¶1concurring.
¶2If nothing else, the majority opinion makes one thing clear: The waters regarding the admissibility of extraneous offenses have yet to be purified. They are still murky. Therefore, I only concur in the result.
¶3On original submission, I only concurred in the result that the majority opinion by Judge Clinton reached, namely, that the trial court erred in admitting extraneous offenses into evidence during the guilt stage of the trial of Lester Boutwell, hereinafter referred to as the appellant. I did so because the opinion used too much paint on such a small issue that needed addressing in this case. I also could not join the opinion because, except in an extremely limited sense, it failed to purify the waters that govern the admissibility of extraneous offenses. I now concur in the decision of the majority opinion, that the State’s motion for rehearing should be denied, because it is much like the opinion on original submission — it, too, uses too much paint on a small issue; the paint does continue to run, making the subject of when extrane*184ous offenses might be admissible vague, nebulous, and extremely inexplicable.
¶4One' reason I write is that although the majority opinion somehow manages to reach the right result, denying the State’s motion for rehearing, it makes some statements that, because of what this Court has recently stated and held, are clearly erroneous. However, because these statements do not affect the majority opinion’s ultimate, but correct, decision to deny the State’s motion for rehearing, I am still able to concur in the result that it reaches. I also write in an effort to get this Court to come up with a general rule that will make what should be a simple subject less complicated.
¶5I will first address some of the erroneous legal statements the majority opinion makes.
¶6The majority opinion states that under this Court’s decision of Coleman v. State,. 682 S.W.2d 616 (Tex.Cr.App.1982), the court of appeals erroneously considered the appellant’s contention going to the admissibility of the extraneous offenses: “We agree that under Coleman, supra, appellant’s contentions were not properly before the Court of Appeals and thus are not properly before this Court.” In light of the change in our appellate court system, effective September 1, 1981, and what this Court has stated and held in recent times, this statement is clearly erroneous.
¶7It is true that this Court held on original submission in Coleman, supra, that a new ground of error may not be presented in a supplemental brief in a cause pending before this Court on direct appeal, if same had not been presented in the original brief. However, overlooked by the majority opinion in this cause is this Court’s opinion in Colemanon appellant’s motion for rehearing, see Coleman v. State, 640 S.W.2d 889 (Tex.Cr.App.1982). Notwithstanding what it had held on original submission, this Court on rehearing went ahead and considered, discussed, and overruled the appellant’s contention that had been presented in a supplemental brief.
¶8However, in this instance, the court of appeals considered the appellant’s grounds of error without comment directed to the fact that they had been presented in a supplemental brief.
¶9Regardless of the holding in Coleman, supra, and its progeny, as seen in Shepard’s Citator, that holding is inapplicable to this cause because of what a majority of this Court stated and held in Garrett v. State (Tex.Cr.App. No. 642-83, June 11, 1986). There, this Court rejected the State’s contention that the San Antonio Court of Appeals could not consider a new ground of error presented in an amended brief that was filed after this Court had remanded the cause to that court, “for consideration of appellant’s grounds of error [that were then extant]”. Quoting from Carter v. State, 656 S.W.2d 468, 469 (Tex.Cr.App.1983), in which this Court held that a court of appeals has jurisdiction to entertain unassigned error regardless of the nature of the error in question, this Court acknowledged the following: “After jurisdiction attaches to a particular cause, a broad scope of review and revision has been asserted by appellate courts of this State — one that is still recognized, acknowledged and confirmed by the Legislature.” (469). Thus, in Carter v. State, supra, this Court reaffirmed the age-old axiom that “Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute.” In Garrett, supra, the Court also held that “according to Article 40.09, § 9 on direct appeal an appellate court is obliged to consider every ground of error it can ‘identify and understand,’ Ben-Schoter v. State, 638 S.W.2d 902 (Tex.Cr.App.1982), especially one that might cause reversal of a judgment of conviction.” This Court further held in Garrett, supra, that while the cause is pending in the court of appeals, “a brief may be amended or supplemented at any time when justice requires upon such terms as the court of appeals may prescribe ...” Thus, given what this Court stated and held in Carter, supra, and Garrett, supra, a court of appeals is now free *185to review a ground of error that is presented in an amended or supplemental brief, and in fact may review a ground of error that is not even presented in any kind of brief, as its discretion mandates. Therefore, it is not for this Court to recite to a court of appeals what ground or grounds of error it must or must not review on direct appeal regardless of what form, i.e., an original brief, a supplemental, an amended brief, or even not in a brief, the ground of error might be raised.
