This opinion should be substituted for the one that was filed on May 21, 2003.

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." ⁽¹⁰⁾ 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 admitting that the photographs "were relevant to the issue of appellant's sanity," the Court says that "merely viewing the photographs would not necessarily prove that appellant was legally insane, therefore their probative value was limited." ⁽¹¹⁾ What does this mean? "Necessarily" means "inevitably" or "as a necessary result," and "necessary," in this usage, means "unavoidable." ⁽¹²⁾

If this, or any, evidence necessarily proved an excuse like insanity, I suppose that a court would direct an acquittal. "Necessarily proving" a fact is not a requisite for evidence to admissibility. All that is required is that evidence be relevant. ⁽¹³⁾ Relevant evidence is "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." ⁽¹⁴⁾

The Court says that because these photographs would not necessarily prove that appellant was insane, "therefore their probative value was limited." ⁽¹⁵⁾ 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 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, "While gruesome and shocking photographs depicting other crime scenes may convince the jury that appellant has committed acts unthinkable to most 'normal' people, this does not mean that, at the time of the Benton offense, appellant did not know that his conduct was wrong as required under Section 8.01(a). Additionally, Section 8.01(b) specifically states that abnormality manifested by repeated criminal conduct, such as the multiple murders depicted in the photographs, is not to be considered a mental disease or defect." ⁽¹⁶⁾

The Court misstates the statute, which says that "'mental disease or defect' does not include an abnormality manifested only by repeated criminal … conduct." ⁽¹⁷⁾ Surely the Court cannot mean that a person who repeatedly commits crimes cannot be found to have a mental disease or defect that is also manifested in other ways.

The more important aspect of the Court's statement is the previous sentence, in which it says that evidence of the appellant's conduct does not "mean" that he was insane -- once again devaluing this evidence because it did not conclusively prove the issue of insanity, which no evidence has ever done or can ever do. The sentence also says that photographs of the scenes of a person's six homicides might show that the person was unthinkably abnormal, 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 abnormality, but not insanity? Can there be evidence of insanity that is not also evidence of abnormality? 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 abnormality 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 abnormality?

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 abnormal. Proof of abnormality 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 first and second points and remand this case for a new trial.

En banc.

Delivered June 18, 2003(substituting for opinion 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 6. "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.

11. Ante, at 6 (punctuation sic).

12. See Oxford American Dictionary 444 (1980).

13. "All relevant evidence is admissible, except as otherwise provided by the Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible." Tex. R. Evid. 401.

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

15. Ante, at 6.

16. Ante, at 7.

17. Tex. Penal Code § 8.01(b).