¶1I concur in the disposition of point of error 26, believing the objection was sufficient to preserve the error but believe the error was harmless. Tex.RApp.P. 81(b)(2). I concur in the disposition of point of error 71 for the reasons stated in Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). I concur in the disposition of point of error 75, believing the statements of Dr. McClendon were erroneously admitted but the error was harmless. Rule 81(b)(2).
¶2With these comments, I join only the judgment of the Court.
¶3I join the opinion of the majority, but write separately to add some additional comments related to appellant’s points of error 107-110.
¶4While I agree with the majority that the requested instruction on the defense of diminished capacity would have amounted to a comment on the weight of the evidence and was therefore properly denied, I write to caution that this conclusion should not be taken to mean that such a theory is not a viable one for the presentation of defensive evidence and argument. This Court has previously addressed the theory of diminished capacity,
¶5In Cowles v. State, 510 S.W.2d 608 (Tex.Crim.App.1974), the defendant claimed the trial court erred in excluding at the guilt stage on a charge of rape psychiatric testimony that although the defendant knew the difference between right and wrong, he was nevertheless extremely disturbed and mentally ill, with poor judgment and reasoning which impaired his ability to control himself. The Court said that the great weight of authority held that such evidence, falling short of insanity, was not admissible. The Court recognized an exception to this rule, however:
An exception to this rule is where specific intent is an element of the offense for which the accused is being tried, as in the different degrees of murder and the “with intent” crimes.
¶6Id. at 610. The Court held that such evidence was properly rejected in Cowlesbecause specific intent was not an element of the crime at issue. Id.
¶7Most of the state and federal courts recognize that evidence of diminished capacity is admissible to negate mental state. See, e.g., United States v. Pohlot, 827 F.2d 889, 897 (3rd Cir.1987) (under Insanity Defense Reform Act evidence of mental disease or defect less than legal insanity admissible to disprove mens rea), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); United States v. Frisbee, 623 F.Supp. 1217 (D.C.Cal.1985) (under new federal statute and rules, expert testimony on mental disease or defect admissible to negate specific intent); State v. Burge, 195 Conn. 232, 487 A.2d 532, 539-40 (1985) (evidence of mental disease or defect admissible to demonstrate absence of intent, general or specific); Hendershott v. People, 653 P.2d 385, 390-93 (Colo.1982) (violates due process to prohibit evidence of mental disease or defect to negate essential culpability element), cert. denied, 459 U.S. 1225, 103 S.Ct. 1232, 75 L.Ed.2d 466 (1983); State v. McKenzie, 186 Mont. 481, 608 P.2d 428, 452-53 (recognizing viability of diminished capacity defense under former common law and under current statute), cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (1980). These courts reason that evidence tending to negate or raise a reasonable doubt as to an *769element of the State’s case is relevant and generally admissible.
A reasonable doubt as to guilt may arise not only from the prosecution’s case, but also from defense evidence casting doubt upon what previously may have appeared certain. Denying the defendant any opportunity to controvert the prosecution’s case by reliable and relevant evidence of mental impairment, in addition to cutting against our traditional concept of the adversary system, downgrades the prosecution’s burden to something less than that mandated by due process of law.
¶8Hendershott, 653 P.2d at 393; see also Pohlot, 827 F.2d at 901 (suggesting that a rule barring evidence relevant to mens rea “may be unconstitutional”); State v. Gonzales, 140 Adz. 349, 681 P.2d 1368, 1372 (1984) (exclusion of evidence of mental disease when relevant to a material issue is a denial of due process).
¶9Accordingly, I join the majority’s opinion with the understanding that its holding does not limit the ability of a defendant to offer evidence and argument in support of a theory of diminished capacity.
¶10. A distinction should be made between diminished capacity as an “affirmative defense” and diminished capacity as evidence rebutting the element of mens rea. For instance, in United States v. Pohlot, the Third Circuit made this critical distinction in interpreting the Insanity Defense Reform Act as barring evidence of mental disease or defect as an “affirmative defense" that “excuses" conduct, but not as evidence that simply disproves an element of the offense. 827 F.2d 889, 897 (3rd Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988). One commentator elaborated on the distinction between these concepts:
[T]he mens rea variant of diminished capacity is not a separate defense that deserves to be called "diminished capacity” or any other name connoting that it is some sort of special, affirmative defense!] The defendant is simply introducing evidence, in this case evidence of mental abnormality, to make the following claim: "I did not commit the crime charged because I did not possess the requisite mens rea.” This is not an affirmative defense whereby the defendant admits or has proved against him the elements of the crime charged, but then raises a claim of justification or excuse. Further, a defendant claiming no mens rea because of mental disorder is not asserting some lesser form of legal insanity, that is, he is not claiming Aat he is partially or less responsible for Ae crime charged. RaAer, Ae defendant is straightforwardly denying Ae prosecution’s prima facie case by attempting to cast doubt on Ae prosecution’s claim Aat a requisite mental element was present at Ae time of Ae offense. He is claiming Aat he is not guilty of Aat crime at all, alAough he may be guilty of a lesser crime if all Ae elements of the latter are proven.
