concurring.
At issue in this cause is whether evidence that appellant belongs to the Crips, a street gang, is admissible at the punishment phase of his non-capital prosecution for murder, notwithstanding the provisions of Article 37.07, § 3(a), V.A.C.C.P., as it read at the time of his trial in April of 1992. This is the version of Article 37.07 that we construed in Grunsfeld v. State, 843 S.W.2d 521 (Tex.Cr.App.1992). It has since been amended.
In 1992 Article 37.07, § 3(a) read, in relevant part:
“Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence 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, including 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 to trial, or any final conviction material to the offense charged.”
In Grunsfeld a plurality of the Court reiterated what a plurality had said in its opinion on rehearing in Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1989), about an earlier incarnation of Article 37.07, § 3(a), viz: that it does not exhaustively define everything that might be admissible at the punishment phase of a non-capital prosecution, but it does operate to exclude any evidence of the defendant’s specific unadjudicated misconduct.1 *458In the instant cause we are not confronted with a question of the admissibility of evidence of appellant’s specific misconduct. Instead we are presented with evidence of appellant’s affiliation with a group that engages in unlawful conduct in general, but no proof of specific acts of misconduct perpetrated either by appellant himself or any other member of his group. The issue is really two-fold. First, does Article 37.07, § 3(a) prohibit admission of the evidence here, as we held it prohibits evidence of specific misconduct on the part of the defendant in Murphy and Grunsfeld? Second, since the statute is not exhaustive, is the evidence here admissible quite apart from the express provisions of Article 37.07, § 3(a)? As far as I can see, these are the questions — the only questions — we granted discretionary review to address in this cause.2
Judge Overstreet, writing for the plurality, opines that “evidence concerning appellant’s gang membership is relevant because it relates to his character.”3 Op. at 456. I have no doubt that a jury might well believe that the fact that a convicted defendant is a member of a street gang has some bearing on his character, and that that character trait (whatever it is) in turn has some bearing on the normative judgment of what punishment ought to be imposed upon him for his particular crime. However, Professors Goode, Wellborn and Sharlot inform us that, consistent with Rule 405(a) of the Rules of Criminal Evidence, character evidence qua character evidence is objectionable at the punishment phase of a non-capital trial unless it takes the form of opinion or reputation testimony. See 1 Goode, Wellborn & Sharlot, Texas Practice: Texas Rules of Evidence: Civil and Criminal § 405.2.2 (2d ed. 1993), at 205. And we know that Rule 405(a) applies to decisions of admissibility of character evidence at the punishment phase, if for no other reason than the language in Article 37.07, § 3(a) to that apparent effect, viz: “evidence may, as permitted by the Rules of Evidence, be offered .. ,”4 See Acts 1985, 69th Leg., ch. 685, § 8(b), p. 2473, eff. Aug. 25, 1985. Evidence of gang membership proffered only as character evidence, therefore, would appear to be inadmissible because not an acceptable method of proving character under Article 37.07, § 3(a) and Rule 405. Judge Overstreet offers no other theory to explain why evidence of gang-membership is admissible.
*459For his part, borrowing from First Amendment jurisprudence, Judge Maloney opines that it is “necessary” to show more than the mere fact that appellant was affiliated with the Crips. Op. at 465. It must also be demonstrated that he “intended to further the illegal aims” of the Crips, — indeed, that he “engaged in gang-related illegal activity” — before evidence that he was affiliated with them may be deemed “relevant” to his sentencing. Op. at 463 & 465, respectively. Although he made glancing reference to the First Amendment at trial, appellant does not raise First Amendment concerns in his petition for discretionary review. Whether proof of appellant’s gang affiliation violates the First Amendment is therefore not an issue that is before us per se in this cause. Whether it is “necessary” for the State to establish appellant “engaged in gang related activity” before it can be said that his gang membership is “relevant” depends, it seems to me, on what it means to say that evidence is “relevant” in the punishment phase of a non-capital trial. Judge Maloney does not address this question.
