¶1dissenting.
¶2I respectfully dissent. I would sustain appellant’s second point of error.
¶3Appellant’s second point of error alleges reversible error was committed when the State attempted to introduce evidence of an extraneous offense. Appellant did not testify. In the process of establishing an alibi, appellant’s counsel questioned appellant’s brother, Chris Kendrick, as follows:
BY [DEFENSE COUNSEL]:
Q. Chris, are you related to the defendant, Gregory Franklin Kendrick?
A. Yes, sir.
Q. And what relationship are you to him?
A. He’s my brother.
Q. And are your currently — are you — have you ever been convicted of a crime?
A. No, sir.
Q. How old are you?
A. 17.
Q. Chris, do you know William Ashley Kendrick?
A. Yes, sir.
Q. And what relation is he to you?
A. He’s also my brother.
Q. Is he older than Greg?
A. Yes, sir.
Q. Is he currently on probation out of Dallas County?
A. I have no idea. I do believe, yeah.
Q. Do you know what he’s on probation for?
A. Naw. [Emphasis supplied].
¶4Although the relevaricy of this testimony is unknown, William Ashley Kendrick is another of appellant’s brothers. The State *397did not pursue the point of William’s probation on cross-examination.
¶5Following Chris’ testimony, appellant called his mother as a witness, to solicit more alibi evidence. At the conclusion of the mother’s testimony, and without warning, the record reflects the State asked, “[i]s your son, Gregory Franklin Kendrick, on probation?”
¶6Appellant’s counsel immediately objected to the question, and the jury was retired from the courtroom. Outside the presence of the jury, the trial court sustained appellant’s objection. After a brief recess, the trial resumed, with the State continuing its recross-examination of appellant’s mother.
¶7When she finished testifying, the trial court again retired the jury. At this point, the attorneys and the trial judge discussed appellant’s efforts to subpoena his next and final witness. Upon completion of this discussion, the trial court brought the jury back in and recessed the trial until the following morning.
¶8Before the trial recommenced the next day, appellant informed the court outside the jury’s presence that he wanted to make or renew a motion for mistrial, based on the prosecutor’s question of the previous day regarding appellant’s probation. The trial judge denied the motion. Appellant did not ask the court to instruct the jury to disregard the question, and the court did not do so.
¶9I feel appellant’s motion for a mistrial should have been granted.
¶10On appeal, appellant claims the question constituted the improper use of an extraneous offense. The majority finds appellant has presented nothing for review because he made an untimely motion for mistrial. See Anderson v. State, 659 S.W.2d 932 (Tex.App.—Fort Worth 1983, no pet.).
¶11The fact that the objectionable testimony in Andersonoccurred during the punishment phase of the proceedings deserves emphasis, as it distinguishes Andersonfrom the present case. In Anderson, appellant had applied for probation. Id. at 934. This court, in Anderson, found evidence of any extraneous offenses committed by appellant after commission of the crime for which he was charged was quite relevant to whether probation should be granted. Id. at 935. Extraneous transactions constituting offenses shown to have been committed by the accused may become admissible upon a showing by the prosecution that the transaction is both relevant to a material issue in the case, and the probative value of the evidence outweighs its inflammatory or prejudicial potential. See Rubio v. State, 607 S.W.2d 498, 506 (Tex.Crim.App.1980).
¶12In this case, the prosecutor addressed an objectionable question to a witness during the guilt-innocence stage of the trial, before the jury had determined what, if any, punishment should be assessed against appellant. It is a fundamental principle of law that an accused is entitled to be tried on the accusations made in the State’s pleading, and not for some collateral crime, or for being a criminal generally. Smith v. State, 646 S.W.2d 452, 455 (Tex.Crim.App.1983). Therefore, the State is generally prohibited from proving prior specific acts of misconduct, similar happenings, or extraneous offenses committed by the accused. Elkins v. State, 647 S.W.2d 663, 665 (Tex.Crim.App.1983).
¶13The reason for this rule is that although the evidence has some legal relevance to the general issue of whether the accused committed the act charged, it is inadmissible because it is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him. Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972). See also Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App. 1983). In certain circumstances a question may be so obviously harmful to the defendant that error is preserved even if the defendant failed to pursue his objection to the point of procuring an adverse ruling from the court below. Mounts v. State, 148 Tex.Crim.R. 177, 185 S.W.2d 731, 734-35 (1945).
¶14In Mounts, the prosecution asked appellant, who was on trial for murder, if he had *398ever pistol-whipped anyone. Id. at 734. Appellant’s objection to the question was sustained and the jury was instructed to disregard the question. The State then immediately inquired again about the same extraneous offense. At that point, the trial court admonished the prosecutor to stop the improper questioning. Appellant made no objection to the second question. Id.
¶15Applying the rationale of Mounts, I believe the nature of the question propounded by the State in this case was of such an obviously harmful character that appellant’s point regarding the State’s impermissible presentation of evidence of an extraneous offense has been preserved for our consideration. The State maintains any error arising from its question would have been cured if appellant had asked the court for an instruction to disregard, and the court had granted one. In light of the Mountsholding, I find this argument immaterial to our disposition of this case.
¶16I would further hold the question addressed by the State, interposed as it was before the jury had yet to determine appellant’s guilt, was so prejudicial and inflammatory that any probative value inherent in the potential response was outweighed. At trial, the State argued appellant had “opened the door” by asking one of appellant’s brothers if appellant’s other brother was on probation. On appeal, the State has abandoned this position. It now suggests that, in the context of strong evidence of guilt, the unanswered question addressed to appellant’s mother was harmless.
¶17I disagree. Regardless of the weight of the evidence, it would be difficult to imagine a question more prejudicial or inflammatory in nature. Based on my reading of the record, I would conclude the question asked by the State, whether in good faith or not, was of such a character that appellant’s presumption of innocence was compromised. “The question, as so framed, of and within itself, implied appellant’s guilt of the misconduct inquired about and amounted, therefore, to proof of a fact, by necessary implication damaging and hurtful to appellant, that the State was not authorized to prove.” Mounts, 185 S.W.2d at 734. See also Brown v. State, 168 Tex.Crim.R. 67, 323 S.W.2d 954, 956-57 (1959).
¶18Appellant’s second point of error should be sustained and the case remanded for a new trial.