¶1dissenting.
¶2In allowing this death sentence to stand, the majority sanctions a travesty of justice. To justify this erroneous result, the majority employs reasoning that cannot withstand legal analysis.
¶3Appellant’s death sentence was based at least in part on completely unreliable evidence. At the punishment phase of his trial, the State’s psychiatrist testified that appellant committed three extraneous offenses, all involving acts of force and violence. This testimony was hearsay upon hearsay, and its admission violated the United States Constitution in three separate ways. See the discussion infra.
¶4The majority summarily overrules appellant’s grounds of error concerning this testimony. Its sole justification is that defense counsel “opened the door” under Article 38.24, V.A.C.C.P. In invoking Article 38.24, the majority fails to consider the underlying rationale of this statute. In addition, the majority disregards the relationship between a state statute and the United States Constitution.
¶5The purpose of Article 38.24 is to prevent the trier of fact from being misled. In the present case defense counsel did not try to mislead the jury; rather, the prosecutor tried to mislead defense counsel. The trial court granted appellant’s motion for discovery of “[a]ll arrest records, police records, juvenile records, and records of convictions, if any, of the Defendant.” The State failed to furnish any of these documents to appellant. As a result of the State’s noncompliance, defense counsel mistakenly believed that his 17-year-old client had no history of serious violent behavior. When the State’s psychiatrist testified that appellant “absolutely will . . . kill again,” defense counsel tried to show that appellant’s prior criminal conduct was not severe and therefore the psychiatrist’s opinion was without basis. After defense counsel attempted to make this showing, the prosecutor used police offense reports withheld in violation of the discovery order to show that appellant had a history of serious *923violent behavior.
¶6Whatever merit trial by ambush may have in other contexts, it certainly has no place at the punishment phase of a capital murder trial, where the goal is a reliable determination of whether death is the proper punishment. Here the State’s misconduct led defense counsel to mistakenly believe that he was presenting to the jury the complete picture of appellant’s past criminal behavior. Where the trier of fact receives an incomplete picture on a certain subject because of the State’s misconduct, the State should not be permitted to invoke Article 38.24 and thereby benefit from its own misconduct. What occurred in the present case was manifestly unfair, and under such circumstances applying Article 38.-24 makes no sense.
¶7Even if Article 38.24 is deemed applicable in the present case, a state statute cannot authorize the admission of evidence in violation of the United States Constitution. As I will show, the admission of the psychiatrist’s testimony concerning extraneous offenses violated no less than three of appellant’s federal constitutional rights.
¶8Even if the majority somehow finds that Article 38.24 overrides these three federal constitutional rights, this finding does not relieve the Court of its obligation “to promote the evenhanded, rational, and consistent imposition of death sentences under law.” Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Nor does it relieve the Court of its obligation to ensure that appellant received a fair trial. A review of the record in the present case makes it abundantly clear that appellant did not receive a fair determination on the issue of punishment. At the punishment phase of his trial, the jury heard highly prejudicial hearsay evidence concerning many unproven extraneous offenses. If the majority finds that defense counsel opened the door or otherwise waived all errors in the admission of this evidence, the conclusion is inescapable that appellant received ineffective assistance of counsel.
¶9In ignoring appellant’s federal constitutional rights, the majority pursues a course that is at best unwise. By forcing appellant into the federal courts where he ultimately will obtain relief, the majority imposes on taxpayers the needless expense of *924additional appeals. Moreover, while appellant’s ease is tied up for years in federal courts, memories fade and witnesses become unavailable, raising the possibility that upon retrial the State may be unable to obtain even a guilty verdict.
¶10For the foregoing reasons and for the federal constitutional violations discussed below, I dissent.
¶11At the punishment phase of the trial the State called Dr. James P. Grigson, a psychiatrist, to testify about the probability that appellant would commit future criminal acts of violence. Dr. Grigson testified that he examined appellant for a period of less than two hours, and during this time appellant for the most part refused to answer his questions.
Q. Let me ask you whether or not you can place Mr. Magdaleno Rodriguez on that scale of sociopathic—
A. Yes, sir, I can.
Q. Where does he fit in your opinion?
A. Mr. Rodriguez would be at the very end, at the very most severe. You cannot become any worse or any more severe than what he already is.
Q. Does he have any regard for human life or property or other people’s rights at all?
A. He has regard for his own life or his own property, but he has complete disregard for another human being’s property, or even for another human being’s life. He doesn't have any regard for another human being’s life.
