concurring.
In enacting the 1989 amendment in question to Article 37.07, § 3(a), Y.A.C.C.P. (“§ 3(a)”), the Legislature created a conundrum that has drawn several disparate, usually subjective, answers from some courts of appeals to which the riddle was posed. A textual literalist would quickly solve the enigma by applying “the literalness test” to the clear meaning of the *527unambiguous term “sentence” as defined and used in our statutes. See, e.g., Article 42.02, Y.A.A.C.P. (“sentencing” orders punishment carried into execution). But today in the instant causes this Court examines broader issues to find its own answers, and I agree with its results. My own effort seeks to sort out contentious positions and tenuous propositions to the end that “inconsistency is ... removed by reasonable construction.” Tex.R.Cr.Evid.Rule 101(c).
I
Apparently the first time an appellate court addressed amended § 3(a) the situation involved extraneous unadjudicated offenses being admitted in a punishment proceeding in which an application for probation was at issue. Huggins v. State, 795 S.W.2d 909 (Tex.App.—Beaumont 1990), PDR refused.1 The Beaumont Court concluded that evidence of such offenses was admissible for three separate reasons; the third implicates the central prosecutorial contention of choice for favorable solution to the problem: the “same language” theory. Accordingly, it is first considered here.2
A
The Huggins court divided over resolution of the contention. The majority thought there is “no realistic difference or distinction” between permissive language of Article 37.071(a) and that used in the amendment to § 3(a); ergo, “evidence and proof of unadjudicated offenses at the punishment stage is admissible.” Id., at 911. The concurring opinion believed Article 37.-071 is “a completely different punishment scheme” from article 37.07, and saw “a marked difference” between actual language in the sections. Id., at 912.
In its unpublished opinion in the instant Hunter cause, much like the Beaumont Court, the Fort Worth Court reasoned, viz:
“We overrule Hunter’s first point because article 37.07, section 3(a) now *528makes admissible any evidence the court deems relevant to sentencing, [citation omitted]. The new version of the article uses the same language found in article 37.071(a) which governs capital sentencing procedures; the Court of Criminal Appeals has held that in that statute, the language allows for the admission of unadjudicated offenses, [citation omitted]. We see no reason why the legislature would incorporate the same language but give it a different meaning; and there is no evidence that they have done so. We conclude the language was intended to have the same meaning in 37.07 as it does in 37.071, thus providing for the admission of unadjudicated offenses during the punishment phase of trial. See Gallardo v. State, 809 S.W.2d 540, 541-42 (Tex.App—San Antonio 1991, pet. filed) (per curiam); Huggins v. State, 795 S.W.2d 909, 911 (Tex.App—Beaumont 1990, pet. ref’d; and McMillian v. State, 799 S.W.2d 311, 313 [Tex.App.—Houston [14th Dist.] 1990, pet. granted) (opinion on rehearing).”
Slip opinion, at 2-3.3 Accordingly, the appellate prosecuting attorney urged, “This Court, however, need not conduct further review because the Court of Appeals’ holding is based on the decision in Huggins v. State, which this Court declined to review.” State’s Reply to PDR, at 3.4
In the instant Grunsfeld cause, however, the majority opinion critically reviewed McMillian, supra n. 1, and Huggins and rejected those holdings and followings then extant, e.g., Gallardo v. State, supra n. 4 (also Hubbard v. State, supra, although it does not turn on this particular holding). Grunsfeld v. State, 813 S.W.2d 158, at 171-172 (Tex.App.—Dallas 1991), PDR granted December 4, 1991. Moreover, the dissenting opinion in Grunsfeld likewise disagreed with this part of Huggins. Id., at 175, n. 2; see also Jolivet v. State, 811 S.W.2d 706, at 709 (Tex.App.—Dallas 1991) PDR granted (following Grunsfeld).
In these circumstances the “same language” ratio decidendi of the majority opinion in Huggins and of the opinion in Hunter should be carefully examined, and to that purpose I now turn.
1
Article 37.07, § 3(a) was amended in 1989, by inter alia inserting the underscored phrase (“the phrase”) to cause the operative portion of the first sentence to read:
“[E]vidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the trial court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character.”
In its original context, the phrase is essentially a restatement of the principle that is *529“a presupposition involved in the very conception of a rational system of evidence.” Blakely, Article IV: Relevancy and Its Limits, 20 Houston L.Rev. 151, at 152, n. 2 (1983 Tex.R.Evid. Handbook), quoting J. Thayer, A Preliminary Treatise on Evidence at the Common Law 264-265 (1898). But it is misleading “awkward wording” in a Texas statute prescribing matters for consideration in a noncapital case. “Sentencing” is a distinct proceeding to impose and order executed in a manner prescribed that punishment already adjudged by the court in accordance with a jury verdict or court finding as to proper punishment. Articles 42.01 and 42.02, V.A.C.C.P. In Texas, “any matter relevant to sentencing” will never be “any matter relevant to punishment ” because the latter matters have been previously determined in a “punishment proceeding.” See Livingston v. State, 542 S.W.2d 655, at 661, n. 4 (Tex.Cr.App.1976); Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1976) (concurring opinion, at 297).
Prosecutorial proponents of the amendment argue and, as indicated ante, some appellate courts accept that because an almost identical phrase appears in Article 37.071(a), it must have the same effect when incorporated in Article 37.07, § 3(a), i.e., unadjudicated extraneous offenses and specific acts of misconduct are now admissible in the punishment phase of a noncapi-tal case. Accord: Comment, Bringing Light to the Non-Capital Felony Punishment Phase: Article 37.07, Section 3a and Evidence of Unadjudicated Extraneous Offenses, 44 Baylor L.Rev. 101 (1992), at 109-112 ff. Whether the contention has merit depends in the first place on a proper understanding and correct construction of Article 37.071(a). That raises the question of legislative meaning in the premises.
2
Before 1965 the trial of every criminal case in Texas was a unitary proceeding in which evidence on the merits and punishment was adduced for the factfinder to render a general verdict. Thereafter an “alternate procedure” was allowed initially for noncapital felony cases but later for “all criminal cases,” except misdemeanor cases within jurisdiction of justice and municipal court and capital cases, cf. former article 37.07 (1965 with 1967); the Court made clear that the provision for introducing evidence of prior criminal record “had no application to capital cases where the death penalty was being sought.” Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968).
Meanwhile, early on legal scholars and others who seek to improve criminal law were working on a model penal code that proposed a bifurcated proceeding in capital cases. The phrase in question is but a portion of more comprehensive formulation found in the Model Penal Code § 210.6(2)— even before the Supreme Court struck down extant capital punishment schemes. (The American Law Institute, Proposed Official Draft, 1962). See attached Appendix 1.
Then in Furman v. Georgia (and Branch v. Texas), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court held simply and without explication that “the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Upon carefully examining the nine separate opinions supporting that holding, the consensus among interested commentators, concerned legislators and affected practitioners was that Chief Justice Burger most likely signaled an appropriate remedial approach, viz:
“While I would not undertake to make a definitive statement as to the parameters of the Court’s ruling, it is clear that if state legislatures and the Congress wish to maintain the availability of capital punishment, significant statutory changes will have to be made. Since the two pivotal concurring opinions [of Justices White and Stewart, respectively] turn on the assumption that the punishment of death is now meted out in a random and unpredictable manner, legislative bodies may seek to bring their laws into compliance with the Court’s ruling by providing standards for juries and judges to follow in determining the *530sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed, [note omitted]. If such standards can be devised or the crimes more meticulously defined, the result cannot be detrimental.”
Id., at 400-401, 92 S.Ct., at 2809, 33 L.Ed. 2d, at 442.5
3
Responding to Furman v. Georgia, the State of Florida (and later other jurisdictions as well) drew on procedural provisions in the Model Penal Code. Proffitt v. Florida, 428 U.S. 242, at 248, nn. 5 and 6, 96 S.Ct. 2960, at 2964-2965, nn. 5 and 6, 49 L.Ed.2d 913, at 920, 921, nn. 5 and 6 (1976); cf. Gregg v. Georgia, 428 U.S. 153, at 193-194, n. 44, 96 S.Ct. 2909, at 2935, n. 44, 49 L.Ed.2d 859, at 886, n. 44 (1976).
The Florida scheme, consisting of three statutes, is reproduced from the opinion in State v. Dixon, 283 So.2d 1 (Fla.1973). See Appendix 2. The Supreme Court of Florida generally described it as “a system whereby the possible aggravating and mitigating circumstances are defined, but where the weighing process is left to the carefully scrutinized judgment of jurors and judges.” State v. Dixon, supra, at 7.
Under Florida Statutes § 921.141, F.S.A., there is “a separate sentencing proceeding,” at which “evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7) of this section.”6 While the statute does not expressly assign a burden of proof to either party, the Florida Supreme Court reasoned that any aggravating circumstance associated with commission of the substantive offense must necessarily be proved by the state beyond a reasonable doubt. Dixon, supra, at 9. The state and defendant or his counsel “shall be permitted to present argument for or against sentence of death.” The jury is instructed to determine whether mitigating circumstances outweigh aggravating circumstances, and then “based on these considerations” whether defendant should be sentenced to life or death; its verdict is determined by majority vote, and is “only advisory.” Regardless of the recommendation of the jury from evidence it heard, the court must weigh the particular aggravating and mitigating circumstances statutorily prescribed in deciding whether to enter a sentence of life or death; if it imposes a sentence of death the court shall make findings upon which its sentence is based as to the facts that sufficient aggravating circumstances exist as enumerated in subsection (6) and that there are insufficient mitigating circumstances as enumerated in subsection (7) to outweigh the aggravating circumstances. Id., at 5. As the Florida Supreme Court emphasized, “[T]he procedure ... is not a mere counting pro*531cess of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied in light of the totality of the circumstances present.” Id., at 10; Proffitt v. Florida, supra, 428 U.S. at 248-251, 257-258, 96 S.Ct., at 2965-2966, 2969, 49 L.Ed.2d at 921-922, 926.
