stating that a murder defendant is not entitled to an instruction on the lesser-included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide and since there was no evidence from which a rational jury could conclude that appellant did other than cause the death of the victim, the only lesser-included offense that was raised by the evidence of recklessness was manslaughter, not aggravated assault
How later courts described this case
- stating that a murder defendant is not entitled to an instruction on the lesser-included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide and since there was no evidence from which a rational jury could conclude that appellant did other than cause the death of the victim, the only lesser-included offense that was raised by the evidence of recklessness was manslaughter, not aggravated assault
- holding that the defendant failed to preserve error from the trial court’s denial of his “request to foreclose cross-examination about extraneous offenses” during punishment because the defendant did not testify
- declining to review the appellant’s assertion that the trial court erred when it ruled that the State could cross-examine him about certain offenses if he testified in the punishment phase of his trial for the limited purpose of raising mitigation issues because he did not testily
- explaining that burden of proof instructions may be given for the first time in jury charge as jurors do not encounter burden of proof questions until all evidence has been taken
Written by the judges who cited it.
The opinion
MANSFIELD, J.,
delivered the concurring opinion.
I join the opinion of the Court but write separately with respect to appellant’s twenty-fourth point of error. Appellant avers that, as an indigent, he was entitled to a court-appointed polygraph examiner paid for by the State. The polygraph examiner was to conduct a polygraph examination of appellant, the results of which, appellant contends, would have cast doubts on the reliability of police testimony regarding the taking of appellant’s confession. 1
In Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), the Supreme Court held an indigent defendant has a due process right to state-funded expert assistance where the defendant makes a preliminary showing the issue for which he seeks expert assistance is likely to be a significant factor at trial. In Ake , the Court held the indigent defendant was entitled to a state-paid psychiatrist to provide expert assistance as to the issue of future dangerousness at the punishment phase of his capital murder trial. Failure to provide such assistance, the Court held, violated Ake’s due process rights, particularly in light of the fact that the State offered expert testimony that Ake was both sane and a future danger, testimony that, unrebutted, was clearly harmful to Ake’s defense.
In Rey v. State, 897 S.W.2d 333 (Tex.Crim.App.1995), we held an indigent defendant is entitled to a state-paid expert, regardless of the expert’s specialty, where *483 said defendant establishes a substantial need for such assistance and denial of said assistance would be fundamentally unfair.
Appellant, in my opinion, has not demonstrated that the assistance of an expert in this instance would be of assistance to the jury, the trier of fact. Simply put, appellant alleges Officer Brown’s testimony concerning the facts and circumstances surrounding the taking of appellant’s statement was not truthful and the polygraph evidence would support this allegation. As determining the truthfulness of a witness is solely within the province of the jury, we have held that expert testimony regarding witness truthfulness is not admissible as it would not be of any assistance to the jury. Yount v. State, 872 S.W.2d 706, 709-711 (Tex.Crim.App.1993); Cohn v. State, 849 S.W.2d 817, 818 (Tex.Crim.App.1993). Furthermore, expert opinion testimony as to the truthfulness of a witness is not admissible under Rule 702. Yount, supra, at 708 .
Finally, I note that the United States Supreme Court recently held constitutional the ban against the use of polygraph evidence in military courts-martial. The Court noted the reliability of polygraph evidence is a subject of considerable controversy within the scientific community and thus its exclusion does not implicate constitutional concerns. United States v. Scheffer, 523 U.S. 303 , 118 S.Ct. 1261 , 140 L.Ed.2d 413 (1998). While I would not necessarily label polygraph evidence as being the product of “junk science,” its reliability is sufficiently suspect, in my opinion, to continue the ban on its use in Texas courts. It is the jury that is the “lie detector.”
As polygraph evidence is not admissible, the trial court did not abuse its discretion in denying appellant funds to retain a polygraph examiner.
With these comments I join the opinion of the Court.
. Appellant claims police officers, especially Officer Brown, misled him into making false statements about being paid to shoot the victim of the instant offense. Appellant testified the shooting was unintentional.