second special issue absent a certain character of evidence. Terrell made it clear she would require evidence of a prior felony conviction. Adams indicated he would require a showing that appellant would kill again before he could answer the second special issue “yes.” Nevertheless, the principle of Garrett applies equally to these venirepersons. If they meant that, absent a particular character of evidence, they would have a reasonable doubt whether an accused would constitute a continuing threat to society, then they have not proven themselves subject to a challenge for cause. The State must exercise a peremptory challenge if it wants such venirepersons removed.
This is not to say that a venireperson who maintains he would never answer the second special issue on the basis of the facts of the case itself, or, as here, on the basis of a certain character of evidence, is never properly the subject of a State’s challenge for cause. It depends upon the reason he says he would never convict. A venireperson who says, for instance, that he would not answer the second special issue affirmatively even if the facts of the offense itself convinced him beyond a reasonable doubt that appellant would be a continuing threat to society, is subject to a State’s challenge for cause, Garrett notwithstanding. Likewise, a venireper-son who maintains he will require a certain character of evidence before answering the second special issue “yes,” even if other evidence convinces him beyond a reasonable doubt appellant will be a future danger, is *821also challengeable for cause. Such a venire-person really does hold the State to a higher burden of proof than the law allows. He has an agenda of his own for conviction, but one which bears no relation to the law. If he cannot set his personal agenda aside, he should be excused at the State’s demand. See Article 35.16(b)(3), V.A.C.C.P. To the extent our opinion in Fuller supports this proposition, it is consistent with Garrett.
It is the burden of the challenging party to demonstrate that the venireperson he seeks to challenge is in fact incapable of, or at least substantially impaired from, following the law. Hernandez v. State, 757 S.W.2d 744, 753 (Tex.Cr.App.1988) (Plurality opinion).3 In the present context this means that before the trial court may sustain a State’s challenge for cause on the ground that the veni-reperson will not answer the second special issue in the affirmative absent a certain character of evidence, it must be demonstrated to the trial court that the venireperson’s categorical refusal is predicated upon something other than his understanding of proof beyond a reasonable doubt. Otherwise there is no indication the venireperson cannot follow the law, and the State has faded to carry its burden to show the venireperson should be excused.
Here the State did carry its burden, albeit, in all likelihood, inadvertently. Both Terrell and Adams testified they would not answer the second special issue “yes” absent a certain character of evidence, even if the evidence otherwise convinced them beyond a reasonable doubt that appellant would constitute a continuing threat to society. The requirements of the law were adequately explained to them, but they continued to maintain that they would have to have a certain kind of evidence, even if other evidence would satisfy their personal threshold of proof beyond a reasonable doubt. This evinces a manifest unwillingness to follow the law, and the trial court did not abuse its discretion to grant a State’s challenge for cause under Article 35.16(b)(3), supra. I therefore concur in the plurality’s disposition of these points of error. I cannot, however, join its opinion.
B.
Instead of recognizing this basic distinction, the plurality purports to reconcile Garrett with Fuller v. State, supra. It is a flawed, misguided, and ultimately unsuccessful endeavor, wholly unnecessary to dispose of this cause. Fuller is already an anachronism, and we should declare it so. That the plurality persists in its attempt to harmonize Fuller with Garrett tends to show only an irrational antipathy toward, mixed with a misunderstanding of, the latter.
In Fuller we held that a venireperson “may not wholly refuse, before hearing any evidence whatsoever, to consider an accused for the death penalty unless he has been convicted of murder before.” 829 S.W.2d at 200. Based upon language like this in Fuller, the plurality today “unambiguously reaffirm[s] ... that potential jurors must be able to set aside their personal preferences and biases to consider as death eligible all those defined as death eligible by Section 19.03 of the Texas Penal Code and Article 37.071 of the Texas Code of Criminal Procedure.” Op. at 812. But after Garrett, of course, the quote from Fuller itself is no longer unquali-fiedly the law. A venireperson is not chal-lengeable when he says he would never answer the second special issue affirmatively without evidence of a prior murder if by that he simply means he does not think the State can convince him beyond a reasonable doubt that the accused will pose a future danger without such evidence. See Part IIA, ante. And the plurality’s extrapolation from Fuller, to the effect that venirepersons must be willing “to consider as death eligible” any whom the law considers so, was rejected by the Court just recently, in Riley v. State, 889 S.W.2d 290 (Tex.Cr.App.1993) (Opinion on State’s motion for rehearing). In fact, almost every one of the premises Fuller relied upon has since been shot down by the Court in Riley.