Thus the Florida statute, similar to the Model Penal Code § 210.6(2), casts the jury in an advisory role. Compare Appendix 1 and Appendix 2. The legislative history demonstrates that § 921.141 is a “hybrid” product of compromise between legislative chambers, viz:
“... [I]n return for the House’s approval of a judge and jury sentencing procedure, the Senate abandoned its insistence that the jury have a determinative role in sentencing in capital cases. While the statute retains the Senate’s philosophy that the jury should participate in the sentencing process, the jury now has the authority only to give an advisory sentence which can then be rejected by the trial judge if his findings regarding mitigating and aggravating circumstances justify such action.”
Ehrhardt & Levinson, The Aftermath of Furman: The Florida Experience, 64 J.Crim.L. & C. (1973), Part II, at 15.7 In short, whatever evidence is “presented [to the jury] as to any matter the court deems relevant to sentence” that is not related to any of the circumstances listed in subsection (6) or (7) becomes superfluous and is redundant when the court engages in the final decision making process.
4
In Texas, like it began in Florida, the initial response to Furman v. Georgia came in the form of H.B. No. 200, mandating capital punishment for murder committed under three specific circumstances. It was muted, however, in the Senate by a complete committee substitute, the procedural aspects of which were “virtually identical” to the Florida provisions in § 921.-141. Rumbaugh v. State, 589 S.W.2d 414, at 416 (Tex.Cr.App.1979).8 Each bill was sent to a joint conference committee which reconciled differences by substantially discarding underlying concepts of both, while modifying procedural aspects of the Senate substitute. Acts 1973, 63rd Leg., Ch. 426, Article 3, § 1, p. 1122, at 1125 (adding Article 37.071).9
*532Immediately noticed is a significant departure from the superior role of a trial judge actually making the ultimate sentencing decision through a one-sided burdened process of receiving and weighing evidence relevant to prescribed aggravating and mitigating circumstances of the offense and of the offender in the light of judicial experience.10
The conference committee opted to retain “a separate sentencing proceeding” before the trial jury; but it extracted a mere snippet of language from its original definitive context, a phrase declaring that “evidence may be presented as to any matter that the court deems relevant to sentence,” as it went about fashioning a strikingly different process whereby the State now clearly has the burden to produce evidence relevant to three special issues sufficient to convince a jury beyond a reasonable doubt to return a unanimous special verdict giving an affirmative answer on each submitted issue, upon which the court “shall sentence the defendant to death.” Article 37.-071(a)-(e); see Comment, House Bill 200, supra, at 419, nn. 81 and 82;11
In light of that comparative view, that the Florida statute and the Texas Senate committee substitute to H.B. 200 provided “evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to *533any of the aggravating or mitigating circumstances enumerated [in designated subsections],” while the conference committee simply provided “evidence may be presented as to any matter that the court deems relevant to sentencing,” reflects only that the respective legislatures compromised disparate proposed solutions to constitutional deficiencies in “standards” seen by certain Justices of the Supreme Court in extant death penalty schemes. Each process serves to circumscribe the discretion of the court to receiving evidence relevant to those matters of consequence in the respective ultimate determinations to be made, i.e. the weighing process in Florida, and the special issue process in Texas.
In the latter, however, the phrase has no special significance; the authority it purports to grant already exists: “It is thus axiomatic that the court should receive evidence that will lead to resolution of those critical [read “material”] facts and reject evidence that will not.” Blakely, Article IV: Relevancy and Its Limits. 20 Houston L.Rev 151-152, 153-155 (1988 Tex. R.Evid. Handbook). Those “matters” are prescribed by article 37.071(b).12
In the seminal Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), affirmed 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Court did not even mention the phrase in discussing abstractly certain matters deemed proper for consideration by the jury in a capital case, including “prior criminal conduct,” viz:
"... 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.”
Id., at 939-940. Whether the late Judge Morrison actually contemplated the underscored term to include unadjudicated offenses is a moot point in light of decisions such as Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979). Obviously impressed that in affirming Jurek v. State, supra, the Supreme Court declared, inter alia, “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine,” the Court elaborated, viz:
“Nothing in Art. 37.071, supra, requires that there be a final conviction for an extraneous offense to be admissible at the punishment phase of the trial. Evidence of other crimes ... falls within the range of 'prior criminal conduct.’ Such ‘prior criminal conduct’ is clearly relevant to the jury’s deliberation on the special issues submitted to it at the punishment phase of a capital murder trial.”
Id., at 709. Accord: Garcia v. State, 581 S.W.2d 168, at 178-179 (Tex.Cr.App.1979); Wilder v. State, 583 S.W.2d 349, at 369 (Tex.Cr.App.1979); Green v. State, 587 S.W.2d 167, at 169 (Tex.Cr.App.1979); Rumbaugh v. State, supra, at 418. And since then “relevant information” includes evidence in mitigation of the death penalty. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
5
Since 1965, in various versions Article 37.07, V.A.C.C.P., has provided that for purposes of assessing punishment “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.” For historical developments behind that formulation, see Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1988-1989) (Onion, P.J., concurring and dis*534senting, at 54) (opinion on rehearing, at 58-61); Hedicke v. State, 779 S.W.2d 837, at 840-841 (Tex.Cr.App.1989); see also Historical Note to Article 37.07. Construing the initial provision in the 1965 version, however, the Court opined:
“Evidence to be offered at the hearing on punishment pursuant to Article 37.07, Section 2(b) ... is by no means limited to the defendant’s prior record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.”
Allaben v. State, 418 S.W.2d 517, at 519 (Tex.Cr.App.1967) (on trial for committing sodomy, testimony of defendant himself that he had since been under care of psychiatrist for sexual problems should have been admitted but not reversible error).13 Even though the excluded testimony was in the nature of mitigating evidence rather than revealing an extraneous offense, unless under its dicta one was somehow deemed relevant to probation, the Court consistently upheld the rule that unadjudi-cated extraneous offenses were inadmissible in assessing punishment. Murphy v. State, 777 S.W.2d 44, at 46-47 (Tex.Cr.App.1988) (Allaben undermined in 1967 when “prior criminal record” defined to include, e.g., “a final conviction in a court of record”); see also Id., at 61-64 (opinion on rehearing).
In 1985 the Legislature vested in this Court “full rulemaking power” to adopt and promulgate rules of evidence in trials of criminal cases (with an exception not applicable here) to remain in effect until “disapproved” by the Legislature, Acts 1985, 69th Leg., Ch. 685, p. 5136, §§ 5-9, and therein amended § 3(a) of Article 37.07 by inserting “as permitted by the Rules of *535Evidence” to become effective when the Court promulgated a body of rules of evidence, id., § 8(b); we timely accomplished the task and ordered the Rules of Criminal Evidence thus formulated to become effective September 1, Í986.
Accordingly, the affected part of § 3(a) then provided:
“... evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character.”
The manifest intent, as well as effect, of that amendment is to condition admission of evidence as to matters prescribed under § 3(a), on germane Rules of Criminal Evidence. One such rule provides:
“In the penalty phase, evidence may he offered by an accused or by the prosecution as to the prior criminal record of the accused. Other evidence of his character may be offered by an accused or by the prosecution. Nothing herein shall limit provisions of Article 37.071, Code of Criminal Procedure.”
Rule 404(c).14 The relationship between § 3(a) and Rules 404(c) and 405(a) thus stood until 1989 — with one unrelated exception demonstrating that the Legislature well knows how to “disapprove” a rule of evidence this Court promulgated.15
Then, in § 4.04 of a lengthy comprehensive bill designed to reform the executive component of the criminal justice system and establish the Texas Department of Criminal Justice, the Legislature tucked the phrase away in an amendment to § 3(a). Acts 1989, 71st Leg., Ch. 785, p. 3471, Article 4, § 4.04, at 3492.16
The act originated and passed the House of Representatives as House Bill No. 2335. After it reached the Senate there were some intriguing machinations surrounding the bill.17 The chairman of the Committee *536on Criminal Justice produced a complete committee substitute (C.S.H.B. No. 2335) containing a § 4.03 that inserted the phrase at issue, repealed by omission the “record,” “reputation” and “character” provisions and introduced an evidentiary disclaimer, so that as formally drafted those additions and deletions in operative parts appeared thus:
“[Ejvidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing. This subsection may not be construed as authorizing the introduction of evidence seized in violation of the United States Constitution or the Texas Constitution [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 trial, or any final conviction material to the offense charged].”
The substitute was reported favorably May 17, 1989.18 But on May 19 when he called it up for second reading the chairman offered another complete substitute, Floor Amendment No. 1., § 4.04 of which restored the evidentiary matters omitted in former § 4.03, deleted the evidentiary disclaimer and also added the “mitigating factor” quoted in note 16, ante. Senate Journal, 71st Leg. Regular Session, 1535 at 1551; see Grunsfeld, supra, at 167.
6
It is a truism in statutory construction that meaning of “same language” used to express a notion in one context does not necessarily carry forward to a different setting. The sense in which a phrase is used in one act is not conclusive in its significance when used in another; the spirit, purpose and scope of the particular phrase must be examined to determine its meaning. See 67 Tex.Jur.3d Statutes § 108 (1989), at 686. Such an examination has been conducted ante, and the results are indicative of different meanings in the respective conceptual and practical contexts.
In the Model Penal Code, the phrase is permissively coupled with examples of matters deemed “relevant to sentence,” e.g., “the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition and any of the aggravating and mitigating circumstances enumerated in [designated subsections of § 210.6].” In the Florida statute, it is permissively related to mandatory matters limited in aggravation and unlimited in mitigation declared “relevant to sentence” in § 921.141(1), (6) and (7). The erstwhile Texas Senate substitute tracks the Florida statute. While the model penal code does not assign burdens of proof, judicial gloss on the Florida statute, and thus the Senate substitute, dictates that any aggravated circumstance related to the substantive offense must necessarily be proved beyond a reasonable doubt. In each formulation the trial judge finally *537weighs the “circumstantial evidence” in making the ultimate decision as to imposing sentence of life or death.
