concurring.
In Harrell v. State, 884 S.W.2d 154 (Tex.Cr.App.1994), the issue was the standard for admissibility of evidence of extraneous misconduct evidence under Tex.R.Cr.Evid., Rules 404(b) and 104(b). The majority in Harrell observed that caselaw in Texas has required for the better part of a century that a jury be instructed it must find beyond a reasonable doubt that the accused committed extraneous misconduct before it can consider such misconduct for any purpose at trial. The State had argued in Harrell that we should reexamine that requirement, both in light of the genesis of that rule, and the promulgation of the Rules of Criminal Evidence in 1986. In fact, the State asked the Court to grant the instant petition for discretionary review in order to decide the question of the appropriate jury instruction in tandem with the question of the proper standard for admissibility. We acceded to the State’s request.
Nevertheless, without recourse to the briefs in this cause, and without re-examining the nearly-century-old caselaw to determine whether it should still apply under the new rules, the majority in Harrell simply concluded uncritically that the law still requires a jury instruction that the jury must find an accused committed extraneous misconduct to a level of confidence beyond a reasonable doubt. On the basis of that naked assumption, the Court then concluded that the trial judge must determine as a threshold matter under Rule 104(b) that a jury would be able to find beyond a reasonable doubt that the accused committed the extraneous misconduct before he can admit evidence of it. In short, the majority reasoned that if the law requires that the jury be instructed to find to a level of confidence beyond a reasonable doubt, then the standard governing admissi*77bility must be whether a jury could make a finding to that level of confidence. In a concurring opinion I criticized the majority for failing to address the question whether the law does in fact still require that juries be instructed on the reasonable doubt standard, and for failing to consider the briefs in this cause on that question.
Today I am nothing less than astounded at how the same majority that made up the Court in Harrell now resolves the State’s claim in this cause. With dizzying circularity, the majority reasons that because the standard for admissibility is proof beyond a reasonable doubt, it must therefore be appropriate also to instruct a jury it must find an accused committed extraneous misconduct beyond a reasonable doubt. Maj.Op. at 76. By this nifty bit of legerdemain the majority has managed to dodge the State’s central contention in both Harrell and this cause. Such blatant avoidance is especially inappropriate in a discretionary review court, the job of which is to confront the difficult issues head-on.
The core questions in both Harrell and here is whether the old cases requiring a jury instruction on the reasonable doubt standard were rightly decided at the time, and, even if they were, whether they have been supplanted by the new rules. Perhaps the best answer to the first of these questions is that under the doctrine of stare decisis, it is sometimes better to be definite than to be correct. Even if our original holding requiring a reasonable doubt instruction for extraneous misconduct did derive from a misinterpretation of earlier easelaw, as the State contends, it is now firmly embedded in our jurisprudence.* Moreover, it is doubtful that the State has suffered over the years from the submission of the reasonable doubt instruction nearly so much as it has suffered from its occasionally successful resistance to its submission, and resulting reversal on appeal. For these reasons I am not inclined to overrule the prior easelaw.
Nor do I believe the Rules of Criminal Evidence have supplanted the prior easelaw. Rule 104(b) allows admission of evidence of extraneous misconduct pursuant to Rule 404(b) so long as there is “evidence sufficient to support a finding” that the accused committed the misconduct. The rule does not specify a level of confidence to which a jury must be able to- make that finding. The State argues that because for purposes of the federal analog to our Rule 104(b), the Supreme Court has identified the level of confidence as proof by a preponderance of the evidence, in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), so should we. Concurring in Harrell, I pointed out that the Supreme Court’s designation of preponderance of the evidence as the applicable standard was basically ipse dixit, not supported by anything in the federal rules themselves. Harrell v. State, supra, at 168 & n. 2 and 165 & n. 5 (Clinton, J., concurring). Because I rejected the majority’s “presumption” that the standard for admissibility of extraneous offense evidence under Rule 104(b) “mirrors” the standard of proof by which jurors must be instructed to find an accused committed extraneous misconduct, I rejected the conclusion that Rule 104(b) requires the trial judge to make a preliminary assessment that a jury could make that determination to any particular level of confidence at all, much less proof beyond a reasonable doubt. In my view, the “clear showing” standard from prior easelaw is serviceable. Id., at 165-66.
Rule 104(b) also does not govern jury instructions, at least not on its face. Again, the rule prescribes no particular level of confidence by which a factfinder ultimately *78must find that the “condition” upon which the relevance of extraneous misconduct depends — that the accused committed it — is “fulfilled.” We are equally at liberty to fall back upon the prior caselaw to determine what standard of proof the factfinder must use as we are to rely upon prior precedent defining the threshold standard of admissibility. I see no reason to adopt the federal ipse dixit of preponderance of the evidence when this Court has long found proof beyond a reasonable doubt to be the more appropriate standard, at least in the context of extraneous misconduct evidence.
I therefore once again concur in the result, but do not join the opinion of the Court.
McCORMICK, P.J., joins this opinion.The State contends that in Taylor v. State, 50 Tex.Cr.R. 381, 97 S.W. 474 (1906), this Court noticed, but did not endorse, a reasonable doubt instruction that had been given in the trial court. The necessity of such an instruction, however, was not in issue. Subsequently, in Pelton v. State, 60 Tex.Cr.R. 412, 132 S.W. 480 (1910) (opinion on rehearing), the State argues, we misconstrued the holding in Taylor to arrive at the conclusion “that evidence of extraneous offenses is inadmissible absent proof beyond a reasonable doubt that the defendant committed the extraneous act, and piggy-backed onto that holding a requirement that the trial judge instruct the jury to disregard evidence of an extraneous offense unless it was convinced beyond a reasonable doubt that the defendant committed the extraneous crime." State Prosecuting Attorney’s Brief at 16-17.