author: COCHRAN, J., KELLER, Presiding Judge.

text:
    Ex parte Garrin Wardner KELLER, Applicant.
    No. AP-75133.
    Court of Criminal Appeals of Texas.
    Oct. 5, 2005.

      Garrin Wardner Keller, pro se.
    Doug Arnold, Asst. D.A., Georgetown, TX, Matthew Paul, State’s Atty., Austin, TX, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which PRICE, JOHNSON, KEASLER, HERYEY, and HOLCOMB, JJ., joined.

In this habeas corpus case we must determine whether a subsequent conviction for indecency with a child makes applicant ineligible for street-time credit for his earner burglary offense under Texas Government Code § 508.283(c). We hold that it does not. Applicant is eligible for street-time credit for the time he spent on mandatory supervision. Therefore, we grant relief.

I.

Applicant is currently serving a nine-year sentence for the third degree felony offense of burglary of a vehicle, an offense that he committed on October 30, 1992. In 1997, while on parole for this burglary offense, applicant pleaded guilty to the second degree felony offense of indecency with a child by contact, a crime which he had committed on June 7, 1993, some four years earlier. He was sentenced to two years imprisonment on this later offense and had credit for time served beginning on October 31, 1994. Thus, applicant had fully discharged the indecency sentence by October 30, 1996, even though he was not actually convicted of that offense until 1997.

In his writ, applicant complains that he should have received street-time credit, under Texas Government Code § 508.283, for all time spent on parole or mandatory release. The trial court, however, con-eluded that “[ajpplicant is described in Section 508.149(a) of the Government Code, due to his prior conviction for the offense of indecency with a child by contact. Therefore, applicant is not entitled to credit for the time he spent on parole under Section 501.0081 of the Government Code.”

II.

We have previously held that the purpose of Section 508.283(c), which applies to any parole or mandatory supervision revocation occurring after September 1, 2001, is that “certain parole violators will receive street-time credit if the ‘remaining portion’ of their sentence is less than the amount of time they have spent out on parole.” That is, if the “remaining portion” of an inmate’s sentence is greater than the time spent on parole or mandatory supervision, he may not receive credit for that “street time.” On the other hand, if the “remaining portion” of his sentence is less than the time spent on parole or mandatory supervision, that inmate will receive credit for all of his “street time.”

However, not all inmates are eligible for street-time credit. Under Section 508.283(c), only an inmate “other than a person described by Section 508.149(a)” qualifies. Section 508.149(a) sets out a list of specific offenses for which an inmate is ineligible for release on mandatory supervision. This list includes the offense of indecency with a child. Under Section 508.149(a), an inmate is ineligible for mandatory supervision if he is “serving a sentence for or has been previously convicted of’ one of these offenses.

III.

At issue in this case is whether applicant is entitled to credit for any “street time” on mandatory release for which his revocation occurred after September 1, 2001. According to the Texas Department of Criminal Justice (TDCJ), applicant was last released on mandatory supervision on October 30, 2001. At that time, applicant had a scheduled discharge date of October 5, 2004. Thus, he had 2 years, 11 months and 5 days remaining on his burglary sentence. Applicant was returned to custody on November 12, 2003, and revoked on May 24, 2004. He was out of custody for 2 years and 12 days. But TDCJ refused to give applicant credit for this “street time” based on what it called his “previous” conviction for indecency with a child. According to TDCJ’s calculations, applicant had a scheduled mandatory release date of March 20, 2005, and a discharge date of October 17, 2006.

As noted above, Section 508.283 would grant applicant “street time” credit if, at the time the parole revocation warrant issued, he had spent more time on release than he had left to serve and he is not a person “described by § 508.149(a).” Because applicant spent more time on mandatory supervision (2 years and 12 days) than he had left to serve (less than a year), the only question is whether he is a person described by Section 508.149(a): is he an inmate ineligible for mandatory supervision?

“Eligibility for mandatory supervision is governed by the law in effect at the time the offense was committed.” When applicant committed his “holding offense,” the 1992 burglary of a vehicle, he was eligible for release to mandatory supervision. Once eligible he remains eligible regardless of whether the applicable mandatory supervision law has changed in the meantime. This is why he was released on mandatory supervision in 2001 even though he had, by then, been convicted of indecency with a child, an offense for which he would be ineligible for release on mandatory supervision. Because the laws applying to applicant in 1992, when he committed the burglary of a vehicle offense, permitted his release to mandatory supervision, he is not a person described by § 508.149(a).

Furthermore, the indecency-with-a-child conviction is not a previous conviction which could affect applicant’s eligibility for release on mandatory supervision for the earlier burglary offense, it is a later or subsequent conviction. Under the plain language of § 508.149(a), a previous conviction is one obtained before the holding conviction, not after the holding conviction. Only if the indecency conviction were the holding offense (or if the holding offense were one committed after the 1997 indecency conviction) would applicant be a person “described by § 508.149(a).”

TDCJ’s position is that inmates in applicant’s position are not eligible for street-credit time under Section 508.288(c):

We believe that eligibility for street time should depend strictly upon whether the person is one “described by Section 508.149(a)” at the time they are revoked; in other words, when revoked, does the offender have a current or prior conviction for an offense as listed in § 508.149(a)?

TDCJ argues that the legislature has used the list of violent offenses set out in § 508.149(a) as a means to identify particularly heinous offenses for various purposes, but legislative reference to that statute does not mean that its categorization is in lockstep with eligibility for mandatory supervision. TDCJ further notes that there is no ex post facto concern with determining eligibility for street-time credits based upon all of the inmate’s convictions — whether obtained before or after the commission of the “holding” offense— at the time of his parole revocation.

Under TDCJ’s interpretation, the phrase “previously convicted” in § 508.149(a) means “convicted before the commission of the holding offense” when determining eligibility for mandatory supervision, but that same phrase in that same statute means “convicted before the date of parole revocation” when determining eligibility for street-time credit under Section 508.283(c). TDCJ notes that in Ex parte Spann, this Court stated that the legislative purpose of Section 508.283(c) “was to lessen the sentence of non-violent parole violators (versus violent parole violators) whose time spent out on parole exceeded their remaining sentences.”

TDCJ’s position is a logical one — the legislature intended Section 508.283(c) to grant street-time credits only to those inmates who were convicted of non-violent offenses and who have never been convicted of any violent offense. But that is not what Section 508.283(c) says. It says that any inmate “other than a person described by Section 508.149(a)” is eligible for street-time credits. And a person described by Section 508.149(a) is one who is “serving a sentence for or has been previously convicted of’ one of the enumerated violent felonies. In that section, the phrase “previously convicted of’ means that the person has been convicted of a violent felony before committing the holding offense.

Under the normal rules of statutory construction, there is a presumption of statutory consistency. That is, a word or phrase that is used within a single statute generally bears the same meaning throughout that statute and that when a second statute refers to the first statute, words or phrases within the first statute will bear’ their same meaning in the second statute. As the United States Supreme Court has stated, “the normal rule of statutory construction” is that “identical words used in different parts of the same act are intended to have the same meaning.” Although that presumption may give way if the legislature has clearly intended a different result, we are unable to find any clear indication that the legislature intended that the term “previously convicted” in Section 508.149(a) carry an entirely different meaning for purposes of good-time credits under Section 508.283(c) than it does for purposes of determining eligibility for release on mandatory supervision.

Thus, we find that the plain meaning of the term “previously convicted” in § 508.149(a) is the same when it is used to describe those who are ineligible for release on mandatory supervision as when it is used to describe those who are ineligible for “street time” credit under § 508.283(c).

In this case, applicant is not serving a sentence for indecency with a child. Applicant’s holding conviction for burglary occurred before his conviction for indecency with a child. Therefore, applicant’s indecency conviction cannot be called a “previous” conviction under § 508.149(a) and make him ineligible for street-time credit on the burglary conviction.

Applicant is entitled to relief. TDCJ shall treat applicant as an inmate eligible for release to mandatory supervision and, because applicant qualifies for street-time credit, shall credit him with his out-of-custody time during his latest release. Copies of this opinion shall be sent to TDCJ-CID and the Board of Pardons and Paroles.

MEYERS and WOMACK, JJ., not participating.

KELLER, P. J., filed a dissenting opinion.

KELLER, Presiding Judge.

