dissenting.
In his third point of error appellant challenges the admission of so-called “victim impact” evidence at the punishment phase of his capital murder trial. The Court today holds that the particular evidence proffered in this cause is admissible because it relates to appellant’s “moral blameworthiness” under Article 37.071, § 2(e), V.A.C.C.P. While I agree that the evidence was relevant to increase appellant’s moral blameworthiness, I disagree that § 2(e) calls upon the jury to consider reasons a capital accused should be put to death, and thus I dissent. I write separately in order to suggest a framework for analysis that seems lacking in the opinion of the Court, and to explain why that analysis leads me to disagree with the Court’s conclusion.
I.
The United States Supreme Court held in Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 736 (1991), that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Whether a particular state chooses to admit victim impact evidence in the course of a capital murder prosecution is, thus, purely a function of state law. That victim impact evidence does not violate the Eighth Amendment does not mean state law makes it admissible. Payne v. Tennessee is not dispositive. Admissibility of so-called “victim impact” evidence is governed generally by the Rules of Criminal Evidence. Tex. R.Cr.Evid., Rule 1101(d)(1).
Before we can meaningfully approach the question of admissibility of “victim impact” evidence under the rules of evidence, we must clearly define the issue. It does not facilitate the analysis to ask whether a whole category of evidence is admissible under the rubric of “victim impact.” Instead, the trial court must take proffered evidence as it comes, inquiring on a case-by-case basis whether that evidence is relevant to any of the special issues in Article 37.071, which serves to circumscribe and define the parameters of the litigation at the punishment phase of a capital murder trial. Upon an objection to the relevance of any evidence that might be described as “victim impact,” *119the trial court must ask, as it would of any other evidence: Does it tend to make more or less probable that any of the special issues should be answered one way or the other? Tex.R.Cr.Evid., Rules 401 & 402. If the trial court concludes it is relevant, upon further objection it may be called upon to decide: Is the probative value substantially outweighed by the danger of unfair prejudice? Tex. R.Cr.Evid., Rule 403.
The State argues that the evidence it proffered in this cause was relevant to the special issue defined in Article 37.071, § 2(e), supra, insofar as that provision places in issue “the personal moral culpability of the defendant!!.]” This argument in turn raises two questions. First, exactly what does § 2(e) of Article 37.071 contemplate when it directs the jury to consider “all of the evidence, including ... the personal moral culpability of the defendant”? Secondly, does the State’s “victim impact” evidence in this case have a bearing on the legislative conception of “personal moral culpability”?
II.
A
Under Article 37.071, § 2(e), a jiuy that has already answered the first two special issues affirmatively must go on to decide:
“Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.”
Before it ever reaches this issue, the jury must make a number of findings of fact against the capital defendant. First the jury must find him guilty of one of the offenses enumerated in V.T.C.A Penal Code, § 19.03. Proceeding to the punishment phase of trial, before the defendant is susceptible to the death penalty the jury must find there is a probability he will commit criminal acts of violence that would constitute a continuing threat to society, under Article 37.071, § 2(b)(1), and that he either actually caused the death of the deceased, or either intended or at least anticipated death, under § 2(b)(2). These are the statutory aggravating circumstances. If the jury does not find them to be true beyond a reasonable doubt, the capital defendant must be sentenced to life imprisonment. See Article 37.071, § 2(g). If — but only if — the jury does find the statutorily defined aggravating circumstances to exist beyond a reasonable doubt, it proceeds under § 2(e) to determine whether mitigating circumstances are “sufficient” to “warrant” life imprisonment. If mitigating circumstances are not sufficient, “the court shall sentence the defendant to death.” § 2(g), supra.