A hybrid product of legislatively engraft-ed language in several sentences from the Senate substitute with an innovative creation of the conference committee, Article 37.071 allows evidence “as to any matter the court deems relevant to sentence." That “awkward wording” even had to be translated for the bench and bar to “punishment, see note 9, ante, that is, relevant to material matters bearing on one or more special issues which the State must prove and a unanimous jury must find beyond a reasonable doubt. Id., (a), (b) and (c). Such statutes are required to be based on and each has passed muster on considerations of constitutional dimension demanded by the Eighth Amendment, including now permitting a “reasoned moral response” to mitigating evidence. Proffitt v. Florida, Jurek v. State, and Penry v. Lynaugh, all supra. Because the purpose is to provide a jury with “all possible relevant information about the individual defendant whose fate it must determine,” Jurek, supra, evidence of, inter alia, extraneous offenses are admissible. Hammett v. State, supra. Unlike the Florida and initial Senate committee schemes in which the jury verdict is merely advisory, in Texas as a matter of law the jury determination of requisite issues and independent effect of mitigating evidence mandates the penalty or punishment the court must impose in its sentence. Article 37.071(e), supra.
In nearly every noncapital case, on the other hand, depending on the situation, either judge or jury may assess punishment. Article 37.07, §§ 2(a) and (b), 3(a); ante, at 529. The judge may order an investigative report contemplated by Article 42.12, § 9, V.A. C.C.P., to be considered by the court. Article 37.07, § 3(d). Although Article 37.-07, § 3(a), now allows evidence “as to any matter the court deems relevant to sentencing,” including certain formerly prescribed matters and newly added matters such as “adjudication of delinquency,” see note 15, ante, “factor in mitigating punishment,” see note 16, ante, and “availability of community corrections facilities,” ibid., there is no burden of proof on the “issue” of punishment; 19 nothing in the article requires the judge to inform the court or the jury of any requisite issue it must determine or otherwise what it is obliged to do with such evidence. Indeed, § 3(d) merely provides that upon considering the investigative report and the evidence adduced at hearing, the judge shall announce the decision “as to the punishment to be assessed” by the court; whereas § 3(b) provides merely that “the jury has the responsibility of assessing the punishment,” with “such additional instructions as may be necessary,” and in common practice none touches on any “issue” or “obligation” conditioning its assessment of “punishment” in terms of years and fine, if any.20
The verdict of the jury is to be included in the judgment of the court, and the defendant shall be punished according to its verdict. Article 42.01, § 1, item 8. V.A.C.G.A.P. A sentence is that part of the judgment ordering the punishment be carried into execution in the manner prescribed by law. Article 42.02. But provisions in Article 37.07 related to “punishment” fail to identify all “matters relevant to sentencing,” viz: particularly the matter of probation in that sentence is not im*538posed, and as to other matters in that before pronouncing sentence the judge must or may take into consideration many other relevant matters withheld from the jury, e.g., Article 42.12, § 9, Articles 42.01-42.03 and 42.07-42.08, V.A.C.C.P. That is to say, the jury will not necessarily decide all terms and conditions of whatever sentence the judge actually imposes.
7
Given the “unique nature of the death penalty for purposes of Eighth Amendment analysis,” the Supreme Court has consistently cautioned courts that its decisions in capital cases are of “limited assistance” in determining lesser punishments. Rummel v. Estelle, 445 U.S. 263, at 273, 100 S.Ct. 1133, at 1138, 63 L.Ed.2d 382, at 390 (1980); see Beck v. Alabama, 447 U.S. 625, at 637, 100 S.Ct. 2382, at 2389, 65 L.Ed.2d 392, at 403 (1980) (significant constitutional difference between death penalty and lesser punishments); Gardner v. Florida. 430 U.S. 349, at 357-358, 97 S.Ct. 1197, at 1204, 51 L.Ed.2d 393, at 401 (1977) (death penalty different kind of punishment from any other imposed in this country). Upon consideration of all factors germane to the spirit, purpose and scope of the phrases appearing in Article 37.071(a), and in Article 37.07, § 3(a), respectively, the only rational conclusion is that the “same language” theory will not determine the sense in which the phrase was meant to be used and applied in the latter, and I would so hold.21 Accordingly, to the extent that the decision of the Beaumont Court in Huggins rests on that theory, it should be disapproved; because the ratio decidendi of the decision from the Fort Worth Court in the instant Hunter cause is based solely on that theory, and the State urged us to rely on it, see ante, at 527-528, I concur with the Court in reversing the judgment.
B
In Huggins, the Beaumont Court did not expressly relate disposition to the fact that probation was implicated below, see note 1, ante; instead, its decision seems to concentrate on other considerations in generally assessing punishment.
1
The majority opinion first construes the operative part of § 3(a), reasoning that the phrase in question is “additional to and separate and independent of the ‘prior criminal record of the defendant,’ ” and also “evidence deem[ed] relevant” is “independent and separate from evidence of the defendant’s general reputation and his character;” because the definition of “relevant evidence” in Tex.R.Crim.Evid. Rule 401 focuses on that which tends “to make the existence of any fact that is of consequence to the determination of the action,” evidence of extraneous unadjudicated offenses to which defendant objected is “of consequence” to that part of the determination involving “assessment of punishment.” Id., at 911.22
But quaere: Precisely what may be identified as the “matter of consequence,” the existence of which any evidence of specific conduct tends to make more probable, and thus relevant? That is the exact question members of this Court debated without settling unanimously in Murphy. See Part III B, post. But, the Beaumont Court did not even recognize this is the crucial question to be answered in its first basis for overruling point of error one in favor of the State. See Huggins, at 910-911; cf. McMillian v. State, supra, at n. 1 ante.
*539The majority opinion then addresses “an additional and separate distinct basis” for its decision, viz: the phrase “invokes the abuse of discretion test;” the trial judge did not abuse his discretion; “the solons overrule Murphy v. State, 777 S.W.2d 44 (Tex.Crim.App.1988).” Id., at 911.23
Suffice to say that such summary resolutions of both bases begs difficult questions of statutory construction, legislative intent raised by the very actions of “the solons” and application of rules of evidence.24
2
In the instant Grunsfeld cause, writing for a majority of the Dallas Court, former Presiding Judge Onion took guidance from teachings in the Code Construction Act, id., at 166; cautioned, “We must therefore be careful not to lift out of context the new language in [the phrase] and construe it standing alone or only with certain other selected provisions of the statutes to reach a desired result,” id., at 168; viewed legislative history of the 1989 amendment in light of that Act, id., at 166-168; noted that since 1986, § 3(a) clearly shows “evidence deemed relevant” must be “that which is permitted by the Rules of Criminal Evidence,” id., at 168; proceeded to examine germane rules, i.e., Rules 401, 402, 403, 404(c) and 405, and found:
“Thus, if a prior criminal record is to be used, it must comport with the definition in the statute. If ‘other evidence’ is *540to be used to prove character, it is limited to proof by reputation and opinion witnesses.”
Id., at 169; concluded on this factor thus:
“... The Rules of Criminal Evidence do not permit the introduction of extraneous, unadjudicated offenses and their details at the penalty stage of a non-capital case.”
Id., at 170.
Next, Judge Onion turned to § 3(a), another “limiting factor” in the definition of “prior criminal record,” id., at 170; noted the legislative evolution of the term, its tentative elimination and later restoration, indicating an intent to “retain the limitation of evidence [regarding that matter],” id., at 171; discussed the significance of the term “including,” viz:
“... We agree with the State that the 1989 amendment ... expanded without enumeration other matters that might be introduced if the trial court deems the same relevant to sentencing and other requirements are met. We disagree, however, with the contention that the amendment authorized the introduction of extraneous, unadjudicated offenses and their details in view of the retention of the term ‘prior criminal record’ and its limiting definition, the history of the statute and the 1989 amendment.”
Id., at 171. Accordingly, the Grunsfeld majority concluded:
“We hold that the testimony was inadmissible under both the Rules of Criminal Evidence and the definition limiting the meaning of ‘prior criminal record.’ The court abused its discretion in admitting it.”
Ibid. Mentioning that Grunsfeld offered evidence only to establish his eligibility for probation after the State had adduced evidence of extraneous offenses, Judge Onion pointed out that his tactic “did not cure any error or call for a different result[:] “Nothing in the 1989 amendment or its history indicate that the holding in Murphy [opinion on rehearing, at 67] was intended to be superceded.” Ibid.
Having implicitly disapproved some of its rationale, Judge Onion then directly and critically reviewed the Huggins effort at statutory construction, first noting it was made sans analysis and consideration of Rule 404(c), id., at 171; and after examining its other followings, e.g., Hunter v. State, Gallardo v. State and Hubbard v. State, (all “no probation” cases), supra, rejected them, viz:
“We do not find these cases controlling or persuasive. It is abundantly clear that whatever the intent of the legislature was in enacting the 1989 amendment to article 37.07, section 3(a), it was not to open the door to evidence in non-capital cases as wide as that in capital case sentencing. If that was the intent, then the legislature would not have retained the limiting language of the amendment. * * * * Further we cannot attribute to the legislature an intent to reach an illogical result. It would not make sense that the legislature intended extraneous, unadjudicated offenses and their details be admissible, but that prior convictions must be final before being admissible and even then that details of the underlying offenses are to be excluded.”
Id., at 172. The dissenting opinion sought to give “a harmonious effect to all of the statute’s language,” agreeing however that, as amended, the phrase “does not go as far as article 37.071(a),” and in this regard, thus disagreed “with the decision in Huggins v. State." Id., at. 175.
