concurring.
I concur in the judgment of the Court. I write separately to disagree with the reasoning of the majority with respect to its disposition of appellant’s point of error number five because I believe the issue presented is of great significance and is likely to be raised in other capital cases. The issue is whether, in light of Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) and Texas law, evidence as to the victim’s good character may be introduced by the State at the punishment phase of a capital case in Texas. For the reasons presented below, I believe such evidence is admissible.
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) the United States Supreme Court addressed the constitutionality of allowing the jury at the punishment phase of a capital’ trial to consider evidence as to the victim’s good character. The Court, in Booth, held that so-called “victim impact evidence” was not admissible under the Eighth Amendment because such evidence was irrelevant as to the circumstances of the crime and as to the defendant’s individual characteristics. “It is true that in certain cases some of the information contained in a Victim Impact Statement (VIS) will have been known to the defendant before he committed the offense. As we have recognized, a defendant’s degree of knowledge of the probable consequences of his actions may increase his moral culpability in a constitutionally significant manner. See Tison v. Arizona, 481 U.S. 137, 157-158, 107 S.Ct. 1676, 1687-1688, 95 L.Ed.2d 127 (1987). We nevertheless find that because of the nature of the information contained in the VIS, it creates an impermissible risk that the capital sentencing decision be made in an arbitrary manner.” Booth v. Maryland, 482 U.S. at 505, 107 S.Ct. at 2534.
The “victim impact statement” at issue in Booth included interviews with family members of the two murder victims. In these interviews, the family members discussed the devastating effects of the murders on their lives and expressed their hostility toward the perpetrators. “... the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. As we have noted, any decision to impose the death sentence must ‘be and appear to be, based on reason rather than caprice or emotion.’ Gardner v. Florida, [430 U.S. 349, 358], 97 S.Ct. 1197, 1204 [51 L.Ed.2d 393] (1977). The admission of these emotionally charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.” Booth v. Maryland, 482 U.S. at 508-509, 107 S.Ct. at 2536.
In Payne v. Tennessee, supra, decided four years later, the Court reexamined its holdings in Booth and Gathers. In Payne, the defendant killed a woman and her two-year-old daughter. Her three-year-old son, Nicholas, was attacked and severely wounded at the same time, but survived. At the punishment phase, testimony as to the effect of the crimes on Nicholas, including the loss of his baby sister who, his grandmother testified, he cries for, was introduced.
*105The Court held that a state may allow for the introduction of victim impact evidence at the punishment phase of a capital murder trial. “The State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.... By turning the victim into ‘a faceless stranger at the penalty phase of a capital trial,’ Gathers [490 U.S. 805], 109 S.Ct. 2207 (O’Connor, J., dissenting), Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.” Payne, 501 U.S. at 825, 111 S.Ct. at 2608.
“We thus hold 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. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.” Payne, 501 U.S. at 827, 111 S.Ct. at 2609.
As it is clear that there is no federal constitutional bar to the admission of victim impact evidence at the punishment phase of a capital murder trial, we must determine if such evidence is admissible under Texas law.
The Texas Legislature addressed the issue of victim impact evidence in a limited manner when it enacted Texas Code of Criminal Procedure, Article 56.03. Article 56.03 allows a victim of an offense, guardian of a victim or close relative of a victim to submit a victim impact statement to the court prior to imposition of sentence. The victim impact statement may describe the economic, psychological or other effects of the offense on the victim, the victim’s family or guardian.
Article 56.03(e) provides:
Prior to the imposition of a sentence by the court in a criminal case, the court, if it has received a victim impact statement, shall consider the information provided in the statement. Before sentencing the defendant, the court shall permit the defendant or his counsel a reasonable time to read the statement, comment on the statement, and with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the statement ...
Article 56.03(e), however, appears to apply only to cases where sentence is not imposed by the jury. Furthermore, it does not address whether testimony by the victim, the victim’s relatives, or the victim’s guardian is permitted. Article 56.03, therefore, does not resolve the issue of whether victim impact testimony is admissible at the punishment phase of a capital trial under Texas law.
Texas Rule of Criminal Evidence 402 provides “All relevant evidence is admissible, except as otherwise provided by constitution, by statute, by these rules or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.” Texas Rule of Criminal Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
At the punishment phase of a capital trial, the jury is required, after the State and the defendant present evidence, to answer two special issues (three if the defendant was found guilty as a party under Texas Penal Code Sections 7.01 and 7.02).
The first special issue requires the jury to determine if there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, i.e., whether the defendant would probably be a future danger. Tex. Code Crim.Proc., Art. 37.071 § 2(b)(1). Victim impact evidence has no relevance in the determination of a defendant’s future dangerousness and, if this was the only issue to be determined at punishment, Rules 401 and 402 would bar its admission.
