every special prosecutor is thus enjoined by statute that justice be done
How later courts described this case
- every special prosecutor is thus enjoined by statute that justice be done
- private attorney employed to prosecute case
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
In Caballero v. State, 587 S.W.2d 741 (Tex.Cr.App.1979) it was written: “Moreover, a doctor can testify from laboratory records as to the results of a test by another person where the analysis is under his supervision or control. 1 See Grant v. State, 472 S.W.2d 531 2 (Tex.Cr.App.1971); Dagley v. State, 394 S.W.2d 179 3 (Tex.Cr.App.1965).” Regrettably, the majority now applies an otherwise salutary rule to a report to an examining psychologist by a doctor who administered a Rorschach test to a patient being seen by the former.
Some sixty years since it was developed, the Rorschach is a standard personality and intelligeney test in which a subject interprets ink blot designs in terms that reveal intellectual and emotional factors. It is commonly used as one of several diagnostic tools in the hands of a qualified and competent alienist, as Dr. Piper was shown to be by testimony of Dr. Kreimeyer. The routine manner by which the Rorschach is conducted is such that the referring professional is simply not called on to provide personal “supervision or control” over the professional who actually does it. Indeed, the presence of any third person “introduces an unnecessary variable to the results of the psychological procedures.” The test itself never varies — only responses. Impressions gained by the alienist from conducting the “ink blot” test are recognized and acknowledged to be just that, and nothing more definitive; however, they are derived necessarily from expertise in the field. The “results” of the Rorschach, as with other tests and examinations, are customarily considered by the psychiatrist, psychologist or other qualified professionals ultimately responsible for coming to and testifying to an expert opinion. See generally Incompetency and Insanity Defense Manual (Rev. Ed. 1981) 114-120, 275-280, 285-286, 363-364, The Criminal Defense Lawyers Project.
Given the nature and quality of the expertise at work here, I would find the testimony and report were not excludable under the rule discerned in Caballero v. State, supra. Rather, they are admissible because *82 the opinion testimony of Dr. Kreimeyer was based in part on the report from Dr. Piper, upon which, as examining psychologist, Dr. Kreimeyer is entitled to and does rely in the practice of his profession. Gray v. Bird, 380 S.W.2d 908, 913 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Ray, Law of Evidence § 1404, 2 Texas Practice 41; see and compare Moore v. Grantham, 599 S.W.2d 287, 289-291 (1980). Of course, that kind of opinion testimony thus based is available to the State as well as an accused.
Still, the Court finds that Dr. Kreimeyer was permitted to testify that his opinion was based in part on the corroborative aspects of the Rorschach, and for that reason I agree that reversible error is not shown. Accordingly, I concur in the balance of the opinion and judgment of the Court.
. All emphasis is mine unless otherwise indicated.
. In Grant v. State, supra, the medical doctor took a vaginal smear himself, it was sent to a medical laboratory where a technician — the doctor testified “under my control” — tested it for sperm cells and made a written report that, the doctor was permitted to state, the test showed “some sperm cells in the fluid and a little bit of infection,” id., at 532. The rule followed in Caballero, supra, was stated with citations to Jackson v. State, 159 Tex.Cr.R. 228 , 262 S.W.2d 499 (1953) (report of an intoxime-ter test) and Meadows v. State, 368 S.W.2d 203 (Tex.Cr.App. 1963) (report of chemical analysis of a drug).
.In Dagley v. State, 394 S.W.2d 179 (Tex.Cr. App.1965) the report, an official record of the DPS laboratory, showed results of a chemical analysis of residue in narcotic paraphernalia.