dissenting.
This is an appeal from a conviction for the offense of capital murder. Y.T.C.A. Penal Code, Section 19.03(a)(3). Punishment was assessed at death pursuant to Article 37.071, V.A.C.C.P.
Appellant’s first ground of error complains of the trial court’s failure to grant his motion to quash the indictment since it failed to adequately apprise the appellant of the capacity in which the State intended to prove he participated in the alleged murder for remuneration. The indictment, in relevant part, reads as follows:
. . . VERNON EUGENE MC MANIÍS . . , heretofore on or about July 24, 1976, did then and there : unlawfully' intentionally and knowingly, acting as a party with Paula Cantrell Derese and other persons to the Grand Jury unknown, cause the death of Paul Harvey Cantrell by choking and strangling him with a cord and cutting him with a knife; and said murder was committed for remuneration and the promise of remuneration, namely, money from the proceeds of life insurance and the estate of Paul Harvey Cantrell and Mary Bright Cantrell. ...
Appellant filed a motion to dismiss the indictment which alleged that the indictment was inadequate in terms of fairly apprising the appellant of the offenses he was charged with and that, in violation of the United States Constitution, the allegations were vague, indefinite, contradictory, and uncertain in advising him of the nature and cause of the accusation. A hearing was held on the motion to dismiss the indictment wherein the appellant argued that the lack of specificity in the indictment with respect to the various roles played by the various enumerated parties in the commission of the alleged capital murder hindered any preparation of a defense. It was pointed out to the trial court that the indictment failed to identify who among the enumerated parties was the promisor or promisee of the remuneration promised. V.T.C.A. Penal Code, Section 19.03(a)(3) provides that capital murder is committed when an individual is intentionally and knowingly killed by a person “for remuneration or the promise of remuneration.” The indictment, as drafted, alleges only that the appellant, while acting as a party with Paula Cantrell Derese and other persons unknown, caused the death of Paul Harvey Cantrell. It is then alleged that that murder was committed for remuneration and the promise of remuneration.
This Court held in the En Banc decision of Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.), that the analysis to be engaged in on appeal when reviewing an allegation concerning the failure of the trial court to grant a motion to quash differs from the analysis engaged in in determining whether the pleadings were sufficient to invoke the jurisdiction of the trial court. In the latter situation, an indictment which tracks the statutory terms proscribing the conduct involved is sufficient to invoke the jurisdiction of the court. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.). On the other hand, when a motion to quash is the subject of analysis, “fundamental constitutional protections are invoked. Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration.” Drumm, supra, at 946.
As further stated in Drumm, supra, at 947:
. It is not for us to speculate on possible defenses; those are for the accused and counsel to investigate, prepare, and establish if they can. In order to perform that duty, however, the accused is entitled to notice of the particu*530lar cause for suspension upon which the state will rely. The accused is not required to anticipate any and all variant facts the state might hypothetically seek to establish. When the defendant petitions for sufficient notice of the state’s charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice. Appellant here was entitled to such notice and his motion to quash was sufficient to point out his need. The motion to quash should have been granted.
One’s presumption of innocence and right to notice are no less when the prosecution is for capital murder, punishable by death. In fact, even more care is required in a capital case. Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978) (Roberts, J., dissenting); Woodson r. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
It should be clear to all that appellant, even upon timely request, was denied the right to know prior to trial from whom the State contends he received remuneration or a promise of remuneration. The constitutional right to know the nature and cause of the accusation against him requires that he be informed of such fact as surely as it requires that he be informed of the name of the human being he is alleged to have killed. One is as essential as the other. The indictment should have been quashed.
In his second ground of error appellant contends that the court erred in failing to grant his motion for change of venue, which was uncontroVerted by the State prior to jury selection. Recently in Henley v. State, 576 S.W.2d 66 (Tex.Cr.App.1978), this Court wrote:
Appellant was entitled to a change of venue if he could show, even though it would be possible to select a jury whose members were not subject to a challenge for cause,' that there were influences in the community which could affect the answers on voir dire, or the testimony of witnesses at trial or that for any other reason a fair and impartial trial could not be had in Bexar County.
