concurring.
I must concede that I am rather puzzled and frankly confused by the majority’s opinion. Although I agree with its disposition of the ground for review I reach that conclusion for vastly different and less complex reasons.
As a preliminary observation, it should be noted that Art. 42.12, Y.A.C.C.P., authorizes a jury to recommend probation in their punishment verdict, which obviously comes at the conclusion of the punishment stage of a trial. Art. 37.07, § 3(a), V.A.C. C.P., permits certain evidence to be admitted during the punishment stage of a trial. Thus, it is impossible for me to agree that a defendant’s “suitability” for probation is in essence an irrelevant issue for the jury. Logic and reason, if nothing else, dictate the opposite conclusion. However, evidence of one’s “suitability” for probation is limited to that specifically authorized by Art. 37.07, § 3(a) and established rules of evidence.
Art. 37.07, § 3(a), supra, as originally enacted in 1965, stated that after, a defendant was convicted the State or the defendant may offer evidence of the defendant’s prior criminal record, his general reputation and his character. In 1967 Art. 37.07, § 3(a), was amended to the extent that it specifically defined “prior criminal record” as “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.” Id. Since 1967 Art. 37.07, § 3(a), has successfully weathered all of the intervening legislative sessions virtually unchanged.
Despite its continuity the issue of what evidence is or is not admissible during the punishment phase of a trial has produced an array of opinions in which the conclusions were as inconsistent as the styles of the cases. This Court, and since 1982 the various courts of appeals, have written opinions that seem to have ignored established rules of evidence. Consequently, there is absolutely no way to reconcile the opinions; therefore, I am not even going to try and do so.1
*72Despite the coniusion that appears to reign, it is clear to me that Art. 37.07, § 3(a), is straight forward in what can be admitted into evidence during the punishment stage of a trial. For example, the State, as direct evidence, can only introduce as a defendant’s prior criminal record only prior convictions from a court of record, prior probations, whether completed or not, and any suspended sentence. In addition, it can introduce a prior conviction, whether from a court of record or not, if it is material to the offense charged. For example, in Chestnut v. State, 567 S.W.2d 1 (Tex.Cr.App.1978), interpreting Art. 37.07, § 3(a), supra, this Court confirmed the admissibility of three assault convictions from a Municipal Court during the punishment stage of an aggraváted robbery prosecution.
The standards of admissibility relative to the introduction of a defendant’s “prior criminal record” are clearly stated and have not caused either the bench or bar much difficulty. The difficulty with Art. 37.07, § 3(a), supra, that has plagued the bench and bar is the role that a defendant’s reputation and character play in the punishment stage of the trial. At the outset it must be emphasized, as it has been in the past, that “reputation” and “character” are not the same thing. “Character” “[i]s a person’s disposition — i.e. a trait, or group of traits, or the sum of his traits..." 1 Wigmore on Evidence § 52. Or, “[c]har-acter refers to the inherent qualities of a person.” 1A R. Ray, Law of Evidence § 1324 (Texas Practice 3rd ed. 1980). “Reputation,” however, “applies to the collective opinion of the community as to ...,” id., one’s inherent qualities (character). As an evidentary device, reputation testimony is a recognized exception to the hearsay rule and is used to prove one’s character. Moncrief v. State, 707 S.W.2d 630 (Tex.Cr.App.1986).
In Moncrief the Court noted that Professor Roy Ray recognized that in addition to reputation there were two other means of proving one’s character: “(1) personal opinion of witnesses who know the person ... (3) conduct of the person from which an inference may be drawn as to his actual disposition.” Id., 632. In 1965, when Art. 37.07, § 3(a), supra, was enacted by the Legislature the only way that character could be proven by direct evidence was reputation testimony. Therefore, personal opinions as to a defendant’s moral character were inadmissible. Ray, supra, § 1432. And, specific acts of conduct, either good, Ward v. State, 591 S.W.2d 810 (Tex.Cr.App.1979), 1 Wharton’s Criminal Evidence (13th ed. 1972) § 230, or bad, Garcia v. State, 454 S.W.2d 400 (Tex.Cr.App.1970), were equally inadmissible. This remained the law until September, 1986 when the Rules of Criminal Evidence were adopted. Now, under Rule 405(a) both reputation and opinion testimony are acceptable methods of proving one’s character. However, as direct evidence, specific instances of conduct are still inadmissible.
