On motion for rehearing, the State contends that the court of appeals addressed the relevancy of the extraneous offense evidence demonstrating a common scheme or plan. The State also asks us to reconsider part IB of our original opinion because we addressed Rule 403 without requesting that the parties brief the issue.See footnote 1 We granted rehearing to reconsider our resolution of these issues.See footnote 2 This supplemental opinion supports part IA of our original opinion and withdraws part IB of that opinion.

    After issuing our opinion on original submission, this Court delivered Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Guzman affirmed the long-standing rule that "appellate courts should show almost total deference to a trial court's findings of fact especially when those findings are based on an evaluation of credibility and demeanor." Id. at 88. This decision does not alter the abuse of discretion standard, though it does clarify that the abuse of discretion standard does not necessarily apply to application of law to fact questions if their resolution does not turn on an evaluation of credibility and demeanor. Id. at 89. Because a trial court's evidentiary ruling generally does not involve an "application of law to fact question" or a "mixed question of law and fact," cases addressing an appellate court's review of a trial court's evidentiary ruling remain unaffected by Guzman.

    Montgomery sets the standard of review for evidentiary rulings. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh'g). It defines relevant evidence, the admissibility of that evidence, and the trial judge's role in determining admissibility. Under Montgomery, to determine whether evidence is admissible a trial judge begins by asking whether the evidence is relevant. Id. at 386. As defined by Rule 401, "relevant" evidence is evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable then it could be without the evidence." Tex. R. Crim. Evid. 401. If the evidence is relevant it is admissible so long as no constitutional provision, statute, or rule bars its admissibility. Tex. R. Crim. Evid. 402.

    Relevant evidence may not be admissible for every purpose. Rule 404(b) bars evidence of "other crimes, wrongs or acts" when that evidence is admitted for the purpose of proving "the character of a person in order to show that he acted in conformity therewith." Tex. R. Crim. Evid. 404(b). This evidentiary rule incorporates the fundamental tenet of our criminal justice system that an accused may be tried only for the offense for which he is charged and not his criminal propensities. Owens v. State, 827 S.W.2d 911,914 (Tex. Crim. App. 1992). Evidence of other crimes, wrongs, or acts may, however, be admissible if it has relevance apart from its tendency to prove character conformity. Tex. R. Crim. Evid. 404(b); Montgomery, 810 S.W.2d at 387. Consequently, if a defendant objects on the grounds that the evidence is not relevant, violates Rule 404(b), or constitutes an extraneous offense, the proponent must show that the evidence has relevance apart from showing character. Id. at 387.

    If the trial court determines the evidence has no relevance apart from character conformity it is inadmissible. Id. If the proponent persuades the trial court that the evidence is admissible for some other permissible purpose, and that purpose "tends in logic and common experience to . . . make the existence of a fact of consequence more or less probable than it would be without the evidence" the evidence is admissible. Id. at 391. The evidence is considered relevant if it:

. . . tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g. absence of mistake or accident . . . [or] that it is relevant upon a logical inference not anticipated by the rulemakers.

Montgomery, 810 S.W.2d at 387-88 [emphasis added].See footnote 3

    A trial court's admission of extraneous offense evidence is not reviewed de novo but under an abuse of discretion standard. See Guzman, 955 S.W.2d at 89. As long as the trial court properly admitted the evidence in light of the factors enunciated in Montgomery and the trial court's decision to admit the evidence lies "within the zone of reasonable disagreement" the decision will be upheld. Montgomery, 810 S.W.2d at 391.

    In his petition, appellant challenged the court of appeals' review of the admissibility of the extraneous offense evidence. Specifically, he contended that the court of appeals erred in holding that the evidence was automatically admissible as evidence of a common scheme or plan. This Court concluded that the appellate analysis was deficient because "[i]nstead of focusing on how the evidence was relevant to show a fact of consequence in this case, the court of appeals attempted to show how the evidence tended to show a common scheme or plan." We concluded the court of appeals had not conducted a complete relevancy analysis and remanded the case.See footnote 4

    The State now contends that the issue before us on original submission was not the propriety of the analysis, but the correctness of the conclusion that the trial court did not abuse its discretion. The State also contends that, contrary to our decision on original submission, the court of appeals did address the relevancy of the common scheme or plan evidence and did not automatically admit the evidence. The State contends the court set out the appropriate case law and effectively addressed the relevancy of the evidence when it concluded the evidence was admissible to show that appellant used the horseback rides "as a tool to satisfy [appellant's] sexual desires" but as a means of "progressively exploit[ing] his authority and dominion over the girls[.]" Rankin, 872 S.W.2d at 283.

    We believe the State is correct that the court of appeals properly examined the facts to determine whether the extraneous acts were admissible as evidence of a common scheme or plan, but this does not constitute an analysis of what "fact of consequence" this evidence was to go to prove. As emphasized in this Court's original opinion, "the mere fact that a party introduces evidence for a purpose other than character conformity, or any of the other enumerated purposes in Rule 404(b), does not, in itself, make that evidence admissible." Because the evidentiary rules admit only "relevant" evidence, the purpose for which the proponent wants to admit the extraneous offense must satisfy the definition of relevant evidence set out in Rule 401. Montgomery, 810 S.W.2d at 391. Extraneous offense evidence will generally always be relevant, but the permissible purpose for which the proponent is offering it may not be. For instance, where intent is a material issue and it is not inferable from the act itself, evidence of other acts probative of such intent is relevant and the trial court's decision to admit such evidence is proper.See footnote 5 Where the state's direct evidence, however, clearly shows the intent element of the crime and that evidence is uncontradicted by the defendant or not undermined by cross-examination of the state's witnesses, the offer of other crimes is unjustified due to the lack of relevancy.See footnote 6 Similarly, evidence tending to show that an alleged touching was not accidental or by mistake would not be relevant if the defendant has yet to make a claim of accident. Prior, 647 S.W.2d at 959.