As will be noted upon reference to Articles 31.03 and 31.04, the trial court is vested with the responsibility of determining the “truth and sufficiency” of the affidavits alleging the grounds for a change of venue and when an issue is formed as to those grounds by the filing of controverting affidavits, that issue “shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant.” As already demonstrated, the issues raised by the motion to change venue affidavits cannot be fully and adequately tried through the more narrow jury voir dire procedure. See Article 35.16, Sections 8 and 9, V.A.C.C.P. Further, the trial court’s denial of a defendant’s motion for a change of venue, without allowing the defendant an opportunity to present evidence in support of his motion, was expressly condemned by this Court in Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019. The dissent admits that the trial court failed to comport with “accepted procedure,” but seeks to excuse the omission by analogy. The analogy to the trial court’s discretion in regulating trial procedure vis-a-vis evi-dentiary rulings and the perfecting of a bill of error with respect thereto ignores a fundamental distinction between the questions involved. The dissent’s analogy presupposes the propriety of conducting the trial. The procedure demanded of the trial court under Chapter 31, V.A.C. C.P., is for the threshold issue of whether a trial should be conducted in the county involved. The timing of the Chapter 31 hearing is critical. It is no less mandatory a statute for its failure to expressly designate the precise timing for a hearing. To argue that the inquiry mandated by Chapter 31 could be just as efficaciously conducted in a hearing on a motion for new trial is to ignore the venue issue’s threshold nature. It is indeed putting the horse behind the cart. .
Id. at 72.
In the instant case, the motion to change venue was uncontroverted before the jury voir dire commenced and the trial court was *531well aware of the motion. The same policy consideration underlying the Henley opinion, i. e., the delayed timing of the factual inquiry, applies here as well. Only after the jury was impaneled and sworn was any factual inquiry on the motion to change venue conducted.1 The voir dire in this trial lasted 30 days and consumes 5,337 pages of this record. Considerable energy and resources were already committed to the trial of this case before the critical threshold issue was ever heard.
This Court has examined on several occasions when a defendant is required to present his motion for change of venue.
In Devereaux v. State, 473 S.W.2d 525 (Tex.Cr.App.), the defendant filed his motion for change of venue prior to voir dire. The motion was never urged to the trial court and the defendant’s counsel indicated to the court the matter would not be pursued. Subsequently, the defendant announced ready for trial and began voir dire examination of the jury panel. At the conclusion of voir dire, the defendant’s motion for change of venue was mentioned to the court. The trial court then denied the motion as being untimely presented. This Court upheld the trial court’s decision quoting Article 28.01, V.A.G.C.P.2
In Mirick v. State, 83 Tex.Cr.R. 388, 204 S.W. 222, the defendant made a motion for change of venue after nine jurors had been selected and sworn. The State controverted the motion and demurred on the grounds that the motion was presented too late. The trial court overruled the defendant’s motion and this Court upheld such ruling.
These cases stand for the proposition that a motion for change of venue must be presented before trial, i. e., prior to jury selection. This determination is consonant with the very reasons for a change of venue. If there exists such an air of popular sentiment against an accused as to prevent a fair and impartial trial, a change of venue is necessary. That this matter must be placed in issue prior to voir dire stems from the very nature of community sentiment. If there exists in a community a pervasive prejudice against a defendant, an individual venireman may not be aware of such feeling on his part. As was noted in Faulkner v. State, 43 Tex.Cr.R. 311, 65 S.W. 1093: “Prejudice is a sinister quality. It may possess a man and he not be aware of it; . .. . ” This statement points up the problem of determining prejudice on voir dire. News coverage may be so widespread and extensive that the answers elicited by counsel on voir dire may not reflect the subconscious prejudice prevalent in the community resulting from such coverage. Because of the insidious nature of prejudicial community sentiment and the ineffectiveness of voir dire as a means for determining this sentiment, it is essential that the component issues of Article 31.03, supra, be joined and, to the extent possible, resolved prior to voir dire.
In the instant case the appellant was never allowed to present any evidence on his motion prior to the voir dire of the jury panel, and the trial court “carried along” an uncontroverted motion to change venue which presented no evidentiary issues for the court to rule on.