¶10Furthermore, but as Judge Clinton recently pointed out for the Court in Garrett v. State, supra: “Effective September 1, 1981, by virtue of approval of amended Article V, § 5, Constitution of Texas and enactment of amendments to Articles 4.04 and 44.24, and of Article 44.45, V.A.C.C.P., this Court has jurisdiction, power and authority to exercise sound judicial discretion to review decisions of courts of appeals in criminal cases ... Jurisdiction, power and authority to decide an ordinary criminal cause on direct appeal is now vested alone in courts of appeals. Article V, § 6, Constitution of Texas, and Article 4.03, V.A.C. C.P. ‘Once jurisdiction of an appellate court is [properly] invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute. Carter v. State, 656 S.W.2d 468, 469 (Tex.Cr.App.1983)’ ...” Jurisdiction of this Court under Article 4.04, Y.A.C.C.P., is to “review any decision of a court of appeals in a criminal case.”
¶11In this instance, on direct appeal, the Austin Court of Appeals chose to exercise its appellate judicial discretion and wrote on the issue that involves the admissibility of extraneous offenses, notwithstanding the fact that the issue was presented by the appellant in a supplemental brief, as was its jurisdictional right to do. The majority opinion is thus erroneous when it states that the “appellant’s contentions were not properly before the Court of Appeals ...”
¶12The majority opinion holds that “we will treat these grounds of error as unassigned error ...” As previously pointed out, this Court is not now a de novo reviewing appellate court. In petitions for discretionary review, its function is to review the decision of the court of appeals. See ante. Thus, this Court has no authority to “treat these grounds of error as unassigned error”; its jurisdiction is limited to reviewing the decision of the court of appeals and not to determine what is and what might not be unassigned error, because the latter in this instance was exclusively for the Austin Court of Appeals, and not this Court, to decide what might be unassigned error.
¶13The majority opinion holds that “Fundamental unfairness and considerations of due process involved in this particular case require our attention.” Is this invoking and applying Federal Constitutional law to this cause? However, the admissibility of extraneous offenses is not a subject of review in a federal court of law by way of habeas corpus. See Gephart v. Beto, 441 F.2d 319 (5th Cir.1971). On the other hand, if the majority opinion’s holding means that under the Texas Constitution’s due course of law clause, the issue of the admissibility of extraneous offenses is now of State Constitutional dimension, then that is a breath of fresh air coming from this Court, and, if that is the case, and this cause was on direct appeal to this Court, or was before this Court pursuant to the provisions of Art. 11.07, V.A.C.C.P., I would agree with the majority opinion that such should be reviewed as unassigned error in the interest of justice because for purposes of the Texas Constitution the erroneous admission of extraneous offenses is a violation of the due course of law clause of the Texas Constitution.
¶14Why it has been so difficult for this Court in recent times to come up with a sound general rule which trial judges, prosecuting attorneys, and defense attorneys might live with when it comes to the admissibility of extraneous offenses is beyond my comprehension.
¶15It appears from past decisions of this Court that when it came to admitting extraneous offenses, this Court would open the gate and let the horses run loose for a *186period of time, but after the horses had done much damage this Court would then order them corralled.
¶16Many of us first witnessed this swinging of the pendulum in Hafti v. State, 416 S.W.2d 824 (Tex.Cr.App.1967), in which this Court implicitly said for the first time in many years: “Whoa!!!” But almost before the ink was dry on Hafti, supra, this Court then said: “Let the horses run again.” And they did for several years.