¶11Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75-1 J.Crim. L. & Criminology 1, 6 (1984). In Ais opinion I speak in terms of Ae Aeoty of "diminished capacity” meaning evidence of mental disease or defect, not amounting to legal insanity, offered to negate mental state.
¶12A Astinction should also be made between Ae terms “diminished capacity” and "Aminished responsibility." As explained above, in Ae case of "dimmished capacity,” evidence of mental abnormality is offered for Ae purpose of negating culpable mental state. If Ae evidence successfully negates Ae mental element, Ae defendant is not guilty of Ae offense. By contrast, under Ae doctrine of "diminished responsibility” the defendant is claiming Aat due to his mental abnormality, he is not fully responsible for Ae crime. The Aeoty is Aat "[e]ven if Ae technical elements of an offense are satisfied, Ae defendant is less culpable and should be convicted of a lesser crime, or, at least, should be punished less severely.” Id. at 20; see also United States v. Pohlot, 827 F.2d 889, 903-06 (3rd Cir.1987) (distinguishing doctrine of Amimshed responsibility from negation of mental state).
¶13. This Court spoke of diminished capacity in another case, Wagner v. State, 687 S.W.2d 303 (Tex.Crim.App.1984). There, the defendant claimed that the exclusion of evidence of a physical condition at the guilt stage was error. The evidence was that shotgun pellets were situated in the defendant’s head and he was mentally infirm. In its opinion on original submission, the Court held that the defendant was not entitled to admission of such evidence since he was charged with "intentionally or knowingly ” causing the victim’s death. The crime was therefore not a specific intent crime. Id. at 308 (op. on original submission) (citing Cowles). The Court granted the defendant’s motion for rehearing to reconsider whether the evidence should have been admitted on the issue of intent. Id. at 309 (op. on reh’g). On rehearing the defendant pointed out that the trial court in fact charged the jury conjunctively rather than disjunctively on culpable mental state, so that the jury was charged to find that the defendant "knowingly and intentionally” caused the death. We agreed with the defendant that the trial court's charge required the jury to find intent. Id. at 310-11 (op. on reh’g). However, we declined to accept the argument that the evidence of impaired mental functions was admissible at guilt under the facts of this case. We then inexplicably discussed the doctrine of diminished responsibility, confusing it with the doctrine of diminished capacity. Recognizing that other jurisdictions have held evidence of diminished capacity not amounting to insanity admissible to negate malice aforethought, we stated that although malice aforethought was not an element under § 19.02, when "sudden passion arising from an adequate cause” is raised it could function in the nature of a defense reducing the offense of murder to voluntary manslaughter; accordingly, if the defendant’s evidence showed sudden passion, “the doctrine of diminished responsibility would mandate that the evidence be admitted.” Id. at 311 (op. on reh’g). However, the evidence proffered in Wagnerdid not advance that issue and therefore was properly excluded:
The import of appellant’s proffered evidence is that the injury to his head possibly affects his impulse control, and that he seems to lack emotional contact with his surroundings. All that can be inferred from this evidence is that appellant may be more susceptible than the normal person to acting under the influence of a sudden passion. It does not further the proposition that appellant did in fact act under the influence of such a passion on the night of the offense_ Lack of normal impulse control is simply not a circumstance recognized by the Legislature to diminish criminal responsibility of an accused or reduce his crime to a lesser included offense.
¶15. As explained by one commentator:
The “defense” at issue here, is one that at most simply negates a required state of mind. Like all such failure of proof defenses, it contains no special opportunity to exculpate the defendant apart from the standing requirements of the offense definition.... As long as a given state of mind is required by the offense definition, any evidence suggesting the absence of that required state of mind would necessarily be relevant and admissible, absent special restrictions, to determine whether all the required elements of the offense were satisfied.
¶16Robinson, Paul H., Criminal Law Defenses § 64(a) at 276 (1984) (footnote omitted).
¶17Cowlesand Wagnerindicate that in Texas evidence of mental disease or defect is admissible to negate specific intent, but not lesser culpable mental states. Such a rule, admitting evidence to negate specific intent but not other culpable mental states, has been severely criticized. Id.at 277-78 (citing various criticisms of rule restricting such evidence to specific intent crimes). One commentator suggests that a rule of strict relevance would be more logically defensible and effective:
... evidence of mental disease or defect often has little bearing on whether the defendant acted with purpose, knowledge, recklessness, or negligence. The definitions of these terms do not call for a “normative” assessment of blameworthiness; rather they call for specific findings concerning the actor's state of mind with respect to the objective elements of the offense, e.g., was the actor aware that his conduct would cause the death of a human being. Evidence concerning disorders that lead to impaired ability to control conduct, for example, is simply not relevant to the culpability required by such offense definition. A rule of strict relevance may well do more to limit improper psychiatric testimony than an arbitrary and artificial rule based on such distinctions as specific and general intent.
¶18Robinson, Paul H., Criminal Law Defenses § 64(a) at 38-39 (Supp.1993).