¶1dissenting.
¶2The Court is obviously reluctant to hold the evidence sufficient to support the jury’s affirmative answer to the second special issue under former Article 37.071(b), V.A.C.C.P., based on nothing more than the facts of the offense itself. That is understandable, for there is nothing in the facts themselves so heinous or shocking as to evince a particularly “dangerous aberration of character” probative of future dangerousness, such as we found in, e.g., King v. State, 631 S.W.2d 486 (Tex.Cr.App.1982) and Cass v. State, 676 S.W.2d 589 (Tex.Cr.App.1984). The Court therefore resorts to the opinion of the psychiatrist, Dr. Griffith, to justify the jury’s finding of future dangerousness in this cause. Because I do not believe Griffith’s testimony adds anything of substance to whatever inference of future dangerousness may be gleaned from the facts themselves, I respectfully dissent.
¶3It is true that Griffith testified, based on a hypothetical question formulated from the facts of the instant offense, that appellant would commit acts of violence that would constitute a continuing threat to society. It was developed on cross-examination, however, that Griffith believed that anyone who committed murder in the course of sexual assault would constitute a future danger. Griffith testified:
“Q. Anyone convicted of capital murder would, in your opinion, commit future acts of violence.
A. Yes, that’s my opinion. I would not want to, you know, say this for somebody that I didn’t know specifically about but everyone that I know about, this is true.
Q. Well, wherein you were given a set of hypothetical facts that if true would amount to capital murder do you have an opinion that individual would commit future violent acts?
A. Well, that’s not enough information, sir.
Q. What other information would you want other than the fact that the individual had been convicted of capital murder?
A. I would want a lot more information. You’re taking something out of context and—
Q. What? Such as what?
A. Well, you’re pulling out of the air—
Q. Okay.
A. —someone who’s been convicted of capital murder. We know nothing about it, where it was, or what the circumstances were.
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Q. You have never, have you, sir, testified in any capital murder case in Texas that an individual would not commit future acts of violence?
A. Yes, sir. I have.
Q. Then, you do not have the opinion that all people convicted of capital murder should receive the death penalty?
A. Should receive the death penalty?
Q. Yes.
A. No.
Q. Okay. Have you ever testified in a case wherein an individual has been convicted of murder in conjunction with a rape that he would not be a future threat to society and commit future acts of violence?
A. I don’t believe so.
Q. So, that is one area that you are firm in?
A. Yes, sir.
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*725Q. And an individual that fits the patterns that you have been given, would — I guess, would he or would he not have engaged in prior crime?
A. Might have.
Q. That doesn’t make any difference to you one way or another?
A. Not with a crime like this, it doesn’t.
Q. Okay. So then, basically your bottom line analysis is that the crime itself is all it takes for you to make your prediction?
A. This is, yes, what I started out saying.”
¶4Appellant did not attempt to voir dire Dr. Griffith, under Tex.R.CR.Evid., Rule 705(b). Thus, he did not attempt to determine what it is exactly about murder in the course of rape that would lead a member of the psychiatric community automatically to conclude that the perpetrator will continue to commit violent acts in the future. The trial court therefore had no immediate foundation to exclude Griffith’s testimony under Rule 705(c), supra. In any event, appellant did not request it.
¶5I am willing to suppose, because the law supposes, that a psychiatrist may perceive something in the conduct of an accused, disclosed to him in hypothetical form, that from the perspective of his training and experience is revealing as to whether the actor is likely to constitute a continuing threat of violence. See generally Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Because appellant did not challenge the admissibility of Griffith’s testimony under Rule 705(c), I would even be willing to suppose it has some probative value beyond the ken of laymen, that it will “assist the trier of fact to understand” how the facts of the case are in themselves indicative of a likelihood of future dangerousness beyond a reasonable doubt. Tex.R.Cr.Evid., Rule 702. Therefore, ordinarily I would accept, if grudgingly, the majority’s conclusion that Griffith’s testimony made all the difference between evidentiary support and non-support of the jury’s affirmative answer to the second special issue. I cannot accept Griffith’s suggestion, however, that the jury should find appellant a future danger simply because he committed murder in the course of a rape, for that particular psychiatric imprimatur violates due process.
¶6The Eighth Amendment does not necessarily dictate that former Article 37.071 operate to narrow the class of death eligible capital defendants, since to some extent V.T.C.A. Penal Code, § 19.03, may already suffice to accomplish this. See Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). Nevertheless, the Legislature obviously intended that former Article 37.071, § (b)(2), should serve some narrowing function. Surely the Legislature did not contemplate that the jury in a prosecution for murder in the course of aggravated sexual assault under § 19.03(a)(2), supra, should invariably answer the second special issue “yes.” That would render Article 37.-071, § (b)(2) essentially redundant, which is to say, “a useless thing.” Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981). Even if there were a psychiatric basis to conclude that all rapist-murderers will commit future acts of violence beyond a reasonable doubt— Griffith did not identify one — we would not want to presume that the Legislature meant for a capital jury to do a useless thing by going through the motions of answering the second special issue. It seems to me the law does not sanction a finding of future dangerousness in every case of murder in the course of sexual assault simply because it was murder in the course of sexual assault. Yet that observation was the only real thing of substance Griffith’s testimony added to the facts of the case itself. And the majority is rightly loathe to derive support for the jury’s affirmative answer to the second special issue from the facts of the case itself.
¶7The judgment should be reformed to reflect a sentence of life in the penitentiary. Because the majority does not, I respectfully dissent.