Judge Maloney further suggests that absent some evidence of appellant’s actual involvement in gang-related activities, evidence of his membership would be “unfairly prejudicial.” Op. at 468. But until he explains why he thinks gang-membership is relevant at all, one cannot tell how he thinks lack of evidence that appellant engaged in gang-related illegal activity adversely affects the probative value of evidence of membership compared to its tendency to persuade the jury to decide punishment on some illegitimate basis. See Tex.R.Cr.Evid., Rule 403. In short, until he articulates a theory to explain why gang-membership is relevant at punishment, one cannot tell how Judge Malo-ney knows that evidence appellant actually engaged in gang-related illegal activity is essential, either to complete the inference (whatever it is), or to render that inference more probative than prejudicial.
The truth is that determining what is “relevant” at the punishment phase of trial in a non-capital case is for the most part practically impossible. As we described in some detail in our plurality opinion in Murphy:
“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’ [quoting Tex. R.Cr.Evid., Rule 401] at the guilt phase of trial are narrowly drawn by or readily extrapolated from penal provisions and statutory justifications. [Evidence] 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, the ‘factfinder’ does not determine the existence of [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 than 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. For these reasons it seems to me for the most part unhelpful even to speak in terms of the “relevance” vet non of evidence at the punishment phase of a non-capital trial.
*460To compound the problem, shortly before we handed down our opinion on rehearing in Murphy, the Legislature amended Article 37.07, § 3(a) to provide, as it now does, that evidence may be offered at the punishment phase of a non-capital trial “as to any matter the court deems relevant to sentencing ...” Thus, the Legislature seems to have taken “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.” Grunsfeld v. State, supra, at 542 (Clinton, J., concurring). As I noted at greater length in Grunsfeld:
“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.’”
Id., at 547.
It is tempting to hold, accordingly, that evidence appellant is a member of the Crips is admissible, not because it is “relevant” as character evidence,5 as the plurality holds today, but because the trial judge presumably “deemed” it “relevant” to some other undisclosed purpose, and neither the court of appeals nor this Court is empowered to tell him he erred to say so. I resist the temptation, but only because to interpret current Article 37.07, § 3(a) to grant the trial court such “unfettered discretion” to define what the issues are at the punishment phase of a non-capital trial would be, in my view, to put our imprimatur upon an unconstitutional delegation of legislative authority, in violation of Article II, § 1 of the Texas Constitution. Grunsfeld, supra at 543-44 & 547 (Clinton, J., concurring). We are not at liberty to do that.
In order to avoid this unconstitutional construction of the phrase, “any matter the court deems relevant to sentencing,” I suggested in Grunsfeld that we interpret it to grant the trial court only a very limited discretion. I proposed that we continue to construe Article 37.07, § 3(a) as we had on rehearing in Murphy, viz: to authorize the trial court to admit more than just evidence of character in the form of prior criminal record, reputation, and opinion (and now, since the 1993 amendment, any specific unad-judicated misconduct the State can prove beyond a reasonable doubt the defendant committed). We should construe it also to “give the 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[.]’ ” 843 S.W.2d at 547.
These “traditionally recognized categories” derive from the discussion in Murphy. After pointing out that determining “relevance” per se at the punishment phase of a non-capital trial is at best problematical, see ante at 455-456, we continued:
We do know, nevertheless, that certain information has been widely regarded as ‘relevant’ to assessment of punishment. * ⅜ * Modern penological thought ... holds that, along with the circumstances of the offense, ‘highly relevant — if not essential — to ... selection of an appropriate *461sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.’ Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, 1342 (1949). These factors are not ‘relevant’ in the sense that they tend to make more or less probable some identifiable issue of ultimate fact at the punishment phase. Calling circumstances of the offense and the offender ‘relevant’ is really no more than to say we deem that information appropriate for the factfinder to consider in exercise of its unfettered discretion to assess whatever punishment within the prescribed range it sees fit. In the policy gap left by the Legislature, this Court has held evidence of ‘the circumstances of the offense itself or ... the defendant himself to be admissible at the punishment phase. Stiehl v. State, 685 S.W.2d 716, 718 (Tex.Cr.App.1979).”
777 S.W.2d at 63. See also Miller-El v. State, 782 S.W.2d 892, 895-96 (Tex.Cr.App.1990); Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex.Cr.App.1991).
One “circumstance of the offender” that we identified in Murphy as “appropriate” for a sentencing jury to consider apart from its “relevance” as character evidence is “religious affiliation.” Id., at 64. Noting this, the court of appeals in the instant cause opined:
“It seems reasonable that if evidence of [appellant’s] religious affiliation is an appropriate consideration in determining his punishment, then his affiliation with a gang dedicated to crime and violence is also an appropriate consideration. We therefore hold that the trial court did not err in allowing evidence of [appellant’s] affiliation with the Crips gang or evidence of the gang’s dedication to crime and violence.”