Q. Now then, the kind of personality disorder that he has, is there any treatment for it?
A. No, sir. First, it’s not a sickness. But there’s nothing in the field of medicine, there’s nothing in the field of psychiatry, there’s nothing that our society knows of at this time, nor is there any expectation of being able to change or modify his behavior.
Q. Can you tell us, based upon your examination of him and your experience as a psychiatrist, what future behavior he would engage in if given an opportunity?
A. Yes, sir, I can tell you that.
Q. What is that, please, sir?
A. Well, his behavior can’t get any worse. It will only continue as it has been in the past. So, the only difference you’re talking about is in terms of numbers. Again, his behavior can’t get worse. But he’ll continue doing the same things which he has done in the past.
*925Q. Can you tell us whether or not, in your opinion, having killed in the past, he is likely to kill in the future, given the opportunity?
A. He absolutely will, regardless of whether he’s inside an institutional-type setting or whether he’s outside. No matter where he is, he will kill again.
Q. Are you telling me, then, that even if he were institutionalized, put in a penitentiary for a life sentence— would he still be a danger to guards, prisoners, and other people around him?
A. Yes. He would be a danger in any type of a setting, and especially to guards or to other inmates. No matter where he might be, he is a danger.
¶12Later the prosecutor asked Dr. Grigson about two extraneous offenses, an aggravated robbery and an aggravated sexual. abuse, that previously had not been admitted into evidence. During this questioning the prosecutor handed the psychiatrist two police offense reports to refresh his memory-
Q. Now then, let me ask you whether or not you knew of his shooting anyone else other than the woman he killed. Let me ask you whether or not you considered, in arriving at your opinion about him, the incident in which he was in the course of robbing a Jiffy Mart Store and was in a shootout with the owner.
A. I was told that. I understand that shots were fired; that he didn’t hit the owner, though.
Q. Yes, sir. Shot at him? Were you aware, in considering these two other —I’ll show you the reports. Look at this and tell me, on 7/22/75 — let’s see.
A. July 22nd, 1975.
Q. ’75, right. Now then, let me ask you whether or not, also in arriving at your opinion of him, you considered an incident in which he was involved in an aggravated sexual abuse case on 5/5/75.
A. Yes. That was May 5th, 1975.
¶13After Dr. Grigson testified that he considered these two extraneous offenses in reaching his conclusions about appellant, the defense attorney made a timely request to inspect the two offense reports that the psychiatrist used to refresh his memory. Defense counsel examined the reports and then took Dr. Grigson on voir dire. Dr. Grigson admitted that he previously had not seen the two offense reports but had relied solely on statements of the prosecutor. Defense counsel had Dr. Grigson read the offense reports and then established through him that the offense report of the robbery at the Jiffy Mart on July 22, 1975, contained no mention of any shots being fired.
Q. So then, when you answered the Assistant District Attorney that you had considered that on 22 July, 1975, the Defendant had been involved in shooting at a clerk—
A. Yes, sir.
Q. What shooting were you referring to?
A. The one Mr. Conaway [the prosecutor] told me about.
Q. He says, “22 July, 1975,” and that’s what’s marked on there. And you agreed with him.
A. Yes, sir.
Q. Could you tell me in there where it says that there was a shooting on the 22nd of July, ’75?
A. There was nothing in this report that indicates there was a shooting; only an aggravated robbery.
¶14Defense counsel further established that the offense report of the aggravated sexual abuse on May 5, 1975, was marked “unfounded” in two places on the bottom of the report.
*926Q. I’m going to ask you to examine the one of 5 May, ’75, and read it at your leisure in its entirety.
A. Yes, sir. Yes, sir.
Q. Your answer is “Yes, it says that the report was unfounded,” right?
A. It says, “I recommend that this case be unfounded.”
MR. ROCHA: With the Court’s indulgence, I would approach the witness.
Q. There’s the word “unfounded” on the bottom of the report, on either side?
A. Yes, sir.
¶15The defense attorney moved for a mistrial on several grounds and objected to any further testimony about extraneous offenses. His objections included the following: (1) the State failed to comply with the court’s order to disclose all arrest records and police records of appellant, (2) the testimony about extraneous offenses was “a total and complete surprise,” and (3) this testimony was inadmissible hearsay. The court overruled all motions for a mistrial, and in spite of defense counsel’s strenuous objections, permitted Dr. Grigson to continue testifying about extraneous offenses.
