filed a concurring opinion.
I agree with the part of the Court’s opinion that holds that the disputed evidence was admissible to rebut the defensive theory of accident. I do not agree, though, that the evidence was admissible to show intent, or that there is a catch-22 in Texas law.
*264As I read Estelle v. McGuire,1 the Supreme Court did not hold that evidence of prior injuries to a child is admissible to show intent — it merely held that its admission under California state law did not violate the federal constitution. Prior to this Court’s opinion in Smith v. State,2 an analogous situation would have existed ih Texas. Article 38.36 of the Code of Criminal Procedure would have made the disputed evidence admissible and McGuire would have established that there was no constitutional impediment to its admission.
But although Article 38.36 still exists, it is a now a statute utterly without effect. Before Smith, evidence of injuries previously inflicted by an accused upon a homicide victim was presumptively admissible. After Smith, the evidence is presumptively inadmissible. So, under Smith, the evidence in this case was inadmissible unless it met a Rule 404(b) exception. And although “intent” is a Rule 404(b) exception, because appellant did not claim that he injured the child by accident, his intent was not raised. While the Legislature could revive Article 38.36 (or try to3) by adding language like that in Article 38.37 § 2, at this juncture evidence of prior injuries is generally not admissible in the State’s case-in-chief to show intent.
But I also agree with Judge Cochran that the evidence of the child’s injuries was admissible to show the corpus delicti of the crime. The cause of Tristen’s death, ‘compression asphyxia,’ was not an obvious result of intentional homicide. Her death, viewed in a vacuum, could well have been considered an accident. So, in this case, even if appellant had not himself raised the issue of accident, the nature of the injuries did. The evidence was, therefore, admissible in the State’s case-in-chief to show that the child’s death was the result of an intentional act rather than an accident. Because the evidence was admissible in the State’s case-in-chief, it is unnecessary to determine whether appellant raised issues that would have made the evidence relevant for other purposes.
I join the Court’s opinion in part and otherwise concur in the result.
KEASLER, J., filed this concurring opinion, joined by HOLCOMB, J.
Like radioactive waste, the fallout from Smith v. State1 continues to wreak havoc on the landscape of the law. The majority does not mention Smith, but if that misbegotten opinion had not been handed down, the trial court’s ruling would be unquestionably correct, and there would be no issue for us to decide.
In Smith, a bare majority of this Court held that Art. 38.36, which mandates admission of “relationship evidence” in a murder prosecution, is limited by Evidence Rules 403 and 404(b). The Court came to this conclusion despite Rule 101(c), which specifies that statutes trump rules of evidence. The Court’s conclusion is particularly stunning in light of the sweeping, mandatory language of Art. 38.36, which seemingly speaks for itself:
In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship between the accused and the deceased, together with all relevant facts and circumstances going to show the condition *265of the mind of the accused at the time of the offense.
This language is forceful and unambiguous:
• All prosecutions for murder.
• Shall be permitted.
• All relevant facts and circumstances surrounding the killing and the previous relationship between the accused and the deceased.
• All relevant facts and circumstances showing the mind of the accused.
But Smith eviscerated Art. 38.36 and rendered the statute meaningless. Now, the “relationship evidence” which Art. 38.36 requires to be admitted at trial is no different from any other evidence offered by the parties — it is admissible only if it passes through the gateway of the rules of evidence. Of course, if that were what the Legislature had intended, there would have been no need for Art. 38.36 at all. Post-Smith, the statute remains in the Code, but it is a shell of its former self, present in body but not in spirit.
I believed at the time, and I still believe today, that the Smith majority erred. Nevertheless, given the fact that the Court has spoken on this point and Smith is law, I reluctantly join the majority’s opinion.
. 502 U.S. 62, 112 S.ct. 475, 116 L.Ed.2d 385 (1991).
. 5 S.W.3d 673 (Tex.Crim.App. 1999).
.See, e.g., Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992).
. 5 S.W.3d 673 (Tex.Crim.App.1999).