It has always been the general rule in Texas and most other jurisdictions that during the guilt/innocence stage of a trial a defendant could introduce evidence of his good character through reputation testimony. It has similarly been the general rule that the State could not introduce evidence of a defendant’s bad character, unless the defendant made it an issue. Art. 37.07, § 3(a), and the creation of the bifurcated jury trial changed that somewhat. Specifically, Art. 37.07, § 3(a), supra, authorizes the State to introduce evidence of a defendant’s character even before the defendant makes it an issue. Smith v. State, 414 S.W.2d 659 (Tex.Cr.App.1967). However, in my opinion Art. 37.07, § 3(a), was enacted with an awareness of the restrictions then applicable to evidence of one’s character. Thus, because the punishment stage of the trial necessarily incorporated concerns that went beyond the defendant’s guilt or innocence and included the propriety of the jury recommending probation in a given case the Legislature approved a departure from existing procedural restraints and authorized the State to introduce as direct evidence reputation testimony as to the community’s perception of the defendant’s character. But that certainly does not mean that it endorsed a complete departure from evidentary standards of ad*73missibility that had become firmly established in Texas practice. In other words, even though Art. 37.07, § 3(a), altered procedure it did not change the common law rules of evidence. Consequently, neither the State nor the defendant could introduce opinion evidence of a defendant’s bad or good character. Further, Art. 37.07, § 3(a), supra, did not authorize the State to introduce specific acts of misconduct to prove a defendant’s bad character, nor did it authorize a defendant to introduce specific acts of good conduct to prove his good character. Ward v. State, supra.
During cross-examination the rules were and are somewhat different. If a defendant introduced evidence of his good character through a reputation witness, the State was then able to impeach the witness by the absurd ploy of “have you heard” (not the more reasonable “did you know”) questions and thereby indirectly develop the existence of prior acts of misconduct. Ward v. State, supra. But, the purpose of the inquiry was to test the character witnesses’ reputation testimony and “not to discredit the person on whose behalf the witness is testifying.” Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.1972). Although I have found no cases to support the following observation, I think it is clear that a defendant could test a State’s reputation witness with “have you heard” questions thereby asserting previous acts of good conduct. The adoption of the Rules of Criminal Evidence maintained that procedure. The last sentence in Rule 405(a) states: “In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.” Id.
Further, even when specific acts of misconduct are permitted for impeachment purposes it “has long been established and is now universally recognized that such specific acts may not be proved by testimony of other witnesses.” Ray, supra, § 656. Thus, extrinsic evidence could not be used in lieu of impeachment by cross-examination, See now: Rule 608(b), Tex.R.Cr.Evid. In addition, then Art. 38.29, Y.A.C.C.P., expressly forbade the use of pending charges to be used as a vehicle of impeachment.
In the case at bar, the appellant testified that he had never been convicted of a felony or been placed on probation. After-wards the State had admitted as rebuttal evidence five other offenses which he had been charged with committing. This was obviously not reputation evidence so it should not have been admitted under that theory. It was, however, evidence of prior specific acts of misconduct which is not permitted. Further, the appellant’s testimony was obviously not reputation testimony of his character. Nor was it inadmissible opinion testimony of the appellant’s character because it did not concern “a trait, or group of traits, or the sum of his traits_” Wigmore, supra. His testimony was simply a historical fact that was admissible because of Art. 42.12(b), supra. Quite simply, there was no testimony for the State to impeach. Thus, the evidence of the other offenses should not have been admitted.2
It just does not seem that this case should be that difficult.
I concur.
. I agree with Judge Teague that the probable source of this confusion lies in the permissive dicta in Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967). Allaben and its progeny should be overruled. If the Legislature wants the jury to have access to evidence beyond that authorized by Art. 37.07, § 3(a), supra, it should pass legislation to that effect. It is not this Court’s function to authorize an expansion of the statute beyond its language.
. I recognize that a defendant’s testimony may “open the door” and allow the State to respond beyond the limitations previously noted. However, that obviously did not occur in this case.