As to the State's cross-examination of Brumley about specific instances of child abuse engaged in by appellant, there is a much more explicit basis for admitting the testimony than that given in the Court's opinion: the evidence constitutes proper rebuttal testimony under Rule 404(a)(1)(A).

Texas Rule of Evidence 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Rule 403 renders evidence inadmissible only when the prejudice involved is "unfair." ⁽¹⁾ "'Unfair' prejudice means an 'undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" ⁽²⁾ The extraneous offense evidence in the present case was unquestionably prejudicial. The real issue is whether the prejudice involved was the kind that suggested an improper basis for decision, and if so, whether the improper basis for decision suggested by the evidence substantially outweighed the legitimate probative value of the evidence (i.e. the fair prejudice created by the evidence).

The Court of Appeals's opinion makes the erroneous assumption that appellant's character is an improper basis for decision. "[E]vidence of an extremely similar extraneous offense always carries the potential to impress the jury with an accused's character conformity, an impression the law seeks to avoid." ⁽³⁾ The Court of Appeals's opinion and the State's brief before that court assume that the evidence in question was admissible under Rule 404(b). ⁽⁴⁾ That rule justifies the admission of evidence for a non-character purpose. If, however, the evidence in this case was admissible under a different rule that justifies admission of evidence for the purpose of showing character, then the prejudicial effect of the evidence could not be deemed unfair simply because the evidence tends to show bad character.

One rule by which evidence is admitted to show character (as opposed to a non-character purpose) is Texas Rule of Evidence 404(a)(1)(A). That rule permits a criminal defendant to introduce evidence of a pertinent character trait in order to prove action in conformity with that trait. ⁽⁵⁾ Rule 404(a)(1)(A) provides:

Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent character trait offered:

(A) by an accused in a criminal case, or by the prosecution to rebut the same.

(emphasis added).

The rules limit the types of evidence that may be used to prove character. Even under Rule 404(a)(1)(A), character evidence may take the form of reputation or opinion only, with one exception: when evidence of a character trait is presented, the adverse party may inquire on cross examination into specific instances of conduct under Rule 405(a). Rule 405(a) provides:

In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

What is still prohibited, even under Rule 404(a)(1)(A), is extrinsic evidence of specific instances of conduct.

The differences between Rule 404(b) and Rule 404(a)(1)(A) significantly affect the analysis to be conducted under Rule 403. Character is an improper purpose under Rule 404(b) but not under Rule 404(a)(1)(A). Since the very purpose of Rule 404(a)(1)(A) is to show character, and Rule 405(a) contemplates cross-examination about specific instances of conduct, a party must do far more than simply point to the evidence's tendency to show character to establish "unfair" prejudice under Rule 403.

As the Court recognizes, Brumley's testimony, offered by appellant, had probative value for only one purpose: as evidence of appellant's good character for not being a child molester. By introducing a CPS worker's opinion that appellant posed no risk of abuse or neglect in the home, appellant undoubtedly intended to incline the jury to draw the inference that he was not the kind of person who would molest children. In doing so, Rule 404(a)(1)(A) was implicated and the defense testimony opened the door to an inquiry, on cross-examination, into specific instances of bad conduct relevant to the issue of whether he was a child molester.

The Court correctly observes that Brumley's direct examination testimony was in fact inadmissible. Brumley was not qualified, under Rule 405(a), to give an opinion on appellant's character because her opinion was not based upon facts she knew prior to the offense: "In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense." ⁽⁶⁾ The Court then contends that, because the defense testimony on direct examination was inadmissible, the State was not authorized to rebut that testimony under the rules.

But Rule 405(a) does not say the predicate testimony must be admissible to authorize inquiry into specific instances on cross-examination - just that the predicate testimony was admitted under the rule. By not objecting, the State procedurally defaulted the question of Brumley's qualification to give character testimony. Having successfully admitted good character testimony, appellant opened the way for an inquiry by the State on cross-examination into relevant specific instances of conduct. The State's cross-examination of Brumley on the extraneous offense against S.S. falls squarely within Rule 405(a)'s authorization for such an inquiry. The Court says that "The State may not convert a defense fact or expert witness into a character witness through its own cross-examination." But Brumley was not a fact witness, and while she may have been an expert witness, her "expert" testimony was relevant only to show appellant's good character. The State did not convert Brumley into a character witness; the defense introduced her as one at the outset.

I join Part III of the Court's opinion and otherwise concur in the judgment.

KELLER, P.J.

DATE FILED: January 30, 2002

PUBLISH

1. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).

2. Id.

3. See Wheeler, 988 S.W.2d at 369.

4. Id. at 368.

5. See Rule 404(a)(1)(A).

6. Rule 405(a).