dissenting.
I dissent to the majority’s exclusion of extraneous offenses at the punishment stage. Not only do I disagree with the majority’s interpretation of Article 37.07, Sec. 3(a), V.A.C.C.P., but I also find their relevancy assessment untenable.
Article 37.07, Sec. 3(a) states:
(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged, [emphasis added].
The majority terms this “a statutory prohibition against the introduction of unadju-dicated extraneous offenses during the punishment phase of a trial.” However, there is no prohibitive language contained in this statute. The term “may” is permissive and the list of three types of evidence admissible at punishment is not facially exhaustive but exemplary in nature. Although evidence “may be” offered as to prior criminal record, reputation and character, any other relevant evidence can also be offered. This is how the statute was interpreted in Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), when we stated,
Evidence to be offered at the hearing on punishment pursuant to Article 37.07, [citation omitted] is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate *51punishment or evidence that is relevant to the application for probation, if any, is also admissible.
Allaben, supra at 519.
Contrary to the majority’s conclusion, Al-laben ⅛ interpretation of 37.07 was not in any way affected by the subsequent amendment which added the last sentence to this section defining “prior criminal record.” The term “prior criminal record” may have been limited, but the list of the types of evidence that may be offered is still exemplary and not exhaustive.1
Allaben correctly interpreted 37.07 as it was then and as it was at the time of the instant case.2 It is for this reason that I disagree with the majority’s discarding of Allaben and its extensive progeny. See, e.g., Wilkerson v. State, 736 S.W.2d 656, 659 (Tex.Cr.App.1987); Baxter v. State, 645 S.W.2d 812, 816 (Tex.Cr.App.1983); Thomas v. State, 638 S.W.2d 481, 483 (Tex.Cr.App.1982); Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973); McCrea v. State, 494 S.W.2d 821 (Tex.Cr.App.1973); Basaldua v. State, 481 S.W.2d 851 (Tex.Cr.App.1972); Davis v. State, 478 S.W.2d 958, 959 (Tex.Cr.App.1972); Brumfield v. State, 445 S.W.2d 732, 741 (Tex.Cr.App.1969); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969); White v. State, 444 S.W.2d 921, 923 (Tex.Cr.App.1969).
Furthermore, I dissent to the majority’s determination that the inflammatory and prejudicial nature of the extraneous offenses outweighed their probative value.3 The court charged the jury to consider the extraneous offenses only as to appellant’s probation application. The majority holds that these extraneous offenses were irrelevant to this determination. I disagree.
The first inquiry in any relevancy analysis is to pinpoint the material fact in issue. By filing a probation application, appellant automatically created a contested issue: his suitability for probation. In order to determine what evidence is relevant, we must first set out the fact issues presented to the jury in determining whether a defendant should be placed on probation. Because the jury’s discretion in determining suitability for probation is so broad, and the assessment more intuitive than technical in nature, the specific issues are difficult to explicitly delineate. Possibly, this is why the majority ignores this task.
Although the fact issues for the jury to consider in determining a defendant’s suitability for probation are not statutorily set out, they can be gleaned from stated statutory purposes and case law. Probation is considered a privilege, not a punishment, an alternative to imprisonment where the defendant is given a chance to rehabilitate. Thus, the issues become the defendant’s rehabilitative potential, likelihood of recidivism, danger to the community, and suitability to a probationary environment. See, Art. 1.03, V.A.C.C.P.; Art. 1.26, Y.A.C. C.P.; Art. 42.12, Sec. 3, Y.A.C.C.P.; V.T. C.A., Penal Code Sec. 1.02; Baxter, supra; Thomas, supra at 483-484, fn. 6-7; Tezeno v. State, 484 S.W.2d 374, 380 (Tex.Cr.App.1972); Logan v. State, 455 S.W.2d 267, 270 (Tex.Cr.App.1970); Schulz v. State, 446 S.W.2d 872, 874 (Tex.Cr.App.1969); Coleman v. State, 442 S.W.2d 338 (Tex.Cr.App.1969); Fielding v. State, 719 S.W.2d 361, 368-370 (Tex.App.-Dallas, 1986, no pet.). Also see generally, 3 Tex.Crim. Practice Guide, Sec. 74.03[2][a], p. 74-25-26. I find that, given the facts of the instant case, the five extraneous offenses, all of which were committed within six months of the instant *52murder, were relevant to the determination of these issues.