¶16The court allowed the psychiatrist to examine a third offense report. This report contained the details of an aggravated robbery involving a shoot-out that occurred on July 31,1975. Dr. Grigson testified that he also relied on this extraneous offense in reaching his conclusions about appellant. This testimony of a third extraneous offense likewise surprised defense counsel.
Q. Dr. Grigson, just before we recessed, I was asking you to examine what’s been marked for identification as State’s Exhibit 24. Have you examined that, please, sir?
A. Yes, sir, I did.
Q. Let me ask you whether or not you considered it — not the paper itself, but the contents, what’s related there in arriving at your opinions and conclusions as to Mr. Rodriguez.
A. Yes, sir, I did.
Q. And does State’s Exhibit Number 24 relate that on the 31st of July of 1975, Mr. Magdaleno Rodriguez was involved in a robbery of a convenience store where he shot at a clerk?
A. Yes, sir, it does.
Q. Now, State Exhibit Number 22, the 22nd of July, ’75, did not involved [sic] shooting at a clerk?
A. No, sir, it did not.
Q. We’re talking about different robberies; is that correct?
A. Yes, sir, that is.
Q. Okay. So, actually, the 31st one was the one that involved shooting at a clerk; and the 22nd of July, that robbery did not involve shooting at a clerk?
A. No, just aggravated robbery.
Q. Armed robbery with a pistol?
A. Yes, sir.
¶17The police offense reports never were admitted into evidence. In fact, other than Dr. Grigson’s testimony, there was no evidence of the three extraneous offenses admitted at appellant’s capital murder trial. In final arguments at the punishment hearing, the prosecutor argued that these extraneous offenses were evidence that appellant would commit future criminal acts of violence. Defense counsel objected on the ground that this argument was unsupported by the evidence, but this objection was overruled.
¶18The admission of Dr. Grigson’s testimony about three extraneous offenses violated three of appellant’s federal constitutional rights. First, this testimony was a complete surprise to defense counsel and thereby violated due process. Second, this testimony was hearsay upon hearsay and denied appellant the right of confrontation. Third, this testimony was so unreliable as to violate due process.
¶19The first issue is whether surprise to defense counsel so damaged the reliability of *927appellant’s punishment hearing that it constituted a denial of due process. This inquiry must begin with the United States Supreme Court cases discussing the reliability requirement in capital sentencing proceedings.
¶20A majority of the Supreme Court has recognized the uniqueness of death as a punishment. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). This recognition underlies the requirement that where the punishment is death rather than imprisonment, the sentencing decision must attain a much higher degree of reliability. Gardner v. Florida, supra; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. [Emphasis added]
¶21Woodson v. North Carolina, supra. This reliability requirement, first announced in Woodson, was later reaffirmed in Gardner.
¶22In Gardnerthe Supreme Court reversed a death sentence because it was imposed partly on the basis of information not disclosed to defense counsel. Applying a balancing test, the Court found that “the interest in reliability,” which disclosure of the information would have served, clearly outweighed the State’s interest in withholding the information. Finding a denial of due process, the Court noted that defense counsel had “no . . . opportunity ... to challenge the accuracy or materiality of [the] information.”
¶23Both this Court and the Fifth Circuit Court of Appeals have recognized that the interest in reliability suffers when evidence at a capital sentencing proceeding surprises the defense. Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979) (Roberts, J., concurring); Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979) (petitions for rehearing and rehearing en banc denied). In Smith, supra, the court struck down a death sentence in a Texas case because at the penalty phase a psychiatrist’s testimony relating to the second punishment issue surprised the defense. The Smithcourt compared the consequences of surprise in the case before it with the consequences of nondisclosure in Gardner. It concluded that surprise can be as effective as nondisclosure in preventing effective cross-examination and in denying defense counsel the opportunity to challenge the accuracy of the evidence. The Smithcourt found that as a result of the surprise psychiatric testimony, “[the] sentencing hearing was at least as unreliable as the proceedings in Gardner.” It further found that the justifications for the unreliable procedures were far weaker in the case before it than they were in Gardner.
