Grunsfeld v. State

¶1*162OPINION

¶2Robert Charles Grunsfeld appeals his conviction for aggravated sexual assault. A jury assessed punishment at life imprisonment. Grunsfeld alleges insufficient evidence and also raises several points of error on the admission of evidence. We reverse the trial court’s judgment.

¶3Grunsfeld took the complainant out on a date. After dinner, the two went to Gruns-feld’s mother’s house where they had some drinks. After having his sexual advances rejected, Grunsfeld became violent. Grunsfeld forcibly removed the complainant’s clothes and then pulled out a stun gun. Grunsfeld used the stun gun on the complainant’s side, head, neck, and buttocks. Grunsfeld repeatedly raped and abused the complainant over a five-hour period.

¶4INSUFFICIENT EVIDENCE

¶5Grunsfeld alleges that there is insufficient evidence to support the judgment. When an appellant challenges the sufficiency of the evidence, a reviewing court must determine whether, evaluating all the evidence in the light most favorable to the verdict, any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981).

¶6Grunsfeld concedes that the evidence, when viewed under the standard cited above, is sufficient to sustain a conviction for sexual assault; he only challenges the finding as to the aggravating circumstances. Aggravated sexual assault is sexual assault with the additional element that the assaulter has placed the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person. Tex.Penal Code Ann. § 22.-021 (Vernon 1989). The jury is mandated to assay first if that state of fear in fact existed; the defendant’s conduct is then assessed to determine if it was the producing cause of such fear and whether the subjective state of fear was reasonable in light of such conduct. Douglas v. State, 740 S.W.2d 890, 891 (TexApp.—El Paso 1987, no pet.); see Kemp v. State, 744 S.W.2d 243, 245 (Tex.App.—Houston [14th Dist.] 1987, pet. ref’d). The jury may consider an appellant’s objective conduct, his acts, words, or deeds and infer from the totality of the circumstances whether an appellant’s overall conduct placed the complainant in fear of serious bodily injury. Kemp, 744 S.W.2d at 245. It is not necessary to show that serious bodily injury or death was threatened or inflicted. It is also not necessary to show that the appellant could have inflicted serious bodily injury. Id

¶7The complainant testified to several circumstances: she had never seen a stun gun before, the stun gun hurt “real bad”; and the stun gun made her numb. The complainant also testified that, after she hid the stun gun, Grunsfeld stated that he was going to have to find a real gun. The complainant testified that she thought Grunsfeld would use this gun on her. A jury could have found beyond a reasonable doubt that the circumstances and Gruns-feld’s actions placed the complainant in fear of serious bodily injury. We overrule Grunsfeld’s first point of error.

¶8ADMISSION OF POLICE REPORT

¶9Next, Grunsfeld complains of the admission into evidence of a police offense report under the theory of optional completeness. Tex.R.Crim.Evid. 107. After the the complainant had testified, the State *163called John Umpledy, a Dallas police officer. On direct examination Umpledy testified that: he responded to a sexual assault report; he met the complainant at an apartment in Lewisville and took her and her roommate to Parkland Hospital; he then drove the complainant to the scene of the alleged offense, located the house in question and the house to which she fled when she escaped from Grunsfeld; and he took a report from the complainant. He did not relate that conversation. The offense report was tendered to Grunsfeld’s counsel for cross-examination.

¶10On cross-examination, Grunsfeld used the report to elicit from Umpledy some of the things that the complainant had told him. The portions elicited were highly selective. Umpledy testified that the complainant told him that Grunsfeld had been drinking heavily and had told her he loved her and wanted to marry her. At one point, when the officer-witness could not recall the address of the house to which the complainant fled, Grunsfeld had the officer review his report to refresh his memory and read the address to the jury. Gruns-feld did not introduce the report or read any other portion of the same to the jury.

¶11Upon re-direct examination, the State offered the entire offense report into evidence under the theory of optional completeness. The trial court overruled Gruns-feld’s objection and admitted the offense report into evidence.

When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation, writing or recorded statement is given in evidence, any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. “Writing or recorded statements” includes depositions.

¶12Tex.R.Crim.Evid. 107.

