¶1concurring.
¶2I join the well-written opinion of the majority and write separately to respond to Judge Baird’s dissenting opinion.
¶3Over five years elapsed from the time this cause was formally submitted and argued to the date on which this Court delivered its per curiam opinion. A badly fractured Court affirmed appellant’s conviction but reformed his sentence from death to life imprisonment in an unpublished opinion. Soria v. State, (Tex.Crim.App. No. 69,679, delivered June 8, 1994). The Court, in effect, found the evidence insufficient to support the jury’s affirmative answer as to the future dangerousness special issue.
¶4On March 29, 1995 we granted the State’s motion for rehearing and ordered the case resubmitted on May 10, 1995 without oral argument. The State contended, in its brief on rehearing, that we failed to review the evidence as to the future dangerousness special issue in the light most favorable to the verdict, as required by Jackson v. State, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and its progeny, e.g., Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992), and also required by precedent from this Court. See Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Crim.App.), cert. denied, — U.S. -, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994); Hughes v. State., 878 S.W.2d 142 (Tex.Crim.App.1992); Burns v. State, 761 S.W.2d 353, 356 (Tex.Crim.App.1988); Chambers v. State, 903 S.W.2d 21 (Tex.Crim.App.1995); Joiner v. State, 825 S.W.2d 701, 703 (Tex.Crim.App.1992).
¶5At trial, the following evidence of future dangerousness was offered by the State:
¶6(1) testimony that appellant had planned the murder in a methodical and calculated manner over a several week period, in order to steal the victim’s vehicle and convert it to cash;
¶7(2) testimony by a police officer as to appellant’s bad reputation in the community as a non-law abiding and violent person;
¶8(3) evidence of appellant’s assault on another inmate while in prison and discovery of a razor in his cell;
¶9(4) a self-portrait of appellant, interpreted by a psychiatrist for the State as evidence that appellant saw himself as an angry and violent individual. The psychiatrist testified that it was his opinion, based on his review of the case and in response to a hypothetical question, appellant would commit criminal acts of violence that would constitute a continuing threat to society; and
¶10(5) evidence that appellant had participated, two months prior to the murder, in an unsuccessful attempt to burglarize a church.
¶11In Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987), we adopted a list of factors we would consider in considering an appellant’s claim the evidence is insufficient to support the jury’s affirmative answer to the “future dangerousness” special issue:
¶12(1) the circumstances of the capital offense, including the defendant’s state of mind and whether he was working alone or with other parties;
¶13(2) the calculated nature of the defendant’s acts;
¶14(3) the forethought and deliberateness exhibited by the crime’s execution;
¶15(4) the existence of a prior criminal record, and the severity of the prior crimes;
¶16(5) the defendant’s age and personal circumstances at the time of the offense;
¶17(6) whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;
¶18(7) psychiatric evidence; and
¶19(8) character evidence.
¶20There is little question, based on the record, this was a deliberate and planned crime committed by appellant for pecuniary gain. He abducted the complainant at gunpoint, forced him to drive to a remote area, and then killed him by stabbing him twice in the back of the head or neck. He had expressed his intent to kill the complainant on several occasions to acquaintances prior to doing so. Factors (2) and (3) of Keetonare therefore present. See also, Flores v. State, 871 S.W.2d 714 (Tex.Crim.App.1993), cert. denied, — U.S. -, 115 S.Ct. 313, 130 L.Ed.2d 276 (1994).
¶21*70The circumstances of the offense show a deliberate, brutal taking of a life by appellant that required close contact with the complainant, and action, i.e., use of a knife, showing a wanton and callous disregard for life. Additionally, appellant enlisted the assistance of others and directed their activities so as to facilitate commission of this offense. Factor (1) of Keetonis present. See also, Dinkins v. State, 894 S.W.2d 330, 358 (Tex.Crim.App.), cert. denied, — U.S. -, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995); Martinez v. State, 924 S.W.2d 693 (Tex.Crim.App.1996) (circumstances of the offense alone may be sufficient to support an affirmative finding as to the future dangerousness special issue).
¶22There is psychiatric testimony in the record that appellant is likely to commit future acts of violence as well as testimony as to appellant’s bad character. This evidence meets Factors (7) and (8) of Keeton. The record is devoid of evidence appellant was under duress or was acting at the direction of another at the time of the offense; this lack of evidence therefore meets Factor (6) of Keeton.
¶23Other than an arrest for attempting to break into a church and damaging an expensive stained glass window, appellant had no formal criminal record, though there was some testimony he had committed several minor nonviolent offenses. Appellant’s prior criminal record, in and of itself, would not support an affirmative answer as to the future dangerousness special issue; therefore, Factor (4) of Keeton is not met.
¶24Appellant was young, eighteen, at the time of the offense. However, the record does not demonstrate he was mentally handicapped, under the influence of drugs or otherwise laboring under circumstances that would tend to militate against a finding of future dangerousness. Though arguably, Factor (5) of Keetonis met.