These extraneous offenses were probative of the nature and extent of appellant’s criminal history as it reflects on his suitability for probation. Appellant’s history is every bit as relevant as the list enumerating twelve possible conditions of probation which was given to the jury in the court’s charge (essentially the first eleven in Art. 42.12, Sec. 6(a) and that he pay a monthly probation fee). , In fact, such a charge enhanced the relevancy of the extraneous offenses. The prior offenses had significant probative value in the jury’s determination of appellant’s capability to follow these probationary conditions, especially as to his capability not to violate laws. Contrary to the majority’s determination, appellant’s past criminal conduct is very illuminating on the probability of his future recidivism.4 This is especially true when the numerous paint sniffing offenses denote a drug addiction likely to be repeated.
Further, any possible prejudicial affect of these offenses does not outweigh their probative value. The inherent danger of confusing and prejudicing issues of guilt, which is the basis for the general rule against admission of extraneous offenses, is absent when the issue of guilt has been resolved. Appellant had already been found guilty, thus, there was no danger that these extraneous offenses were utilized by the jury in convicting appellant.5 Additionally, the court charged the jury to consider these offenses only as to the possibility of probation, thus precluding any possible prejudicial effect on their assessment of the term of imprisonment. Moreover, two of the five extraneous offenses concerned appellant’s paint sniffing. Two instances of paint sniffing were introduced at the guilt-innocence phase through appellant’s confession and defensive testimony. Thus, the prejudicial effect of these paint sniffing offenses are minimal.
The jury had before it the task of determining whether appellant should be placed on probation. The immense probative value of the extraneous offenses is best exemplified by the instant facts. An assessment of the rehabilitative potential and criminal propensity of a man who has committed no prior bad acts and who killed his estranged wife while under the influence of sniffing paint and in a fit of rage, points toward the possibility of probation as an appropriate sentence. Such facts, as would have been before the jury without admission of the extraneous offenses, evidence a single act of directed rage not likely to be repeated. However, reality depicts a man with a history of committing violent offenses against women, paint sniffing abuse and disrespect for the law and police. These facts reflect a man with a drug addiction and a propensity for general violence which is likely to be repeated and which presents a threat to the community.
*53Juries, comprised of law abiding citizens of the community in which the defendant, if given probation, will reside, are vested with the discretion to assess a fair and appropriate sentence. In their determination of the appropriateness of probation, they are entitled to know the defendant’s criminal history, just as the judge is provided in a pre-sentence report when he considers the same. See, Art. 42.12, Sec. 4, Y.A. C.C.P. There is nothing to show that a jury cannot be as fair and impartial as a judge or that the prior criminal history is not as every bit important to the juries’ common sense determination of the issues. The probative value of the instant extraneous offenses in the juries’ intelligent assessment of the sentencing alternatives is immense. Because the majority withdraws such probative and admissible evidence from the members of the jury, I must respectfully dissent.
ONION, P.J., joins this dissent..It is also noted that in a converse situation, where a defendant seeks to introduce mitigating evidence and is precluded from doing so by the majority’s restrictive reading of 37.07, this could arguably render the statute unconstitutional. See, Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) and footnote 4, post; Thomas, supra at 483-484, fn. 4-7. Also see, Code Construction Act, Sec. 311.021 (where there are two possible interpretations of a statute, it is to be construed to uphold its constitutionality).
. For the presently applicable rules see Art. 37.-07, Sec. 3(a), V.A.C.C.P.; Tex.R.Crim.Ev., R. 404(c).
. It should be noted that it is confusing that the majority first finds the extraneous offenses statutorily inadmissible under 37.07, and then feels the need to go on and apply a relevancy analysis.
. The majority asserts that past criminal conduct does not prove future conduct. However, our death penalty scheme rests upon the assumption that "future dangerousness” can be determined by past conduct. See, Art. 37.-071(b)(2), V.A.C.C.P. In death penalty cases, extraneous criminal conduct is admissible at punishment as necessary and probative evidence of future conduct. Implicit in this rule is the common sense fact that past conduct is highly probative of future conduct.
Further, there is no reasonable distinction between the juries’ consideration of future conduct in their assessment of punishment in a death penalty as opposed to a non-death penalty case. In each instance, the jury is vested with broad discretion to predict the defendant’s probable future conduct. However, some would argue that only in capital cases are extraneous offenses admissible because different policy considerations and interests are served and effectuated through the unique death penalty sentencing procedures. I find this argument specious. While a non-capital jury is not required to answer a statutorily prescribed special issue for future dangerousness, it is clear that their analysis of the appropriateness of a probationary sentence is dependent, in large part, upon a prediction of likely future conduct. Thus, future conduct is an issue to be resolved by the jury and, just as in capital cases, the criminal history of a defendant is highly probative of his future conduct.
. In their relevancy analysis, the majority relies on cases which weigh relevancy issues presented at the guilt-innocence phase of trial going to prove intent, identity, knowledge, motive and design. Obviously, the highly prejudicial effect of extraneous offenses at this phase, when character is not in issue, is far different from their effect at punishment, when character is an issue.