¶13Rule 107, like its forerunner,2 is designed to guard against “the possibility of confusion, distortion or false impression that could rise from the use of an act, writing, conversation, declaration or transaction out of proper context.” Livingston v. State, 739 S.W.2d 311, 331 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210,108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).

¶14The State cites cases for the proposition that the entire statement is admissible under the rule of optional completeness when the defense counsel raises the issue of a police report and questions the witness as to its contents. See, e.g., Wintters v. State, 616 S.W.2d 197, 202 (Tex.Crim.App. [Panel Op.] 1981). We conclude that the cases are distinguishable on the facts from the instant case. The mere use of the offense report for the purposes of cross-examination did not invoke rule 107. Grunsfeld did not introduce any portion of the offense report and, other than refreshing the witness’s memory as to an address, it was not read to the jury. The court erred in admitting the entire offense report into evidence.

¶15We conclude, however, beyond a reasonable doubt that the error made no contribution to the conviction or punishment. Tex.R.App.P. 81(b)(2). In making this decision, we are required to focus not on the weight of the evidence of guilt but on whether the error might possibly have prejudiced the jurors’ decision-making. Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App.1989). Thus, we focus upon the error and determine whether it contributed to the conviction or to the punishment. Id. at 585.

¶16Since Grunsfeld opened the door and inquired into the conversation the officer had with the complainant, the State had every right under rule 107 to inquire into the balance of the conversation. Had the State done this, there would have been no error. *164An examination of the offense report reveals the balance of the conversation the officer had with the complainant and reflects other facts already in evidence from the officer without objection. Further, in jury argument Grunsfeld used the report to call to the jury’s attention the inconsistencies between the complainant’s trial testimony and what she told the officer as reflected in the report. He asked the jury to carefully examine the report. The error was harmless under the test prescribed. Tex.R.App.P. 81(b)(2). We overrule Gruns-feld’s second point of error.

¶17IN-COURT DEMONSTRATION WITH STUN GUN

¶18In his third ground of error, Grunsfeld contends that the trial court erred in permitting a demonstration of a stun gun under circumstances different from the alleged offense. The complainant testified that during the course of the alleged offense the stun gun snapped when Gruns-feld turned it on and that a current of electricity went across the two prongs of the gun. She could see and hear the electricity. When Grunsfeld touched the gun to her skin, it hurt “real bad” and made her “numb.”

¶19Paul Wimer, a district attorney’s investigator, testified that over eleven months after the alleged offense he executed a search warrant at the home of Grunsfeld’s mother; that he found the stun gun in question in a closet described by the complainant; and that it was made of black plastic with metal prongs. After the stun gun was admitted into evidence, the prosecutor asked the witness to “activate” the exhibit in the presence of the jury. The witness explained that the'battery might be dead, but that he had a new battery. Grunsfeld in his objection made clear that he did not oppose a demonstration with the original battery; instead, Grunsfeld directed his objection to the use of a new battery. Wimer was then permitted to testify that the stun gun was operable when it was found; that it “sparked” but that he didn’t touch it. After the prosecutor pointed out that the stun gun had been in storage since its seizure, the trial court conducted a hearing in the absence of the jury. After the hearing the trial court explained to the jury that further testimony about the stun gun had been determined to be admissible, but the jurors had the serious obligation to determine its weight.

¶20Thereafter, Wimer made clear that he had placed a new battery in the stun gun. The record reflects:

Q. Would you try that battery in front of the jury, please?

A. (Demonstrating)

¶21This is all that the record reveals as to any in-court demonstration or experiment.

¶22To be admissible an experiment or demonstration must be conducted under conditions that are similar to the event to be duplicated; the conditions need not be identical as dissimilarities affect the weight and not the admissibility of the evidence. The trial court has discretion to admit or exclude experiments or demonstrations, and appellate review is limited to whether the trial court abused its discretion. Cantu v. State, 738 S.W.2d 249, 255 (Tex.Crim. App.), cert. denied, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 154 (1987); Ginther v. State, 672 S.W.2d 475, 476-77 (Tex.Crim.App.1984).

