dissenting.
The Court of Criminal Appeals has promulgated rules of evidence “to govern criminal proceedings in courts of Texas.” Tex. R.Crim. Evid. 101(b). Under the plain wording of Rule 901, I believe the State has met its burden of authenticating the tape recording at issue. However, if we apply the literal holding in Kephart v. State, 875 S.W.2d 319 (Tex.Crim.App.1994) to the case before us, we must necessarily ignore much of Rule 901(b). Believing the Court of Criminal Appeals would not intentionally “repeal” a rule of evidence in a per curiam opinion, I am forced to discount the significance of that decision.
The facts in Kephart, as related in the opinions of both the court of appeals and court of criminal appeals, are that the police detained Manuel Conde and Carol King outside their motel room for possession of cocaine.1 After obtaining a consent to search, police discovered narcotics paraphernalia, cocaine residue, and a videotape inside their motel room. The videotape contained several noncontiguous scenes, interrupted by pauses. Although the final segment depicted Conde and King in the motel room, the beginning segments of the tape were made in the home of a third party, Deborah Kephart. Ms. Kephart appeared in the tape in varying states of sobriety and intoxication. The tape also showed Kephart sitting near a table with Conde. A white substance and a baggie of what appeared to be marihuana were visible on the table. As Conde was holding a baggie of white powder, Kephart blew her nose, and Conde said, “Getting some gal that’s nosin’ her coke.”
When interviewed by police, Kephart admitted that Conde and King had used cocaine while in her home.2 Kephart denied any personal use of drugs on the date in question and stated that she became intoxicated on alcohol. However, King testified as an accomplice witness for the State and said that she and Conde had gone to Kephart’s home with bags of cocaine and baking soda to make crack cocaine. While there, King said Kephart used a straw to inhale some of the cocaine from a mirror. King also said that Kephart smoked some of the crack cocaine in a pipe. Both the mirror and the pipe were recovered from King’s motel room, and both items were contaminated with cocaine residue. The State offered the videotape to corroborate King’s testimony, and Kephart was convicted of possession of cocaine in- an amount under twenty-eight grams.
On appeal, Kephart argued that the tape should not have been admitted because the State failed to lay the seven-prong predicate for the introduction of tape recordings recited in Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977).3 The court of appeals af*661firmed the conviction and concluded that “because the videotape was not made by law enforcement personnel, the usual predicate is not applicable.” Kephart, 888 S.W.2d at 827-28. On discretionary review, the Court of Criminal Appeals observed that the predicate for admission of a tape recording is now controlled by Rule 901 of the Rules of Criminal Evidence. The Court further held that nothing in Rule 901 lessens its applicability simply because the tape recording was not made by law enforcement personnel. Under Rule 901(b)(1), the Court held the State was required to produce a sponsoring witness who could testify “that the evidence is what its proponent says it is.” Kephart, 875 S.W.2d at 321. Because the State’s sponsoring witness “had no personal knowledge of where or when the tape had been made, [and] he could not ... state that the tape accurately represented the actual scene or event at the time it occurred,” the Court of Criminal Appeals held the tape was inadmissible and reversed the conviction. Kephart, 875 S.W.2d at 322-23.
On its face, Kephart suggests that the Court of Criminal Appeals has concluded that the proponent can never authenticate a tape recording without the testimony of a sponsoring witness who is either (1) the maker of the tape or (2) was otherwise a participant in the recorded conversation. This construction is contrary to the plain wording of the rule. Rule 901 provides that authentication can be satisfied by any “evidence sufficient to support a finding that the matter in question is what its proponent claims.” The rule does not require authentication by the testimony of a witness with knowledge, but merely suggests for purposes of illustration that this is one method of authentication.4 In fact, Rule 901(b) recites nine examples of authentication that do not rely upon the testimony of a witness with knowledge. One method of authentication expressly provided by the rule, but ignored in Kephart, is by circumstantial evidence, ie., “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Tex.R. Civ. Evid. 901(b)(4).
As an intermediate appellate court, we are bound by the decisions of the Court of Criminal Appeals. However, I believe the court meant only to hold that a tape recording must be authenticated regardless of whether it was made by law enforcement personnel. While it is unfortunate that the Kephart opinion focused on only one of the ten illustrations set forth in Rule 901(b), I doubt the court intended by that omission for us to ignore all other methods of authentication illustrated by the rule. It is significant that apart from Kephart, the court has had no occasion to consider the issue of whether authentication of tape recordings can be established by circumstantial evidence. While recognizing the intermediate status of this Court, I do not believe that stare decisis compels us to pursue poor draftsmanship down a path the Court of Criminal Appeals has not fully explored and did not intend us to follow.