In 2001, the Legislature added to Government Code § 508.288 a provision that awards street time credit to certain offenders upon revocation of parole or mandatory supervision. This time credit does not apply to “a person described by Section 508.149(a).” The Court’s opinion equates the phrase “a person described by Section 508.149(a)” with “a person to whom Section 508.149(a) applies” and it construes “previously convicted” to mean “convicted before the holding offense.” I respectfully disagree with both of these propositions.

A. General statutory construction principles

In construing a statute, we look to the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended. In conducting a plain meaning inquiry, we read words and phrases in context and construe them according to the rules of grammar and common usage. Moreover, “[wjords or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

B. “described by”

The question here is how to treat § 508.283’s reference to another statute, § 508.149(a). The answer to that question can be found, in part, in Government Code § 311.027, which states: “Unless expressly provided otherwise, a reference to any portion of a statute or rule applies to all reenactments, revisions, or amendments of the statute or rule.” In addressing this provision, our sister court, the Texas Supreme Court, explained: “When one statute references another statute, one must look to the referenced statute to understand the referencing statute.... [W]hen the referenced statute is amended or revised, the referencing statute incorporates the amendments or revisions.” In accordance with this reasoning, the Supreme Court held that a reference in the juvenile determinate sentencing statute (Family Code § 53.045) to the murder statute (Penal Code § 19.02) applied to the version of the murder statute in existence when the offense was committed (for which the juvenile was being sentenced), which was November 1994. As a result, the post-September 1994 treatment of “sudden passion” applied to the juvenile sentencing proceeding.

So, the Legislature has specifically prescribed how to treat a statute’s reference to another statutory provision. Absent express direction to the contrary, a reference to a statute is to the current version of the referenced statute, as of the date the referencing statute applies in the case. This is true even when the referenced statute has been recently amended and the referencing statute has been unchanged for several years. The referencing statute is essentially “updated” by any changes to the referenced statute.

The 2001 amendment to § 508.283 applies to “any revocation that occurs on or after September 1, 2001.” The date the “street time credit” provision applies to the defendant, then, is the date his mandatory supervision was revoked. So to the extent the meaning of § 508.283 in the year 2004 (when applicant was revoked) turns upon its reference to § 508.149(a), the meaning of the former provision will turn upon an examination of the then-current version of § 508.149(a) — the version in effect in 2004.

The version of § 508.149(a) in effect in 2004 provides in relevant part: “An inmate may not be released to mandatory supervision if the inmate is serving a sentence for or has been previously convicted of ... a second or third degree felony under Section 21.11, Penal Code.” With his prior conviction in 1997 for indecency with a child, applicant clearly was, in 2004, “a person described by Section 508.149(a).”

It is true that § 508.149(a) did not apply to applicant at the time of his revocation (and in fact does not apply to him even today). When applicant committed his burglary offense, the words “previously convicted of’ were not included in Article 42.18, § 8(c), the predecessor to § 508.149(a). Those words were not added until 1996, and the change applied only to “a prisoner serving a sentence for an offense committed on or after the effective date” of the amendment. So applicant’s conviction for indecency with a child, even if considered a “previous conviction,” could not render him ineligible for mandatory supervision because the burglary sentence he is serving was committed before the effective date of the change and, by the time he was revoked, he was no longer serving the indecency offense.

But the question in the present case is not the applicability of § 508.149(a). The question is whether applicant is “described by” that provision. It is true that § 508.149(a) that begins with, “An inmate may not be released to mandatory supervision if,” but that is the directive clause of the statutory provision. The rest of the provision is the descriptive clause, setting forth what exactly makes a person ineligible for mandatory supervision. If the “street time credit” provision (§ 508.283) had excluded from its reach “a person to whom Section 508.149(a) applies,” then the rule for giving effect to the current version of the referenced statute would have required this Court to look to the various applicability and effective date provisions (which themselves are almost never amended), and that inquiry would have resulted in construing the “street time credit” provision to apply only to those who are in fact ineligible for mandatory supervision. But by excluding from the credit those who are “described by” § 508.149(a), the Legislature dictated that we should look to the current list of ineligible offenses and determine whether applicant’s convictions fall within that list.

C. “previously convicted of’

The Court indicates that the phrase “previously convicted of’ in § 508.149(a) refers to a conviction that is previous to the commission of the holding offense. But the statute does not say that. Rather, § 508.149(a) refers to an inmate who “is serving a sentence for or has been previously convicted of’ a listed offense. This phrase suggests that the Legislature intended to comprehensively cover all persons convicted of a listed offense, whether or not the conviction in question happens to be the holding offense.

Moreover, the phrase “serving a sentence for” indicates that the time-frame for assessing the existence of a listed offense is the time the inmate would otherwise be eligible for release. That is, the inmate will not be released, even if his time credits make him otherwise eligible, if he is serving a sentence for a listed offense. This interpretation is consistent with the “discretionary mandatory supervision” subsection of the same statute which clearly centers on the time period of possible release, not the time the original offense was committed:

An inmate may not be released to mandatory supervision if a parole panel determines that:
(1) the inmate’s accrued good conduct time is not an accurate reflection of the inmate’s potential for rehabilitation; and
(2) the inmate’s release would endanger the public.

The attentive reader will notice that the directive clause of subsection (b)(in italics) is identical to the directive clause found in subsection (a). Examining other portions of a statute to help ascertain the meaning of a particular subsection is an appropriate practice, and here, the parallel construction strongly suggests that both subsections have the same temporal focus.

Of course, § 508.283 is not concerned with release but with whether street time credit is given upon revocation. But the focus of § 508.149 upon release is a focus upon the relief granted, so § 508.283’s incorporation of § 508.149(a) should result in a parallel focus: ascertaining the existence of a listed offense at the time the time credit would be granted — the revocation of parole or mandatory supervision. Using the appropriate focus in applicant’s case reveals that applicant is ineligible for the time credit because, at time of revocation, he had a previous conviction for indecency with a child, an offense on the then-current list found in § 508.149(a).

Consequently, I would deny relief. I respectfully dissent.

      . Applicant was originally placed on deferred adjudication for four years, but, in November 1993, he was adjudicated and placed on ten years straight probation. In 1994, that probation was revoked, and he was sentenced to nine years in prison.

      . Applicant had previously filed several time-credit disputes with the Time Credit Resolution Office of the Texas Department of Criminal Justice. The last one filed was pending when he filed his writ. Applicant was, at that time, within 180 days of his presumptive mandatory supervision release date. Therefore, the trial court concluded that applicant was excused from the administrative exhaustion requirement. Tex Gov’t Code § 508.0081 ("Subsection (b) does not apply to an inmate who, according to the department's computations, is within 180 days of the inmate's presumptive parole date, date of release on mandatory supervision ...”).

        .Ex parte Spann, 132 S.W.3d 390, 392 (Tex.Crim.App.2004). As noted in Spann, the wording of Section 508.283(c) is opaque and subject to different interpretations. Compare id. at 393, with id. at 398-99 (Keller, P.J., dissenting) (noting that “[standing alone, the wording concerning the third class of offenders [listed in § 508.283(c)] is confusing”). The statute reads as follows:
      (c) If the parole, mandatory supervision, or conditional pardon of a person other than a person described by Section 508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. For a person who on the date of issuance of a warrant or summons initiating the revocation process is subject to a sentence the remaining portion of which is greater than
      the amount of time from the date of the person's release to the date of issuance of the warrant or summons, the remaining portion is to be served without credit for the time from the date of the person’s release to the date of revocation. For a person who on the date of issuance of the warrant or summons is subject to a sentence the remaining portion of which is less than the amount of time from the date of the person’s release to the date of issuance of the warrant or summons, the remaining portion is to be served without credit for an amount of time equal to the remaining portion of the sentence on the date of issuance of the warrant or citation.
      Tex. Gov’t Code § 508.283(c).

      . Ex parte Spann, 132 S.W.3d at 393.

      . Ex parte Byrd, 162 S.W.3d 250, 252 (Tex.Crim.App.2005).

      . Tex Gov’t Code § 508.149(a)(5)("a second degree felony or a third degree felony under Section 21.11, Penal Code”).

      . Id.