¶23The demonstration with a new battery was relevant to clarify the complainant’s testimony, to show how the weapon worked, and to show the reasonableness of the complainant’s fear of serious bodily injury or death. An experiment conducted under circumstances similar to the original transaction is helpful to an understanding of the transaction by the finder of fact. See Dominguez v. State, 722 S.W.2d 179, 183 (Tex.App.—Houston [14th Dist.] 1986, no pet.). We conclude that the trial court did not abuse its discretion. We overrule Grunfeld’s third point of error.

¶24EXTRANEOUS, UNADJUDICATED OFFENSES

¶25In his fourth point of error, Gruns-feld vigorously urges that the trial court erred in admitting into evidence at the penalty stage of the trial extraneous, unadjudi-*165cated offenses and their details over timely objection.3 The point of error calls into question the proper construction to be given Code of Criminal Procedure article 37.-07, section 3(a) after its 1989 amendment4 with regard to the admission of extraneous, unadjudicated offenses at the penalty stage of the trial after timely objection. Tex. Code Crim.Proc.Ann. art. 37.07, § 3(a) (Vernon Supp.1991). We will sustain the point of error, reverse the judgment, and remand for a new hearing on punishment. See Tex.Code Crim.Proc.Ann. art. 44.29(b) (Vernon Supp.1991).

¶26At the penalty stage of the trial, which took place in October 1989, the State presented three female witnesses. Two of the witnesses testified to rapes allegedly committed against them by Grunsfeld on May 18, 1989, and June 8, 1989, respectively. The trial court permitted the State to elicit the details of these offenses. The third witness testified about an alleged attempted rape by Grunsfeld on September 24, 1988. At the time, Grunsfeld had not been convicted for any of those assaults. After the State rested, Grunsfeld's only witness was his mother. She simply testified that Grunsfeld had not been previously convicted of a felony; this established his eligibility for probation. See Tex.Code Crim.Proc.Ann. art. 42.12, § 4a(a) (Vernon Supp.1991). She was not cross-examined.

¶27Article 37.07 was enacted as part of the 1965 Code of Criminal Procedure. Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex.Gen. Laws 317, 462-63. It established the bifurcated trial system for certain criminal trials. It provided that at the penalty stage of the trial either party could offer evidence “as to the prior criminal record of the defendant, his general reputation, and his character." Id. at 462. The term “prior criminal record” was not defined, and this generated much confusion as to what evidence was properly admissible. Questions arose as to whether arrests, rap sheets, unadjudicated offenses, and remote cases fell within the meaning of the term, or whether only final convictions could be used. At the next session of the legislature the oversight was corrected. The term “prior criminal record” was defined to mean “a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.” Act of May 19, 1967, 60th Leg., R.S., ch. 659, § 22, 1967 Tex.Gen.Laws 1732, 1740. The definition has remained in the statute ever since. Extraneous, unad-judicated offenses were clearly inadmissible under the definition. Even if the conviction was final and the fact of that conviction was admissible under the statute, the State was not permitted to show the details of the offense underlying the conviction. Stevens v. State, 671 S.W.2d 517, 522 (Tex.Crim.App.1984); Johnson v. State, 650 S.W.2d 784, 792 (Tex.Crim.App.1983); Ramey v. State, 575 S.W.2d 535, 537 (Tex.Crim.App. [Panel Op.] 1978).

¶28Further, it has been held that evidence of specific unadjudicated conduct is inadmissible at the penalty stage of the trial to attack the “suitability” of the accused for probation when a timely objection is lodged. Kingsley v. State, 784 S.W.2d 688, 689 (Tex.Crim.App.1990); Drew v. State, *166777 S.W.2d 74, 75-76 (Tex.Crim.App.1989); Murphy v. State, 111 S.W.2d 44, 67 (Tex. Crim.App.1989) (op. on reh’g). These holdings did not mean that an accused could not “open the door” to the admission of such evidence, but held that merely offering evidence to satisfy the eligibility requirement of probation from a jury does not “open the door.” Murphy, 111 S.W.2d at 67-68.

¶29In view of the arguments advanced by the parties, we will examine the statute before and after its last amendment. Prior to its 1989 amendment, article 37.07, section 3(a) provided in pertinent part:

(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.