While the Kephart opinion did not discuss authentication by circumstantial evidence, other courts have readily endorsed this method. See State v. Lavers, 168 Ariz. 376, 814 P.2d 333, 343-46, cert. denied, 502 U.S. 926, 112 S.Ct. 343, 116 L.Ed.2d 282 (1991) *662(tape recording of double murder made by one of the victims was circumstantially authenticated under Rule 901 by physical evidence that the manner of death was consistent with the events heard on the tape); People v. Berkey, 437 Mich. 40, 467 N.W.2d 6, 9-13 (1991) (where victim recorded conversations with ex-husband shortly before he successfully paid another to kill her, the tapes were authenticated under Rule 901 merely by the identification of the voices alone). Also United States v. Bright, 630 F.2d 804, 820 (5th Cir.1980) (tape made by a police informant who died before trial was authenticated by circumstantial evidence under the four-prong test of United States v. Biggins, 551 F.2d 64 (5th Cir.1977));5 United States v. O’Connell, 841 F.2d 1408, 1419-22 (8th Cir.1988) (tape seized by police during execution of search warrant was properly authenticated by circumstantial evidence under the seven-prong test of United States v, McMillan, 508 F.2d 101 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975) which contains the same elements as the Edwards test); State v. Smith, 85 Wash.2d 840, 540 P.2d 424, 428-29 (1975) (tape made by murder victim was circumstantially authenticated under an Edwards type test).
I believe that under the facts presented here, the tape recording at issue was sufficiently authenticated by circumstantial evidence. The State established that on February 7, 1997, Doris Angleton filed a petition for divorce against her husband, the appellant. She alleged within the petition that appellant maintained a large amount of cash in safe deposit boxes of four different banks. In an attached affidavit, Ms. Angleton said, “I fear that once he learns I have filed this divorce petition, that he will empty these safe deposit boxes and I will have no record nor any ability to prove that such cash ever existed.” The petition contained a request for a temporary restraining order to prevent appellant from entering the safe deposit boxes during the pendency of the divorce action. Two months later, on Wednesday, April 16, 1997, Ms. Angleton was murdered.
In a sworn statement, appellant said that as the manager of a girls softball team, he was warming up for a game at the West University Little League Field, when he realized he had forgotten his daughter’s bat.At approximately 7:15 p.m., appellant asked his wife if she would bring the bat up to the field. Ms. Angleton left for home, but did not return to the game. Appellant claims that after the game, he took his girls home. He entered the driveway and parked the car, but immediately noticed that the back door was open. Appellant did not enter the house, but summoned the police. After the police arrived, they discovered Ms. Angle-ton’s body in the kitchen doorway. Police could find no sign of a forced entry into the residence. During subsequent questioning, appellant told police that he was a bookmaker, that his brother, Roger Angleton, had worked for him in the bookmaking business, and that his brother might have had a motive for'killing the victim.
On June 22, 1997, Roger Angleton was arrested by Las Vegas police on an unrelated California warrant. He was, at the time of his arrest, in possession of a microcassette tape, notes, a forged driver’s license, passports, and over $64,000 in cash. Sergeant Ferguson testified that on July 17, 1997, he became aware that Roger Angleton had been arrested. After learning that the Las Vegas police were still in possession of his personal property, Ferguson flew to Las Vegas on July 22, 1997, where he recovered Roger Angleton’s briefcase pursuant to a court order. After returning to Houston, Ferguson obtained a search warrant authorizing him to listen to the microcassette found inside the briefcase. Based upon conversations with both Robert and Roger Angleton, Ferguson identified the voices of both men on the microcassette. Ferguson also testified that he made no alterations or deletions in the microeassette tape.
*663At the bail hearing, the State introduced an “enhanced” copy of the tape. Sergeant Ferguson testified that he had listened to both the original microcassette and the enhanced copy. Although the recording expert who “enhanced” the copy was not called as a witness, Ferguson testified that other than a reduction in the background noise, he could discern no audible difference between the original microcassette and the enhanced copy.6
Although the voices on the tape are sometimes inaudible, the two men can clearly be heard discussing the planned murder of a woman. They refer to a typewritten list and at times sound as though they are reading from a list. Some of the phrases are identical to those found in cryptic notes seized from Roger Angleton’s briefcase. According to the plan, Roger agrees to enter the house and disarm the alarm using the code 00032.7 Appellant instructs Roger in how to arm the alarm and remain outside the detection path of the motion sensors by waiting in the kitchen. Roger states that he intends to use an untraceable weapon with a laser sight to make the hit. As soon as the woman enters the house and disarms the alarm, Roger states that he will shoot her rapidly three times to take her down, and that once she is down, he will finish her. The men also talk about what measures should be taken to make it appear the woman was killed when she surprised a burglar. Appellant suggests, therefore, that she not be shot in the back. Roger states that he would prefer not to rummage the house. The men also discuss various contingencies that might arise which could alter the planned execution. The conversation ends abruptly in a manner that suggests the recorder stopped before the conversation was concluded.