      . Applicant claims that he is entitled to street-time credit for several pre-2001 time periods, but Section 508.283 does not apply to an inmate's “street time” for which the inmate’s parole was revoked before September 1, 2001. See Ex parte Spann, 132 S.W.3d at 394 & n. 7. In Spann, we stated that "[p]rior to 2001, section 508.283 prescribed that any parole violator forfeited the benefit of street-time credit.” Id. at 394. (emphasis in original). We then noted,
      Before the 2001 amendments, section 508.283(c) merely stated: “If a person’s parole ... [or] mandatory supervision ... is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the [RELEASE date] to the [REVOCATION date].” See Act of July 1, 1999, 76th Leg., R.S., 1999 Tex. Gen. Laws 62.

        Id. n. 7.

      . Ex parte Byrd, 162 S.W.3d at 252.

      . Tex.Code Crim. Proc. Art. 42.18, § 8(c) (Repealed by Acts 1997, 75th Leg., ch. 165, § 12.22, eff. Sept. 1, 1997).

      . See Ex parte Mabry, 137 S.W.3d 58, 59-60 (Tex.Crim.App.2004). In Mabry, this Court stated,
      The amendments contained in Chapter 263 of the Session Laws for the 74th Legislature (1995), which became effective September 1, 1996, contained a saving clause.
      Section 3(a) The change in law made by this Act applies only to a prisoner serving a sentence for an offense committed on or sifter the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.
      Section 3(b) A prisoner serving a sentence for an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.
      Session Laws, 74th Legislature, Regular Session, Chapter 263, §§ 3 and 4 (1995).
      These clauses reflect a clear intention by the Legislature to apply the old law to prisoners serving a sentence for an offense committed prior to the September 1, 1996, effective date. Thus, the law prior to those revisions applies to applicant, whose offense was committed in 1990.

        Id.

      . See Ex parte Ervin, — S.W.3d -, -, 2005 WL 767846, *2, 2005 Tex.Crim.App. LEXIS 518, *6-7 (Tex.Crim.App.2005) (“In 1995, the legislature went further and made ineligible those inmates who had ever been convicted of one of the enumerated offenses .... Specifically, the bill analysis for House Bill 1433 of the 74th Regular Legislative Session, which amended Article 42.18, Section 8(c), supports the conclusion that the legislature intended to include all prior serious offenses. The changes were intended to Amend[] Section 8(c), Article 42.18, Code of Criminal Procedure, to prevent those previously convicted of crimes ineligible for mandatory supervision from eligibility for any future conviction, regardless of the current offense”) (citing Act of May 29, 1995, 74th Leg. R.S., ch. 263, § 1, 1995 Tex. Gen. Laws 2592 (now codified in Tex. Gov’t.Code § 508.149(a)) & House Comm, on Corrections, Bill Analysis, Tex. H.B. 1433, § 1, 75th Leg., R.S. (1995)).

      . See Ex parte Mabry, 137 S.W.3d at 63 (Keasler, J., concurring) ("When an inmate has multiple convictions, he will have one conviction which governs his release date, either because it is the most recent, contains the longest sentence, or has the least amount of time credits. It is the conviction that will keep the prisoner in custody for the greatest amount of time. A prisoner's governing or “holding” conviction could be for an offense committed after 1997, but he might also have a previous conviction for first-degree burglary. In that instance, the Legislature sought to make clear that § 508.149 would apply to him, because the holding conviction is for an offense that was committed after the statute’s effective date. Even if that holding conviction were not on the list of enumerated offenses, the prisoner would still be ineligible for mandatory supervision if he had previously been convicted of an offense on the list.”).

      .Although TDCJ has not submitted a brief in this case, it has submitted a letter brief in a different writ application, Cause No,1991CR0997; Henry Lugo Anguiano, No. WR-62,090-01, dealing with the same question. We do not normally consider materials and arguments submitted in one case when deciding another case, but because applicant is in TDCJ's physical custody and any relief granted would be directed toward TDCJ, its legal rationale for the grant or denial of “street time” credits under Section 508.283 should be addressed.
      The construction of a statute made by an administrative agency charged with its enforcement is entitled to great consideration when that statute is ambiguous and if the construction is reasonable and does not contradict the statute’s plain language. Tex. Gov’t Code § 311.023(6); see Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991) (stating that ”[i]f the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history”); Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993) ("Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.”).
      Because we conclude that the meaning of the term "previously convicted” in 508.149(a) is not ambiguous and is subject to the Boykin "plain meaning” analysis of statutory construction, we decline to give great deference to TDCJ’s interpretation of that phrase. Nonetheless, we acknowledge and address TDCJ’s legal position even though we ultimately do not adopt it.

      .TDCJ may be correct in its ex post facto argument, see Johnson v. State, 930 S.W.2d 589, 591 (Tex.Crim.App.1996), but the issue is not whether the Constitution bars TDCJ’s interpretation of the statute, but rather whether the term "prior conviction” has a single, consistent meaning within a statute, even when other statutes refer back to the original one, or whether that meaning changes like a chameleon.

      . Ex parte Spann, 132 S.W.3d at 393-94.

      . See Ex parte Ervin, - S.W.3d -, -, 2005 WL 767846, *2, 2005 Tex.Crim.App. LEXIS 518, at *6-7 (Tex.Crim.App.2005) (noting that, in amending the mandatory supervision law, "the legislature intended to include all prior serious offenses. The changes were intended to ... prevent those previously convicted of crimes ineligible for mandatory supervision from eligibility for any future conviction, regardless of the current offense”) (citation omitted), Ex parte Mabry, 137 S.W.3d 58, 63 (Tex.Crim.App.2004) (Keasler, J., concurring) (discussing the legislative rationale for referring to previous convictions in § 508.149 and noting that even "if that holding conviction were not on the list of enumerated offenses, the prisoner would still be ineligible for mandatory supervision if he had previously been convicted of an offense on the list”); Ex parte Hall, 995 S.W.2d 151, 152 (Tex.Crim.App.1999) (using the terms "previous conviction” and "prior conviction” interchangeably under § 508.149 with both terms meaning a conviction obtained before the “holding” conviction).

        . See, e.g., Texas Dept. of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002) ("In ascertaining a term's meaning, courts look primarily to how that term is used throughout the statute as a whole. Statutory terms should be interpreted consistently in every part of an act”) (citations omitted); Brown v. Darden, 121 Tex. 495, 500, 50 S.W.2d 261, 263 (Tex.1932) (“Whenever a legislature has used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby”); Alexander v. State, 84 Tex.Crim. 75, 80, 204 S.W. 644, 647 (Tex.Crim.App.1918) ("In the absence of any direct judicial interpretation of the language under construction, the use of these phrases in substantially the same connection, where their meaning is undisputed, would seem to afford the best guide as to the legislative intent”); Guthery v. Taylor, 112 S.W.3d 715, 721-22 (Tex.App.-Houston [14th Dist.] 2003, no pet) ("when construing a statutory word or phrase, a court may take into consideration the meaning of the same or similar language used elsewhere in the act or in another act of similar nature. When the same or a similar term is used in the same connection in different statutes, the term will be given the same meaning in one as in the other, unless there is something to indicate that a different meaning was intended.”) (citations omitted).

      . Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (quoting Department of Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332, 342, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994)); See also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003); Commissioner v. Lundy, 516 U.S. 235, 250, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996) ("The interrelationship and close proximity of these provisions of the statute presents a classic case for application of the normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.”) (internal quotations omitted).

      . Cf. Ex parte Ervin, - S.W.3d at -, 2005 WL 767846, *2, 2005 Tex.Crim.App. LEXIS 518 at *8 ("applicant is not eligible for mandatory supervision release because he has been previously convicted of a second degree predecessor of Penal Code Section 22.011 (sexual assault) and because Government Code Section 508.149(a) precludes from release inmates who have been convicted of such an offense or its predecessors”) (emphasis supplied).

      . Tex Gov’t Code § 508.283(c).

      . § 508.283(b), (c).

      . Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

      . Lane v. State, 933 S.W.2d 504, 515 n. 12 (Tex.Crim.App.1996); Tex Gov’t Code § 311.011(a).

      . Ex parte Rieck, 144 S.W.3d 510, 512 (Tex.Crim.App.2004); Tex. Gov’t Code § 311.011(b).

      . Tex Gov’t Code § 311.027.

      . In re R.J.J., 959 S.W.2d 185, 186 (Tex.1998).

      . Id. at 185-186.

      . Id. at 186. Amendments effective September 1994 eliminated the offense of voluntary manslaughter and made "sudden passion" a punishment issue, on which the defendant carried the burden of proof, in a murder prosecution. See id. at 186.

