I disagree with the majority's disposition of appellant's seventh point of error. Appellant asserts that the State wrongfully submitted victim impact statements by calling relatives of the victims as the first two witnesses in the punishment phase of the trial. Appellant objected to the testimony as premature and irrelevant since appellant had not placed mitigation before the jury. The majority holds that because appellant had not affirmatively waived submission of the mitigation issue, the trial court did not abuse its discretion by admitting the victim impact testimony. The majority acknowledges that this court has not yet decided whether a capital defendant can waive the mitigation special issue. Tong v. State, 25 S.W.3d 707, 711 (Tex. Crim. App. 2000). However, they base their decision on this point of error on the fact that appellant had not waived submission. So, because appellant did not waive submission of the mitigation issue, which he may or may not be entitled to do, the State was able to present victim impact testimony.

In Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim. App. 1998), we held that victim impact evidence was admissible as rebuttal when the defendant introduces the mitigation special issue. We stated that "[b]oth victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence." Id. at 262. The majority seems to interpret the holding in Mosley as allowing the State to offer victim impact evidence, whether or not the defendant submitted the mitigation issue, as long as the defendant had not affirmatively and expressly waived submission. I interpret Mosley differently.

The procedure in the punishment phase of a capital case is for the prosecution to present evidence regarding the defendant's future dangerousness and complicity, then the defendant can offer mitigating evidence, then the prosecution can rebut the defendant's mitigating evidence. It is during the rebuttal of the defendant's mitigating evidence that the State may introduce victim impact statements. Victim impact evidence may only be offered if the defendant raises the mitigation special issue. Under Texas Code of Criminal Procedure Art. 37.071 Sec. 2 (a)(1) the State technically could present evidence that mitigates against the imposition of the death penalty, however, because the State is the one seeking the death penalty, clearly the defendant is the one who raises the issue of mitigation. Mosley's holding does not allow victim impact evidence at any time during the punishment phase of the trial, rather it allows it "in the context of the mitigation special issue" Mosley, 983 S.W. 2d at 262 (emphasis added). Because the mitigation special issue is raised by the defendant, and victim impact evidence is admissible only in the context of the mitigation special issue, it follows that the State can only present victim impact evidence after the mitigation special issue has been raised by the defendant. Under the majority's reasoning, because appellant did not waive submission of the mitigation issue, (which he may or may not be entitled to do), the State was able to present victim impact testimony that under Mosley is admissible only for rebuttal to the defendant's mitigating evidence (which appellant had not raised).

The majority broadens Mosley's already far-reaching holding that victim impact evidence is relevant to mitigation. While I understand the State's desire to present victim impact evidence, I fail to see how such statements are relevant to issues such as future dangerousness and mitigation. The pain felt by the victim's family at the loss of their loved one says nothing about whether the defendant is likely to be a continuing threat to society nor does it negate issues regarding defendant's character or background that may mitigate his or her crime. I disagree with allowing such statements under the guise of rebutting defendant's mitigating evidence. For this reason, I dissent to point of error seven but otherwise join the remainder of the majority's opinion.

Meyers, J.

Delivered: January 29, 2003

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