The typewritten notes contain clipped phrases that suggest a murder for hire. Retaining the same grammatical errors that appear in the original, the following ominous remarks are found in the notes: “ENTER ABOUT 8:15-80 via gate and back side door”; “disarm system 00032”; “wait in kitchen”; “subject comes home, hit immediately if with either girl leave via back entrance”; “rummage house plus watch prob no ring unless off in dish in bathroom”; “leave via back entrance, tape and break window for entrance, leave door open?”; “leave gate open or leave sign in front of house that is done”; “(can pge you with code that is done)”; “point of hit to leave 3 minutes”; “if not gong to game, page signal”; “preference thursday or following or following Wednesday”; “Monday possible if you can get her temporarily out of house”; “money 125,000”; “October 20 dr so 100,000 and 1000, 000 thereafter annualized in October until 2005 (less 12,000 advanced”; “if arrested keeping paying to designee”; “on future money have to work with me as to when and where”; “will send future vendetta letter which wifi clinch”; “MY CONTRACT WITH YOU IS THE KILL AND NO SQUEEL-ING, IF KILLED CUT MONEY TO DESIGNATED PARTIES. THE METHOD DESIGNED BY ME IS TO GIVE YOU ALIBI AND AND PERMIT POLICE TO FOCUSE ON ME.”
Authentication is established here by circumstantial evidence. The State established a motive for the murder. The execution was accomplished in a manner that is largely consistent with the plan outlined on the tape: (1) Doris Angleton was killed in the kitchen; (2) she had multiple gunshot wounds to the chest and head; (3) the house was not ransacked; (4) there was no sign of forced entry; (5) and the back door was left open.
The voices of Roger and Robert Angleton were identified on the tape. Sergeant Ferguson testified that no additions or deletions were made after he acquired the tape. Moreover, the systematic nature of the conversation and the steady background noise suggest that the tape was not selectively stopped and started during its making.
Further, the alarm code discussed on the tape was the correct code for appellant’s *664home at the time of his wife’s death. There is some evidence of guilty knowledge in that when appellant saw the back door of his home was open, he apparently made no attempt to enter the house, investigate the reason for the open door, or even call out his wife’s name. Finally, in a case of murder for hire, it might reasonably be expected that the trigger man would want to retain some incriminating evidence to guarantee full payment after completing the murder. The tape, along with the notes, were found in Roger Angleton’s possession. The tape is clearly a statement against penal interest which significantly enhances its authenticity. Under the circumstances presented here, the trial court did not err in considering the tape recorded statement when deciding whether to deny bail.
Bail may be denied for capital offenses when the State makes a satisfactory showing that “the proof is evident.” Tex. Const. art. I, § 11. The term “proof is evident” means evidence clear and strong, leading a well guarded judgment to the conclusion that an offense was committed, that the accused is the guilty agent and that he would probably be punished by the death penalty if the law is administered. Beck v. State, 648 S.W.2d 7, 9 (Tex.Crim.App.1983). Because I believe the proof is evident in this cause, I respectfully dissent.
. See Kephart v. State, 888 S.W.2d 825, 828 (Tex.App.—San Antonio 1993), rev'd, 875 S.W.2d 319 (1994).
. Later, in a written statement, Kephart referred to the substance only as a "white powder.”
. Prior to the adoption of the Texas Rules of Criminal Evidence the authentication of audio tapes was governed by the seven-prong test set forth in Edwards v. State, 551 S.W.2d 731, 733 (Tex.Crim.App.1977). The predicate for admissi*661bility required the proponent to make: “(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.” Edwards, 551 S.W.2d at 733.
However, because the adoption of the Texas Rules of Criminal Evidence superseded the Edwards test, it is no longer needed as an authoritative guide for admissibility of electronic sound recordings. Leos v. State, 883 S.W.2d 209, 211 (Tex.Crim.App.1994). The authentication of a tape recording is now governed by Rule 901 of the Rules of Criminal Evidence which states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Stapleton v. State, 868 S.W.2d 781, 786 (Tex.Crim.App.1993).
. Rule 901(b) sets forth 10 examples of authentication “[b]y way of illustration only, and not by way of limitation.”
. "While it is admittedly better to have a tape recording authenticated by a witness who was privy to the conversation as the tape was made, we recognize that is not always possible. When circumstantial evidence is necessary to authenticate the accuracy of the recording, the court must be exacting in its requirements.” Bright, 630 F.2d at 820.
. While it would have been preferable for the State to offer testimony regarding how the background noise was reduced, the probative value of the recording rests upon the words spoken, not on the presence or absence of background noise.
. Appellant admitted to police that the alarm code for his home was 00032.