dissenting.
I dissent, inter alia, to the Court’s treatment of appellant’s fifth point of error in this appeal. The majority disposes of this contention by holding that evidence appellant participated in the murder of two people in Oklahoma several days after the offense under indictment was admissible under Tex. R.Cr.Evid., Rule 404(b) as “same transaction contextual evidence.” The Court can only accomplish this objective by willfully ignoring the recent holding in Rogers v. State, 853 S.W.2d 29 (Tex.Cr.App.1993), and by failing faithfully to apply the Rules of Criminal Evidence as construed by Montgomery v. State, *537810 S.W.2d 372 (Tex.Cr.App.1991) (Opinion on rehearing).
I.
Appellant was indicted for the offense of murder in the course of committing burglary. The State presented evidence to show, and the jury was authorized to convict appellant on the basis of a finding that, appellant entered the habitation of Sam Wright with the intent to commit, and that he did commit, either aggravated assault or kidnapping. The evidence established that appellant and three accomplices broke into the home of Wright on the morning of May 20, 1988, and threatened Wright, his live-in girlfriend, and their three year old son at gunpoint, demanding money that Wright owed appellant from a drug deal. During this ordeal, the deceased, David Wilburn, a young man in the employ of Wright, arrived at the house. Wilburn was forced to the floor and soon fatally shot through the head by appellant. The gunmen then attempted to herd Wright and his son and girlfriend out into a waiting car. Wright made a break for it and escaped, but the girlfriend and son were taken away and held against their will for three days in a Dallas motel. The evidence establishing these events was more than sufficient to support each of the State’s theories of murder in the course of a burglary.
The State was also allowed to prove at trial over repeated objections as to relevancy — an objection we have held sufficient to invoke Rule 404(b), in Montgomery v. State, supra, at 387 — that after those three days in a motel in Dallas, the girlfriend and son were driven up to Oklahoma, told they were being taken to a rural airstrip to be flown to California, but were instead shot a number of times each through the head and left in a crude grave. Although not the triggerman on this occasion, appellant was present and instigated the killings. Moreover, a medical examiner testified as to the autopsies conducted on the son and girlfriend, and an F.B.I. agent described, and photographs were admitted showing, the discovery and disinterment of the bodies. During his summation the prosecutor remarked at some length on these events — without once attempting to demonstrate how they contributed to establish any material element of the State’s case.
The trial court expressly admitted evidence of the double murder on the theory that they were “res gestae” of the indicted offense. The State now argues for the first time on appeal that they were relevant to show appellant’s intent to commit a felony. The trial court’s rationale for admission is an anachronism under the new Rules of Criminal Evidence as construed in Rogers v. State, supra. The State’s belated rationale is simply untenable under the analysis of Montgomery v. State, supra.
II.
Neither “res gestae” nor “same transaction context evidence” is an incantation before which Rule 404(b) disappears. Today the majority seems to adhere to its mistaken belief that in Mayes v. State, 816 S.W.2d 79 (Tex.Cr.App.1991), we held that “same transaction context” evidence is admissible, Rule 404(b) notwithstanding, simply because it is “same transaction context” evidence. We did not. See Lockhart v. State, 847 S.W.2d 568, at 575 (Tex.Cr.App.1992) (Clinton, J., dissenting); Rogers v. State, supra at 35-36 (Clinton, J., concurring); Warmowski v. State, 853 S.W.2d 575, at 580 (Tex.Cr.App.1993). Indeed, in Rogers we made it clear that where “same transaction context” evidence serves no other legitimate purpose under Rule 404(b), it at least must be “necessary” to be admissible. In my view this means that it must be “impossible to present a coherent picture of the charged offense without inadvertently proving the ‘other crime, wrong, or act.’ ” Id., at 36. Here the jury had a perfectly complete and coherent picture of appellant’s murder of Wilburn in the course of burglary without any resort to evidence of the subsequent killings. There was nothing “inadvertent” about the State’s proof; the later murders were easily severa-ble from the charged offense. But it is not just according to my own view that the killings in this cause were not “necessary.” The majority in Rogers held that proof of “same transaction context” evidence would be “necessary” only when without it the charged offense “would make little or no sense.” Id., *538at 33. As the recitation of facts above demonstrates, perfectly good “sense” can be made of the charged offense without any reference whatsoever to the later killings. I fear that this phrase, “same transaction context” evidence, has already begun “to degenerate into a talisman for admissibility, as over the years ‘res gestae’ did.” Id., at 36.
