stating that the witness was not an accomplice because while there was evidence to show that the witness was involved in the theft of the ring, there was no evidence to show that the witness was a principal or accessory to the murder
How later courts described this case
- stating that the witness was not an accomplice because while there was evidence to show that the witness was involved in the theft of the ring, there was no evidence to show that the witness was a principal or accessory to the murder
- due process not denied by permitting a privately retained attorney to participate in a criminal prosecution when the district attorney retains control and management of the prosecution
- not violative of due process *832 for private "special prosecutor” to assist district attorney where case is tried and also district attorney where offense committed
- not violative of due process for private "special prosecutor" to assist district attorney where case is tried and also district attorney where offense committed
Written by the judges who cited it.
The opinion
OPINION
ON APPELLANT’S MOTION FOR REHEARING
ROBERTS, Judge.
Two contentions are raised in this motion for rehearing. 1 Our discussion will be limited to the second, which relates to the testimony given at trial by a court-appointed psychiatrist who examined the appellant. The witness was allowed to testify as to certain statements made by the appellant during the examination which were inconsistent with the appellant’s testimony at trial.
In our opinion on original submission, we held that appellant’s objections to the psychiatrist’s testimony were too general to preserve error. Upon re-examination of the record, we have concluded that the objections offered were sufficient to call the court’s attention to the appellant’s complaint. A reading of the objections clearly reveals that counsel for the appellant desired that the psychiatrist should not testify as to statements made by the appellant during the psychiatric examination. It further appears that the court understood the substance of appellant’s complaint, for at one point the court stated:
“Gentlemen, the court realizes that we have a situation here where you want your testimony, your man to have what he says, but you are going to say to the State because he made that statement to this fellow over here we are not going to let you say it because he happens to be a doctor the court appointed. The court appointed this man to help determine the truth of the sanity or insanity, and the door has been opened in the court’s opinion .. . ”
It is apparent from the above that the court understood the nature of appellant’s complaint and that the objection was sufficiently specific.
Our Code of Criminal Procedure, in providing for the appointment of qualified persons to assist in making the determination as to the competency of an accused, provides:
“No statement made by the defendant during examination into his competency shall be admitted in evidence against the *429 accused on the issue of guilt in any criminal proceeding no matter under what circumstances such examination takes place.” Art. 46.02, Sec. 2(f)(4), V.A.C.C.P.
Under the express terms of the statute, there can be no doubt as to the inadmissibility of such evidence. See Smith v. State, 502 S.W.2d 814 (Tex.Cr.App.1973). Statements made by the accused during such an examination are' not admissible for any purpose on the issue of his guilt. The use of such statements is flatly and absolutely prohibited and there are no exceptions. 2
While such an error may be rendered harmless, as when the accused admits the making of the statements (see Smith v. State, supra), it cannot be waived. The statute is too clear and absolute to be held subject to waiver.
For the reasons stated, the appellant’s motion for rehearing is granted and the judgment is reversed and the cause remanded.
. This is a companion case to Davis v. State, 513 S.W.2d 928 (Tex.Cr.App.1974).
. The statements were admitted for impeachment in this case. However, under our holding in Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973) they were not available for that purpose.