The hearing of evidence on a motion for change of venue is a factual trial of the constitutionally critical issue of whether the defendant is to be tried in an atmosphere undisturbed by public passion. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). In a concurring opinion Mr. Justice Frankfurter summed it up as follows:
*532. This Court has not yet decided that the fair administration of criminal justice must be subordinated to another safeguard of our constitutional system — freedom of the press, properly conceived. The Court has not yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade. Id, 366 U.S. at 730, 81 S.Ct. at 1647.
In deciding this vital issue great discretion is reposed in a trial judge. Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.); James v. State, 546 S.W.2d 306 (Tex.Cr.App.). His finding of fact thereon is not reviewable by a jury; and if there exists any conflict in the evidence on said issue, his decision has generally been held to be binding upon this Court. Chappell v. State, 519 S.W.2d 453 (Tex.Cr.App.). Such a delicate and generally irreversible decision should be made by the trial judge without having the balance weighted against the defendant by the actual swearing in of a jury to try the defendant, with its attendant attachment of jeopardy, before permitting the defendant to offer any evidence on said issue and before the judge’s decision thereon. Our statutes and unbroken line of decisions give the defendant this right. An arbitrary denial of such right, notwithstanding the defendant’s demand therefor, is a denial to him of the benefits of the law of the land, and thus, due process of law. Such a denial involves such a possibility of prejudice to the defendant’s right to a factual determination of such critical issue, apart from any other consideration, that such arbitrary procedure is inherently lacking in due process without a showing of identifiable prejudice. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).
We should hold that an arbitrary denial of a defendant’s asserted right under the law of this State to present evidence in support of said issue and secure a decision by the trial judge on a motion for change of venue prior to the trial judge’s swearing in of a jury to try the defendant is prejudicial error. The majority’s holding that a trial judge may hereafter arbitrarily refuse a defendant his statutory and constitutional right to be heard on a motion for change of venue until after he has, for all.practical purposes, foreclosed the issue by swearing in a jury to try the case'is a denial to a defendant of the fundamentals of due process of law.
The decision on the motion to change venue must be made prior to voir dire, keeping in mind that the motion can be reurged during voir dire. Article 28.01, V.A.C.C.P. This threshold issue must be decided before jeopardy attaches.
Appellant also complains that at the punishment phase the State was permitted to introduce testimony over objection that appellant committed five other extraneous offenses for which he was never tried or convicted.
Article 37.07, V.A.C.C.P., specifically provides as follows:
Article 37.07 Verdict Must be General; Separate Hearing on Proper Punishment
Sec. 3. Evidence of a prior criminal record in all criminal cases after a finding of guilty.
(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 chaiacter. 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 admission of this testimony about five extraneous offenses that had not resulted in final convictions violated the clear prohibition of Article 37.07(3)(a). This statute expressly applies “in all criminal cases.” It makes no exception for capital murder cases. Other provisions of the Code of Criminal Procedure plainly show that when the Legislature wants a different rule to apply to capital eases, it expressly creates *533an exception. See, for example, Article 1.07, Article 1.14, Article 1.141, Article 35.-17, Article 42.04, ‘ Article 42.12(15), Article 44.08, Article 44.09, and Article 44.35. Since the Legislature made no exception for capital cases in Article 37.07(3)(a), the inescapable conclusion is that this provision applies to capital as well as noncapital cases.
Article 37.07(3)(a) reflects a Legislative determination that evidence of prior criminal conduct not resulting in a final conviction is insufficiently reliable to be considered in sentencing. Unadjudicated extraneous offenses are no less relevant to sentencing in noncapital cases than they are to sentencing in capital cases. It is inconceivable that the Legislature would deem such evidence too unreliable to be considered in a noncapital sentencing decision, but at the same time allow such evidence to be considered in a sentencing decision where a person’s life is at stake.