It seems likely to me that by designating in § 2(e) that the jury consider, inter alia, evidence of “the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant,” the Legislature intended the jury to take into account only those aspects of the offense, and only those facets of the defendant’s character, background and personal moral culpability, that militate in. favor of a life sentence. After all, before it even reaches § 2(e), the jury has made findings of “aggravating” fact that are constitutionally sufficient to justify the imposition of the death penalty. It is clear, as borne out by the Bill Analysis accompanying Senate Bill 880, that the addition of § 2(e) to Article 37.071 was meant to accommodate the holding in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), that an adequate vehicle must be provided for the jury to effectuate the full measure of mitigating evidence. See Acts 1991, 72nd Leg., ch. 838, § 1, p. 2899, eff. Sept. 1, 1991. The jury is told to “consider mitigating evidence to be evidence that a juror might regard as reducing the defendant’s moral blameworthiness.” Article 37.071, § 2(f)(4). The § 2(e) issue itself specifically calls upon the jury to decide if there exist “sufficient mitigating ... circumstances to warrant” imposition of a life sentence rather than death. By contrast, the jury is never instructed that it may consider any evidence it might regard as increasing the defendant’s moral blameworthiness. Thus, the § 2(e) issue focuses squarely on whether a death-eligible defendant should nevertheless be spared. It can well be ar*120gued that the narrowing function of Article 37.071 has been accomplished in § 2(b), and that any additional evidence why a death-eligible defendant ought to be executed, notwithstanding the mitigating circumstances, is simply not relevant to the § 2(e) inquiry. By this accounting, any proffered “victim impact” evidence that was not somehow relevant to the § 2(b) special issues would be inadmissible at the punishment phase of a capital murder trial.
On the other hand, § 2(e) does not expressly limit the jury’s consideration solely to aspects of the crime, of the defendant’s character and background, and of his personal moral culpability, that militate against a penalty of death. It might also plausibly be argued that § 2(e) contemplates that the jury should take into account all aspects of the crime, the defendant’s character and background, and his moral culpability, non-statutory aggravating and mitigating, in making its “reasoned moral judgment” whether his life should be spared. Penry v. Lynaugh, supra, 492 U.S. at 328, 109 S.Ct. at 2952, 106 L.Ed.2d at 284. Probably such a scheme would pass constitutional muster. As long as the special issues in § 2(b) adequately serve as statutorily “narrowing” aggravators, it does not likely offend the Eighth Amendment to allow the jury also to consider non-statutory aggravating factors at the subsequent “selection” stage. See Zant v. Stephens, 462 U.S. 862, at 878-79, 103 S.Ct. 2733, at 2743-44, 77 L.Ed.2d 235, at 250-51 (1983); Tuilaepa v. California, 512 U.S. - at -, 114 S.Ct. 2630, at 2638, 129 L.Ed.2d 750, at 763 (1994).1 It is clear that the Legislature specifically intended § 2(e) to serve as a conduit for jury consideration of mitigating evidence that is not relevant to the § 2(b) special issues. Did the Legislature also intend that § 2(e) should open the door to consideration of non-statutory aggravating circumstances at the “selection” stage?2
*121 B.
Two legal/Mstorical events serve to complicate this already difficult question. First, at the time the Legislature promulgated § 2(e), the opinions of the Supreme Court in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), were still extant. These cases held that certain kinds of victim impact evidence, viz: evidence of the personal characteristics of the victim and the emotional impact of the crimes on his family, and surviving family members’ characterizations of the crime and the defendant, were constitutionally “irrelevant.” Even assuming the Legislature meant for § 2(e) to place non-statutory aggravating circumstances in issue at the “selection” stage of the punishment deliberation, it would be anomalous to presume it meant to include circumstances the Supreme Court then regarded as inadmissible under the Eighth Amendment. See V.T.C.A. Government Code, § 311.021(1). Though some of the varieties of “victim impact” evidence condemned in Booth and Gathers were subsequently deemed constitutionally acceptable in Payne v. Tennessee, supra, we would be hard pressed to conclude that the Legislature meant for § 2(e) to authorize their admission.