Beasley v. State, 864 S.W.2d 808, at 810-11 (Tex.App.—Fort Worth, 1993).
It is hard to assail this holding. It is hard to assail, not because it is indisputably correct, but because we cannot test it by any purely rational process. As we said in Murphy, deciding what punishment to impose is a normative process. 777 S.W.2d at 63. It is not a matter of finding the existence vel non of discrete facts, but is instead a process of evaluating just deserts. In this context, all we can really say about religious affiliation is that, to the extent it seems to say something positive about a defendant, we intuitively surmise that at least some jurors would want to know about it in making that evaluation. Thus we say it is “appropriate” to submit it to the jury at the punishment phase of a non-capital trial. Id. If we are willing to credit that intuition, it would be strange not to give equal credit to the intuition that some jurors might want to know about appellant’s affiliation with the Crips, inasmuch as it seems to say something negative about him. (Surely the fact that it seems to say something negative rather than something positive cannot provide a valid basis for distinction!) To this extent the court of appeals was undoubtedly justified in concluding that appellant’s membership in the Crips was an admissible “circumstance of the offender” within the contemplation of our discussion in Murphy.
Appellant argues that even if evidence of the bare fact of his membership in the Crips were admissible, evidence of the gang’s activities is barred by our opinion in Gmnsfeld. In this appellant is simply mistaken. In Gmnsfeld we held, as we had earlier held in Murphy, that evidence of specific misconduct on the part of the defendant was inadmissible under Article 37.07, § 3(a), because not part of “the prior criminal record of the defendant.” Grunsfeld, supra, at 524-25; Murphy, supra, at 63-64. But Article 37.07, § 3(a) does not speak to the admissibility of evidence of the general misconduct of others with whom the defendant might associate. It certainly does not expressly prohibit admission of that evidence. And because Article 37.07, § 3(a) is not an exhaustive provision, the question becomes whether evidence of the misconduct of those with whom the defendant associates is an “appropriate” consideration for the jury in assessing punishment in a non-capital case.6
In his dissent Judge Maloney concludes that at best the court of appeals’ religious affiliation “analogy” would admit of evidence *462of the bare fact of appellant’s membership in the Crips, but not of the particulars of the gang’s activities. Op. at 466-467. With this I cannot agree. That defendants often times present evidence of affiliation with, say, the Baptist Church, without also presenting evidence of the purpose, function and activities of that denomination, is probably just a testament to the fact that, in general parameters at least, those are commonly known and do not require evidentiary elaboration. If they were not commonly known, however, surely a defendant who wished to establish his affiliation with the Baptist Church would be allowed to prove these background facts — indeed, if he did not, evidence that he was a Baptist might later be struck because the proponent did not show it to have any material significance even to the vague issue of “what punishment to assess[.]” Murphy, supra, at 62, citing Hoffert, supra, at 145. See Fuller v. State, 829 S.W.2d 191, 198-99 (Tex.Cr.App.1992); Tex.R.Cr.Evid., Rule 104(b). The purpose, function and activities of the Crips is widely, but not universally, known. Not every juror will know what it typically means to be a member of a street gang. The “circumstance” that appellant is a Crip proves nothing whatsoever, whether “appropriate” under Murphy or not, to a juror who does not know the first thing about what the Crips are.
For these reasons I cannot conclude that the court of appeals erred to hold that evidence of appellant’s gang membership and of the gang’s activities was admissible in the instant cause. Having said this, I hasten to add a few caveats. First, I agree with Judge Maloney that the jury would not be permitted to infer from appellant’s affiliation with the Crips that he himself has committed specific acts of misconduct, for that would be to admit evidence for a proposition not allowed under Article 37.07, § 3(a) as of the time of his trial, at least as this Court interpreted it in Grunsfeld. Had appellant requested a limiting instruction in the punishment charge requiring the jury to eschew any such inference, in my view he would have been entitled to it.