¶30Act of May 22, 1987, 70th Leg., R.S., ch. 385, § 19, 1987 Tex.Gen.Laws 1891, 1898, amended by Act of May 28, 1989, 71st Leg., R.S., ch. 785, § 4.04, 1989 Tex.Gen.Laws 3471, 3492.

¶31Article 37.07, section 3(a) now provides, in pertinent part:

(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character. The term pri- or criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.

¶32Tex.Code Crim.Proc.Ann. art. 37.07, § 3(a) (Vernon Supp.1991) (emphasis added).

¶33The only relevant change was the addition of the emphasized language. Under the former statute extraneous, unadjudicat-ed offenses were inadmissible. Has the amendment brought about a change? At first blush, it seems that the additional language is broad and sweeping. Upon closer examination it appears that evidence of extraneous, unadjudicated offenses, even if deemed relevant to sentencing by the trial court, would have to meet two tests. First, it would have to be evidence permitted by the rules of evidence. Second, if it is part of a defendant’s prior criminal record, as it has been considered in the past, it must comply with the statutory definition of that term.

¶34As an aid in construing statutes, the Code Construction Act is applicable to the Code of Criminal Procedure. Barbee v. State, 432 S.W.2d 78, 82 (Tex.Crim.App. 1968), cert. denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed.2d 241 (1969); Ceaser v. State, 624 S.W.2d 669, 671 (Tex.App.—Beaumont 1981, no pet.). The Code Construction Act is now found in the Government Code. Tex.Gov’t Code Ann. §§ 311.-001-.032 (Vernon 1988). The section entitled Statute Construction Aids 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 attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction;

(6) administrative construction of the statute; and

(7) title (caption), preamble, and emergency provisions.

¶35Tex.Gov’t Code Ann. § 311.023 (Vernon 1988).

¶36A look at the legislative history of the 1989 amendment to article 37.07, section 3(a) reveals that it was effected by House Bill 2335, a voluminous piece of legislation which, among other things, created the *167Texas Department of Criminal Justice. H.B. 2335 was introduced in the House of Representatives by Representative Alan Hightower. There was no provision in the bill amending article 37.07, section 3(a) when it passed the House of Representatives on May 4, 1989. The bill was reported adversely in the Senate’s Criminal Justice Committee. Senator R. McFarland then offered Committee Substitute H.B. 2335 which included a section 4.03 amending article 37.07, section 3(a) as follows:

Regardless of the plea and whether the punishment be assessed by the judge or jury, evidence may, as permitted by the Rules of Evidence, be offered by the state or the defendant as to any matter the court deems relevant to sentencing. This subsection may not be construed as authorizing introduction of evidence seized in violation of the United States Constitution or the Texas Constitution.

¶37References in the existing statute permitting the introduction of evidence concerning a defendant’s prior criminal record, his general reputation and character, and the definition of “prior criminal record” were deleted by the proposed amendment. Obviously, the deleted language would not be needed if evidence “as to any matter the court deemed relevant to sentencing” was to be allowed. The amendment was patterned after the provisions found in Code of Criminal Procedure article 37.071(a).5

¶38Apparently second thoughts prevailed, for thereafter H.B. 2335 was amended, and section 4.03 became section 4.04 of the bill amending section 3(a) of article 37.07 in the manner now found in the current statute. The references to permitting evidence as to the defendant’s prior criminal record, character and reputation, and the definition of prior criminal record were restored. The last sentence of the proposed section 4.03 was omitted. H.B. 2335, almost completely rewritten, passed the Senate on May 19, 1989. The House refused to concur in the Senate amendments and a joint conference committee was appointed. The Senate adopted the joint conference committee’s report on May 28, 1989, and the House did so on May 29, 1989. The bill was approved on June 15, 1989. The amendment to article 37.07, section 3(a) became effective September 1, 1989.