    It is for this reason that the proponent of 404(b) evidence must persuade the trial court that the extraneous offense evidence is being offered for a purpose other than character conformity, and that this other purpose "tend[s] 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." Tex. R. Crim. Evid. 402. If the appellate court finds that the proffered evidence would not tend to make the existence of a material fact more or less probable, then the court must conclude that the trial court abused its discretion.See footnote 7 As stated in our original opinion, because it is not for this Court to make findings as to relevancy in the first instance, we remand this case to the court of appeals.

    The State also contends that we should not have resolved the Rule 403 issue because appellant did not raise the issue in his brief and it was not a ground on which this Court granted review. After re-examining part IB of this Court's original opinion we are in agreement with the State. We find that a Rule 403 analysis was premature once this Court decided to remand the case for the court of appeals to address the relevancy of evidence establishing a common scheme or plan. The relevancy of the evidence admitted under 404(b) is crucial to determining whether the probative value of the evidence is outweighed by its prejudicial effect. Therefore, it was premature for us to perform a Rule 403 balancing test before the court of appeals had an opportunity to pass on whether it was reasonable for the trial court to find the evidence relevant. For instance, in the absence of a disputed issue the offer of other crimes evidence may be seen as merely prejudicial. Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App. 1985) ("where there is little or no controverting evidence offered by a defendant . . . use of an extraneous offense is unnecessary and offers virtually no probative value").See footnote 8

    For the foregoing reasons, part IB of our opinion on original submission is withdrawn. This case is remanded to the court of appeals for it to consider whether the extraneous offense testimony is relevant to a fact of consequence. If the court of appeals finds this evidence to be relevant, it should then perform a Rule 403 balancing test. If the court finds the evidence admissible under Rule 403, it should conduct a harm analysis of the court's error in failing to give a timely limiting instruction.

    The judgment of the court of appeals is vacated and the cause remanded for that court to address the above issues in a manner consistent with this Court's opinion on original submission and this opinion on rehearing.

    Holland, J.
Delivered: July 8, l998
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Montgomery, 810 S.W.2d at 392-93.

    The majority remands this cause to the court of appeals in order for it to determine whether the evidence of extraneous acts was relevant. If the court finds that it was, it is to perform a Rule 403 balancing test and then, if necessary, decide whether the failure to give a limiting instruction at the time the evidence was admitted was harmless. I find myself in disagreement with the reasoning in Part II of the opinion.

    In Part II, the majority espouses two propositions with which I disagree: (1) that the Court of Appeals must articulate how a common scheme or plan would be relevant to a fact of consequence in the case, and (2) that an extraneous offense is not relevant if the State does not need the evidence. The majority opinion suggests that a conclusion that certain evidence is relevant to show a common scheme or plan is insufficient to establish that evidence's relevance to the criminal prosecution. But evidence of a common scheme or plan is relevant to show intent. While intent is not an element of every prosecution, it is an element of this one; hence, the Court of Appeals adequately addressed the relevance of the extraneous offenses when it concluded that they tended to show a common scheme or plan.

    As for the second proposition, I believe that the threshold determination of relevancy is not affected by the State's relative need (or lack thereof) for the evidence. Even if in some cases it is true, as we said in Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (opinion on rehearing), that determining relevance is not exclusively a function of rule and logic, I think that in most cases it will be just that. It does not take much for evidence to be relevant - it need only have any tendency to make a fact of consequence more or less probable. Whether the State needs the evidence does not affect the logical relation between the extraneous act and the nonconformity purpose at issue, although it may well affect whether the probative value of such evidence is substantially outweighed by its prejudicial effect. Hence, whether the State needs the evidence is not a consideration under Rule 404 but under Rule 403.

    At least some of the cases cited by the majority seem to support my position. In Morgan v. State, 692 S.W.2d 887, 880 (Tex. Crim. App. 1985), a case involving admissibility of extraneous acts of sexual assault of children, the court disposed of the relevance issue thus, "[W]here intent or guilty knowledge is an essential element of the offense which the State must prove to obtain a conviction, its materiality goes without saying." The disputed question involved the admissibility of the evidence, but not its relevance. Prior v. State, 647 S.W.2d 956 (Tex. Crim. App.1983), similarly, discussed the admissibility of extraneous acts when intent was established by testimony about the offense itself. There is not in that case, however, the slightest suggestion that the extraneous acts were irrelevant.

    So when the majority says that "evidence tending to show that an alleged touching was not accidental or by mistake would not be relevant if the defendant has yet to make a claim of accident," I disagree. It is relevant because it has a tendency to make a fact of consequence (intent) more probable. Such evidence may be inadmissible under Rule 403, but it is not irrelevant.

    As I believe the Court of Appeals adequately addressed the relevancy of the evidence under Rule 404(b), I would not remand for consideration on that issue. I dissent to Part II and otherwise join the opinion of the Court.

                        KELLER, J.

Delivered: July 8, 1998
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McCormick, P.J., Mansfield, and Womack, JJ., join.