Ill
The State also argues, and the majority today accepts, that the Oklahoma killings were admissible to prove appellant’s specific intent in committing the predicate offense of burglary. As authority for that proposition both the State and the majority cite Ramirez v. State, 815 S.W.2d 636 (Tex.Cr.App.1991). There we held that evidence the deceased had been raped before she was killed was admissible in a prosecution for murder in the course of a burglary. The indictment in Ramirez authorized conviction for murder in the course of burglary under any available theory of burglarious intent. Ramirez argued that because the State was able to produce evidence that he entered the deceased’s apartment with an intent to commit theft, evidence of the rape was inadmissible. We rejected his argument, observing that under the indictment proof of one burglarious intent would not preclude the State from offering evidence of another. That observation is inapposite here.
Here, of course, we also have a prosecution for murder in the course of a burglary. The indictment alleged no specific theory of burglary. Therefore, any evidence appellant intended to commit, or attempted or did commit, theft or any other felony would be admissible. But evidence that appellant participated in the killings in Oklahoma does not contribute in any way — other than by an inference involving character conformity — to prove appellant entered Wright’s home and intended to commit or committed a felony.
The blueprint for determining admissibility of extraneous offenses under the new rules was laid out in Montgomery v. State, supra, at 386-87. It bears repeating here. Evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable than it would be without that evidence. Tex.R.Cr.Evid., Rule 401. All relevant evidence is admissible, Tex.R.Cr. Evid., Rule 402, except, inter alia, evidence of other crimes, wrongs, or acts admitted to support an inference of character conformity. Tex.R.Cr.Evid., Rule 404(b). Evidence of other crimes, wrongs, or acts may be admitted, however, if it serves a particular purpose beyond its relevance to show character conformity. Id. The question is whether evidence of the Oklahoma killings has a tendency to make more probable that appellant entered Wright’s home and committed a felony, or that when he entered the home he intended to commit a felony. If so, it was indeed “relevant” apart from its character conformity value.1
In my view, however, it was not. In Ramirez evidence of the deceased’s rape clearly served the purpose of proving entry with an intent to commit rape. I do not see how that can be said of the Oklahoma murders in the case at hand. The evidence already showed appellant entered Wright’s home and committed aggravated assault, a completed felony offense. It also established that appellant kidnapped Wright’s girlfriend and child, and attempted to kidnap Wright himself.2 That appellant also killed the girlfriend and child four days later adds nothing to the proof that appellant committed or intended to commit the assault and kidnapping that occurred at the time of the entry. The burglary was a fait accompli well before the killings took place. Cf. Fitzgerald v. State, 782 S.W.2d *539876, at 879 (Tex.Cr.App.1990) (evidence of extraneous assaults committed after escape from penitentiary relevant neither to an element of the State’s case in prosecution for offense of escape, nor to rebut defensive theory of necessity). Nor may the murders themselves serve as the underlying offense establishing burglary, since they occurred four days later, and not, again, at the time of the entry.3 Unlike the rape in Ramirez, the Oklahoma murders have no tendency to make more or less probable any material issue in this case, except to show appellant is a criminal, and that he acted accordingly. Such evidence is objectionable under Rule 404(b).
Moreover, given the prominent place of the extraneous murders both in the State’s evidence and in its summation, we could hardly find its admission over objection to have been harmless beyond a reasonable doubt. Tex. R.App.Pro., Rule 81(b)(2).
We set a bad example for the courts of appeals when we treat our own rules and precedents so cavalierly. I dissent.
. Even relevant evidence may be excluded if valid objection is made that its probative value is substantially outweighed by the danger of unfair prejudice under Tex.R.Cr.Evid., Rule 403. No such objection was made in this cause, however. That contention is therefore procedurally defaulted. Montgomery v. State, supra, at 389.
. At one point during trial the State suggested the murders were relevant to prove appellant did not release his victims alive and in a safe place. See V.T.C.A. Penal Code, § 20.04(b). We have defined this as a punishment issue, however, determining range of punishment but having no bearing on whether an accused committed the offense of aggravated kidnapping. See e.g., Williams v. State, 851 S.W.2d 282 at 286 (Tex.Cr.App.1993).
. I daresay the Court would not likely construe V.T.C.A. Penal Code, § 30.02 to define burglary to include entry with the intent to commit theft or some other felony, or entry and subsequent commission of theft or some other felony, at a later time and a different place!