The second event that complicates the question of non-statutory aggravators is this Court’s requirement that a capital defendant show a “nexus” between his proffered mitigating evidence and the offense on trial. Prior to the addition of the § 2(e) special issue, in treating a claim that certain evidence proffered in mitigation of the death penalty called for a supplemental jury instruction of some kind to satisfy Penny, the Court often rejected the claim on the basis that the defendant had not demonstrated a sufficient “nexus” between the proffered evidence and the particular offense he was on trial for. The Court said, for example, in Lackey v. State, 819 S.W.2d 111, at 134-35 (Tex.Cr.App.1989) (Opinion on appellant’s motion for rehearing), that the defendant was not entitled to an additional instruction because “there is little or no connection between his background and character evidence and the facts and circumstances of his criminal acts in the instant case.” Similarly, in Goss v. State, 826 S.W.2d 162, at 166 (Tex.Cr.App.1992), a plurality observed that “[njone of the evidence presented ... sought to explain the apparently isolated problems of [Goss’] childhood and the commission of the crime.” In a number of subsequent cases the Court has continued in this vein. E.g., Richardson v. State, 879 S.W.2d 874 (Tex.Cr.App.1993), and cases cited therein at 884. Most recently, in Earhart v. State, 877 S.W.2d 759, at 765 (Tex.Cr.App.1994), the Court explained that “a defendant must establish a nexus between the mitigating evidence and the circumstances of the offense which tend to excuse or explain the commission of the offense, suggesting that the defendant is less deserving of a death sentence.”
The Court has not yet said whether this nebulous “nexus” is a prerequisite to jury consideration of mitigating evidence under the special issue in § 2(e).3 It would not surprise me (though I would certainly disagree) were the Court to hold that jury consideration of mitigating evidence under § 2(e) was contingent upon' a showing of a “connection [with] the facts and circumstances of [the] criminal acts in the instant case.” Lackey, supra. If that were to happen, and we were also to hold that § 2(e) admits of evidence of non-statutory aggravating circumstances, another issue would, of course, arise. For we would then have to decide whether the State must show that whatever evidence of “the defendant’s character and background, and [his] personal moral culpability” it proffers to persuade the jury he should receive the death penalty has a sufficient “connection [with] the facts and circumstances of [the] criminal acts” being *122tried before it can be deemed “relevant” to the § 2(e) special issue. In other words, if jury consideration of non-statutory mitigating evidence depends on a showing of “nexus,” should not non-statutory aggravating evidence be likewise conditioned?
c.
The State argues that the so-called “victim impact” evidence in this cause is relevant to appellant’s “personal moral blameworthiness” under § 2(e). This can only be true if the Legislature intended for the § 2(e) special issue to be an inquiry, not only into reasons why a death-eligible capital defendant should not be put to death, but also into reasons why he should. Does the § 2(e) issue admit not only of evidence “reducing the defendant’s moral blameworthiness[,]” but also of evidence increasing it as well?
Of course the first and best indication of legislative intent is the language of § 2(e) itself. When the meaning of a statute is plain on its face, we give effect to that plain meaning without further ado. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). But § 2(e) does not plainly speak to whether non-statutory aggravating circumstances are to be weighed in the balance in deciding whether mitigating circumstances are “sufficient ... to warrant” a life sentence. We must resort to other indicia of the Legislature’s intent.
The Code Construction Act provides:
“In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:
(1) object sought to be obtained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
* ⅜: * ⅜ * *
(5) consequences of a particular eon-struction[.]”
V.T.C.A. Government Code, § 311.023. All of these extra-textual considerations militate against construing § 2(e) to authorize jury consideration of non-statutory aggravating circumstances.
First, the “object sought to be obtained” in adding § 2(e) was compliance with Penny v. Lynaugh, supra. In the wake of the decision in Penny, trial courts struggled with how to fashion a jury instruction that would authorize rejection of the death sentence on the basis of mitigating evidence that has no relevance to the statutory special issues. See State v. McPherson, 851 S.W.2d 846 (Tex.Cr.App.1992). Except for this one defect identified in Penry, Article 37.071 had always passed Eighth Amendment muster. Adding non-statutory aggravating circumstances to the mix was not constitutionally required, and might even create Eighth Amendment problems. See n. 1, ante. It is doubtful that, except to remedy the Penry defect, the Legislature intended to tamper with an otherwise tried and true capital punishment procedure. Given the “history” and “circumstances under which” § 2(e) was enacted, I doubt the Legislature gave any thought whatsoever to authorizing consideration of aggravating circumstances beyond those enumerated in § 2(b).