¶24In the present case it is undisputed that Dr. Grigson’s testimony about two aggravated robberies and an aggravated sexual abuse was a complete surprise to defense counsel. This surprise was compounded by the State’s unorthodox method of introducing extraneous offenses through an expert medical witness. Although defense counsel attempted to challenge the accuracy of Dr. Grigson’s testimony, the record reflects that this attempt was ineffective.
¶25Notice of the intent to prove extraneous offenses clearly would have served the interest in reliability. When the balancing test dictated by Gardneris applied, this interest in reliability easily outweighs the State’s interest in withholding such notice. As Judge Roberts so aptly stated in his concurring opinion in Garcia, supra:
Article 37.071 should not be construed as authorizing proof of unadju-dicated, extraneous offenses if this comes as an unfair surprise to the defendant. Notice, a fundamental element of due process, must be provided. Allowing proof of unadjudicated, extraneous of*928fenses comes close to allowing one or more “prosecutions” of the defendant in the sentencing proceeding. Simple fairness requires that the defendant be given notice that the State intends to offer proof of unadjudicated, extraneous offenses, so that the defendant and his counsel can investigate and prepare a response. . . [Footnotes omitted]
¶26In the instant case appellant and his counsel had no opportunity to investigate and prepare a response to the testimony of extraneous offenses. Surprise prevented an effective response by defense counsel and thereby impaired the interest in reliability.
¶27The Supreme Court’s opinion in Gardnermandates a reversal in this case. Because the State failed to provide notice of its intent to prove extraneous offenses at the punishment phase, appellant’s penalty hearing was at least as unreliable as the proceedings condemned in Gardnerand Smith. Surprise so impaired the interest in reliability as to amount to a denial of due process.
¶28The second issue is whether, absent surprise, Dr. Grigson’s testimony of extraneous offenses denied appellant the right of confrontation. It is undisputed that Dr. Grig-son’s pretrial knowledge of the three extraneous offenses was based entirely on the prosecutor’s statements to him. At trial this knowledge was supplemented by police offense reports. The record reflects that neither the prosecutor nor the authors of the offense reports had any firsthand knowledge of the three extraneous offenses. Thus, Dr. Grigson’s knowledge of these offenses was at best thirdhand.
¶29The inherent difficulties in effectively cross-examining a person with thirdhand knowledge are obvious, as the record in this case clearly shows. When defense counsel pointed out to Dr. Grigson that his testimony conflicted with the police offense reports, the psychiatrist’s response was that he considered his source of information, the prosecutor, to be “a very noble and honorable man.” Since Dr. Grigson’s testimony was hearsay upon hearsay and did not bear the indicia of reliability sufficient to insure the integrity of the fact-finding process, the admission of this testimony violated appellant’s right of confrontation. Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979).
¶30The third issue is whether, absent surprise, Dr. Grigson’s testimony of extraneous offenses was so unreliable as to violate due process. As previously stated, the Supreme Court repeatedly has emphasized the interest in reliability at capital sentencing proceedings. Gardner, supra;Woodson, supra. Dr. Grigson’s lack of firsthand knowledge necessarily raises questions about the reliability of his testimony, which also implicates the Due Process Clause. When testimony about extraneous offenses is based on second- and thirdhand knowledge, the risk of unreliability is extremely high.
¶31In the present case defense counsel established that the thirdhand knowledge of Dr. Grigson conflicted with the secondhand knowledge of the police offense reports. The psychiatrist testified that on July 22, 1975, appellant was involved in a shoot-out during an armed robbery. Defense counsel showed, however, that the police report of this offense contained no mention of any shots being fired. Defense counsel also showed that the offense report of the aggravated sexual abuse was marked “unfounded” in two places on the bottom of the report.
¶32Dr. Grigson’s thirdhand knowledge of the three extraneous offenses and the conflict between his testimony and the police offense reports make his testimony concerning the extraneous offenses extremely unreliable. Besides the psychiatrist’s testimony, there was no evidence admitted at appellant’s trial to show either the commission of the extraneous offenses or appellant’s involvement in them. See Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.1977); Landers v. State, 519 S.W.2d 115, 120 (Tex.Cr.App.1974). His testimony was so unreliable and prejudicial that it deprived appellant of a fair determination on the issue of punishment. The admission of this evidence con*929stituted a denial of due process. Gardner, supra;Woodson, supra.
¶33In its brief the State does not deny that admission of Dr. Grigson’s testimony about three extraneous offenses was error. The State maintains, however, that this error was harmless because there was sufficient evidence other than the testimony of the three extraneous offenses to support the jury’s verdict on the punishment issues.