*822To illustrate, let us examine Fuller more closely. The State challenged venireperson White for cause in Fuller because her opposition to death penalty was so strong that she could not personally consider the death penalty appropriate for any save a serial killer. The State apparently neither explained the special issues to her, nor inquired whether she could answer them without conscious bias or distortion, regardless of her personal views on the circumstances under which capital punishment are appropriate. The Court began its analysis in Fuller by pointing out that:
“this Court no longer requires specific inquiry on that subject as a prerequisite to the exclusion of a prospective juror for prejudice against the death penalty. See Farris v. State, 811 S.W.2d 577 (Tex.Cr.App.1991 [1990]). Cases to the contrary, particularly Hernandez v. State, 757 S.W.2d 744 (Tex.Cr.App.1988) are, therefore, expressly overruled.”
829 S.W.2d at 200. In Riley, however, we undercut this premise. There we made it manifestly clear that opposition to the death penalty — even categorical opposition to the death penalty — will not by itself sustain a State’s challenge for cause under Article 35.16(b)(3). It must also be shown that the venireperson’s opposition would cause him consciously to distort one of his answers to the special issues in order to prevent imposition of the death penalty. Of course, the only way the State can be assured of satisfying this burden is to make the very inquiry that Fuller says Farris dispensed with, viz: whether opposition to the death penalty will cause the venireperson to answer one of the special issues in such a way as to avoid the death penalty, irrespective of the evidence.4 Accordingly, we overruled Farris, and reinstated the holding in Hernandez that Fuller had overruled. Riley, supra, at 300-301. Consistently with Riley, we must acknowledge that venireperson White was erroneously excused for cause in Fuller. The State failed to meet its burden to show that her opinion that capital punishment should be reserved for serial killers would prevent her from abiding by the Article 37.071 punishment scheme.
Fuller also suggests that venirepersons may be challengeable for cause if they cannot accept that death may be an appropriate part of the range of punishment for a capital offense. Id., at 200 (“Any prospective juror unable to consider the maximum penalty allowed by law for all legally eligible candidates is biased [against the law] and, therefore, subject to challenge for cause.”). But this is another misconception that we subsequently laid to rest in Riley. There we observed:
“Under former Article 37.071, [supra], any venireman who could answer the special issues according to the evidence, without conscious distortion or bias, could follow the law, irrespective of his willingness to ‘accept’ the death penalty in the abstract. As long as his rejection of the death penalty, however categorical, did not substantially impair his ability to abide by his oath to render a true verdict, it did not make him challengeable for cause under our law. ‘He need not himself favor the penalty under any circumstances.’ Hernandez, supra at 752.”
889 S.W.2d at 301. Thus the plurality errs today to say that to be a qualified juror in a capital case, a venireperson must be able “to consider as death eligible all those defined as death eligible” under our law. All a venire-person need be able to do is honestly respond to the fact issues in Article 37.071, so that the law itself is not thwarted. He need not himself consider it an appropriate criteria for deciding who shall die. That the venire-person’s “views conflict with the law,” op. at *823813, n. 11, makes not a whit of difference unless it is also shown that the conflict will cause him to misapply the law in a manner detrimental to the State.
Of course a venireperson’s attitude about when capital punishment is appropriate cannot take precedence over what the law defines as death-eligibility- In order to meet its burden to show a venireperson will in fact allow his attitude to take precedence over the law, however, the State must explain the law to him, and ask him whether, given his “conflicting views,” he can abide by it. In Fuller, the State did not ask these questions of venireperson White. After Riley, that “neither party took the time to explore [White’s] views with a precision sufficient to resolve the ambiguity[,]” see Fuller, supra, at 201, must cut against the party with the burden, the challenging party, namely, the State. Fuller holds differently. When the time comes, it should be overruled.
Again, this is not to say that, under proper questioning, venireperson White might not have proven herself challengeable for cause, consistent with Garrett v. State, supra. Had she testified that unless the State proved Fuller was a serial killer, she would continue to harbor a reasonable doubt as to his future dangerousness, she would not be challengea-ble for cause. See Part IIA, ante. But she might have testified that even if other evidence did convince her beyond a reasonable doubt that Fuller would be a continuing threat to society, she still would not answer the special issue affirmatively absent evidence he was a serial killer. In that event she would most assuredly have been subject to a State’s challenge for cause on the ground that she could not follow the law. See Part IIA, ante. This is so, not simply because she was unwilling to consider as death-eligible those that Texas law considers to be death-eligible. Under Riley, that is not enough. It is so because the State would also have shown that her “conflicting views” would cause her to misapply the law in this particular ease.