When the Legislature means for the jury to consider both aggravating and mitigating circumstances, it is capable of making its intent abundantly clear. In the same legislation that added § 2(e), the Legislature also added a jury instruction to guide deliberations on the § 2(b) special issues. Thus, Article 37.071, § 2(d)(1) now reads, in relevant part:
“(d) The court shall charge the jury that:
(1) in deliberating on the issues submitted under Subsection (b) of this article, it shall consider ... evidence of the defendant’s background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty[.]”4
See Acts 1991, 72nd Leg., ch. 838, § 1, p. 2899, eff. Sept. 1, 1991. The absence of comparable language in § 2(e) suggests that if the Legislature thought at all about autho*123rizing the jury to consider non-statutory aggravating factors, it rejected the idea.
Turning to “the consequences of a particular construction,” I fear that reading § 2(e) to contemplate jury consideration of non-statutory aggravators would create serious problems of implementation in the trial courts. For, as I have developed ante, even if the Legislature generally intended that the jury should weigh non-statutory aggravators against the defendant’s mitigating evidence in its § 2(e) deliberations, we must presume. the Legislature did not mean to authorize admission of any so-called “victim impact” evidence, at least not of the kind that Booth and Gathers had declared inadmissible. And presumably any “nexus” requirement we might impose on defendants as a predicate to jury consideration of mitigating evidence under § 2(e) would be imposed equally on the State before the jury would be permitted to consider evidence of non-statutory aggrava-tors.5 Distinguishing those aggravating circumstances that are admissible under § 2(e) from those that are not would prove a tortuous process indeed!
In short, the Legislature almost surely did not contemplate jury deliberation of non-statutory aggravating circumstances in the § 2(e) “selection” of those death-eligible defendants who should be spared that ultimate penalty. To construe § 2(e) to allow it anyway potentially threatens the constitutionality of our scheme, and would be a nightmare to implement. For these reasons I would hold that § 2(e) authorizes jury consideration only of “the circumstances of the offense, the defendant’s character and background, and [his] personal moral culpability” that cut against imposition of a sentence of death. It does not authorize consideration of non-statutory aggravating circumstances.6
III.
The majority details the testimony at issue in this cause. In brief, the deceased’s two sisters testified about the impact of the offense, and of the loss of their brother, upon their lives. They testified that their mother had been rendered an invalid who needed daily care and attendance. The mother herself testified to much the same effect. The deceased’s father testified of his residual fear for himself and his family. See majority opinion at 121-122. Obviously none of this testimony was offered on the theory that “a jury might regard [it] as reducing the defendant’s moral blameworthiness.” Article 37.071, § 2(f)(4), supra. Nor does the State contend that the family’s testimony relates to any of the special issues under § 2(b). Because I conclude that § 2(e) does not authorize jury consideration of evidence that increases the defendant’s moral blameworthiness, I would hold that the testimony at issue in this cause was not relevant, and therefore not admissible, for that purpose. Rules 401 and 402, supra.7 The trial court *124in this cause erred to admit it over appellant’s objection.