¶34The State’s position is untenable. When confronted with errors of constitutional dimension, the proper question to ask is whether the errors are harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Dr. Grigson’s testimony about two aggravated robberies and an aggravated sexual abuse was clearly damaging to appellant. It cannot be concluded with the required degree of certainty that the admission of this evidence failed to contribute to the jury’s assessment of the death penalty.
¶35At trial defense counsel failed to object to Dr. Grigson’s testimony on the grounds that it denied the right of confrontation and was so unreliable as to violate due process. In addition, defense counsel’s objections on the grounds of hearsay and surprise were not as timely as they could have been. The issue thus presented is whether defense counsel’s failures constituted a waiver of the numerous errors involved in admitting Dr. Grigson’s testimony.
¶36There are four reasons why a waiver did not occur. First, the errors involved in admitting the testimony about the three extraneous offenses rendered the sentencing decision so unreliable that the admission of this evidence, even absent an objection, constituted reversible error. Second, defense counsel objected on the grounds of hearsay and surprise before any testimony about the third extraneous offense was admitted, thereby giving the trial court the opportunity to prevent further harm to appellant. In spite of this opportunity, the trial court overruled appellant’s objections and permitted Dr. Grigson to testify about the third extraneous offense and to rehabilitate his testimony about the first extraneous offense. Third, the State’s failure to comply with the court’s discovery order and its failure to give notice of its intent to prove extraneous offenses caused Dr. Grig-son’s testimony to be a complete surprise to defense counsel. This surprise makes it somewhat understandable that defense counsel did not object as promptly and as thoroughly as he could have. See Smith v. Estelle, supra, at n. 19. Fourth, with respect to the constitutional errors, there is no basis for presuming that appellant himself made a knowing and intentional waiver, or that defense counsel made a tactical decision not to object.
¶37I dissent.
¶38. The majority correctly points out that the police offense reports were not discoverable under Article 39.14, V.A.C.C.P. The majority is incorrect, however, in holding that the Due Process Clause requires disclosure only where “the evidence’s favorable character for the defense [is] shown.” The United States Supreme Court has made it clear that in death penalty cases the right to disclosure extends to unfavorable evidence. In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court found a denial of due process where the State failed to disclose apparently aggravating information relied on at the penalty stage in assessing the death sentence.
¶39In the present case the State likewise failed to disclose aggravating evidence relied on at the punishment phase in assessing the death penalty. Under the balancing test laid down in Gardner v. Florida, supra, and discussed infra, appellant was entitled as a matter of due process to disclosure of the police offense reports. In accordance with that right, the trial court ordered the State to disclose these reports.
¶40It reasonably can be assumed that the State had other records, besides the police offense reports, relating to the three alleged offenses, such as appellant’s “rap sheet.” These other records were within the scope of the trial court’s discovery order and were discoverable under Article 39.14 as well as the Due Process Clause.
¶41. The defense attorney who represents appellant on appeal also represented appellant at trial. The claim of ineffective assistance of counsel is not raised on appeal; nevertheless, this Court has considered the issue sua sponte. Vessels v. State, 432 S.W.2d 108, 115 (Tex.Cr.App.1968, on Motion for Rehearing); see Cude v. State, 588 S.W.2d 895 (Tex.Cr.App.1979).
¶42. The following excerpts are from the testimony of Dr. Grigson:
Q. Did you conduct the psychiatric examination you have outlined for us in connection with Magdaleno Rodriguez?
A. I attempted to. I went through all the various different parts of the examination. He responded verbally, initially; and then, he stopped responding verbally and did occasionally respond with a nod of the head. But for the most part, he was quite uncooperative.
******
Q. How long did you examine Magdaleno Rodriguez?
A. I, of course, had reviewed the records prior to the time of seeing him; and then, oh, that morning, I would say somewhere around an hour. Then I saw him again that afternoon. It was for a briefer period of time, but 1 don’t recall specifically how long.
******
Q. Now, were you having difficulty communicating with him?
A. I didn’t have any difficulty in communicating with him. He just refused to answer questions.
¶43. Since defense counsel objected on a number of grounds to Dr. Grigson’s testimony about extraneous offenses, there is no conceivable tactical reason for failing to object to this testimony on additional grounds.