That is what the State was able to show with respect to venirepersons Terrell and Adams in this cause. Thus the record supports the trial court’s rulings granting the State’s challenges for cause against them. For this reason, not those propounded by the plurality, points of error six and seven should be overruled.
III.
The plurality also holds that the trial court did not abuse its discretion in refusing to admit appellant’s proffered testimony from Dr. James Marquart, an associate professor of criminal justice at Sam Houston State University, over the State’s objection that it was not relevant, and that in any event any probative value it had was substantially outweighed by the danger of confusion of the issues. Rules 401, 402 & 403, supra. Before Marquart testified in the presence of the jury, the State took him on a brief voir dire. Marquart proposed to testify regarding studies he has conducted of the accuracy of past jury predictions of future dangerousness of capital murder defendants. Without more, such testimony has no “tendency to make the existence of a fact of consequence ... more probable or less probable than it would be without the evidence.” It simply says nothing about the probability, one way or the other, that this appellant “would commit criminal acts of violence that would constitute a continuing threat to society.” Article 37.071(b)(2), supra. Appellant makes no real effort in his appellate brief to demonstrate otherwise.
This does not necessarily mean such testimony would be irrelevant, and therefore inadmissible, under every conceivable set of circumstances. It may be that Marquart was prepared to testify that in a significant majority of the prior capital cases in which the State had presented evidence of future dangerousness similar to that presented in the State’s case-in-chief at the punishment stage of this trial, the defendant has not in fact proven over time to pose a continuing threat to any segment of society. If so, I for one would be inclined to view his testimony as relevant. Such testimony would supply an empirical basis for the proposition that the inferences of future dangerousness the State wants the jury to derive from its punishment evidence are not particularly compelling. It would to that extent tend to make it less *824probable appellant would likely be a future danger to society than it would be without that evidence. See Rule 401, supra. In short, it would be relevant broadly to impeach the State’s case.
Appellant made no offer of proof, however, to demonstrate exactly what else he might have had Marquart testify to. All we have to go on is the State’s voir dire. We cannot simply presume that appellant would have elicited the kind of testimony that I am prepared to find relevant, under Rule 401, and hence admissible, under Rule 402. Appellant must make his proffer explicit on the record, or risk forfeiting any claim of error on appeal. Tex.R.Cr.Evid., Rule 103(a)(2). What the record reveals Marquart would have testified to, the trial court was within its discretion to find irrelevant. It was therefore permissible to exclude it under Rules 401 and 402. I would decline to reach the question whether the trial court could also properly have excluded it under Ride 408. There is no need.
TV.
For the above reasons, I concur in the Court’s judgment affirming the judgment of the trial court. However, I do not join the Court’s opinion.
MEYERS, J., joins this opinion.. The bulk of the Court’s opinion today gamers a majority vote. However, as I count it, the opinion of the Court disposes of points of error one, six, and seven, about which I write separately, only by a plurality of four votes. I therefore refer to the Court's opinion herein as a plurality.
. Of course, a venireperson who requires proof to a level of confidence "beyond all doubt” is still challengeable for cause on the basis of inability to follow the law. E.g., Coleman v. State, 881 S.W.2d 344, 359-60 (Tex.Cr.App.1994); Narvaiz v. State, 840 S.W.2d 415, 427 (Tex.Cr.App.1992); cf. Geesa v. State, 820 S.W.2d 154, 162 (Tex.Cr.App.1991) (jury to be instructed, inter alia, that prosecution need not prove guilt "beyond all possible doubt”).
. Although Hernandez was overruled in part in Fuller v. State, 829 S.W.2d 191, 200 (Tex.Cr.App.1992), rumors of its demise were greatly exaggerated. For in Riley v. State, 889 S.W.2d 290 (Tex.Cr.App.1993), we revived Hernandez to the extent Fuller had overruled it.
. The State should simply ask the venireperson point-blank whether his categorical opposition to the death penalty will cause him always to answer that issue in such a way as to insure death will not be doled out, irrespective of the facts. Asking this simple question vastly simplifies the entire process. The venireperson who unswervingly maintains he will not invariably answer a special issue to prevent an execution may not be excused for cause, consistent with the Sixth Amendment. Cf. Riley, supra. The venireperson who maintains just as adamantly that he will must be excluded upon the State's challenge. And the venireperson who genuinely equivocates or vacillates in his answer to the question is subject to challenge for cause, at the trial court’s discretion. Perillo v. State, 758 S.W.2d 567, 577 (Tex.Cr.App.1988).