Alba v. State , 1995 Tex. Crim. App. LEXIS 76 ( 1995 )

CLINTON, Judge,

dissenting.

In my view the majority opinion adequately addresses none of appellant’s points of error in this appeal. I will limit myself to discussion of appellant’s sixth point of error. I take the time to write specifically on his sixth point of error because the Court’s ratio decidendi is not just barely-intelligible (as is its rationale in disposing of every other point of error in this cause), it is also, from what I can tell, wrong.

During the punishment phase of trial, the prosecutor proffered a lengthy hypothetical question to Dr. Richard Coons, a forensic psychiatrist, to obtain his opinion of the probability appellant would commit criminal acts of violence that would constitute a continuing threat to society. Before Coons could answer, appellant interposed a request to voir dire him pursuant to Tex.R.Cr.Evid, Rule 705(b). That request was expressly denied. In his sixth point of error appellant now complains that the trial court erred to deny him this opportunity.

A plurality of the Court holds that, notwithstanding the mandatory language of the rule, denying appellant’s request was not error on the particular facts of this case because by the time appellant asked to voir dire Coons, the facts or data underlying his expert opinion were already before the jury in the form of the prosecutor’s lengthy hypothetical question. Thus, “the purpose of Rule 705(b) [has] been fully satisfied.” Op. at 588. For an apparently similar reason, the plurality concludes additionally that any error would have been, in any event, “clearly harmless.” Id., at 588. Both of these con-elusions are wrong, and for basically the same reason.

It is true that one of the purposes of Rule 705(b) is to test the factual basis of an expert’s opinion outside the presence of the jury, in case some of what supports his opinion is objectionable. I agree that by the time appellant asked to voir dire Coons the jury had already heard the facts Coons was to assume in formulating his expert opinion that appellant would be a future danger to society. Under the circumstances, a Rule 705(b) voir dire would be pointless if its only purpose was to elicit the purely factual basis of an expert’s opinion in camera. But in my view Rule 705(b) serves other purposes as well, purposes that this Court has recognized before but conveniently ignores today. For Rule 705(b) is primarily a rule of discovery.

For one thing, Rule 705(b) allows the opponent of expert testimony what will often be his first glimpse of the facts and data underlying the expert’s opinion, and allows him to challenge its admissibility, if he can, on the basis that those facts or data are insufficient to support the opinion, pursuant to Tex.R.Cr. Evid., Rule 705(c). See Goss v. State, 826 S.W.2d 162, 168 (Tex.Cr.App.1992); Goode, Wellborn & Sharlot, Texas Practice: Texas Rules of Evidence: Civil and Criminal § 705.2, at 71 (2d ed. 1993). It seems to me that by allowing voir dire to reveal “underlying facts or data,” rule 705(b) contemplates discovery of far more than just, as in the present case, the purely historical facts that are to be related to the jury in hypothetical form.

I have elsewhere suggested that Rule 705(c) provides a basis to challenge admissibility of novel scientific evidence that has not been shown to be generally accepted in the relevant scientific community. See Kelly v. State, 824 S.W.2d 568, 577-78 (Tex.Cr.App.1992) (Clinton, J., concurring). I have also been “willing to suppose, because the law supposes, that a psychiatrist may perceive something in the conduct of an accused, disclosed to him in hypothetical form, that from the perspective of his training and experience is revealing as to whether the actor is likely to constitute a continuing threat of violence. See generally Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).” Flores v. State, 871 S.W.2d 714, 725 (Tex.Cr.App.1993) (Clinton, J., dissenting). But just because the law tolerates admission of expert testimony of the kind at issue here does not mean appellant should not be permitted, as part of the discovery that Rule 705(b) contemplates, to adduce not just the factual, but also the psychiatric, basis for the expert’s opinion. Under Rule 705(b) an opponent of psychiatric expert testimony ought to be allowed to inquire precisely what it is about an accused’s past conduct that would lead a forensic psychiatrist to conclude he will continue to commit violent acts in the future.

Despite the fact that the United States Supreme Court accepted the judgment of the American Psychiatric Association that psychiatric predictions about extended future dangerousness are wrong “most of the time,” it did not find those odds constitutionally unacceptable. Barefoot v. Estelle, 463 U.S. at 901, 103 S.Ct. at 3398, 77 L.Ed.2d at 1109. As far as I know, however, this Court has not yet decided whether such predictions are so unreliable that they might be objectionable as a matter of state law, under Rule 705(c). See Fuller v. State, 829 S.W.2d 191, 195 (Tex.Cr.App.1992) (question whether psychiatric testimony regarding future dangerousness is objectionable under, inter alia, Rule 705(c), was not reached because it was “neither well presented by the trial record nor well joined in the appellate briefs.”). By cutting off appellant’s right to voir dire Coons, the trial court preempted his opportunity to make such an argument in this cause.

