The appellant raised the defense that he was insane at the time he committed this homicide. As bases for his opinion on the issue of sanity, the appellant's expert witness used the facts of this homicide and six other homicides that the appellant committed. These facts included photographs of the scenes of the other homicides, which the appellant offered in evidence.

The State objected to the photographs of the six other scenes as not being relevant, and the trial court sustained the objection. It seems to be beyond serious question that the objection of irrelevance had no merit, since the Court treats the matter as one in which relevant evidence was excluded under Rule of Evidence 403. ⁽¹⁾

The Court says the trial court also "conducted the balancing test for inadmissible evidence under Rule 705(d) and determined that the photographs could have been used for improper purposes." ⁽²⁾ The Court does not further discuss that rule.

Our Rule of Evidence 703 states that an expert witness's opinion may be based on facts or data that are not admissible in evidence if they are of a type reasonably relied on by experts in the field in forming opinions or inferences on the subject. Further, "[t]he expert may in any event disclose on direct examination … the underlying facts or data." ⁽³⁾

These rules are a departure from the view of the majority of common law courts that forbade an expert witness's opinion to be based on hearsay or reports that were not in evidence. ⁽⁴⁾ Although there was "a strong case law trend toward a contrary view," ⁽⁵⁾ it did not include the cases of the Texas courts. "Prior to the adoption of Rule 703, Texas courts refused to permit experts to state opinions based solely on hearsay outside the record, regardless of its admissibility or inadmissibility. As late as 1980, this rule was reaffirmed by the Texas Supreme Court … [and a] year later, the Court of Criminal Appeals." ⁽⁶⁾

Perhaps this is why Texas' Rule 705(d), unlike the federal rules, mandates a balancing test if the underlying facts or data are inadmissible in evidence. "When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than an explanation or support for the expert's opinion outweighs their value as explanation or support, or are unfairly beneficial." ⁽⁷⁾ Exclusion is not always required. "Usually … a limiting instruction will suffice to negate the danger that the jury will improperly consider the inadmissible hearsay for its substantive purpose and … Rule 705(d) requires that one be given upon timely request." ⁽⁸⁾

These photographs were not hearsay or extra-record evidence on which the expert relied. Rule 705(d) plays no part, in my view.

The trial court also ruled "under Rule 403" that the evidence was "cumulative," would cause "needless delay," and "confusion of the issues." ⁽⁹⁾

The Court says, "The photographs in question were likely to distract the jury from the facts of the crime charged and focus their attention on other crime scenes." There was no dispute about the conduct and the result of the offense that was charged, and hence no danger of distraction from those facts.

The disputed fact of this homicide was the appellant's sanity at the time he committed it. The parties agreed that this homicide was one of a series of homicides that the appellant committed. The opinion of the appellant's expert witness was that the facts of all the homicides were relevant to the appellant's sanity in this homicide. Surely they were relevant. The trial court received in evidence the facts of the other offenses, and there seems to be no disagreement about their relevance. I believe the correct question is whether photographs of the scenes of those admittedly relevant homicides would be a distraction from the only contested issue, which was the appellant's sanity. If the Court would consider that question, perhaps it would hold, as I do, that the photographs would not have been a distraction from the contested issue.

Although grudgingly admitting that the photographs "might have been relevant to the issue of sanity," the Court says that "merely viewing the photographs would not necessarily tend to prove that appellant was legally insane, therefore their probative value was limited." ⁽¹⁰⁾ What does this mean? "Necessarily" means "inevitably" or "as a necessary result," and "necessary," in this usage, means "unavoidable." ⁽¹¹⁾

"Did not necessarily tend to prove"insanity cannot mean "did not necessarily prove" insanity; if this, or any, evidence necessarily proved an excuse like insanity, I suppose that a court would direct an acquittal. The word "tend" must be taken into account in interpreting the Court's meaning.

"Necessarily tending" to prove a fact must be different from plain, old, everyday tending to prove a fact, which is all that is required by the definition of "relevant evidence": "evidence 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." ⁽¹²⁾ Do the words "necessarily tending to prove" have the usual meaning of "inevitably" or "unavoidably" tending to prove? If they do, how is evidence that meets that standard distinguished from evidence that does not? The Court know that these photographs do not, but how does it know?

The Court says that because these photographs would not necessarily tend to prove that appellant was insane, "therefore their probative value was limited." Now, all evidence has limited probative value; I have not heard of any evidence that had unlimited probative value. Is the limited value of this evidence different from the limited value of other evidence? Or is all evidence that has limited value also evidence does that does not necessarily tend to prove a fact? Is there any meaningful way to distinguish the limited probative value of these photographs from the probative value of any other item of evidence? Or does a trial court have discretion to exclude every item of evidence because every item has limited probative value?