      . Acts 2001, 77th Leg., ch. 856, § 11.

      . § 508.149(a)(5).

      . Tex.Code Crim. Proc., Art. 42.18, § 8(c)(1992).

      . Acts 1995, 74th Leg., ch. 263, § 1, eff. Sept. 1, 1996.

      . Id. at § 3(a).

      . At the time he committed the indecency offense, indecency with a child was not on the list of ineligible offenses. See Acts 1997, 75th Leg., ch. 238, § 2. Had he committed the offense three months later, he would arguably have been rendered ineligible for mandatory supervision while serving the indecency offense, see id. at § 2(a)(second degree indecency with a child included on list as of September 1993 amendments) and Tex. Pen. Code § 21.11(a)(1) & (d)(1992)(indecency of a child by contact is a second degree felony), but would then become mandatory supervision eligible on the burglary offense once his service on the indecency offense was finished.

      . § 508.149(b)(emphasis added).

      . See Long v. State, 931 S.W.2d 285, 291 (Tex.Crim.App.1996); State v. Stevenson, 958 S.W.2d 824, 828 (Tex.Crim.App.1997).


source: Caselaw Access Project

author: KELLER, P.J., MEYERS, J., HOLCOMB, J.,

license: Public Domain

text:
    Israel G. ROMERO, Appellant v. The STATE of Texas.
    No. PD-0911-04.
    Court of Criminal Appeals of Texas.
    Oct. 5, 2005.

      On State’s Petition for Discretionary Review from the Sixth Court of Appeals, Harris County.
    Ken J. McLean, Houston, TX, for Appellant.
    Donald W. Rogers, Jr., Houston, Matthew Paul, State’s Atty., Austin, for State.

      . The record reflects that the Texas Supreme Court transferred this case from the First Court of Appeals to the Sixth Court of Appeals. See Tex. Gov’t Code § 73.001.

   KELLER, P.J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY and COCHRAN, JJ„ joined.

The question before us is whether the defendant’s Sixth Amendment right to confront witnesses was violated when a witness testified in disguise. Although this is a very close issue, and one undecided by the United States Supreme Court, we answer that question “yes” and affirm the judgment of the Court of Appeals.

I. BACKGROUND

Appellant was indicted for aggravated assault. On the morning of trial, Cesar Hiran Vasquez, one of the State’s key witnesses, arrived at the courthouse but refused to enter the courtroom to testify. Vasquez, who had been subpoenaed by the State, notified the State that he “would rather go to jail than testify in this case” because of his fear of appellant. The State informed the trial court of Vasquez’s fear and his refusal to testify, and the trial court responded by threatening to fine Vasquez $500 for failing to obey the State’s subpoena. Vasquez persisted in his refusal to testify, however, stating that, because he was “worried for [himjself and [his] children,” he “would prefer to pay” the fine rather than testify. The trial court then imposed the fine. Shortly thereafter, Vasquez entered the courtroom wearing dark sunglasses, a baseball cap pulled down over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to obscure Vasquez’s mouth, jaw, and the lower half of his nose. The net effect and apparent purpose of Vasquez’s “disguise” was to hide almost all of his face from view. The record reflects that, at the time of trial, appellant was aware of Vasquez’s name and address.

Appellant objected to the “disguise” on the basis of his “right to confrontation” and, more generally, his “right to a fair trial.” The trial court overruled these objections.

The State then called Vasquez to the stand, outside the presence of the jury, to testify regarding appellant’s motion to suppress Vasquez’s in-court identification of appellant. Vasquez testified that he was operating a taxicab on May 10, 2002, at approximately 1:45 a.m., outside the Cosmos nightclub in Houston, when he saw appellant run toward the nightclub and, for no apparent reason, fire several shots in that direction. Given Vasquez’s proximity to the nightclub’s entrance, appellant’s shots came fairly close to him. A security guard at the nightclub returned fire and hit appellant in the back. Appellant then retreated to a pickup truck and sped away, stopping once to fire again in the direction of the nightclub. Vasquez’s testimony continued:

Q: [DEFENSE COUNSEL] If the Court were to order you not to wear your sunglasses, your hat, [and] your jacket with my client present in the courtroom, are you still going to testify.
A: For my safety, I wouldn’t do it.
Q: [PROSECUTOR] Why are you afraid to testify against this defendant?
A: Because of the way that it could be seen that he was going to attack the security guard. It can be seen that he’s a person who’s dangerous on the street.
Q: And does it worry you or concern you if he was able to see your face?
A: Yes.
Q: What are you afraid that he would do?
A: To take revenge.
[PROSECUTOR]: I have no further questions.
Q: [DEFENSE COUNSEL] Well, my client’s never threatened you, has he?
A: No.
Q: All right. He’s given you no reason to be afraid of him, right?
A: Didn’t you see the way he’s looking at me?
Q: You’re just afraid, right?
A: For my safety.
Q: You just don’t like the way he’s looking at you, right, basically?
A: No.
Q: Then what is it?
A: The way I saw him attack with the gun.

At the conclusion of Vasquez’s testimony, appellant again objected to the disguise, and the trial court again overruled the objection. Vasquez later testified before the jury wearing his disguise. The jury found appellant guilty and assessed punishment at imprisonment for ten years.

On direct appeal, appellant brought three points of error. In his first two points, appellant complained that the trial court erred in permitting Vasquez to testify in his disguise. In point of error number one, appellant argued that the trial court’s ruling denied him his Sixth Amendment right to confrontation “[b]ecause [Vasquez’s] ball cap, large opaque sunglasses and mask [sic] prevented a face-to-face confrontation [and hindered] the jury’s ability to observe [Vasquez’s] demeanor and assess his credibility.” In point of error number two, appellant argued that the trial court’s ruling denied him his Fourteenth Amendment right to the presumption of innocence because Vasquez’s “use of a disguise ... could only have lead [sic] the jury to believe the defendant was guilty, dangerous and prone to vengeance.” The court of appeals sustained appellant’s first two points of error, reversed the judgment of the trial court, and remanded the case to the trial court for further proceedings.

The State filed a petition for discretionary review, arguing, among other things, that Vasquez’s act of testifying in disguise did not violate appellant’s Sixth Amendment right to confront witnesses. Having granted review, we now turn to that issue.

II. Analysis

The Sixth Amendment’s Confrontation Clause reflects a strong preference for face-to-face confrontation at trial. An encroachment upon face-to-face confrontation is permitted only when necessary to further an important public interest and when the reliability of the testimony is otherwise assured.

A. Reliability

Whether the reliability of the testimony is otherwise assured turns upon the extent to which the proceedings respect the four elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. In Maryland v. Craig, the Supreme Court found sufficient assurance of reliability in a procedure that denied one of these elements — physical presence— where the remaining three elements were unimpaired. In that case, a child witness testified in front of a one-way closed-circuit monitor that prevented her from seeing the defendant but permitted the judge, jury, and defendant to see the witness. Because the witness was under oath, subject to contemporaneous cross-examination, and her demeanor was on display before the trier of fact, the Supreme Court found that the procedure adequately ensured that the testimony was “both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in person testimony.”

In this case, as with Craig, the presence element of confrontation was compromised. Although the physical presence element might appear, on a superficial level, to have been satisfied by Vasquez’s taking the witness stand, it is clear that Vasquez believed the disguise would confer a degree of anonymity that would insulate him from the defendant. The physical presence element entails an accountability of the witness to the defendant. The Supreme Court has observed that the presence requirement is motivated by the idea that a witness cannot “hide behind the shadow” but will be compelled to “look [the defendant] in the eye” while giving accusatory testimony. In the present case, accountability was compromised because the witness was permitted to hide behind his disguise.

But unlike Craig, the present case also involves a failure to respect a second element of confrontation: observation of the witness’s demeanor. Although Vasquez’s tone of voice was subject to evaluation and some body language might have been observable, the trier of fact was deprived of the ability to observe his eyes and his facial expressions. And while wearing a disguise may itself be an aspect of demeanor that jurors could consider in assessing credibility, that fact cannot by any stretch of the imagination be considered an adequate substitute for the jurors’ ability to view a witness’s face, the most expressive part of the body and something that is traditionally regarded as one of the most important factors in assessing credibility. To hold otherwise is to remove the “face” from “face-to-face confrontation.”