Arguably, an unadjudicated extraneous offense that is proven beyond a reasonable doubt is sufficiently reliable to be considered in any sentencing decision. Although we may disagree with the Legislature’s determination that such evidence is inadmissible, it is not the role of the Judiciary to pass judgment on the wisdom of the Legislature’s actions. It is certainly within the power of the Legislature to exclude evidence of prior criminal conduct not resulting in a final conviction from consideration in the sentencing decision in all criminal cases. Article 37.07 makes it clear that the Legislature has chosen to do so.
This Court has held in Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979), and Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979), that Article 37.071 creates an exception to the seemingly total prohibition of Article 37.07(3)(a); therefore, Article 37.071 permits the admission of unadjudicated extraneous offenses at the punishment phase of a capital murder trial. In both cases I concurred in the judgment upholding the death sentence, but upon further consideration I am convinced that the Court’s holding in both cases was clearly wrong.
. There are three reasons, besides the express language in Article 37.07(3)(a) that it applies “in all criminal cases,” why Article 37.071 fails to evidence a Legislative intent to create an exception to Article 37.07(3)(a). First, the only purpose of the Article 37.071 provision that “evidence may be presented as to any matter that the court deems relevant to sentence” was to prevent the anticipated constitutional infirmity of denying a defendant’s right to present mitigating circumstances at the capital sentencing hearing. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). To infer from this provision a Legislative intent to create an exception to Article 37.07(3)(a) is to impute an intent to the Legislature that was clearly nonexistent.
Second, Article 37.07(3)(a) is a specific statute dealing with the admissibility of a defendant’s prior criminal record at a sentencing hearing “in all criminal cases.” Article 37.071, on the other hand, is a general statute with respect to the admissibility of this type of evidence. It is well established that when two statutes appear to conflict, the specific statute controls over the general one.
Third, Article 37.071 deals with the scope of relevance at the punishment phase of a capital murder trial. No one would question that unadjudicated extraneous offenses are relevant to the issue of punishment in all criminal cases. This Court held in Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979), however, that relevant evidence must be excluded at the punishment phase of a capital murder trial when its admission violates a rule of evidence.
It is true that the trial court at the punishment phase of a capital murder trial has wide discretion in admitting or excluding evidence. . . . However, this discretion extends only to the question of the relevance of the facts sought to be proved. Article 37.071(a), supra, does not alter the rules of evidence insofar as the manner of proof is concerned.
Porter v. State, 578 S.W.2d at 748. The hearsay - evidence admitted in Porter was highly relevant, but this Court reversed the *534conviction because the admission of this hearsay violated a rule of evidence. Analogously, in the present case these five unad-judicated extraneous offenses, if they occurred as testified to, were relevant to the sentencing decision. But Article 37.07(3)(a) constitutes a legislatively-created rule of evidence barring evidence of unadjudicated extraneous offenses at the sentencing hearing in all criminal cases. When Article 37.07(3)(a) and Porter are read together, it should be clear that the testimony about five extraneous offenses was inadmissible. This testimony, though relevant under Article 37.071, violated a rule of evidence, namely Article 37.07(3)(a); therefore, under the rule this Court announced in Porter, this testimony was inadmissible.
In both Hammett and Garcia the arguments for allowing evidence of unadjudicat-ed extraneous offenses seem superficially persuasive. Upon closer examination, however, this apparent persuasiveness evaporates.
I note at the outset that neither Hammett nor Garcia addressed the express language of Article 37.07(3)(a) that it applies “in all criminal cases.” Understandably so, because any response would reveal this Court’s blatant disregard for the Legislature’s authority.
Both Hammett and Garcia emphasize the Supreme Court’s statement in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), that “[w]hat is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” Both cases intimate that there is a constitutional infirmity in excluding any relevant information at a capital sentencing hearing. This statement in Jurek, however, did not deter this Court from holding in Porter that relevant evidence must be excluded when its admission violates a rule of evidence. Our holding in Porter was consistent with another concern of the Supreme Court in capital cases, namely that the sentencing decision be based on reliable information. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Gardner v. Florida, 480 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).
There is no constitutional infirmity in the Legislature’s decision to apply Article 37.-07(3)(a) to capital murder cases. Consonant with the Supreme Court’s decisions, the Texas Legislature has the prerogative to enact a law excluding from consideration in capital sentencing decisions relevant evidence that it deems unreliable. In„enacting Article 37.07(3)(a), the Legislature exercised this prerogative.