3
While vacillating between proving character through opinion or reputation, the common law of England and the common law of Texas was firm that evidence of specific conduct was “inherently prejudicial” and thus admissible “only when character was an issue.” Hedicke v. State, 779 S.W.2d 837, at 840-841 (Tex.Cr.App.1989); Goode, Wellborn & Sharlot, Texas Rules of Evidence: Civil and Criminal § 405.1, 33 Texas Practice (1988) 138-139); see Murphy v. State, 111 S.W.2d 44 (Tex.Cr.App.1988-1999) (opinion on rehearing at 58-56). Because the Huggins court addressed § 3(a) coupled alone with Tex.R.Crim.Evid. *541Rule 401 — pretermitting, inter alia, exceptional provisions of Rule 402 (these rules); exclusionary provisions of Rule 403 (probative value versus danger of undue prejudice); special provisions of 404(c) (character relevant to punishment); limited method provisions of Rule 405(a) (reputation and opinion) — I concur with Judge Onion in his explicit and with this Court in its implicit disapproval of the first and second reasons basing the decision in Huggins, and by extension its followings identified ante, in note 2, but do not associate myself with every rationale employed and each conclusion reached by them.
II
From this point onward in discussing the phrase, rather than its “awkward wording” I will translate it to read “any matter the court deems relevant to punishment” in keeping with our statutes, rules of evidence and practice, unless the context demands otherwise.25 Considering the phrase in that light, on the authority of our opinion on rehearing in Murphy and its followings I would sign off right now to affirming the judgment of the court of appeals in Grunsfeld. However, prudence dictates that additional questions be examined.
A
To recapitulate briefly, nearly very court of appeals that has addressed the issue has held that the 1989 amendment to Article 37.07, § 3(a) now authorizes admission of specific conduct evidence — with or without an application for probation. See cases collected by the majority in Slott v. State, 824 S.W.2d 225, at 226-227 (Tex.App—Beaumont 1992) (cf. dissenting opinion, at 228) PDR granted February 2, 1992. To the extent those opinions accepted the simplistic rationales of Huggins, et al., Judge Onion found they were neither controlling nor persuasive for a majority in Grunsfeld. Instead, he developed essentially two propositions to show why the phrase in question did not change the law with respect to admissibility of specific conduct evidence. Accord: Blackwell v. State, 818 S.W.2d 134, at 140-141 (Tex.App.—Waco 1991), PDR granted November 20, 1991 (analysis more persuasive because it harmonizes and gives effect to all provisions of the statute); Torres v. State, 818 S.W.2d 141, at 143 (Tex.App.—Waco 1991) vacated on other grounds, 825 S.W.2d 124 (Tex.Cr.App.1992).
1
First, because § 3(a) already provided that punishment evidence as to “prior criminal record,” “general reputation” and “character,” may be offered “as permitted by the Rules of Evidence,” Judge Onion argues that even if specific conduct evidence meets the relevancy test of Rule 401 and clears hurdles of Rule 403, other rules must be considered; from views of commentators concerning Rule 404(c) Judge Onion asserts that a “prior criminal record” must comport with the statutory definition, and “other evidence of his character” under Rule 404(c) is “limited” to proof by reputation and opinion witnesses. Grunsfeld, at 168-169. We know that one matter the trial judge may deem relevant to punishment is character, because the statute expressly says so; evidence of character is also “permitted” by rules of evidence because Rule 404(c) says so. See note 14, ante. However, Rule 405(a) gen*542erally limits methods of proving character to reputation and opinion testimony. Specific conduct evidence is admissible qua character evidence only where character is “an essential element of a charge, claim or defense,” under Rule 405(b). Judge Onion held on authority of our opinion on rehearing in Murphy that character cannot fairly be described as an “element ... claim or defense” at the punishment phase of trial. Id., at 170. Therefore, he reasons, specific conduct is an impermissible method of proving character under Rule 405(b), and hence under § 3(a) as well.
This first argument is acceptable as far as it goes. But it seems to me the argument may not go far enough. It is true that specific conduct is inadmissible qua character evidence. Moreover, in Murphy on rehearing we stated that, in the absence of express legislative guidance, we would not presume the Legislature intended to exclude specific conduct qua character evidence, “while at the 'same time contemplating identical evidence would always be admissible as ‘relevant’ to the broader [and, I might add, court-made] category, circumstances of the offender.” “Loath to nullify the apparent legislative intent,” we held that § 3(a) “precludes evidence of specific acts of conduct” to show “circumstances of the offender.” Id., at 64.
Six days before our opinion on rehearing in Murphy, however, the Legislature purportedly took the ultimate decision of what is “appropriate” for a jury to consider in assessing punishment out of the hands of this Court and placed it squarely in the hands of the trial court. The Legislature thus created a basis for a counter argument: What matter is “relevant” to punishment is whatever the trial judge “deems” it to be; should the trial court believe there is a “relevant” matter to which specific conduct evidence pertains — quite apart from any bearing it may have on character— defendant may not successfully invoke Rule 405(b) to exclude it; Rule 405(b) only controls methods of proving character; it is within the trial judge’s discretion under the phrase to deem specific conduct “relevant to punishment” regardless of its significance as character evidence; specific conduct evidence, if not “permitted by the Rules of Evidence,” is at least arguably not prohibited by them. And, as will be developed post, in Part II B, the trial decision as to relevance may be unreviewable; unless the trial judge practically admits on the record that he is allowing specific conduct evidence qua character evidence, an appellate court would be hard put to reverse his decision.
2
As to the second proposition, Judge Onion maintains that, the Legislature’s use of the word “including” notwithstanding, the definition of “prior criminal record” that was ultimately retained in § 3(a), even after the 1989 amendment, still operates to exclude specific conduct evidence. He admits (as he must, given use of the word “including”) that the trial court’s discretion in determining what matter is “relevant to punishment” is in fact not limited to “prior criminal record ... general reputation and ... character.” Id., at 171. But this Court had always considered unadjudicated misconduct under the rubric of prior criminal record, and when the 1967 definition of prior criminal record did not permit that form of proof, the Court construed that as a categorical prohibition against admission of specific conduct evidence. Id., at 165, 166. Accordingly, Judge Onion argues that because the 1967 definition of prior criminal record was ultimately retained after the phrase, the Legislature must still have contemplated that specific conduct would not be admissible. Id., at 171. He observes:
“It would not make sense that the legislature intended that extraneous, unadju-dicated offenses and their details be admissible, but that prior convictions must be final before being admissible and even then that details of the underlying offenses are to be excluded.”26
*543Id., at 172. Thus Judge Onion concluded, reminiscent of his opinion on original submission in Murphy, that whatever else the trial judge might deem “relevant to punishment” under the statute, she could not admit evidence of specific conduct. Id., at 171, 172.
Again, this argument does not satisfactorily account for the “authority” to decide what matter is “relevant to punishment.” That specific conduct qua character evidence is inadmissible (albeit possibly infera-ble from fact of a final conviction or a probated or suspended sentence occurring prior to trial), does not mean that specific conduct evidence as to “any matter the court deems relevant to punishment,” apart from its bearing on character, will be inadmissible. We may have trouble imagining how specific conduct evidence could be brought to bear on any matter relevant to the punishment decision apart from, or at least without involving, a character inference. Nevertheless, the Legislature has failed to provide a reference point for matters of “relevance” at the punishment phase, so it seems to me that after the 1989 amendment the fact that our intuitions as to what is appropriate to the punishment decision do not jibe with that of the trial court may not provide an adequate basis for appellate reversal.
B
While questioning some of his particular analysis, I do ultimately agree with Judge Onion in one respect. We cannot give full play to the trial court’s apparent “authority” under the phrase to determine what matters are relevant to punishment in non-capital prosecutions. To construe the amendment to confer such unfettered discretion in the trial court arguably is to say that the Legislature has unconstitutionally delegated a part of its authority in violation of the separation of powers doctrine embodied in Article II, § 1 of the Texas Constitution.
In a capital case a trial court determines whether “any matter is relevant to sentence” according to its pertinence to the special issues, as defined by the Legislature, or “mitigation” as required by Eighth Amendment principles. By assigning to the trial court the question of what matter is “relevant to punishment” in a noncapital case, where there are precious few statutorily defined issues, see Murphy, at 62-63, n. 10, the Legislature has essentially empowered trial courts to dictate case by case what the operative issues are at the punishment phase of trial. This may be an unconstitutional delegation of the legislative policy making function to the judicial branch.
Our Texas Supreme Court has long held that decisions of the United States Supreme Court on the doctrine of separation of powers are instructive in interpreting our own express constitutional provision. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927). The United States Supreme Court recently reiterated:
“that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches. [Citation omitted] Thus, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’ J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928).”
Touby v. United States, 500 U.S. -, at -, 111 S.Ct. 1752, at 1756, 114 L.Ed.2d 219, at 227 (1991). Thus, the Legislature can delegate power to a coordinate branch, but not without first “declaring a policy and fixing a primary standard” for its im*544plementation. Ex parte Granviel, 561 S.W.2d 503, at 514 (Tex.Cr.App.1978), citing Margolin v. State, 151 Tex.Cr.R. 132, 205 S.W.2d 775 (1947) and Williams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177 (1943). That primary standard must be “capable of reasonable application.” Id. “[A]n arbitrary, uncontrolled, and unre-viewable discretion may not be delegated.” 12 Tex.Jur.3d § 73, p. 601 (1981).
“The legislature has no right to confer on the judiciary a power in terms so broad and meanings so vague that the application or nonapplication of the law depends wholly on the individual opinion and predilections of the trial judge....”
In re Johnson, 554 S.W.2d 775, at 781-82 (Tex.Civ.App.—Corpus Christi 1977, ref’d n.r.e.), quoting with approval language from 16 C.J.S. Constitutional Law § 139, p. 635.