¶17It got to the point where a defendant was afraid to plead not guilty, see Vaughn v. State, 580 S.W.2d 558 (Tex.Cr.App.1976); was afraid to present any kind of defense, see Hernandez v. State, 532 S.W.2d 612 (Tex.Cr.App.1976); prayed that the State’s case was not one based upon circumstantial evidence; and was even afraid to cross-examine a complaining witness, see Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972). Cf. Ortega v. State, 462 S.W.2d 296 (Tex.Cr.App.1970), in which defense counsel was successful in keeping extraneous offense testimony out of the guilt stage of the trial. However, this successful effort was short-lived because the extraneous offense testimony became admissible at the punishment stage of the trial in the form of “reputation testimony.”
¶18Obviously, defense counsel of this State were often confused by what strategy he could invoke to prevent his client from being tried as a criminal in general. Cf. Gillon v. State, 491 S.W.2d 893 (Tex.Cr.App.1973).
¶19However, but as occurred in the past, a change in this Court’s personnel caused the pendulum to swing back — this time restricting the admissibility of extraneous offenses. Reversals became the talk of the town. See Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972); Riles v. State, 557 S.W.2d 95 (Tex.Cr.App.1977). In Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), this Court even went so far as to give the bench and bar a general rule and exceptions to the rule to go by.
¶20But, again through changes of personnel on the Court, the rule and the exceptions set out in Albrecht v. State, supra, have been replaced with more general rules and more exceptions. See; for example, Robinson v. State, 701 S.W.2d 895 (Tex.Cr.App.1985); Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985); Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983); Moore v. State, 700 S.W.2d 193 (Tex.Cr.App.1985). Approximately thirteen years after Al-brecht, supra, was decided, the bench and bar of this State were informed that “The list of ‘exceptions’ to the ‘general rule’ of inadmissibility of extraneous transactions contained in Albrecht v. State, supra, is exemplary rather than exhaustive.” Williams, supra;Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985). Today, the bench and bar are told that “When the defendant denies the act or relationship or undermines the State’s case, then there is need for such evidence to shore up some part of the State’s case ...” I suppose what the majority opinion means is that it is now time to open the gate and let the horses run loose again.
¶21Today’s opinion thus does not in my view “purify the murky waters of extraneous offenses”. Robinson v. State, supra, (Clinton, J. Opinion joining judgment of the Court.)
¶22Because I have found no better general rule than the one I proposed in the dissenting opinion that I filed in Dickey v. State, 646 S.W.2d 232 (Tex.Cr.App.1983), and because, as Judge Clinton implicitly pointed out in the opinion that he filed in Robinson, supra, the present view of this Court towards the admissibility of extraneous offenses actually consists of not one view but possibly three of four different views, depending on the respective judges, I will continue to subscribe to the view that “where the State has presented through its witnesses a clear, unblemished, and unmarred picture of the offense for which the accused is on trial, and the accused only injects into the case the defense of alibi, any extraneous offense is inadmissible.” Dickey, supra, at 241. This comports with what this Court stated in Hafti v. State, supra, almost twenty years ago: “[I]f the testimony of the state leaves no question *187as to intent or identity of the defendant, proof of an independent crime is not admissible. Also, where there is positive testimony to support the state’s case, proof of other independent offenses is not admissible.” The rule that I propose can be applied to both sex type and non-sex type cases.
¶23Why should there be a different rule simply because of the type of offense the accused is on trial for allegedly committing? If extraneous offenses are admissible, they are admissible regardless of the type offense the accused is on trial for committing. The majority opinion, however, appears to subscribe to the view that “we continue to recognize a narrow exception for sex offenses to permit admission of similar extraneous sex offenses which occurred between the minor complainant and the accused.” Thus, once again, the bench and bar are treated to a new rule: “Extraneous offenses are inadmissible unless they are relevant to a material issue in the case and the relevancy value of the evidence must outweigh their inflammatory or prejudicial potential.” Conscientious trial judges of this State: Lots of luck in deciding when to admit extraneous offenses.
¶24Despite whatever efforts the author of the majority opinion might have made to purify the extraneous offense waters, a close and careful reading of the majority opinion makes it obvious that he does not succeed in sanitizing the waters of the law of extraneous offenses. Fortunately, however, the majority opinion reaches the correct result in denying the State’s motion for rehearing. Thus, all of us should be grateful at least for that decision.
¶25For the above and foregoing reasons, I only concur in the result reached.