The majority cites two non-capital cases for the proposition that evidence such as that admitted here has a bearing on personal moral culpability and is admissible at the punishment phase. See Miller-El v. State, 782 S.W.2d 892 (Tex.Cr.App.1990); Stavinoha v. State, 808 S.W.2d 76 (Tex.Cr.App.1991). But in each of those cases we explicitly recognized that in the non-capital setting, “admissibility of evidence at the punishment phase ... is a function of policy rather than relevancy.” Miller-El, supra, at 895. Because there are no issues of fact at the punishment phase of a non-capital felony trial, we have had to fall back upon determinations of what is “appropriate” for a jury to consider rather than what is, strictly speaking, “relevant.” See Murphy v. State, 777 S.W.2d 44, at 62-63 (Tex.Cr.App.1988) (Plurality opinion on motion for rehearing). In Miller-El and Stavinoha we deemed any long-term physical and psychological effects upon the victims loosely to constitute “circumstances of the offense,” and hence “appropriate” for the jury to consider in assessing a term of punishment within the statutory range.
The capital context, however, is different. The punishment assessed in a capital case is either life or death, and is governed exclusively by the jury’s resolution of the Article 37.071 special issues. Only evidence relevant to those specific issues may be admitted over objection. Because I do not believe § 2(e) authorizes jury consideration of “circumstances of the offense” qua aggravating circumstances, I do not believe they are relevant to determining the defendant’s death-worthiness in the “selection” stage of a capital punishment proceeding, Miller-El and Stavinoha notwithstanding.8 That evidence of subsequent pain and suffering of surviving victims can be admitted at the punishment phase of a non-capital felony trial does not control disposition of the issue before us in this capital case today.
Finally, I do not think we can say that the error in admitting the testimony in this cause was harmless beyond a reasonable doubt. Tex.R.App.Pro., Rule 81(b)(2). The Court has already said that it cannot review the jury’s finding under § 2(e) for “sufficiency” of the evidence because the process of determining whether mitigating evidence calls for a life sentence is a value judgment, left to the unfettered discretion of the factfinder. The process, we have said, is an essentially inscrutable one, impervious to appellate review. See Colella v. State, 915 S.W.2d 834, at 845 (Tex.Cr.App.1995). I agree. Id., at 848 (Clinton, J., dissenting). That being true, I do not see how we could meaningfully determine whether allowing the jury erroneously to consider non-statutory aggravating circumstances in the § 2(e) mix “contributed” to its negative answer. The burden, of course, is on the State. That means that when we cannot tell whether or not error contributed to the punishment assessed, we are obliged to remand the cause for a new punishment proceeding. See Article 44.29(c), V.A.C.C.P. It seems to me we are in no position to declare that error in allowing the jury to consider evidence that increases appellant’s moral blameworthiness to be harmless beyond a reasonable doubt.
For the reasons given above, I would vacate the judgment of the trial court and remand the cause for a new punishment proceeding. Because the Court does not, I respectfully dissent.
. I hesitate to conclude that consideration of non-statutory aggravators in Texas would clearly survive Eighth Amendment scrutiny. At least one reason the Supreme Court gave for approving consideration of non-statutoiy aggravators under the Georgia scheme in Zant v. Stephens was the fact that the Georgia Supreme Court is required to conduct a proportionality review of all death penalty cases on appeal. Such a review, the Supreme Court emphasized, assures that any death sentence is not arbitrarily imposed. 462 U.S. at 879 & 890, 103 S.Ct. at 2744 & 2749-50, 77 L.Ed.2d at 251 & 258. It is not entirely certain that the Supreme Court would have regarded jury consideration of non-statuto-iy aggravators as constitutional absent this appellate proportionality review. Of course we have no such review in Texas. See Burns v. State, 761 S.W.2d 353 (Tex.Cr.App.1988). It is true that in Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the Supreme Court declared that appellate proportionality review is not a constitutionally essential ingredient in every possible capital sentencing scheme. It remains at least open to debate, however, whether, once non-statutory aggravating circumstances are injected into our own scheme in Texas, proportionality review might become necessary to check the potential for arbitrariness inherent in the fact that jurors are authorized to "select” a death sentence on the basis of uncircumscribed aggravators. Indeed, in Texas we do not even review the jury’s determination of the § 2(e) issue on appeal for simple sufficiency. See Colella v. State, 908 S.W.2d 834, at 845 (Tex.Cr.App.1995).