If in fact the phrase was intended to confer ultimate authority in trial courts to determine on a case by case basis the appropriate criteria for jury assessment of punishment, then it seems fairly clear that the Legislature has unconstitutionally delegated its authority. That the statute does not announce a policy has already been decried in Murphy itself on rehearing, at 62-63 (no clear guidance concerning considerations informing jury punishment decision). The phrase does nothing to remedy the situation. In fact, by purporting to vest authority in individual trial courts to make the “relevance” determination, the Legislature has potentially cut off whatever source of policy that had existed. We held in Murphy that, beyond the criteria in § 3(a), evidence could be admitted at the punishment phase as to the circumstances of the offense and the offender. The former was deemed “relevant” under the seemingly self-evident maxim that the punishment should fit the crime. The latter was considered “appropriate” if for no other reason than that, in the absence of express legislative policy, courts have traditionally believed that punishment should fit the particular criminal as well. Under § 3(a) if the trial judge decides “relevance,” he is not even bound by this much policy — much less a “primary standard” by which to implement it — in making his decision. His discretion will be “uncontrolled” and “unreviewable.” Admissibility of evidence at the punishment phase will be left almost exclusively to the “individual opinion and predilections of the trial judge.” Compare the “overarching constraints” Congress imposed on the United States Sentencing Commission in its mandate to establish uniform sentencing guidelines for the federal system. Mistretta v. United States, 488 U.S. 361, 374-378, 109 S.Ct. 647, at 655-657, 102 L.Ed.2d 714, at 732-734 (1989).
For this reason, overriding those given by Judge Onion in Grunsfeld, I would argue that we cannot give the phrase the broad impact its proponents claim it appears to have, in light of our opinion on rehearing in Murphy.
Ill
Because we presume the Legislature would not do a useless thing, however, we must either construe the amendment to have accomplished some lesser objective, or else we must simply declare it unconstitutional as violative of separation of powers. The former is, of course, always to be preferred. Ex parte Groves, 571 S.W.2d 888, at 893 (Tex.Cr.App.1978); see Code Construction Act § 311.021, 3 V.T.C.A. Government Code (1988) 638.
A
In ascertaining the intent of the Legislature when it enacted the 1989 amendment to Article 37.07, § 3(a), supra, it is useful to keep in mind the opinions on original submission in Murphy v. State, supra. A likely hypothesis is that when the Legislature added the language, viz: “any matter the court deems relevant to sentencing, including ... ”, it intended to reinstate the holding of Allaben v. State, supra, that punishment evidence was not limited to “prior criminal record ... general reputation and ... character,” and that other evidence to mitigate punishment or inform a probation recommendation are admissible consistent with § 3(a), including evidence of specific *545conduct. The Murphy opinions on original submission tend to support this hypothesis.
1
In his plurality opinion on original submission in Murphy, Judge Miller gave essentially two reasons that specific misconduct was not admissible at the punishment phase, defendant’s application for probation notwithstanding. As I understand it, his first position was that the holding of Allaben was based on a construction of former § 2(b) as originally enacted in 1965. When the statute was amended in 1967, and § 2(b) became § 3(a) in which was included a precise definition of the term “pri- or criminal record” which did not include specific conduct, see Acts 1967, 60th Leg., ch. 659, p. 1739, § 22, eff. August 28, 1967, to the extent Allaben authorized specific conduct relevant to an application for probation to be admitted, it was no longer good law. Judge Miller’s second position in Murphy assumed that “suitability” for probation is indeed a viable issue at the punishment phase where application for probation is made. Nevertheless he opined that the specific acts of misconduct admitted in Murphy, even if relevant to that issue, were more prejudicial than probative, and hence were also excludable under our traditional extraneous offense rule.
In dissent, Judge White disagreed that the revised § 3(a) in 1967 was meant to prohibit evidence of specific conduct at the punishment phase. Judge White did agree with Judge Miller’s implicit assumption that application for probation makes an accused’s “suitability” for probation an issue. Unlike Judge Miller, however, Judge White concluded that specific acts of misconduct are highly relevant to the issue of probation suitability. Most significantly for purposes of our inquiry here, Judge White opined that specific acts are relevant to probation suitability in much the same way they are relevant to the question of future dangerousness in the punishment phase of a capital murder prosecution, under Article 37.071(b)(2), supra, that is, as indicative of probable future conduct. See Murphy, supra, at 52, n. 4 (White, J., dissenting). Moreover, Judge White vehemently disagreed that the particular evidence of unadjudicated bad conduct admitted in Murphy was more prejudicial than probative.
For his part, Presiding Judge Onion agreed that specific misconduct was inadmissible under § 3(a), but disagreed that the broader holding of Allaben was undermined. He pointed out that Allaben had not involved specific misconduct, and that its holding that other evidence relevant to application for probation was unaffected by the 1967 amendment. In essence he agreed with Judge White that § 3(a) did not provide an exhaustive list of what is admissible at the punishment phase, but agreed with Judge Miller to the extent he believed that the 1967 amendment to § 3(a) did render specific acts evidence in admissible.27 Thus, Judge Onion concurred in the result, but disclaimed the plurality opinion of Judge Miller.
2
It has been suggested that the 1989 amendment to § 3(a) was the Legislature’s response to this Court’s plurality opinion on rehearing in Murphy. See Grunsfeld v. State, 813 S.W.2d 158, at 174 (Tex.App.—Dallas 1991) (Lagarde, J., concurring and dissenting). Also, it has been assumed that the Legislature reacted to our opinion in Miller-El v. State, 782 S.W.2d 892 (Tex.Cr.App.1990) (no coherent legislative policy to guide courts as to appropriate evidence for punishment deliberation). See McMillian v. State, 799 S.W.2d 311, 313 (Tex.App.—Houston [14th] 1990), PDR granted. Both were obviously searching for justification, but of course neither can possibly be so. House Bill 2335, which contained the amendment, was signed into law on June 15,1989. See Acts 1989,71st Leg., ch. 785, p. 3558. This Court’s opinion on rehearing in Murphy was not handed down until six days later, on June 21, 1989; this Court’s opinion in Miller-El v. State, supra, was *546not delivered until seven months later, January 17,1990. It does seem more than just plausible, however, that the amendment was responsive to opinions on original submission in Murphy, handed down on April 8,1988; and that the approach the Legislature took was one suggested by Judge White.
B
The phrase chosen by the Legislature to amend § 3(a), may or may not have been taken in part from Model Penal Code § 210.6(2); Florida Statutes § 921.143; Senate Committee Substitute for H.B. 200; Conference Committee Report on H.B. 200; Senate Committee Substitute for H.B. 2335, § 4.03; Floor Amendment No. 1 to C.S.H.B. No. 2335, § 4.04; or the Conference Committee Report on H.B. 2335, see nn. 9-11 and accompanying text at 531-532, ante, or in whole from Article 37.071, (a), supra. Regardless, in that context we have long held evidence of specific conduct to be admissible as a matter relevant to the second special issue, future dangerousness. In noncapital cases, however, the Legislature and the Court have traditionally honored the general common law rule that evidence of specific conduct is not admissible to prove character unless that matter is an issue on the merits of the case, and never admissible to prove character as a material matter on punishment, except under dicta in Atiaben when probation was at issue. Murphy v. State, supra, at 46-47 (Onion, P.J., concurring and dissenting on original submission, at 54-55) (opinion on rehearing, passim); see also 533-535, ante.
1
If the Legislature intended the 1989 amendment to defeat Judge Miller’s view that the definition of “prior criminal record” in § 3(a) renders specific conduct evidence inadmissible even if relevant to suitability for probation, it could hardly have chosen more appropriate language than that suggested by Judge White’s dissent in footnote 4. If “any matter the court deems relevant to sentence” is broad enough to admit specific conduct to prove future dangerousness, so also it should be broad enough as well to authorize specific conduct to prove probation suitability, vet non, notwithstanding the narrow definition of “prior criminal record” which was ultimately left in the statute. In short, it may be that all the Legislature intended to accomplish by its 1989 amendment to § 3(a) was to make specific conduct evidence admissible whenever an application for probation is filed — in essence, to legislate Judge White’s dissent — and nothing more.
2
Unfortunately, the Legislature did not anticipate our opinion on rehearing in Murphy. There the plurality held, contrary to the tacit assumption of Judge Miller, and the stated premise of Judge White, that “suitability” for probation is not in fact an issue at the punishment phase of trial. More importantly, the plurality pointed out that the concept of “relevancy” at the punishment phase is highly problematical. In this context the plurality wrote:
"... The problem lies in defining what the particular ‘issues’ are that evidence may or may not be ‘relevant’ to prove. We have remarked before that ‘[t]he material issue during the punishment phase is, obviously, what punishment to assess[.]’ Hoffert v. State, 623 S.W.2d 141, 145 (Tex.Cr.App.1981). While that is indeed obvious, it is not especially helpful for purposes of deciding relevance.
“The facts ‘of consequence’ at the guilt phase of trial are narrowly drawn by or readily extrapolated from penal provisions and statutory justifications. An extraneous offense may be offered as proof of an ultimate fact, such as identity or culpable intent, or it may be offered to establish an evidentiary fact, such as motive, from which an ultimate fact may be inferred. In either case we know what the material issues are because the Legislature has supplied them. Thus we have a fixed point by which to navigate questions of relevance at the guilt phase of trial. The same is not true of the punishment phase. There, aside from certain exceptions, [footnote omitted] the *547‘factfinder’ does not determine the existence of discreet [sic: discrete] facts. Deciding what punishment to assess is a normative process, not intrinsically fact bound. Because the material issue at punishment is so indistinct, relevancy of proffered evidence cannot be determined by deductive processes. To extend the nautical metaphor, we have been given a rudder to steer, but no polestar to steer by.
“In reality, what is ‘relevant’ to determining proper punishment is more a question of policy that of logic. In creating the separate punishment proceeding in 1965, the Legislature clearly intended to remove the blinders inherent in a unitary trial. Unfortunately, outside of Article 37.07, § 3(a), supra, it has given no clear guidance as to what considerations should inform the jury’s punishment decision.”