Second, unlike the plurality, I do not believe we can say that evidence of appellant’s gang affiliation, although relevant to his character, is admissible as evidence of character per se, under Article 37.07, § 3(a) and Rule 405. See ante at 458-459. Accordingly, appellant would also have been entitled upon request to a limiting instruction that the jury must not consider appellant’s membership in the Crips as any evidence of his character per se. As to what inference can be drawn from the “circumstance” of his gang membership besides his character per se, I am, quite frankly, unsure. But I cannot say categorically that a jury could not find anything about this “circumstance of the offender” that was useful to its evaluation of a just punishment apart from what it says about appellant’s character. Until I can say that, I am unable to fault the court of appeals’ conclusion that the evidence is admissible under our holding in Murphy.
In short, Article 37.07, § 3(a) does not necessarily operate to prohibit admission either of the fact of appellant’s affiliation with the Crips, or of background evidence informing the jury of the purpose, function and general activities of that group, without which the evidence of his affiliation may be altogether meaningless. Only if the State expressly proffers this evidence solely as character evidence per se does Article 37.07, § 3(a), in tandem with Rule 405, prohibit its admission. To the extent the State may offer it as a “circumstance of the offender,” bearing on proper punishment in some respect apart from his character per se, it should be admitted, Article 37.07, § 3(a) notwithstanding.
The State did not limit its proffer of evidence to whatever tendency it had to prove appellant’s character per se. Nor did appellant request a limiting instruction requiring that the evidence not be considered for that purpose, as, in my view, he would have been entitled to. Accordingly, I join the judgment of the Court affirming the judgment of the court of appeals. However, I cannot join the plurality opinion.
MEYERS, J., joins.. The statute was amended in 1993. This amendment expressly provided for admission of evidence of prior unadjudicated bad acts, notwithstanding Rules 404 and 405 of the Rules of *458Criminal evidence. In fact, the amendment also deleted the phrase, "... as permitted by the Rules of Evidence ...” Thus the Legislature has rendered our holding in Grunsfeld defunct, at least for purposes of trial of any offense committed after September 1, 1993. See Acts 1993, 73rd Leg., ch. 900, §§ 5.05, 5.09 & 5.10, pp. 3762-64, eff. Sept. 1, 1993.
.The plurality opinion notes the court of appeals' holding that appellant procedurally defaulted his claim, and the State’s argument in this Court that appellant's petition for discretionary review fails to address this alternative disposition. The plurality then declares conclusorily that appellant’s trial objections "were timely," and proceeds to the merits of the case. Op. at 456. The plurality thus forgets that we are a discretionary review court. This kind of peremptory disposition of an issue does not fulfill our function in that capacity to develop and clarify the law. Cf. Ardía v. State, 834 S.W.2d 357, 360 (Tex.Cr.App.1992) (in our discretionary review capacity we are "the caretaker of Texas law, not the arbiter of individual applications.”). What the court of appeals held was forfeited was an "extraneous offense” objection. Beasley v. State, 864 S.W.2d 808, 811 (Tex.App. Fort Worth, 1993). The merits of the claim the plurality reaches is not an extraneous offense issue per se. In any event, because I consider the procedural default issue jurisprudentially insignificant, and because the State prevails on the merits anyway, I will not attempt to resolve that issue independently in this separate opinion.
. Both the plurality and the dissenting opinions agree that the evidence was sufficient to establish appellant was in fact a member of the Crips. I fully agree.
. The phrase "as permitted by the Rules of Evidence” was deleted from Article 37.07, § 3(a) by the 1993 legislative amendment. See n. 1, ante. After noting this deletion, Professors Goode, Wellborn and Sharlot nevertheless opine that "witnesses called, under Criminal Rule 404(c), by either the prosecution or defense to testify at the punishment phase to the defendant's character are restricted on direct to testimony in the form of reputation or opinion.” Goode, et al., at § 404.7, p. 190, n. 2, and § 405.2.2, p. 205, respectively. Thus it may well prove that even after the 1993 deletion, character evidence at the punishment phase of a non-capital trial will be limited to opinion or reputation testimony. Of course we need not decide that question today.
. It undoubtedly is "relevant" to prove character. But under Rule 405 of the Rules of Criminal Evidence, it is not admissible to prove character. See ante at 454-455. To hold evidence of appellant's gang membership admissible, the trial court would have to “deem” it "relevant” to some purpose other than its tendency to establish his character.
. It is well to remember that appellant has raised no First Amendment issue in this cause.