. Prior to the 1991 amendment to Article 37.071, which added § 2(e), the Texas capital sentencing scheme did not embrace discrete "narrowing” and “selection” stages. "Narrowing” occurred at the guilt phase of trial, where the jury determined whether the defendant committed murder of a kind, or under circumstances, that the Legislature deemed severe enough to merit his eligibility for the death penalty. Both “narrowing" and "selection” (of a sort) occurred at the punishment phase. The State simply could not execute the defendant absent a jury finding of "deliberateness” and “future dangerousness” — hence, more narrowing. Moreover, the jury was free to effectuate evidence militating against affirmative findings to the deliberateness and future dangerousness issues, by answering them "no” — hence, "selection” (of a sort). In Penry the Supreme Court essentially informed us that when there was evidence in mitigation of the death penalty that the jury could not effectuate under the statutory special issues, our “selection” stage failed to satisfy Eighth Amendment requisites, and had to be expanded. The legislative response to Penry was to add § 2(e) to Article 37.071 in 1991, thus enacting for the first time in Texas a discrete statutory "selection” stage to the capital sentencing process. What we must now decide is whether, in doing so, the Legislature directed the jury to consider not only non-statutory mitigating circumstances, but non-statutory aggravating circumstances as well. If we so decide, we would no doubt next have to decide whether such a scheme satisfies the Eighth Amendment. See n. 1, ante.
. I say "jury consideration" rather than "admissibility” for a particular reason here. Evidence, of either an aggravating or mitigating nature, may well be admissible because of its relevance to one of the special issues under § 2(b). Because of the Court's nexus requirement, that same evidence may not be available to the jury for consideration in its deliberation on the § 2(e) special issue. Evidence of this kind should probably be admitted, subject to a request from the opponent for a limiting instruction under Tex. R.Cr. Evid., Rule 105(a).
. Emphasis supplied.
. We have already held that evidence of the deceased’s bad character is not admissible as relevant to reduce a capital defendant's moral blameworthiness under § 2(e), at least not when the defendant was unaware of that bad character. Alvarado v. State, 912 S.W.2d 199, at 217 (Tex.Cr.App.1995) (“In our view ... a reasonable juror could not conclude that the victim’s prior bad act (an assault on a police officer) tended to lessen the defendant’s moral blameworthiness for the murder of that victim when the defendant was unaware of the victim’s bad act.”). I presume (perhaps naively) that this "nexus” requirement (for that is what it is) would be applied as well to evidence of the victim’s good deeds and character, even if we were to declare that § 2(e) generally admits of non-statutory aggravators.
. Such a holding would also a fortiori dispose of the numerous claims we have seen in recent months that Article 37.071, § 2(e) is unconstitutional because it fails to assign a burden of proof as to non-statutory aggravating factors. If § 2(e) does not contemplate jury consideration of non-statutory aggravators in the first place, then surely the trial court could not err in failing to instruct the jury that the State has some burden to prove them. See, e.g., Lawton v. State, 913 S.W.2d 542, 557 (Tex.Cr.App.1995) ("We are confused by appellant’s argument with respect to aggravating evidence under Article 37.071 § (2)(e) since it does not ask the jury to consider aggravating evidence."). But if we construe § 2(e) to allow for non-statutory aggravators, then we will have to entertain the merits of these claims that the statute is constitutionally defective for failing to assign a burden of proof.
.Because I conclude the State’s evidence is not relevant, I need not address whether the probative value of the evidence may have been substantially outweighed by its potential for unfair prejudice under Rule 403.
. I do not mean to suggest that aggravating circumstances of the offense are wholly inadmissible. Of course they are admissible to the extent they bear on the § 2(b) issues, i.e., whether the defendant will be a future danger, or whether he was at least aware that death would likely occur. A capital defendant might be entitled to an instruction, however, that the jury's consideration of that evidence be limited to its consideration of the § 2(b) issues. Tex.R.Cr.Evid., Rule 105(a). See n. 3, ante.