¶39The bill analysis to H.B. 2335 makes no mention of the proposed amendment to article 37.07, section 3(a). The State urges consideration of the fact that representatives of the Texas District and County Attorneys’ Association and the Texas Criminal Defense Attorneys’ Association “indicated that they favored the amendment because the more evidence either side could get before the jury on punishment the better off that side would be.” After investigation, we find that the State’s conclusion has little or no support, and is not indicative of legislative intent.6

¶40*168The State argues that the 1989 amendment to article 37.07, section 3(a) was aimed like a torpedo missile at the decision in Murphy v. State, 111 S.W.2d 44 (Tex.Crim.App.1989). While there may be some foundation for this belief, we have not found in our study of the legislative history of the amendment in question where Murphywas ever mentioned as the target caught in the cross-hairs.

¶41The Code Construction Act, like an old familiar score, reminds us that words and phrases in a statute shall be read in context and construed according to the rules of grammar and common usage. Tex.Gov’t Code Ann. § 311.011 (Vernon 1988); see also Polk v. State, 676 S.W.2d 408, 410 (Tex.Crim.App.1984). The dominant rule in the construction of a statute is to give effect to the intention of the legislature. The intent is generally obtained from the language of the statute and from the legislative history of the statute. City of West Tawakoni v. Williams, 742 S.W.2d 489, 491 (Tex.App.—Dallas 1987, writ denied). The legislative intent is also obtained by considering the provision being construed in the context of the entire law in which it is found. Id.; McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918, 921 (Tex.App.—Dallas 1985, writ ref’d n.r.e.). One provision will not be given a meaning out of harmony or inconsistent with other provisions, although it might be susceptible of such a construction if standing alone. Barr v. Bernhard, 562 S.W.2d 844, 849 (Tex.1978).

¶42We must therefore be careful not to lift out of context the new language in section 3(a) of article 37.07 and construe it standing alone or only with certain other selected provisions of the statutes to reach a desired result. And in this connection, we must keep in mind the deletion and then the restoration of the language of the former statute during the legislative process. In making the restoration, the legislature is presumed to have known the past construction placed on the same or similar statute by the courts. Welch v. Welch, 369 S.W.2d 434, 437 (Tex.Civ.App.—Dallas 1963, no writ).

¶43Any reading of article 37.07, section 3(a) in its present form clearly shows that any evidence offered to any matter the court deems relevant to sentencing must nonetheless be that which is permitted by the Rules of Criminal Evidence. This has been a requirement of the statute since the 1985 amendment.7

¶44A brief examination of the Rules of Criminal Evidence is in order. Rule 402 is an operative rule. It provides that all relevant evidence is admissible unless it contravenes the constitutions, a statute, Rules of Criminal Evidence, or other rules prescribed pursuant to statutory authority. All irrelevant evidence is inadmissible. Rule 401 defines “relevancy” and rule 403 provides the general authority to exclude relevant evidence on the basis of prejudice, confusion of issues, misleading the jury, undue delay, and cumulativeness. The general authority to exclude relevant evidence rests within the sound discretion of the trial court. Rules 404 through 412 address relevancy issues for which specialized rules have evolved for their resolution.

¶45If it can be said that the introduction of extraneous, unadjudicated offenses at the penalty stage of the trial meets the relevancy test of rule 401 and clears the hurdles of rule 403, there is more to be considered.8

Character relevant to punishment. In the penalty phase, evidence may be offered by an accused or by the prosecution as to the prior criminal record of the accused. Other evidence of his character may be offered by an accused or by the *169prosecution. Nothing herein shall limit provisions of Article 37.071, Code of Criminal Procedure.

¶46Tex.R.Crim.Evid. 404(c).

¶47Rule 404(c) governs the offer of character evidence at the penalty stage of a non-capital criminal trial. It has no counterpart in our civil evidence rules or in the federal rules. It did not work any significant change in Texas law.

By limiting admissible evidence to the accused’s prior criminal record and character evidence Criminal Rule 404(c) would seem to preclude the use of most extraneous offenses which were not admitted at the trial on the merits, as well as any evidence regarding the character of the accused’s victim. “Prior criminal record” is defined by article 37.07.3(a) [sic] so as to exclude extraneous offenses which were not the subject of a conviction. “Other evidence of his character” would appear to be limited to proof by reputation and opinion witnesses as prescribed by Criminal Rule 405(a). This would not include specific acts of misconduct by the defendant unless elicited by implication through cross-examination of the defendant’s character witnesses.