777 S.W.2d at 62-63.
3
This recognition that lack of concrete issues at the punishment phase of a non-capital trial makes “relevance” a purely normative call has put a peculiar gloss on the phrase. By providing that evidence as to whatever “matter” the trial court deems relevant to punishment is admissible at that phase of trial the Legislature appears, in light of Murphy on rehearing, to have assigned to the trial judge the more significant task of deciding, apparently case by case, what “matters” are appropriate to inform the jury determination as to proper punishment within the prescribed range. Outside of “prior criminal record,” “general reputation” and “character,” however, the Legislature still has not supplied any particular reference, any “polestar” if you will, by which the trial court can make the essential “relevancy” determination. It is apparently left to the trial court in its unfettered discretion to decide what “matter is relevant.” Moreover, because the trial court is legislatively assigned the task of deciding criteria for “relevancy,” its decision may be essentially unreviewable by an appellate court. After all, if the trial court’s discretion includes saying what “matter is relevant,” what “relevance” is, an appellate court can hardly say the trial court abused its discretion by finding a particular piece of evidence “relevant.”28
C
However, I cannot believe that the Legislature, which did not have our opinion on rehearing in Murphy before it, intended by adding the phrase to confer such unbridled, and hence unconstitutional discretion upon trial courts. See Part II B, ante. To avoid now denouncing the phrase as an unconstitutional breach of the separation of powers doctrine, and in favor of finding it advances a proper purpose, I would hold that the phrase does no more than give a trial court discretion to admit evidence having any tendency to prove those matters that are traditionally recognized categories of “circumstances of the offense and the offender,” as well as any material matter already clearly delineated by the Legislature — neither embracing specific conduct evidence. This construction accomplishes a legislative objective to overrule Judge Miller’s opinion on original submission in Murphy to the extent it suggests that the definition of “prior criminal conduct” is an exhaustive list of what is admissible at the punishment phase in noncapital cases. That this Court subsequently construed the pre-amendment statute to accomplish this same result on rehearing in Murphy just means the Legislature acted prematurely while this Court deliberated on a granted State’s motion for rehearing — not that it did a “useless” thing.
*548But we also held on rehearing in Murphy that “suitability” for probation has not been identified by the Legislature to be a material issue at the punishment phase, id., at 67, and certainly nothing in Article 42.-12, V.A.C.C.P., has been amended that would change that holding. Thus, on the ultimate issue in these causes, I would continue to hold that specific conduct does not become admissible at punishment simply because an application for probation has been filed and presented to the fact finder for the determination. Kingsley v. State, 784 S.W.2d 688 (Tex.Cr.App.1990); Drew v. State, 777 S.W.2d 74 (Tex.Cr.App.1989).
After sorting out and considering all germane positions and propositions and for the reasons stated, compellingly to me but perhaps too extendedly for some, I join the judgment of the Court.29
. Actually McMillian v. State, 799 S.W.2d 311 (Tex.App.—Houston [14th] 1990) PDR granted, was delivered five days before Huggins v. State, supra. However, McMillian was decided on the separate distinct theory that since consideration of probation is an “essential part of the sentencing process,” testimony relevant to “the question of appellant's fitness for probation is admissible" — there being no conflict between § 3(a) and Tex.R.Cr.Evid. 404 "notwithstanding the fact that subpart (c) of Rule 404 exempts only Article 37.071 [V.A.C.C.P.].” Id., at 313-314. Although probation was at issue in Huggins, see PDR, at 7, 11, 12, the Beaumont Court of Appeals did not consider that theory, unless its cryptic allusion to Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1988), is to indicate it did. See note 2, post. Both appellants in the instant causes did apply for and the court charged the jury on probation, so the theory will be examined post.
. The Huggins majority also advanced two other bases for admitting evidence of extraneous unadjudicated offenses, viz: first, that the phrase is “additional to and independent of the ‘prior criminal record of the defendant’ ... and relevant evidence is also independent of and separate from evidence of the defendant’s general reputation and his character;" second, that by providing “any matter the court deems relevant to sentencing is admissible,” the Legislature ”invoke[d] the abuse of discretion test” and "the solons overrule Murphy v. State, 777 S.W.2d 44 (Tex.Crim.App.1988)." Id., at 911.
Both bases will be treated in Part I B, at 538 post; suffice to note here that presently pending review are several cases following one or both, e.g., Hunter v. State, 805 S.W.2d 918 (Tex.App.—Beaumont 1991) PDR granted June 5, 1991 (both, no probation); Hubbard v. State, 809 S.W.2d 316, at 319-320 (Tex.App.—Fort Worth 1991), PDR granted September 11, 1991 (both, no probation); Gallardo v. State, 809 S.W.2d 540, at 543 (Tex.App.—San Antonio 1991), PDR granted September 11, 1991 (first, no probation).
Others were refused with disclaimers, e.g., Rexford v. State, 818 S.W.2d 494 (Tex.App.—Houston [1st] 1991) (no probation), refused Id., 823 S.W.2d 296 (Tex.Cr.App.1991), or for alternative “more compelling reason” for decision, e.g., Zayas v. State, 814 S.W.2d 509 (Tex.App.—Houston [14th] 1991) (probation testimony) PDR refused October 30, 1991. Apparently there is no PDR in Cannon v. State, 807 S.W.2d 631, at 635 (Tex.App.—Houston [14th] 1991) (no probation, but follows McMillian v. State, supra, see note 1).
Holland v. State, 820 S.W.2d 221, at 223 (Tex.App.—Fort Worth 1991) (no probation) PDRs filed January 22, 1992 and February 10, 1992 (split decision); Brooks v. State, 822 S.W.2d 765, at 769 (Tex.App.—Houston [1st] 1992) (no probation) PDR filed April 4, 1992; Slott v. State, 824 S.W.2d 225 (Tex.App.—Beaumont 1992) (no probation) PDR filed February 24, 1992) (split decision), are pending initial review under Tex. R.App.Pro. Rule 202(k).
. Emphasis above supplied by the writer for the Fort Worth Court; all other emphasis is added throughout by the writer of this opinion unless otherwise indicated.
. This Court did indeed refuse the petition for discretionary review of the September 5, 1990 decision Huggins on November 21, 1990. But we have made clear from the beginning that determining whether to grant review is an exercise of judicial discretion under Article V, § 5 and Article 4.04, § 2 and, like denial of certiora-ri by the Supreme Court of the United States, our refusal to review bestows no precedential value whatsoever on the opinion below.
Furthermore, this Court promulgated certain requirements and guidelines for presenting a proper petition for discretionary review. See Tex.R.App.Pro. Rule 202. The petition in Huggins did not contain an appendix including a copy of the opinions of the court of appeals as required by Rule 202(d)(7); it was thus refused with the notation "No C.O.A. Opinion Attached," even though the petition is competently drawn in all other respects.
Manifestly, our refusing review in Huggins may not be taken as approval. We have granted review of other causes relying on or rejecting in whole or in part this aspect of Huggins. See, e.g., Gallardo v. State, 809 S.W.2d 540, at 542-543[3] (Tex.App.—San Antonio 1991) PDR granted September 11, 1991; Grunsfeld v. State, 813 S.W.2d 158, at 171-172 (Tex.App.—Dallas 1991) PDR granted December 4, 1991; Jolivet v. State, 811 S.W.2d 706 (Tex.App.—Dallas 1991) PDR granted October 16, 1991 (following Grunsfeld); Blackwell v. State, 818 S.W.2d 134, at 140-141 (Tex.App.—Waco 1991) PDRs filed November 20, 1991 (following Grunsfeld); Torres v. State, 818 S.W.2d 141, at 143 (Tex.App.—Waco 1991) vacated on other grounds, 825 S.W.2d 124 (Tex.Cr.App.1992).
. For three most pertinent commentators contributing to such consensus, see Ehrhardt, Hubbard, et al., The Aftermath of Furman: The Florida Experience, 64 J.CrimX. & C. 2 (1973), Part I at 5; Comment, House Bill 200: The Legislative Attempt to Reinstate Capital Punishment in Texas, 11 Houston L.Rev. 410 (1974), at 421; Note, Is the Death Penalty Dead?, 26 Baylor L.Rev. 114 (1974), at 117-118. In one way or another the first two allude to Model Penal Code § 210.6. Ehrhardt, at 5, n. 16 and accompanying text; Comment, at 417, n. 65. The third also notes what it perceives as similar views expressed by Justice Douglas.
. "The discretion of the trial judge in determining what might be relevant to the sentence is not unbridled. It is merely a necessary power to avoid a needlessly drawn out procedure where one party might choose to go forward with evidence which bears no relevance to the issues being considered. It is easily determined from the broadness of the statute that a narrow interpretation of the rules of evidence is not to be enforced, whether in regard to evidence or to any other matter except illegally seized evidence.”
State v. Dixon, supra, at 7.
One reason the discretion of the court is "not unbridled" is that the aggravating circumstances “shall be limited" to those enumerated, although “[t]here is no limiting language introducing the list of statutory mitigating factors.” Proffitt v. Florida, supra, 428 U.S. at 250, n. 8, 96 S.Ct. at 2966, n. 8, 49 L.Ed.2d at 922, n. 8; see Appendix 2. In this connection note also the Florida statute omits certain specific matters included in model § 210.6(2), viz: "the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition.” Compare Appendix 1 and Appendix 2.
. "... The jury’s function is advisory only, and their recommendation does not bind the judge. The statutory list of aggravating and mitigating circumstances must be considered in the sentencing procedure and if the judge imposes the death penalty he must support his decision by findings concerning these circumstances.
The statutory lists of aggravating and mitigating circumstances are intended to narrow the scope of discretion in making the life-death decision.”
Id., at 17.
. Thus, as in Florida, the competing measures represented a basic difference in criminological philosophy: the House bill was "crime-oriented” with a mandatory death penalty, whereas the Senate substitute was "punishment-oriented” with a bifurcated sentencing procedure. See Ehrhardt, et al., supra, at 14.
. It has been ventured that certain features of the Senate substitute reflect the influence of the Model Penal Code, § 210.6, supra, Comment, House Bill 200: The Legislative Attempt to Reinstate Capital Punishment in Texas, 11 Hous. L.Rev. 410 (1974), at 417, n. 65. Better to say, as the Court has discerned, that the Senate substitute was basically drafted on the Florida pattern which, in turn, is a modified § 210.6. Rumbaugh v. State, 589 S.W.2d 414, at 416, nn. 4 and 5. See State v. Dixon, 283 So.2d 1, at 4-6 (Fla.1973), a case noticed favorably by the Court in Jurek v. State, 522 S.W.2d 934, at 940 (Tex.Cr.App.1975).
