(concurring).
I concur in the result reached by the majority of the Court, but feel that a further discussion of the reason why the photographs were inadmissible is warranted, in light of the confusion which seems to have arisen concerning the meaning of the term character as used in Art. 37.07, Sec. 3(a), V.A.C.C.P.
The general rule is that evidence of a defendant’s bad character may not be offered by the State unless the defendant has put his character in issue. 2 McCormick & Ray, Texas Law of Evidence, § 1492. Evidence of bad character is not excluded because it is without probative value, but because it is unduly prejudicial. Id.
Art. 37.07, Sec. 3(a) V.A.C.C.P., permits the State to introduce evidence of the defendant’s character at the punishment stage of the trial, whether placed in issue by the defendant or not, the rationale apparently being that the danger of undue prejudice in regard to the issue of guilt or innocence is no longer present, and the defendant’s character is relevant as to the issue of punishment.
Under the general rule, when (he defendant places his character in issue, the State may offer evidence of his bad character, but such evidence is limited to specific acts of misconduct which have resulted in convictions, and reputation. McCormick & Ray, Texas Law of Evidence, § 1492. The State may not offer evidence of specific acts of misconduct which have not resulted in conviction, as evidence of the defendant’s bad character. Again, this evidence is not excluded because it is without probative value as evidence of character but rather, because of the dangers of undue prejudice, confusion of issues, and unfair surprise of the defendant. Id.
The prime question to be resolved, therefore, is whether Art. 37.07, Sec. 3(a), V. A.C.C.P., has abrogated the general rule in regard to evidence of specific acts of misconduct. As the majority has clearly stated, the photographs were evidence of a specific act of misconduct, and, under the general rule, are inadmissible. However, if Art. 37.07, Sec. 3(a), supra, has changed the general rule of exclusion, then their admission was not error.
Art. 37.07, Sec. 3(a), V.A.C.C.P., provides :
“(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 *311court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.”
There has been some confusion as to the meaning of the term character as used in the statute. The contention is made that by use of both the term character and the term reputation, the statute changes the general rule. The argument is made that a specific act of misconduct is evidence of bad character, and that since the statute uses both terms, the general rule is no longer applicable.
Character is an intangible quality, being the sum of a person’s moral qualities. Being intangible, it is, of necessity, evidenced by objective evidence from which an inference may be drawn. Reputation, criminal convictions, and specific acts of misconduct all are relevant and are of probative value as evidence of character. However, as discussed earlier, specific acts of misconduct are excluded not because they are without probative value, but because of policy reasons.
It is my opinion that the statute does not change the general rule. The last sentence of the above quoted section indicates that the statute was not intended to allow admission of specific criminal acts which have not resulted in convictions. If the general rule has been changed by the statute, then the last sentence of the section is of no effect. It has long been recognized that the terms character and reputation are often used synonymously, e. g., McCormick & Ray, supra, § 1324. Therefore, I conclude that, in light of the last sentence of the section, the term character, as used in the statute, refers only to the generally permissible modes of evidencing character, and does not abrogate the general rule as to the permissible types of evidence of character.
That being the case, the admission of the photographs was reversible error.