¶4833 S. Goode, O. Wellborn & M. Sharlot, Guide to The Texas Rules of Evidence: Civil and Criminal § 404.7, at 135-36 (Texas Practice 1988) [hereinafter Goode] (emphasis added) (footnotes omitted).

¶49Thus, if a prior criminal record is to be used, it must comport with the definition in the statute. If “other evidence” is to be used to prove character at the penalty stage of a non-capital case, it is limited to proof by reputation and opinion witnesses.

¶50The Court of Criminal Appeals instructs us that there are three basic methods of proving character: (1) reputation of the person in the community; (2) personal opinion testimony of witnesses who know the person; and (3) specific instances of conduct from which inferences may be drawn. Hedicke v. State, 779 S.W.2d 837, 839 (Tex.Crim.App.1989), cert. denied, — U.S.—, 110 S.Ct. 840, 107 L.Ed.2d 836 (1990). At common law, opinion testimony was held inadmissible to prove character; this left reputation testimony as the only acceptable method of proof. Id. at 840. Reputation testimony is, in addition, specifically permitted by article 37.07, section 3(a). Opinion testimony is permitted to prove character in all cases. Tex.R.Crim.Evid. 405(a). Also, article 37.07 is now held to allow opinion testimony as to character during the penalty stage of a criminal trial. Hedicke, 779 S.W.2d at 842. The third method of proving character — specific instances of conduct — is addressed in a separate section of the Rules of Criminal Evidence. “In cases in which character or trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.” Tex.R.Crim.Evid. 405(b) (emphasis added). It is thus clear that specific instances of conduct may be used only where character is an essential element that is required to be proved in order for the State or defendant to make its case.

Criminal and Civil Rules 405(b) are essentially identical to their federal counterpart. They address the question of when specific instances of conduct may be offered in evidence to prove character. Character may be an ultimate issue, that is, it may be an essential element of a charge, claim or defense. This is almost exclusively a civil matter....

If character is an ultimate issue, it must be proved. In this instance, Rule 404 is not pertinent since it deals only with proof of character as circumstantial evidence to show conduct or state of mind conforming to character on a particular occasion. Permission to prove character as an ultimate issue comes from the general permission given in Rule 402 to admit all relevant evidence as defined in rule 401. Thus, Rule 405(b) was unnecessary but was presumably included to repel any argument that the common law rule of admissibility had been repealed by implication.

In cases where character was an ultimate issue, the common law and prior Texas law allowed all three modes of proving such character: reputation, opinion, and specific instances of conduct. *170The Texas Rules, following the Federal Rules, codify this practice. Rule 405(a) allows proof of character by reputation or opinion whenever evidence of character is admissible. Rule 405(b) permits proof of character by specific instances of the subject’s conduct when the subject’s character is an ultimate issue. To be distinguished is the use, pursuant to Rule 404(b), of specific act evidence to prove some contested issue such as intent, motive or identify.

¶51Goode, supra, § 405.3 at 149-50 (emphasis added) (footnotes omitted); see also Purtell v. State, 761 S.W.2d 360, 369 (Tex.Crim.App.1988), cert, denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989).

¶52The sentencing scheme in capital murder cases provides that “evidence may be presented as to any matter the court deems relevant to sentence.” Tex. Code Crim.Proc.Ann. art. 37.071(a) (Vernon Supp.1991). The “sentencing” procedure in capital cases requires that the State prove that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex.Code Crim.Proc. Ann. art. 37.071(b)(2) (Vernon Supp.1991). Nothing in article 37.071 requires that there be a final conviction for an extraneous offense to be admissible at the punishment phase. Clearly, evidence of prior offenses falls within the range of prior criminal conduct and would be relevant to the jury’s deliberations on special issue number two (article 37.071(b)(2)). Garcia v. State, 581 S.W.2d 168, 179 (Tex.Crim.App.1979), vacated on other grounds, 453 U.S. 902, 101 S.Ct. 3133, 69 L.Ed.2d 988 (1981). A rational trier of fact must find the elements of special issue number two beyond a reasonable doubt. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). Such conduct is a factor in determining the probability that a defendant will commit criminal acts of violence that would constitute a continuing threat to society. Id.