B. Important interests

While there may be circumstances sufficient to justify a procedure that overrides not just one but two elements of a defendant’s right to confrontation, those circumstances should rise above the “important” interests referred to in Craig to interests that are truly compelling. But we do not see an important interest served in the present case, much less a compelling one.

One important, even compelling, interest might be to protect a witness from retaliation, but the disguise in this ease did little to further such an interest because Vasquez’s name and address, but not his face, were already known to the defendant. Although Vasquez might reasonably fear that the defendant would be able to connect his facial features and appearance to his name and address, this connection could easily be made without any in-court appearance. A defendant seeking retaliation could simply knock on the door at the known address and ask for the named person. Moreover, this is not a case in which the defendant gave the victim or the authorities any concrete reason for suspecting retaliation, nor is this a case in which the defendant was shown to belong to a crime syndicate or a street gang from which retaliation might be anticipated.

At best, the disguise worked to allay the witness’s subjective fear of retaliation. But some degree of trauma is to be expected in face-to-face confrontations. Calming an adult witness’s fears is quite a different thing from protecting a child victim from serious emotional trauma. Adults are generally considered to be made of sterner stuff and capable of looking after their own psychological well-being. And the difference is especially great when the adult witness is not the victim, but merely a bystander who observed events, and when the basis of the witness’s fear is simply that the defendant committed a violent crime and gave the witness a bad look. If those circumstances are sufficient to justify infringing on a defendant’s right to face-to-face confrontation, then such infringement can be carried out against anyone accused of a violent crime. That outcome would violate the principle that face-to-face confrontation may be deprived only in exceptional situations.

C. Harm

In ground four, the State contends that any error was harmless. Citing Morales v. Artuz, it argues that sunglasses only minimally impair a jury’s ability to assess witness credibility; that the testimony of the witness was cumulative; and that the presumption-of-innocence jury charge cured or minimized any harm. But aside from the fact that the disguise consisted of far more than sunglasses, the State’s first argument is really directed toward error, i.e., whether his confrontation rights were in fact violated. And, as to the second argument, though the complainant also gave eyewitness testimony, he had shot the appellant and thus had a possible interest in the appellant being the perpetrator. Under these circumstances, we cannot say that the testimony was cumulative and thus harmless. And finally, the State’s harmlessness argument regarding the presumption-of-innocence charge relates only to grounds two and three, and is not pertinent to the confrontation issue. The State has, thus, failed to show us why the error was harmless beyond a reasonable doubt.

We affirm the judgment of the Court of Appeals.

MEYERS and HOLCOMB JJ„ filed a dissenting opinion.

MEYERS, J.,

filed a dissenting opinion.

Mr. Israel G. Romero, this is your lucky day. You’re going to get a new trial. The trial judge erred by allowing an eye witness to your crime to wear a ball cap, jacket, and sunglasses while testifying. And, even more amazing is that this type of error is immune from a harm analysis.

The majority says that two elements of the confrontation clause were eompro-mised — that being presence and demeanor. While I’m unsure what compromise means here, I’m fairly confident that the witness was there face-to-face to testify, was cross-examined, and that his demeanor showed that he was scared to death of the defendant. In Texas, is an accused entitled to more than this? Apparently so. Since Mr. Vasquez spoke through an interpreter, I really think this whole controversy is probably “lost in translation.”

In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court discussed the purpose of the Confrontation Clause.

The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word “confront,” after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox [v. United States] 156 U.S. [237] at 242-243, 15 S.Ct. 337, 39 L.Ed. 409.
As this description indicates, the right guaranteed by the Confrontation Clause includes not only a “personal examination,” 156 U.S. at 242, [15 S.Ct. 337] but also “(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” [California v.] Green, [399 U.S. 149] at 158[, 90 S.Ct. 1930],
The combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.

Craig, 497 U.S. at 845-46, 110 S.Ct. 3157.

But here’s the catch, the defense basically neutralized the witness’s disguise. Mr. Vasquez was the only one in the courtroom who thought he was The Phantom of the Opera. The only effect that wearing a hat and sunglasses had was to make Mr. Vasquez more comfortable on the stand and to limit the trauma he felt when testifying against someone whom he feared. This is similar to the cases cited by the parties, Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), and Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, in which measures were used to prevent face-to-face contact between the defendant and the witness in order to prevent trauma to the victims. However, unlike the screen in Coy and the closed circuit television in Craig, in this case, the outfit worn by Mr. Vasquez did not prevent or encroach upon face-to-face contact between the defendant and the witness.

Attorneys often change the appearance of witnesses appearing in court. Drunks are sobered up, addicts are cleaned up, and the homeless are dressed up; prostitutes even appear in business suits. These modifications are intended to persuade the jury that the witness is reliable. Mr. Vasquez’s additions were not intended to fool the jury. Rather it was simply a method to allay his fears about testifying. Nothing was compromised-just slightly camouflaged.

I agree with the trial court’s decision to allow the witness to appear as secret agent man. Therefore, I respectfully dissent.

HOLCOMB, J.,

filed a dissenting opinion.

I respectfully dissent. On the record before us, I discern no violation of appellant’s Sixth Amendment right to confront the witnesses against him. Accordingly, I would reverse the judgment of the court of appeals.

The central concern of the Sixth Amendment’s Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in an adversarial proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1992). In accord with that central concern, “the Confrontation Clause reflects a preference for face-to-face confrontation at trial.” Id. at 849 (emphasis in original). In the absence of an actual face-to-face confrontation, a defendant’s right to confront accusatory witnesses may be satisfied if (1) denial of such confrontation is necessary to further an important state interest and (2) the reliability of the testimony is otherwise assured. Id. at 850.

After considering the record and the arguments of the parties, I conclude that an important state interest is implicated in this case. On this record, the trial court could have reasonably concluded that Vasquez’s disguise was necessary to further the important state interest in protecting the physical well-being of witnesses who have a well-founded fear of retaliation on the part of the defendant. Vasquez testified that he witnessed appellant engage in an unprovoked, determined, and lethal attack on a nightclub in Houston. Vasquez also testified that he was afraid to testify against appellant because of what he had seen appellant do. Finally, Vasquez remarked, during his testimony, about how appellant was looking at him in the courtroom, apparently in a threatening manner. On this record, the trial court could have reasonably concluded that Vasquez reasonably believed appellant was a dangerous person, possibly a sociopath, and that Vasquez had a well-founded fear of retaliation on appellant’s part. The fact that the trial court made no such finding on the record is not determinative. “Nothing in Maryland v. Craig requires that a trial court make explicit, as opposed to implicit, findings regarding the necessity of a special procedure to protect a ... witness.” Lively v. State, 968 S.W.2d 363, 367 (Tex.Crim.App.1998).

I also conclude that the trial court could have reasonably concluded that Vasquez’s disguise was necessary to further the important state interest in presenting key evidence to establish guilt in a felony case. The record reflects that Vasquez was a key witness in the State’s prosecution of appellant for a very serious felony offense. The record further reflects that Vasquez absolutely refused to testify unless he was allowed to wear his disguise.

Finally, I conclude that the reliability of Vasquez’s testimony was otherwise assured, because (1) both parties were aware of his name and residence address, i.e., he was not an anonymous witness; (2) he testified in the courtroom and under oath, thus impressing him with the seriousness of the matter and the possibility of a penalty for perjury; (3) he was able to see appellant’s face in the courtroom, thus reducing the risk that he would wrongfully implicate an innocent person; (4) he was subject to cross-examination; and (5) the jury was able to hear his voice and observe his overall demeanor.

Undoubtedly, the Sixth Amendment does not always require that the jurors have the ability to see the witness’ eyes or see his mouth move as he talks. In some situations, for example, a witness may be blind and may wear sunglasses over his sightless eyes; in other situations, a witness may testify in sign language.

In my view, the Sixth Amendment was satisfied in this case. Accordingly, I respectfully dissent.

      . Tex Pen.Code § 22.02(a)(2).

      . The record reflects that Vasquez spoke little English and that all of his communications were through an interpreter.

      . See TexCode Crim. Proc., Art. 24.05.

      . Our description of Vasquez’s appearance is consistent with Defendant’s Exhibit "A,” a Polaroid photograph, included in the case record, that purports to show Vasquez on the witness stand in disguise. Although the trial court never actually admitted the photograph into evidence, the State, during oral argument in this Court, implicitly conceded the accuracy of the photograph.