As pertinent here, the Senate substitute provided:
"(a) Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury[, unless waived,] as soon as practicable. [If the trial jury has been waived or the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empaneled for that purpose unless waived by the defendant.] In the proceeding, evidence may be presented as to any matter that the Court deems relevant to sentencef, and shall include matters relating to any to any of the aggravating or mitigating circumstances enumerated in Subsections (e) and (f) of this section. Any evidence that the court *532deems to have probative value may be admitted, regardless of its admissibility under the exclusionary rules of evidence, but the defendant shall be accorded a fair opportunity to rebut any hearsay statements]. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The prosecuting attorney and the defendant or his counsel shall be permitted to present argument for or against sentence of death."
Rumbaugh, supra, at 416 [material underscored within brackets deleted by conference committee, id., at 417; cf. § 37.071(a) ].
The conference committee removed references to waiver of a jury trial because it believed that practice to be constitutionally unsound, see, e.g., Sorola v. State, 769 S.W.2d 920 (Tex.Cr.App.1989) (concurring opinion, at 929-937); it deleted mention of matters relating to enumerated aggravating and mitigating circumstances because it "substantially rejected that concept,” Rumbaugh v. State, supra, at 417; it struck out authority of the tried court to admit any evidence deemed to have probative value, regardless of prohibitive "exclusionary rules of evidence,” in favor of retaining that limitation, ibid.
Thus, each of the five sentences comprising the remaining paragraph that is now Article 37.071(a) came directly from the Florida statute — but utterly stripped its core conceptual context emphasizing consideration of and weighing aggravating and mitigating circumstances, first by an advisory jury and finally by the sentencing judge. See State v. Dixon, supra, at 4-6, 7-8, 10.
Finally, because as well as other imported language the bobbed phrase is “awkward wording” likely to mislead the bench and bar in Texas, early on Presiding Judge Onion pointed out that the terms "sentence" and "sentencing” in Article 37.071 should be taken as "equivalent to punishment.” Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1976) (concurring opinion, at 297). Later the Court elaborated on “a separate sentencing proceeding,” viz; “Actually, the proceedings are the penalty or punishment stage of a capital murder trial, the formal sentencing comes later.” Livingston v. State, 542 S.W.2d 655, at 661 n. 4 (Tex.Cr.App.1976).
. The Florida Supreme Court justified trial judge rather than jury making the sentencing decision, viz:
"The third step added to the process of prosecution for capital crimes is that the trial judge actually determines the sentence to be imposed — guided by, but not bound by, the findings of the jury. To a layman, no capital crime might appear to be less than heinous, but a trial judge with experience in the facts of criminality possesses the requisite knowledge to balance the facts of the case against the standard criminal activity which can only be developed by involvement with the trials of numerous defendants. Thus the inflamed emotions of jurors can no longer sentence a man to die; the sentence is viewed in the light of judicial experience.”
State v. Dixon, supra, at 8.
. Comment hailed the conference committee for "eradicating] the obviously vague criteria that would have loosely guided and impermissi-bly restricted the jury’s power to assess punishment.” The Supreme Court, of course, found otherwise in upholding the Florida system. Proffitt v. Florida, supra, 428 U.S. at 251-253, 96 S.Ct., at 2966, 49 L.Ed.2d, at 922-923. See also Arizona v. Rumsey, 467 U.S. 203, at 209-212, 104 S.Ct. 2305, at 2309-2310, 81 L.Ed.2d 164, at 181-182 (1984); Bullington v. Missouri, 451 U.S. 430, at 433-444, 101 S.Ct. 1852, at 1860, 68 L.Ed.2d 270, at 282 (1981); Padgett v. State, 717 S.W.2d 55, at 57 (Tex.Cr.App.1986); Ex parte Mathes, 830 S.W.2d 596 (Tex.Cr.App.1992) (resolution of special issues in bifurcated proceeding determinative of judgment and sentence of trial court).
. The Court determined early and late that the phrase allowed trial courts much discretion in admitting or excluding evidence germane to one or another special issue, usually the second special issue, e.g., Livingston v. State, 542 S.W.2d 655, at 661-662 (Tex.Cr.App.1976); Gholson v. State, 542 S.W.2d 395, at 398 (Tex.Cr.App.1976). However, not only constitutionally mandated and statutorily provided exclusionary rules of evidence but also ordinary rules regulating admissibility and manner of proof survived and were still "alive and well” under Article 37.-071(a). E.g., Porter v. State, 578 S.W.2d 742, at 748 (Tex.Cr.App.1979); Rumbaugh v. State, supra, at 417; King v. State, 657 S.W.2d 109, at 111 (Tex.Cr.App.1983); De Luna v. State, 711 S.W.2d 44, at 47 (Tex.Cr.App.1986). Thus there is no discretion to admit what rules of evidence declare inadmissible. See Tex.R.Cr.Evid.Rule 403.
. In the “alternate procedure” originally devised for jury trial in noncapital felony cases, the trial judge was to “assess the punishment applicable to the offense charged ... except when the defendant, upon the return of a finding of guilty, requests that the punishment be assessed by the same jury.” Former article 37.-07, § 2(b). Regardless, however, “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,” and if the jury is to assess punishment, the court "shall give such additional instructions as may be necessary.” Id., § 2(c). See generally Rojas v. State, 404 S.W.2d 30 (Tex.Cr.App.1966).
As well as those specifically prescribed matters, the special revision committee anticipated either party might offer “such competent evidence as is helpful in assessing suitable punishment." Erisman, Introduction to 1965 Revision Texas Code of Criminal Procedure, 1 V.A.C.C.P. xv, at xxiv. It was not be, however. See Hed-icke v. State, supra, at 841 (State Bar proposal rejected). Therefore, this first punishment scheme conditionally permitting a bifurcated trial made no mention of relevant considerations in determining the issue of probation beyond those specified. Such matters were separately treated in the revised Adult Probation Law, viz: in the event the jury first assesses punishment not to exceed ten years it may recommend probation upon a proper pretrial motion, proof and its finding that defendant had never been convicted of a felony. Acts 1965, 59th Leg., vol. 2, Ch. 722, p. 317, at 490, § 3a. There is no indication in any legislative history that either former article 37.07, § 2(b), or former article 42.12, § 3a, or both working together, contemplated the likelihood of and authorized consideration of other unidentified evidence going directly to the question of probation. See cases and historical note cited in main text above, and commentaries and germane parts of historical note following Article 42.12.
Therefore, the Allaben court must have been taking "judicial license" in opining that "evidence that is relevant to the application for probation, if any, is also admissible;" yet the Court continued to exercise its "license" to approve as appropriate for consideration many other “circumstances of the offender,” such as family background, religious affiliation, education, employment history and the like, albeit precluding others deemed irrelevant in mitigation. See cases cited in Murphy v. State, supra, at 63-64 (opinion on rehearing).
With the 1967 revision the Legislature required a punishment hearing before the jury, inter alia, “where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began.” Acts 1967, 60th Leg. Ch. 659, p. 1739, § 22. Also, and perhaps in light of problems noticed in Rojas v. State, supra, and in Murphy v. State, supra, at 54, it made other modifications and defined the term "prior criminal record" as it is today. Id., at 1740. Still, the Legislature did not introduce any new matters for the jury to consider in assessing punishment or recommending probation, and those previously specified stood alone until 1985, 1987 and in 1989. See post. Indeed, § 3(e) has always cautioned that nothing therein “shall be construed [to affect] admissibility of extraneous offenses on ... guilt[.]"
. A "prior criminal record” is evidence per se of a “bad" trait of character for "being a peaceful and law abiding citizen.” See generally Smith v. State, 414 S.W.2d 659 (Tex.Cr.App.1967). So much for the first sentence of Rule 404(c).
The second sentence is designed to permit introduction of any “other evidence” of general character and of specific traits of character of an accused. See definitions collected in Boyd v. State, 811 S.W.2d 105 (Tex.Cr.App.1991) (Clinton, J., dissenting at 126, n. 3); see also cases cited in Ray, Texas Law of Evidence (3rd Ed.) § 1492, 2 Texas Practice 169, at 171-172, n. 17. Of course, "other evidence” is limited to methods of proof in Rule 405(a), and specific conduct has never been and is not an available one. Hedicke v. State, 779 S.W.2d 837, at 840-841 (Tex.Cr.App.1989); Hernandez v. State, 800 S.W.2d 523 (Tex.Cr.App.1990).
Since there are restrictions on admitting these kinds of character evidence, the last sentence makes clear that nothing in Rule 404 limits provisions of Article 37.071, by which evidence of extraneous offenses and other unadjudicated misconduct may be admissible. This caveat reflects the understanding of the Court that evidence of specific conduct qua character is not admissible in noncapital cases. See Goode, Wellborn & Sharlot, Texas Rules of Evidence: Civil and Criminal § 404.7, 33 Texas Practice (1988) 136.
. Tex.R.Cr.Evid. 609(d) precludes admission of "evidence of juvenile adjudications.” However, Acts 1987, 70th Leg., Ch. 386, p. 1899, § 1, amended § 3(a) by adding at the end, in pertinent part, viz:
“Additionally, notwithstanding Rule 609(d), Texas Rules of Criminal Evidence, evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law of the grade of felony, unless_”
. Also inserted after the definition of “prior criminal record" is a new sentence identifying a mitigating circumstance, viz:
“A court may consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Article 17.40 or 17.42(a) of this code as a condition of release on bail.”
While not directly implicated here, we quickly notice the prescription for "mitigating punishment” is reminiscent of language used by former Presiding Judge Onion in Allaben v. State, supra, at 519. See ante, at 533-534.
Acts 1990, 71st Leg. 6th C.S., Ch. 25, p. 135, § 30, also added subsection (f), allowing evidence of "availability of community corrections facilities” in the venue.