*106The second special issue — the mitigation special issue — provides a vehicle by which the defendant may present evidence of his character and background and other evidence that could be considered by the jury as mitigating so as to warrant imposition of a life sentence rather than a death sentence. Tex.Code Crim.Proc., Art. 37.071 § 2(e). This special mitigation issue was enacted to comply with Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In Penry, the Supreme Court held that the Texas death penalty scheme, as applied, was unconstitutional because it failed to provide a. vehicle by which the defendant could present, and the jury could consider, evidence as mitigating in favor of imposition of a life sentence as opposed to death.
This Court has interpreted Section 2(e) broadly so as to allow a defendant to present, as evidence for the jury to consider as potentially mitigating, such matters as the defendant’s youth at the time of commission of the offense, his family background if characterized by abuse or neglect, his history of drug or alcohol abuse, and evidence of mental illness or mental retardation. The defendant is also permitted to call witnesses who testify as to defendant’s character, background and good deeds. In other words, the jury is provided evidence of the defendant as an individual before it determines the sentence to be imposed.
Is it not equally important — and relevant in the context of the “Penry" special issue— for the jury to be informed as to the character of the victim and the impact on the victim’s family of his or her death? The Supreme Court of Tennessee could not have expressed it any better when it stated the following:
“It is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the character, background and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.”
State v. Payne, 791 S.W.2d 10, 19 (Tenn.1990). It is my opinion that victim impact evidence is relevant in the context of the mitigation special issue and is admissible.
In order to avoid violation of the due process rights of the defendant and to minimize the risk of admission of irrelevant evidence, it is my opinion that only family members (i.e., close relatives and guardians) of the victim should be allowed to testify. This is consistent with the categories of persons permitted to file a victim impact statement under Article 56.03(a). Furthermore, should the State present evidence as to the victim’s good character, the defendant, in rebuttal and consistent with the Rules of Criminal Evidence, may present evidence as to the victim’s bad character.1
It has been suggested that allowing the admission of evidence as to the victim’s good character might lead to juries punishing more severely defendants who kill victims who are of “good” character and are contributors to society. The other side of the argument is, of course, that defendants who kill victims who are of questionable character or who are not considered to be valuable members of society will be less likely to receive the death penalty. The Supreme Court addressed this matter thusly; “As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind — for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show, instead, each victim’s ‘uniqueness as an individual human being' whatever the jury might think the loss to the community resulting from his death might be.” Payne, 501 U.S. at 823, 111 S.Ct. at 2606.
In the present case, two witnesses testified at punishment as to the victim’s (Karen Birky) good character: her sister and her coworker. Her coworker testified as to Miss Birkey’s dedication to her students. Her sister testified as to Miss Birky’s love of *107animals, her degree in special education and her membership in the National Guard.
Such evidence is relevant in the context of the mitigation special issue as it relates to the character of the victim and the impact of her loss on her family and close Mends and is admissible under Rules 401 and 402. Appellant fails to demonstrate that this evidence should have been excludable under Rule 403 as needlessly cumulative or that its prejudicial effect on the jury was substantially in excess of its probative value. This evidence merely gave the jury information on who Miss Birky was — that she was more than just a name.2 The trial judge did not abuse his discretion in admitting this evidence as relevant on the issue of punishment and deference should be given to his ruling. Lane v. State, 822 S.W.2d 35, 41 (Tex.Crim.App.1991); Briddle v. State, 742 S.W.2d 379, 391 (Tex.Crim.App.1987).
With these comments, I concur in the judgment of the Court.
. The admissibility of victim impact evidence, although relevant, is still subject to Rule 403 and such evidence may be excluded if it is needlessly cumulative, misleads the jury, confuses the issues or if its probative value is substantially outweighed by the danger of unfair prejudice.
. A substantial majority of state high courts have ruled that victim impact evidence is admissible at the punishment phase of a capital trial as relevant on the issue of punishment. See People v. Howard, 147 Ill.2d 103, 167 Ill.Dec. 914, 937, 588 N.E.2d 1044, 1067 (1991); Homick v. State, 108 Nev. 127, 825 P.2d 600, 606 (1992); Conner v. State, 632 So.2d 1239, 1277 (Miss.1993). Courts in Alabama, California, Delaware, Florida, Idaho, Indiana, Maryland, Ohio, Pennsylvania, Virginia, and Wyoming have ruled similarly, adopting Payne. New Jersey’s Supreme Court rejected Payne's holding on state constitutional grounds. State v. Erazo, 126 N.J. 112, 594 A.2d 232 (1991). The Supreme Courts of Arizona, Georgia and Louisiana have held that victim impact evidence was not admissible due to restrictions against admissibility of such evidence under the statutes of their respective states. I acknowledge that the highest courts of Utah and Oregon, with capital sentencing schemes similar to that of Texas, have held that victim impact evidence is not admissible as it is irrelevant in the context of the special issues and may needlessly inflame the jury. State v. Metz, 131 Or. App. 706, 887 P.2d 795 (1994); State v. Carter, 888 P.2d 629 (Utah), cert. denied, - U.S. -, 116 S.Ct. 163, 133 L.Ed.2d 105 (1995).