Even if a trial court does not find psychiatric testimony of future dangerousness to be inadmissible under Rule 705(c), the opponent of that testimony may find voir dire of the psychiatrist as permitted by Rule 705(b) to be a useful discovery tool in other respects not contemplated by the plurality. For example, if the psychiatrist deduces nothing from the facts of the hypothetical that a layman cannot as readily deduce on his own, his testimony may be objectionable as not “helpful” under Rule 702. See Barefoot v. Estelle, supra, U.S. at 934, n. 13, S.Ct. at 3416, n. 13, L.Ed.2d at 1130-31, n. 13 (Blackmun, J., dissenting) (notorious forensic psychiatrist Dr. Grigson contends that “most of these things are so cleareut [the man on the street] would say the same things I do.”); Kelly v. State, supra, at 575 (Clinton, J., concurring) (Rule 702 allows expert testimony when it proves or illuminates “an elemental fact (or some evidentiary fact leading to an elemental fact) in a way not readily apparent to a jury of laymen without that knowledge.”). The opponent of psychiatric testimony will certainly prefer to avoid the risk of exploring this avenue for the first time on cross-examination. Rule 705(b) seems to afford him that opportunity. Moreover, even assuming the expert’s testimony is “helpful,” and thus not objectionable under Rule 702, the opponent may wish to explore the psychiatric basis for the expert’s opinion out of the jury’s presence so that he can decide whether, and if so, how best, later to cross-examine the expert in the jury’s presence in an effort to assail the weight of his opinion. In my view Rule 705(b) grants him this option for discovery as well.^*

In addition, the plurality opines that any error was “clearly harmless.” Op. at 588. The plurality does not say so, but I suspect the lack of harm seems “clear” to it because appellant had already heard the historical facts upon which Coons was to base his opinion in the hypothetical question itself, before appellant ever requested a Rule 705(b) voir dire. (Indeed, the historical facts were in evidence before the hypothetical question was propounded.) But the plurality is mistaken to think that the “underlying facts or data” contemplated by Rule 705 could only consist in this context of historical facts that go to make up a hypothetical question. Appellant was also entitled to discover, under Rule 705(b), and to challenge, if he could, under Rule 705(c) or Rule 702, the psychiatric basis for concluding from those historical facts that he would constitute a continuing threat to society. The plurality does not ask itself whether failure to allow this discovery may have proven harmless.

Moreover, the harm analysis the plurality does purport to conduct is flawed. Echoing Goss, the plurality declares that, once it identifies error in failure to afford the voir dire Rule 705(b) guarantees upon request, “a reviewing court would then be required to decide whether the trial judge’s error was so harmful as to require reversal.” Op. at 588, citing 826 S.W.2d at 168. If this is meant to be an articulation of the harmless error rule codified in Tex.R.App.Pro., Rule 81(b)(2), then it erroneously places the burden of persuasion on appellant rather than the State. The question under Rule 81(b)(2) is not whether “the error was so harmful as to require reversal.” Rather, the question is whether the State, as beneficiary of the error, can persuade us to a level of confidence beyond a reasonable doubt that the error made no contribution to the affirmative answers to the special issues. Arnold v. State, 786 S.W.2d 295, 298 (Tex.Cr.App.1990). In other words, the presumption is that the error was harmful until the State satisfies us otherwise. If we cannot tell whether error was harmful or not, we must conclude that it was; that is what it means to say the State has the burden of persuasion on this issue.

We cannot tell whether the failure of the trial court to allow the voir dire of Coons, pursuant to Rule 705(b), contributed to the jury’s affirmative answers to the special issues in this cause or not. Appellant may have been able to attack the admissibility of Coons’ opinion testimony as either unsupported by sufficient facts or data, under Rule 705(c), or as unhelpful, under Rule 702. Or, he might simply have gained sufficient knowledge of the psychiatric basis for Coons’ opinion that he could efficaciously impugn it on cross-examination. On the other hand, he might ultimately have accomplished nothing. Because he was never afforded the opportunity for diseoveiy that Rule 705(b) guarantees, we can never really know whether he might have succeeded in these attempts, or even, indeed, whether he would have tried. But precisely because we cannot know, we are not at liberty to conclude, consistent with a proper understanding of the assignment of the burden in Rule 81(b)(2), that the error was harmless beyond a reasonable doubt.

The Court should at least vacate the judgment in this cause and remand it for a new punishment hearing under Article 44.29(c), V.A.C.C.P. Because the Court does not even do this, I dissent.

* The plurality speculates that what I am "really ... upset about is allowing expert opinions, like the one here, in cases like this.” Op. at 589, n. 10. That the plurality should cite my dissent in Flores for this is a puzzle to me, for I readily conceded there that expert opinions of future dangerousness premised upon hypothetical questions are not perse objectionable. 871 S.W.2d at 725. My point here is that in the individual case there may be something objectionable about the psychiatric basis for this sort of testimony, either under Rule 705(c) or Rule 702, and that Rule 705(b) should be read to grant an accused an opportunity to explore these avenues of objection outside the presence of the juiy. If, for instance, a psychiatrist admits that he is in no better position than a layman to infer from hypothetical facts that an accused will constitute a future danger to society, he should not be allowed to give an opinion on that matter because his opinion will not “assist the trier of fact” for purposes of Rule 702. A capital accused ought to be allowed to elicit such an admission before the jury is subjected to an "expert” opinion it will only have to disregard. Rule 705(b) provides that opportunity. Somehow the plurality gleans from this that what I really want is "to bring back the old discredited objection that ... expert testimony ‘invades the province of the jury.'" Op. at 589, n. 10. I should by no means be understood to advocate that.

From this apparent misunderstanding of my purpose, the plurality launches into a diatribe about how it is actually the Court itself that invades the province of the jury every time it holds evidence insufficient to support a jury finding of future dangerousness. The plurality suggests that instead we should always defer to a jury finding of future dangerousness by virtue of nothing more than the fact that the accused has already been found guilty of capital murder. While it is true enough that we frequently iterate that the facts of the capital offense may in themselves be sufficient, we have yet to hold they invariably are. Because sufficiency is not the issue in this case, the plurality’s marginal remarks are wholly gratuitous, and should, of course, be recognized for the dicta that they are. But they are dangerous dicta indeed.