¶53The non-capital procedure governed by article 37.07, however, does not frame a specific issue that can be said to have character as such as an element. In non-capital cases where the jury assesses punishment, it does not determine the existence of discrete facts. Deciding what punishment to assess is a normative process, not intrinsically factbound. Murphy, 777 S.W.2d at 63. Significantly, in non-capital “sentencing,” no burden of proof has ever been assigned to the broad issue of what punishment to assess. Id.at 63 n. 10. Whenever a particular issue can be identified that is of consequence at the punishment proceeding, questions of burden of proof immediately come to mind. There is no mandatory requirement that the State offer any evidence at all during the penalty stage of a noii-capital case. Id.; see also Wright v. State, 468 S.W.2d 422, 425 (Tex.Crim.App.1971). Hence, no burden of proof is assigned.9 Thus, criminal evidence rule 405 would not permit the use of specific acts of misconduct other than final convictions to prove character at the penalty stage of a non-capital criminal trial. Specific instances of conduct may be used only where character is an essential element that is required to be proved in order for the State to make its case; no such element is at issue in the penalty stage of a trial for a non-capital offense. The Rules of Criminal Evidence do not permit the introduction of extraneous, unadjudicated offenses and their details at the penalty stage of a non-capital case.

¶54We. now turn to the other limiting factor — the definition of a defendant’s pri- or criminal record. As observed earlier, when article 37.07 was first enacted, it did not contain a definition of “prior criminal record.” Because of the great uncertainty as to what evidence was admissible under that term, it was defined in the 1967 amendment to the statute. Act of May 19, 1967, 60th Leg., R.S., ch. 659, § 22, 1967 *171Tex.Gen.Laws 1732, 1740.10 The definition has remained unchanged. In fact, it was restored to the 1989 amendment after having been earlier eliminated. Such action clearly indicates the legislative intent to retain the limitation of evidence with regard to a defendant’s prior criminal record at the penalty stage of the trial. Few can argue that extraneous, unadjudicated offenses and their details were admissible prior to the 1989 amendment. Murphy, 777 S.W.2d at 57.

¶55The State calls attention to the use of the term “including” in the 1989 amendment and argues that the term is one of enlargement and not of limitation or exclusive enumeration. Tex. Gov’t Code Ann. § 311.-005(11) (Vernon Supp.1991). We agree with the State that the 1989 amendment to article 37.07, section 3(a) expanded without enumeration other matters that might be introduced if the trial court deems the same relevant to sentencing and other requirements are met. We disagree, however, with the contention that the amendment authorized the introduction of extraneous, unadjudicated offenses and their details in view of the retention of the term “prior criminal record” and its limiting definition, the history of the statute and the 1989 amendment.

¶56We hold that the testimony was inadmissible under both the Rules of Criminal Evidence and the definition limiting the meaning of a “prior criminal record.” The court abused its discretion in admitting it.

¶57It is true that Grunsfeld offered evidence simply establishing his eligibility for probation by the jury after the State had elicited evidence of three extraneous, unadjudicat-ed offenses and their details. This did not cure any error or call for a different result. Nothing in the 1989 amendment or its history indicate that the holding in Murphywas intended to be superseded. In Murphy, the court held:

that whether past criminal conduct by an applicant for probation may reveal a trait or propensity to violate the law is not relevant to a material issue tendered by an application for probation in a punishment proceeding before a jury. For that matter, neither is a self-serving declaration by applicant that he will not violate the law if placed on probation.

¶58Murphy, 111 S.W.2d at 67.