Both Hammett and Garcia state that “[njothing in Article 37.071 ... requires that there be a final conviction for an extraneous offense to be admissible at the punishment phase.” This is true, but it conveniently ignores that there is such a requirement in Article 37.07(3)(a). Furthermore, there is nothing in Article 37.071 requiring that evidence at the punishment phase not be hearsay; nevertheless, we held in Porter that hearsay is inadmissible.
Finally, Hammett and Garcia rely on statements this Court made in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), in the course of discussing Article 37.071..
In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct.
In light of the long-established rule that unadjudicated extraneous offenses are inadmissible at sentencing hearings, the most reasonable interpretation of this language is that “the range and severity of his prior criminal conduct” merely refers to criminal conduct resulting in a final conviction. If this Court in Jurek intended to overrule Article 37.07(3)(a) insofar as it applies to capital murder cases, it would have used express language to do so. It is unreasonable to infer from such cursory treatment that this Court intended to do something as drastic as overruling an act of the Legislature.
In Rumbaugh v. State, 589 S.W.2d 414 (Tex.Cr.App.1979), the Court indulges in some ill-considered dicta concerning the re*535lationship between Article 37.07(3)(a) and Article 37.071. The Court concludes that the Legislature intended to allow admission of unadjudicated extraneous offenses at the punishment phase of a capital murder trial. The basic fallacy in the Court’s reasoning is its assumption that Article 37.07(3)(a) applies only to noncapital cases. This ignores the express language of Article 37.07(3)(a) that it applies “in all criminal cases.”
The Court in Rumbaugh wrote as follows: Had [the Legislature] wanted to limit the proof in capital trials to adjudicated offenses, it could have provided so in Article 37.071, as it has in Article 37.07. There being nothing in Article 37.071 to require such a limitation, this Court cannot impose it.
Since the Legislature made Article 37.-07(3)(a) applicable “in all criminal cases,” it is unreasonable to expect the Legislature gratuitously to restate this rule of evidence in Article 37.071. What Rumbaugh should have said was: There being nothing in Article 37.071 to create an exception to Article 37.07(3)(a), this Court cannot impose it.
The thrust of Rumbaugh’s argument is that the Legislature’s choice of a bifurcated procedure in capital cases evidences its intent to permit proof of unadjudicated extraneous offenses at the punishment phase. There is nothing to support this argument. The Legislature chose a bifurcated procedure in capital cases just as it chose such a procedure in noncapital cases. No one seriously would contend that the Legislature’s choice of a bifurcated procedure in noncapi-tal cases demonstrates its intent to permit proof of unadjudicated extraneous offenses at the punishment phase of a noncapital trial. All acknowledge that in such a situation Article 37.07(3)(a) manifests the Legislature’s intent to limit proof of extraneous offenses to those resulting in a final conviction.
There is no basis for inferring a different intent in capital cases. The choice of a bifurcated procedure in capital cases, together with Article 37.07(3)(a), evidences a Legislative intent to limit proof of extraneous offenses at capital sentencing hearings to those resulting in a final conviction.
I would construe Article 37.07(3)(a) to apply in scope exactly as the Legislature specifically stated it to apply, in all criminal cases. To the extent that the following cases permit evidence at a capital sentencing hearing of prior criminal conduct not resulting in a final conviction, they should be overruled: Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979); Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979); Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979); Rumbaugh v. State, 589 S.W.2d 414 (Tex.Cr.App.1979); Green v. State, 587 S.W.2d 167 (Tex.Cr.App.1979).
For the above reasons, the judgment and sentence should be reversed.
. Jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).
. Article 28.01, V.A.C.C.P., Section 1, provides, in part:
Section 1. ... The pre-trial hearing
. shall be to determine any of the following matters: .
(7) Motions for change of venue by the State or the defendant; provided, however, that such motions for change of venue, if overruled at the pre-trial hearing, may be renewed by the State or the defendant during the voir dire examination of the jury; . . . ”