. Before the Dallas Court of Appeals the State referred the court to a recording of an April 20, 1989, hearing by the Senate Committee of Criminal Justice on Senate Bill 1169, during which certain witnesses expressed respective favorable positions on one aspect of that bill. State’s Brief, at 38-39. Writing for the court former Presiding Judge Onion reviewed the bill and the testimony and, noting its apparent demise, concluded, "The scant testimony.... lends little support to what the legislature had in mind and finally enacted.” Grunsfeld, supra, at 167, n. 6.
*536Moreover, the State does not mention the fact that on May 16, 1989, at least one of those witnesses testified to the same effect before the same committee when it was considering House Bill 2335. See Comment, Bringing Light to the Non-Capital Felony Punishment Phase: Article 37.07, Section 3a and Evidence of Unadjudicated Extraneous Offenses, 44 Baylor L.Rev. 101 (1992), at 115-116, n. 94 and related text. Unlike the Comment writer, however, and much like Presiding Judge Onion, I believe that in a hearing on a comprehensive substitute seventy four pages in length, containing eight articles, each with many sections, before six members of a committee, whatever interpretations of one proposed amendment coming from a partisan advocate for his own interest group do not necessarily lend support to that which a majority of legislators in both bodies had in mind when finally approving a different version of the amendment in a revised substitute.
. Conventional wisdom holds that the phrase in question was lifted from § 37.071(a), but compare model penal code, Florida statute and Senate committee substitute. It is evident from format and content of this proposed revision that senators were given to understand that under Texas Rules of Criminal Evidence promulgated by this Court both State and defendant may proffer and trial court could admit evidence going to "any matter deemed relevant to sentencing” — unless seized in violation of either Constitution. As will be seen post, however, apparently enough senators and other interested parties were not satisfied with that formulation.
. “Whenever a particular issue can be identified that is ‘of consequence’ at the punishment proceeding, questions of burden of proof immediately come to mind. [But aside from certain statutorily prescribed or based exceptions scattered throughout our statutes imposing a burden on one party or the other], no burden of proof has ever been assigned to the broad ‘issue’ of what punishment to assess. See Wright v. State, 468 S.W.2d 422, at 424-425 (Tex.Cr.App.1971).” Murphy v. State, supra, at 62, n. 10.
. See and compare general charge on punishment including, where applicable, probation: Texas Criminal Pattern Jury Charges (State Bar of Texas 1975) 83-88, §§ CPJC 12.42(a)-(c), and 12.42(d); McCormick & Blackwell, Texas Criminal Forms and Trial Manual §§ 81.05, 81.13, 8 Texas Practice (1985) 268-270, 283 and Supp. 1992; 3 Texas Annotated Penal Statutes (Branch’s Third Ed.1974) Appendix at 388-390; McClung, Jury Charges for Texas Criminal Practice (Rev.Ed.1992) 229.
. The Court also rejects the “same language” theory, albeit through its analysis of legislative history. Slip opinion, at 8. In tandem we thus make moot the premise underlying consequential considerations and conclusions in Comment, Bringing Light to the Non-Capital Felony Punishment Phase: Article 37.07, Section 3a and Evidence of Unadjudicated Extraneous Offenses, 44 Baylor L.Rev. 101 (1992), particularly Parts II and III, at 109 ff.
. In this respect, Huggins spawned several followings in which probation is not shown to be an issue, e.g., Hunter v. State, supra, at 920-921; Hubbard v. State, supra, at 319; Gallardo v. State, supra, at 541-543; Rexford v. State, supra, at 496-497; Slott v. State, supra, passim and at 227-228.
. The second basis for decision is reflected in Hunter v. State, 805 S.W.2d 918, at 920 (Tex.App.—Beaumont 1991) PDR granted (no probation); Hubbard v. State, 809 S.W.2d 316, at 319-320 (Tex.App.—Fort Worth 1991) PDR granted (no probation). In Holland v. State, 820 S.W.2d 221, at 223 (Tex.App.—Fort Worth 1992) PDR pending (probation), the appellate court agreed that the phrase "overrules Murphy," at 67 (opinion on rehearing), quoting approvingly from Judge White’s dissenting opinion at 53 and 51 (opinion on original submission).
. For example, in her brief in the instant Hunter cause the appellate prosecutor calls attention to Tex.R.Cr.Evid. Rule 1101(d)(1), dealing with when prescribed rules of evidence are "applicable in part,” viz:
“In the following proceedings these rules apply to the extent matters of evidence are not provided for in the statutes which govern procedure therein ......
(1) Sentencing or punishment assessment by the court or the jury; ****’’
State’s Brief on the Merits, at 13 (emphasis in original). From that provision the State argues:
"_As a result,_§ 3(a) effectively overrules any limitation placed on punishment evidence by the specific relevancy rules of Art. IV, substituting instead the single statutory standard of ‘any matter the court deems relevant.' Thus, the requirement in_ § 3(a) that such evidence also be 'permitted by the Rules of Evidence’ refers only to compliance with rules outside Art. IV, rules such as hearsay, best evidence, and so on."
Ibid, (emphasis in original). In my judgment, the argument is untenable.
Pursuant to legislative intent and design and responsive rule making by this Court, both § 3(a) and Rules of Criminal Evidence coalesced in 1985. The "procedure” in § 3 thus provided "matters of evidence" by incorporating those "permitted by the Rules of Evidence.” Rules of Criminal Evidence were to govern criminal proceedings “except where otherwise provided” in, e.g., Rule 1101(d)(1) and higher hierarchial governance, and then “inconsistency is to be removed by reasonable construction." Id, Rule 101(b) and (c). Thus, as related to punishment, germane Article IV rules, especially Rules 404(c) and 405(a), govern those relevant matters § 3(a) identifies, i.e., “prior criminal record," "general reputation" and “character,” subject to implied strictures of § 3(f) as to extraneous offenses.
Insofar as any other matter may be “relevant,” the definition of “relevant evidence” in Rule 401 codified "current Texas law," and actually is a restatement of the common law. See Blakely, supra, at 528 and 533. Rule 402 applies that definition to general admissibility; Rule 403 lists factors to be balanced against probative value, a common law approach assimilated into Texas practice. Those rules of "general preference” are limited, however, by Rules 404 and 405. Goode, Wellborn & Sharlot, Texas Rules of Evidence: Civil and Criminal § 404.2, 33 Texas Practice (1988) 104. Rule 404(a) and (b) relate mainly to matters pertaining to trial on the merits, whereas Rule 404(c) governs character evidence relevant only to punishment in non-capital criminal cases. Id. § 404.7, at 135.
The phrase now inserted in § 3(a) does not provide anything new to traditional precepts and our practice — except the awkward word “sentencing,” which must be judicially taken to mean “punishment." There is nothing in § 3(a) to indicate that so soon after inserting "permitted by the Rules of Evidence," the Legislature "overrules” anything or selectively nullified Article IV thereof. If there is any inconsistency between § 3(a) and Article IV rules applicable to punishment, "reasonable construction” is to remove it — which is what this whole exercise is about.
. That there was and still is a collateral gambit involving specific conduct evidence seems to have been practically ignored in all the current argument over § 3(a) and germane rules of evidence. The late Judge Duncan called attention to it while concurring in Murphy, at 72-73.
Once an accused adduces evidence of “character” through testimony as to reputation or in the form of opinion, the witness may be crossexam-ined regarding "relevant specific instances of his conduct.” Rule 405(a), as amended. The proper inquiry is, respectively, “have you heard” or "did you know." Murphy, at 73; see Ward v.
State, 591 S.W.2d 810 (Tex.Cr.App.1978-1979) (opinion on rehearing, at 818[4], [8]). The prosecutor may "thereby indirectly develop the existence of prior acts of misconduct." Murphy, at 73. “This potentially devastating technique of exposing the trier of fact to specific acts which reflect on the defendant’s character is permitted despite the general prohibition on the use of such evidence directly against the defendant." Goode, Wellborn & Sharlot, Texas Rules of Evidence: Civil and Criminal § 405.2, 33 Texas Practice (1988) 147.
. There are at least two potential problems with this observation. First, whether admission of details of unadjudicated extraneous offenses even though the details of convicted offenses are not admissible makes "sense” is a question of legislative policy, not for the judiciary to *543second guess absent a constitutional defect. At any rate, we cannot be at all sure the trial court could not admit details of convicted offenses too, should those details be found "relevant to punishment” under the 1989 amendment. Even now the argument pressed upon the Court is that we have held in the capital context details of adjudicated crimes are admissible as they relate to future dangerousness.
. Indeed, given one or two definite caveats, it can fairly be said that Judge Onion’s position was adopted by a plurality of the Court in its opinion on rehearing in Murphy.
. The same is not true in the capital murder context. There we have special issues to illuminate matters of consequence. Not only can the trial court decide relevance according to whether evidence tends to make a matter of consequence more or less probable in determining elements of the issues, such as "deliberateness," "reasonable expectation,” "criminal acts of violence,” "continuing threat,” "unreasonable response" and “provocation,” Tex.R.Cr.Evid., Rule 401, but also this Court, as the direct appellate court in capital cases, can measure the trial court’s discretion for possible abuse, against that same standard. See generally Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1991) (Opinion on rehearing on Court’s own motion).
. As a collateral consequence, the opinion of the Court and this opinion implicitly disapprove several decisions of courts of appeals in which probation was at issue, viz: Huggins v. State, 795 S.W.2d 909 (Tex.App.—Beaumont 1990); McMillian v. State, 799 S.W.2d 311 (Tex.App.—Houston [14th] 1990); Tayas v. State, 814 S.W.2d 509 (Tex.App.—Houston [14th] 1991), and to the extent they relied on the "same language" theory, regardless of an application for probation, viz: Huggins v. State, supra; Gallardo v. State, 809 S.W.2d 540 (Tex.App.—San Antonio 1991); Holland v. State, 820 S.W.2d 221 (Tex.App.—Fort Worth 1991).