      . Romero v. State, 136 S.W.3d 680, 691 (Tex.App.-Texarkana 2004).

      . “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const., Amend. VI.

      . Maryland v. Craig, 497 U.S. 836, 845-850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

      . Id. at 850, 110 S.Ct. 3157.

      . Id. at 846, 110 S.Ct. 3157.

      . Id. at 851, 110 S.Ct. 3157.

      . Id.

      . Id.

      . Coy v. Iowa, 487 U.S. 1012, 1018, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

      . See Craig, 497 U.S. at 856, 110 S.Ct. 3157 (there must be a causal connection between the defendant's presence and the trauma the State seeks to prevent).

      . Coy, 487 U.S. at 1020, 108 S.Ct. 2798 (“face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs”).

      . Id. at 850, 110 S.Ct. 3157 ("That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may be easily dispensed with”).

      . 281 F.3d 55 (2nd Cir.2002),

      . In two other grounds, the State contends that appellant failed to preserve his presumption-of-innocence argument for review (ground two), and that Vasquez’s act of testifying in disguise did not unduly compromise appellant’s presumption of innocence (ground three). Due to our disposition of grounds one and four, we have no occasion to consider grounds two and three. Consequently, they are dismissed.

      . The court of appeals stated the following as to their harm analysis: “Although it is impossible for this Court to determine the likely damage caused by Vasquez’s testifying in disguise or the weight individual jurors may have attributed to his appearance, it posed an unacceptable threat to Romero’s right to a fair trial.” Romero v. State, 136 S.W.3d 680 (Tex.App.-Texarkana 2004). Apparently “threats” to a fair trial can now make an error harmful beyond a reasonable doubt. See Texas Rule of Appellate Procedure 44.2(a).

      . The Appellant cites Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), stating that "the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.”


author: KEASLER, J., KELLER, P.J.,

text:
    Kimberly HALEY, Appellant v. The STATE of Texas.
    No. PD-1531-03.
    Court of Criminal Appeals of Texas.
    Oct. 5, 2005.

      Terrence W. Kirk, Austin, TX, for Appellant.
    Sally E. Swanson, Asst. District Atty., Matthew Paul, State’s Atty., Austin, TX, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court in which

PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

In the punishment phase of Kimberly Haley’s cocaine possession trial, the State introduced evidence of Haley’s participation in an extraneous murder offense and testimony of the murder victim’s mother. Holding the evidence “insufficient” to find Haley guilty beyond a reasonable doubt of the murder, the Court of Appeals found error. The court also found error in the admission of the mother’s testimony. We find error only in admitting the victim’s mother’s testimony and affirm the court’s judgment.

I. Facts

Kimberly Haley was charged by indictment with the offense of possession of a controlled substance with intent to deliver cocaine in the amount of four grams or more but less than 200 grams. Haley was tried in a joint trial with co-defendant Rristofer Marsh, who faced the same indicted offense after being previously convicted of the unrelated murder of Michael Adelman. After the jury found Haley guilty as charged in the indictment, the State introduced punishment evidence describing Haley’s involvement in Adelman’s murder. Because this appeal centers on the admission of this evidence, a brief summary of the admitted testimony is appropriate. Testimony in the punishment phase revealed the following:

On October 5, 2000, Haley and her friend Ronnie Maxwell were drinking and dancing at a club located in downtown Austin. While they were dancing, Michael Adelman approached and proceeded to dance with them. Haley was offended by Adelmaris persistent touching while they danced, and proceeded to call her boyfriend, co-defendant Kristopher Marsh, to tell him about the incident. After Marsh arrived at the club, Haley grabbed Adel-maris nipple as he walked by and stated “We are going to start some s — t.” Adel-man laughed and pushed Haley’s hand away.

When Adelman and his friends left the bar, Haley, Marsh, and Maxwell followed Adelman in Marsh’s vehicle. They followed the vehicle until it stopped at Adel-man’s apartment complex. Armed with a bat, Marsh quickly exited his vehicle and ran towards Adelman. Haley immediately moved to the driver’s seat, turned the lights off, and reversed the vehicle. Marsh approached from behind as Adel-man was directing a friend into a parking space and struck him several times with a bat. Marsh also struck the driver’s side window where Adelman’s friend was sitting, shattering the glass throughout the car. Haley quickly drove towards Marsh, who jumped into the car, and sped away. In the car after the attack, Marsh laughed as he told them that “[tjhere is no way he is getting up” after he “kept hitting him and hitting him.” Haley kissed and praised Marsh by saying, ‘You finally did it.” After five days in intensive care, Michael Adelman was pronounced brain dead. Adelmaris mother, Arleen Adelman testified to her family’s suffering, Michael’s treatment, and the family’s decision to donate his organs.

Upon the close of evidence, the trial court charged the jury on extraneous offense and bad acts evidence. The charge stated that the jury “cannot consider such acts or transactions, if any, unless you first find and believe beyond a reasonable doubt that the defendant committed such acts or participated in such transactions.... ” The instructions did not contain a charge on the law of parties. The jury assessed both defendants’ punishment at confinement for sixty-five years.

II. Court of Appeals

After reviewing the State’s punishment evidence, the Court of Appeals held that “[t]he evidence shows that appellant’s co-defendant Marsh murdered Michael Adel-man; appellant could only be criminally responsible for Adelman’s murder if the evidence showed beyond a reasonable doubt her guilt as a party to that offense.” Concluding the evidence was insufficient to prove Haley’s guilt as a party beyond a reasonable doubt, the court found the trial court abused its discretion in admitting this punishment evidence.

The Court of Appeals also found error in the trial court’s failure to include a definition of the law of parties in its charge to the jury. The court held that the jury must first find Haley guilty beyond a reasonable doubt of committing Adelman’s murder as a party before it could give any consideration to this evidence in assessing Haley’s punishment. Therefore, the court reasoned, without a law-of-parties definition, the trial court condoned the jury’s use of this punishment evidence without a key component necessary in finding criminal liability. The court went on to say that contrary to Texas Penal Code section 7.02 and this state’s precedent on criminal party liability, the instruction permitted the jury to

believe[] that appellant’s presence at the scene of the crime and fleeing from the scene with Marsh was sufficient “participation” in the offense for the jury to consider the evidence in assessing appellant’s punishment. Appellant’s presence at the scene and flight therefrom with Marsh would not be sufficient to make appellant a party to the offense.

The court then conducted an egregious-harm analysis where it found this error deprived Haley of a fair and impartial trial. The court held the error in submitting evidence of the Adelman murder and the error in the jury instructions entitled Haley to a new punishment trial.

Additionally, the court found error in the admission of victim-impact testimony proffered by Arleen Adelman. Relying on this Court’s opinion in Cantu v. State, the court held it was error to admit victim-impact evidence relating to the extraneous offense of murder because Haley was charged only with possession of cocaine and the indictment did not contain a named victim. After reviewing the State’s closing arguments and the record as a whole, the court concluded that the arguments “stressed and overemphasized” this evidence in justifying a severe punishment which substantially affected and influenced the jury’s punishment assessment. We granted the State’s petition for discretionary review in light of these holdings.

III. Analysis

A. Evidence Admissibility

Texas Code of Criminal Procedure article 37.07 § 3(a) is one of the guiding principles governing the admissibility of evidence at the punishment phase of a trial. Article 37.07 § 3(a) states in relevant part:

[EJvidence may be offered by the state and the defendant as to any matters the court deems relevant to sentencing including but not limited to ... evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

The State argues that the Court of Appeals erred in finding error in admitting this evidence by failing to review this evidence under a “bad act” theory of admissibility. Haley responds to the State’s ground of review by contending this theory of admissibility was never presented to the Court of Appeals, and therefore is not properly before this Court. While the State never expressly advanced the bad act theory in its brief before the lower court and a detailed analysis is not found in its decision, the Court of Appeals nevertheless implicitly decided this issue in its resolution of this case. By holding that the only way the jury could consider this evidence under article 37.07 in assessing punishment was to first find Haley guilty beyond reasonable doubt for Adelman’s murder, the Court of Appeals rejected the argument that this evidence could be admissible as a bad act. Therefore, this implicit holding is a decision of the Court of Appeals and the State’s argument warrants review.