¶59We are well aware of recent cases contrary to our decision today. In McMillian, the Houston court held admissible an extraneous, unadjudicated offense as relevant to McMillian’s “fitness” for probation. McMillian v. State, 799 S.W.2d 311, 313-14 (Tex.App.—Houston [14th Dist.] 1990, pet. granted). Without reviewing the legislative history, the court spoke in general phrases like “significant change” and “expanded language.” Then, in a conclusory statement the court found no conflict between rule 404(c) and article 37.07, section 3(a). No mention was made of “prior criminal record” contained in both the rule and the statute. The Houston court has reiterated its position in Munoz v. State, 803 S.W.2d 755 (Tex.App.—Houston [14th Dist.] 1991, writ refused).

¶60In Huggins, the Beaumont court held the trial court did not abuse its discretion in admitting extraneous, unadjudicated offenses at the penalty stage of the trial. Huggins v. State, 795 S.W.2d 909, 911 (Tex.App.—Beaumont 1990, pet. ref’d). Without any analysis, the Hugginscourt held that the language in article 37.07, section (3)(a) that evidence permitted by the rules of evidence and deemed relevant to sentencing by the trial court was “additional to and separate and independent” of language found elsewhere in the statute concerning a defendant’s prior criminal record, his general reputation, and character.11 The court found the unadjudicated offenses and their details relevant under rule 401. No mention was made of rule 404(c).

¶61The Hugginscourt then boldly held that now there “is no realistic difference or *172distinction” between article 37.07, section 3(a) in non-capital cases and article 37.-071(a) with regard to the admission of extraneous, unadjudicated offenses in capital cases. No legislative history was discussed.12 The Beaumont court has reiterated its position in Hunter v. State, 805 S.W.2d 918 (Tex.App.—Beaumont 1991, pet. filed).

¶62The San Antonio court has followed McMillianand Huggins. See Gallardo v. State, 809 S.W.2d 540 (Tex.App.—San Antonio 1991, pet. filed). Here again, the legislative history was not considered nor was the statute read as a whole. The Fort Worth court has also followed Huggins. See Hubbard v. State, 809 S.W.2d 316 (Tex. App.—Fort Worth 1991, no pet. h.).

¶63We do not find these cases controlling or persuasive. It is abundantly clear that whatever the intent of the legislature was in enacting the 1989 amendment to article 37.07, section 3(a), it was not to open the door to evidence in non-capital cases as wide as that in capital case sentencing. If that was the intent, then the legislature would not have retained the limiting language in the amendment. This Court cannot now eliminate those limitations. See Rumbaugh v. State, 589 S.W.2d 414, 418 (Tex.Crim.App.1979). We must not attempt amendment under the guise of judicial interpretation. We must not convert a statute from what it is to one of our own choosing, even if that interpretation is a popular one. Further, we cannot attribute to the legislature an intent to reach an illogical result. It would not make sense that the legislature intended that extraneous, unadjudicated offenses and their details be admissible, but that prior convictions must be final before being admissible and even then that details of the underlying offenses are to be excluded.

¶64Next, we address the question of whether the error requires a remand to the trial court for a new hearing on punishment. In making a harmless error determination, a reviewing court must isolate the error and all its effects, and second, ask whether a rational trier of fact might have reached a different result if the error had not occurred. The reviewing court should focus not on the weight of evidence of guilt but rather on whether the error at issue might possibly have prejudiced the jurors’ decision-making process. Harris, 790 S.W.2d at 587-88. Rule 81(b)(2) mandates that the appellate court focus upon the error and determine, in cases like the instant one, whether the error contributed to the punishment assessed. Id. at 585.

¶65Focusing upon the error, we conclude that the trial court’s error in allowing the jury to hear the testimony about additional rapes and their details prejudiced the jury’s decision-making process. The extraneous, unadjudicated offenses could only persuade the jury that Grunsfeld stood before them as a vicious serial rapist who must be given the maximum punishment; the jury imposed life imprisonment. Therefore, this Court cannot determine beyond a reasonable doubt that the error made no contribution to the punishment assessed. Tex.R.App.P. 81(b)(2). We sustain Gruns-feld’s fourth point of error. In light of our *173disposition of Grunsfeld’s fourth point of error, we do not address his final point of error concerning the ex post facto application of article 37.07, section 3(a).

¶66We reverse the trial court’s judgment and remand the cause for further proceedings pursuant to article 44.29(b) of the Texas Code of Criminal Procedure.13