The Court says, "Additionally, viewing the other crime scenes may have lead [sic] to confusion regarding the difference between appellant being 'crazy' and the issue of legal insanity." ⁽¹³⁾ That is, photographs of the scenes of a person's six homicides might show that the person was crazy, but might confuse the issue of whether he was insane. How? Why?

Now, the trial court received oral evidence about the other homicides as relevant to the issue of insanity. Is the Court saying that that evidence also was relevant to craziness, but not insanity? Can there be evidence of insanity that is not also evidence of craziness? If there can be, how does the Court know that these photographs are evidence of the latter and not the former?

Or is it the photographic nature of the excluded evidence that makes it more relevant to craziness than to insanity? Is that true of all photographs, or only of homicide-scene photographs? Or is there something about these particular photographs that would turn a juror's mind away from the issue of insanity, and into the irrelevant area of craziness?

The Court says:

Finally, even if the photographs were improperly excluded, because the witness was allowed to testify regarding the various methods used to evaluate appellant, the exclusion did not preclude appellant from presenting his defense of insanity. See Potier v. State, 68 S.W.3d 657, 666 (Tex. Cr. App. 2002) (stating that erroneously excluded evidence may have been relevant but the exclusion was not prejudicial if it did not prevent appellant from presenting a defense). The trial court's alternative theory for the exclusion of the photographs under Rule 403 was correct. ⁽¹⁴⁾

To begin with, we did not state in Potier that "erroneously excluded evidence may have been relevant but the exclusion was not prejudicial if it did not prevent appellant from presenting a defense." Potier was a case in which, "[t]o decide whether this error was harmless, the Court of Appeals applied the harmless-error standard in Rule of Appellate Procedure 44.2(b), which is for non-constitutional errors, rather than Rule 44.2(a), which is the standard for constitutional errors. The courts of appeals have

divided on the issue of which standard to use for similar errors. We granted review to clarify the use of the standards." ⁽¹⁵⁾ We held that the error in excluding the defendant's evidence was not of constitutional dimension. This did not make the exclusion of Potier's evidence correct, much less the ruling in this case; nor did it make the error "not prejudicial." If the Court wants to hold that there was no error in this ruling against this appellant because there was no constitutional dimension in it, it cannot do it in reliance on Potier or any case of which I am aware.

No one suggests that the photographs of the six other homicides that the appellant committed were misleading or unreliable in any way. There is no serious question of their relevance to the issue of insanity; the Court and I do not disagree on that point. Why would the State not want the jury to have this reliable, relevant evidence to decide the issue of the appellant's insanity? I fear that the Court's opinion hints at the answer: The State did not want the jury to see these photographs because they would have been powerful evidence that the appellant was crazy. Proof of craziness was a necessary step in his effort to prove that he was insane and should be confined in a mental hospital rather than given the lethal injection that the State desired. I do not intimate any view as to his sanity, or suggest that the facts would require or even justify a finding of insanity. I do think that his evidence was admissible, that he should have a trial in which the jury sees it, and that the law requires that he does.

I would sustain the appellant's fourth point and remand this case for a new trial.

En banc.

Delivered May 21, 2003.

Publish

1. "The trial court's alternative theory for the exclusion of the photographs under Rule 403 was correct." Ante, at 7.

2. Ante, at 5.

3. Tex. R. Evid. 705(a).

4. "A question calling for a direct opinion based upon firsthand knowledge of an expert is so direct, simple, and thus effective that a party may for similar reasons desire to obtain an opinion based upon reports of others. There formerly was a majority view, however, that a question is improper if it calls for the witness' opinion on the basis of reports that are not in evidence or are inadmissible in evidence under the hearsay rule (without reciting their contents as hypotheses, to be supported by other evidence as to their truth.) The essential reason in support of this view is that seemed to be that the jury was asked to accept as evidence the witness' inference, based upon someone's hearsay or upon other inadmissible facts which were presumably not supported by any evidence at the trial and which therefore the jury had no basis for finding to be true. …

[A] broader view [was taken] in Federal Rule of Evidence 703, which has been adopted in various state jurisdictions." Edward W. Cleary, McCormick on Evidence 38-39 (3d ed. 1984).

5. Id., at 39.

6. Steven Goode, Olin Guy Wellborn, III, and M. Michael Sharlot, 2 Texas Practice -- Guide to the Texas Rules of Evidence: Civil and Criminal § 703.3 (2d ed. 1993) (footnotes omitted).

7. Tex. R. Evid. 705(d).

8. Goode et al., supra note 6, § 705.3.

9. Ante, at 5. "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." Tex. R. Evid. 403.

10. Ante, at 6 (punctuation sic).

11. See Oxford American Dictionary 444 (1980).

12. Tex. R. Evid. 403 (emphasis added).

13. Ante, at 6.

14. Ante, at 7.

15. Potier, 68 S.W.3d at 658.