The Court of Appeals held that the evidence is insufficient to prove beyond a reasonable doubt that Haley was guilty as a party to the offense of Adelman’s murder; therefore the trial court abused its discretion in admitting and permitting the jury to consider this evidence in assessing Haley’s punishment. The Court of Appeals misreads article 37.07 § 3(a). And as a result, the court mis-characterizes the purpose of character evidence.

When determining the admissibility of evidence under article 37.07, a court must be guided by the language of its provisions. We look solely to the statute’s plain language for its meaning unless its text is ambiguous or the application of its plain language would lead to an absurd result that the Legislature could not have possibly intended. Article 37.07 § 3(a)’ s language cannot be labeled ambiguous, nor does the plain-language application lead to absurd results unintended by the Legislature.

We have held this provision’s unambiguous wording to mean, for purposes of assessing punishment, that the prosecution may offer evidence of any extraneous crime or bad act that is shown, beyond a reasonable doubt, either to have been (1) an act committed by the defendant or (2) an act for which he could be held criminally responsible. For purposes of this case, several principles are apparent from article 37.07 § 3(a)’s text. First, § 3(a) does not contemplate any significant distinction between the terms “bad act” or “extraneous offense.” The statute expressly states “evidence of an extraneous crime or bad act ... to have been committed by the defendant or for which he could be held criminally responsible.” Under this statute, it is irrelevant whether the conduct the offering party is attempting to prove is, or can be characterized, as an offense under the Texas Penal Code. The inclusion of acts rising to the level of criminal responsibility and acts appropriately labeled “bad” in the statute’s language make it clear that the act’s nomenclature does not place each on a separate path towards admissibility.

Second, the statutorily imposed burden of proof beyond a reasonable doubt does not require the offering party to necessarily prove that the act was a criminal act or that the defendant committed a crime. Before the jury can consider this evidence in assessing punishment, it must be satisfied beyond a reasonable doubt that the acts are attributable to the defendant. We interpret the statute to require the burden of proof to be applied to a defendant’s involvement in the act itself, instead of the elements of a crime necessary for a finding of guilt.

Third, the statute’s plain language is in harmony -with the nature and general characteristics of punishment evidence. By holding that a jury must find Haley guilty of murder as a party to the offense, the Court of Appeals equates the role of punishment evidence with evidence proffered in the guilt-innocence phase. Unlike the guilt-innocence phase, the question at punishment is not whether the defendant has committed a crime, but instead what sentence should be assessed. Whereas the guilt-innocence stage requires the jury to find the defendant guilty beyond a reasonable doubt of each element of the offense, the punishment phase requires the jury only find that these prior acts are attributable to the defendant beyond a reasonable doubt.

Therefore, we conclude the Court of Appeals erred in holding (1) that the evidence must first show that Haley is guilty of murder in connection with Adelman’s death and (2) that Haley’s guilt must be shown beyond a reasonable doubt. Because we have held that the Court of Appeals applied an incorrect theory of law, we need not address the State’s related points of error concerning whether the trial court must include the law of parties in the jury instructions sua sponte or whether the Court of Appeals applied the proper harm analysis.

B. Victim Impact Testimony

Preservation of Error

Before we address the merits of the Court of Appeals’s holding on finding error in the introduction of Adelman’s testimony, we must address the State’s contention that the lower court erred in addressing this issue when it was not properly preserved for review. Because we have held that preservation of error is a systemic requirement that must be reviewed by the courts of appeals regardless of whether the issue is raised by the parties, our inquiry into whether Haley properly preserved this alleged error is appropriate.

After the State elicited Adelman’s name, her occupation, her son’s name, age and occupation, the following bench conference took place:

MR. FLOREY [Marsh’s attorney]: We were told we weren’t going to get into victim impact. I thought she was up here just to say that was her son.
MR. KEEL [Haley’s attorney]: To identify him for 37.07. Where are we going with this?
THE COURT: Everything is proper. If you have an objection, just state it and I will rule.
MR. KEEL: I object that none of this is relevant for the record.
THE COURT: Overruled.
MR. FLOREY: Note my same objection.
THE COURT: Overrruled.
MR. FLOREY: Ask for a 403 balancing.
THE COURT: Overruled.

At the conclusion of Adelman’s testimony, the Court granted a short recess during which resulted in the following bench conference:

MR. KEEL: I just want to make the record clear that I had a clear understanding from the Court after I made my relevance objection as to that last witness that the Court would not entertain any further objections to that witness. I hope the Court will agree with me on that and the record will reflect that.
THE COURT: I didn’t mind you objecting.
MR. KEEL: I did. I made a relevance objection.
THE COURT: You did. I overruled it. MR. KEEL: I want the record to reflect that the witness testified beyond what my understanding the Court would allow that particular witness to testify to, including inadmissible victim impact testimony concerning the homicide of Mike Adelman when we are in punishment phase of my defendant’s narcotics case. Furthermore, the Court, it was my understanding, did not wish to entertain any further objections after the initial relevance objection. When the testimony began, it was not only irrelevant but interspersed with hearsay and frequently based upon graphic and prejudicial matters that were totally irrelevant and I object. I am asking the Court to instruct the jury to disregard those matters.
THE COURT: The instruction to disregard is denied. You join in that objection?
MR. FLOREY: I join in that and ask for your ruling.
THE COURT: Instruction to disregard is denied.
MR. FLOREY: One other thing, your Honor. When we were up here before, did I understand and did we have a running objection to all of her testimony when we were here earlier on the bench?
THE COURT: You didn’t because you didn’t ask for it. I just said make your objection. I wanted y’all to object out there to whatever she said that was objectionable.

Preservation of error for appellate review under Texas Rule of Appellate Procedure 33 requires that the record demonstrate (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial judge either ruled on the request, objection, or motion, or he refused to rule and the complaining party objected to that refusal. We have held that an objection must be timely, specific, pursued to an adverse ruling, and must be made each time inadmissible evidence is offered. But two exceptions apply to the requirement of subsequent objections: counsel may obtain a running objection or request a hearing outside the presence of the jury.

While it is clear from the record that Haley’s counsel did not obtain a running objection, we find that the bench conference was a hearing outside the presence of the jury and satisfied Texas Rule of Evidence 103(a). Rule 103(a) provides, in part, “[w]hen the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.” Therefore, we find Haley properly preserved this alleged error in the trial court and the Court of Appeals was correct in addressing whether the trial court erred in admitting this testimony.

Victimr-Impact Admissibility

In Mosley v. State, we discussed the meaning and distinctions between “victim-impact” and “victim-character” evidence. Victim-impact evidence is evidence concerning the effect the victim’s death will have on others, particularly the victim’s family members; whereas victim-character evidence is defined as evidence concerning the good qualities of the victim. A review of Adelman’s testimony reveals both the victim-impact and victim-character nature of her testimony. On direct examination, Adelman testified to the emotional impact her son’s hospitalization and subsequent death had on her family. She recalled her shock in seeing her son lying in the hospital bed “with many plugs and tubes and everything imaginable.” Adel-man further testified to her family’s time spent bedside at the hospital:

There were friends there all the time. We were only allowed to go in once every hour or set times that we could go in. We had to keep the activity down because it seemed like a lot of his friends would want to come in and talk to him and there was a lot of crying going on and we would watch the gauge and it would move his cranial pressure. So we were told to keep kind of quiet. But we were praying. We had priests there. We had a lot of people going in and out.

After detailing how the family was informed of Michael’s worsening condition, Adelman spoke of the family’s decision to donate her son’s organs pursuant to his wishes. She indicated that “[i]t was a hard decision, but we knew that’s what Mike would have done. Mike would have done anything for his friends or his family. He was that type of person.”

Victim-impact evidence or testimony generally may be admissible at the punishment phase when that evidence has some bearing on the defendant’s personal responsibility and moral culpability. But the introduction of victim-impact evidence is limited even further when a party attempts to introduce this evidence concerning a victim of an extraneous offense and one not named in the indictment.

Like the Court of Appeals, we find our opinion in Cantu v. State instructive in the present case. In Cantu v. State, the appellant was charged with the offense of capital murder for killing a person in the course of committing or attempting to commit robbery, kidnapping, and aggravated sexual assault. In the punishment phase, the State offered the testimony of the mother of another victim killed during the same episode that resulted in the death of the victim included in the indictment. Over appellant’s objection, the trial court permitted the mother to testify about her daughter’s good character, the search for her daughter, and the impact her disappearance had on the rest of the family members. This Court held “[t]he danger of unfair prejudice to a defendant inherent in the introduction of ‘victim impact’ evidence with respect to a victim not named in the indictment on which he is being tried is unacceptably high.” While the Cantu Court noted that “[ejxtraneous victim impact evidence, if anything, is more prejudicial than the non-extraneous victim impact evidence found by this Court to be inadmissible in [previous cases],” the Court’s central holding was that such evidence was irrelevant under Texas Rule of Evidence 401. We hold similarly here.

The Court of Appeals correctly noted that Haley faced an indictment that did not identify a victim and charged only the offense of possession of cocaine with the intent to deliver. Adelman’s testimony in the form of victim-impact and victim-character testimony regarding an extraneous offense or bad act was irrelevant under Rule 401 to the determination of the appropriate sentence Haley should receive on the facts of this case. We agree with the lower court’s holding that the trial court erred in admitting victim-impact evidence relating to the extraneous offense of murder in the punishment phase of Haley’s cocaine possession trial.

We further agree with the Court of Appeals’s analysis in finding that the erroneous introduction of Adelman’s testimony had a substantial effect on the jury’s verdict. Pursuant to Texas Rule of Appellate Procedure 44.2(b), any non-constitutional error that does not affect appellant’s substantial rights must be disregarded. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. In assessing the likelihood that the jury’s decision was adversely affected by the error, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. The reviewing court may also consider the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire and whether the State emphasized the error.

After conducting our own review of the entire record, we conclude that the Court of Appeals correctly analyzed the alleged harm. The court’s finding that the jury’s verdict was substantially affected and influenced by the erroneously admitted evidence is both reasonable and supported by the record. We agree that the State’s extended argument concerning the suffering Michael Adelman’s family endured had a substantial effect and influence on the jury’s punishment assessment. The record clearly shows that the Adelman family’s pain was a prominent piece of the State’s argument for a weighty sentence. In this case, we cannot relegate the pervasive and emotional characteristics of this impermissible testimony, especially the manner in which it was used, to the benign category of harmless error.

IV. Conclusion

The Court of Appeals erred in finding error in the admission of evidence detailing Haley’s involvement in the murder of Michael Adelman. However, we affirm the Court of Appeals’s holding that the victim-impact testimony was improperly admitted and substantially affected the jury’s verdict. Therefore, the Court of Appeals’s remand to the trial court for a new trial on the punishment phase is affirmed.

KELLER, P.J., filed a concurring opinion.

MEYERS, J., did not participate.

KELLER, P.J.,

filed a concurring opinion.

Although I agree with the Court’s disposition, I am not in complete accord with its reasoning. I discuss the points of departure below.

1. Extraneous Bad Acts Evidence

I agree that we are permitted to reach the merits of the State’s argument, but I do so for a simpler reason: the party that prevailed at trial should never be required to advance an argument before the Court of Appeals as a predicate for raising that argument on discretionary review. This conclusion is consistent with the view that I articulated in Alonzo v. State with regard to preservation of error. I would further conclude that the reasoning in my Alonzo opinion should apply also to all types of arguments that could be made by a party that prevailed at trial.

We should keep in mind that the trial on the merits is the “main event rather than a tryout on the road.” We should not allow this “main event” to be disturbed merely because the prevailing party neglected to articulate the correct basis for upholding the trial court’s correct decision. To do so would be to impose preservation of error requirements upon the parties on appeal. But preservation requirements exist at trial because they promote the proper and efficient functioning of the system:

Stated more broadly, objections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party is excused from the requirement of objecting, the results are the opposite.

Imposing such a requirement on the appel-lee at the appellate level, however, does nothing to promote the efficient functioning of the system at the trial level, where it matters the most. In fact, it would have just the opposite effect. And as I observed in Alonzo, the party that prevailed at trial has no duty to even file a brief on appeal. It makes little sense, then, to require the party that prevailed at trial to articulate a particular argument on appeal before being permitted to raise the issue on discretionary review. So, with regard to whether we can address the State’s “bad acts” argument here, I would simply conclude: because the State prevailed at trial, it had no duty to discuss the admissibility of the evidence as a bad act.

2. Extraneous Victim Impact Evidence

Although Cantu v. State, a capital case, suggested that victim impact evidence relating to the victim of an extraneous offense was not “relevant” under Rule 401, that pronouncement is questionable in light of Rule 401 and of questionable application to this case in light of subsequent caselaw regarding non-capital cases. The threshold for relevance under Rule 401 is very low: “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.” Moreover, subsequent caselaw has indicated that the admissibility of evidence at the punishment phase of a non-capital case is a function of policy rather than relevance. If we were to speak of relevance, this evidence seems relevant to the harm inflicted by the defendant, and thus to his punishment, but only slightly so, due to the remoteness of its connection to the case. In part because of this remoteness, it is unfairly prejudicial. While grounding its legal basis on relevance, the Cantu opinion expressly articulated its view that this evidence was unfairly prejudicial, and thus, the more logical basis for excluding the evidence would appear to be Rule 403. As a matter of policy, I would not find the evidence to be completely unrelated to the question of the appropriate punishment, but I would find the link to be attenuated and the danger of unfair prejudice to be high enough that the evidence warrants exclusion. Consequently, instead of finding the evidence “irrelevant,” I would hold that the minimal probativeness of this evidence was substantially outweighed by the danger of unfair prejudice under Rule 403.

With these comments, I concur in the Court’s judgment.

        . Haley v. State, 113 S.W.3d 801, 813 (Tex.App.-Austin 2003).

      . id.

      . Id. at 814.

      . Id.

      . Id.

        . Id.

      . Id. at 815.

      . Id. at 818.

      . Cantu v. State, 939 S.W.2d 627 (Tex.Crim.App.1997).

      . Haley, 113 S.W.3d at 818.

      . Id. at 819.

      . Sunbury v. State, 88 S.W.3d 229, 233 (Tex.Crim.App.2002).

      . Tex.Crim. Proc.Code Ann. art. 37.07 § 3(a) (Vernon 2004).

      . See Crittenden v. State, 899 S.W.2d 668, 670 n. 2 (Tex.Crim.App.1995); Lee v. State, 791 S.W.2d 141, 142 (Tex.Crim.App.1990).

      . See Lee, 791 S.W.2d at 142.

      . Jaubert v. State, 74 S.W.3d 1, 2 (Tex.Crim.App.2002); see Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

      . Id.

      . Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999).

      . Tex.Crim. Proc.Code Ann. art. 37.07 § 3(a) (Vernon 2004).

      . Huizar v. State, 12 S.W.3d 479, 482-83 (Tex.Crim.App.2000); Fields, 1 S.W.3d at 688; see id.

      . See id.

      . Sunbury v. State, 88 S.W.3d 229, 234 (Tex.Crim.App.2002); Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999).

      . Fields, 1 S.W.3d at 688.

      . See Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App.2000) (citing Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App.1992) (op. on reh’g)).

      . Tex.R.App. Pro. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App.2003).

      . Geuder, 115 S.W.3d at 13; Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003).

      . Id.

      . 983 S.W.2d 249, 261 (Tex.Crim.App.1998).

      . Id.; see also Mathis v. State, 67 S.W.3d 918, 928 (Tex.Crim.App.2002).

      . Salazar v. State, 90 S.W.3d 330, 335 (Tex.Crim.App.2003).

      . 939 S.W.2d 627 (Tex.Crim.App.1997).

      . Id. at 630.

      . Id. at 636.

      . Id. at 637.

      . Id.

      . See id.; see also Sunbury, 88 S.W.3d at 234 (stating relevance should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case).

      . Tex.R.App. P. 44.2(b).

      . King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

      . Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002).

      . Id. at 355-56.

      . 158 S.W.3d 515 (Tex.Crim.App.2005)(Keller, P.J., dissenting to dismissal of petition).

      . Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)(ellipsis and internal quotation marks omitted).

      . Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App.2002).

      . See 158 S.W.3d at 516.

      . 939 S.W.2d 627, 637 (Tex.Crim.App.1996), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997).

      . Tex.R. Evid. 401.

      . Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999).

      . See Mosley v. State, 983 S.W.2d 249, 262 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

      . 939 S.W.2d at 637.

      . Tex.R. Evid. 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.