¶25In summary, the evidence of future dangerousness in the present ease, analyzed by use of the eight factors set forth in Keeton, is strong and approaches being overwhelming. The majority, in my opinion, carefully analyzes the evidence and appropriately defers to the rational finding of the jury that appellant will likely commit future acts of criminal violence so as to constitute a continuing threat to society.
¶26Judge Baird’s dissent, in my opinion, interprets Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976), incorrectly, insofar as he implies Jurekrequires this Court to ignore Jackson v. Virginia and sit, in effect, as a thirteenth juror with respect to the punishment special issues in capital cases. Our opinions in this case, both on original submission and on resubmission, demonstrate the meaningful appellate review required by the Eighth Amendment and Jurek; both are characterized by cogent analysis and reasoning, taking into account applicable constitutional, statutory and case law. The fact that we now reach a different result is not evidence of a lack of integrity, response to political pressure, or a disregard of our oath of office. I state confidently that the members of this Court do not base their opinions on political considerations but base them instead on their interpretations of the law which, by the very fact there are nine of us, will often differ. Is that not the reason what we write are called opinions?
¶27With these comments I join the opinion of the Court.
¶28dissenting.
¶29This ease has a checkered history that must be recounted in order to put this dissent into proper perspective. Appellant was convicted of capital murder and sentenced to death. The trial court’s judgment was entered July 8, 1986. This case was orally argued and formally submitted to this Court on February 22, 1989. However, the ease was not resolved until five years later when this Court, in a per curiam opinion delivered June 8, 1994, affirmed appellant’s conviction but reformed the sentence from death to confinement for life. Soria v. State (Tex.Cr.App. No. 69,679, delivered June 8,1994) (not published). Our decision was far from unanimous. Judges Clinton, Maloney and Meyers concurred with the per curiam opinion. Judge Overstreet and I dissented to the af-firmance of the conviction but concurred with the reformation. And, Judges McCormick, Miller, Campbell and White concurred in the *71affirmance of the conviction but dissented to the reformation.
¶30Our decision to reform appellant’s sentence was not popular and we received a great deal of criticism from the print media and the citizenry of this State. Thereafter, the State filed its motion for rehearing on June 21, 1994. Today, more than two years later the Court reverses itself and reinstates appellant’s death sentence.
¶31This Court has direct appellate jurisdiction of all capital eases where the death penalty is imposed. Tex. Const., art. V, § 5. The citizenry vested this Court with that authority because a statewide appellate court was thought to be more insulated from unpopular decisions than the various courts of appeals. This insulation was designed to promote the evenhanded and consistent imposition of capital punishment. Indeed, in Jurek v. Texas 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976), the United States Supreme Court, in holding our capital sentencing scheme constitutional, stated:
• • • [b]y providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.
¶32In light of the foregoing history, it is clear that this Court has failed to provide prompt judicial review of this case. And, in reversing our position on original submission, it is equally clear that this Court is not operating in a manner which promotes the evenhanded, rational and consistent imposition of capital punishment. This case makes it abundantly clear that this Court has abandoned any pretense of providing the meaningful appellate review required by the Eighth Amendment. Martinez v. State, 924 S.W.2d 693, 699 (Tex.Cr.App.1996) (Baird, J., dissenting); and, Morris v. State, — S.W.2d -, -, 1996 WL 514833 (Tex.Cr.App. No. 71,799, delivered this day) (Baird, J., dissenting).
¶33Canon 3(B)(2) of the Code of Judicial Conduct provides that judges shall not be swayed by partisan interest, public clamor or fear of criticism. I am not at all confident that the instant majority opinion (and the decision to publish it) meets the commands of that canon. The facts the majority relies upon today to reverse itself have been known to this Court for many years and were pointed out by Judge Campbell in his dissent on oiiginal submission.
¶34Because the parties who have cases before us and the citizenry of this State deserve better, I dissent.
¶35dissenting.
¶36In appellant’s second point of error, appellant claims that the trial court erred in sanctioning appellant by limiting the proposed testimony of defense, expert witness Dr. Griffith, because of appellant’s refusal to comply with the trial court’s order to be examined by the State’s psychiatrist, Dr. Coons. The majority holds that when a defendant, after being examined by a psychiatrist, presents psychiatric testimony on the question of future dangerousness, the trial court has the power to compel the defendant to an examination of an expert of the State’s or court’s choosing. Because I maintain that the trial court does not have the authority to compel psychiatric examinations on the issue of future dangerousness, and that testimony by appellant’s expert does not constitute a waiver of a defendant’s Fifth Amendment privilege, I must dissent.
¶37During the punishment phase of the trial, Dr. Grigson, a psychiatrist, testified as an expert witness for the defense. Dr. Grigson, having examined appellant thoroughly, testified that it was his opinion that appellant would not constitute a future danger. At the conclusion of Dr. Grigson’s testimony, the State requested the court to allow the State the opportunity to have one of their experts examine appellant. The State argued that appellant had waived his Fifth Amendment privilege against self-incrimination by offering Dr. Grigson’s testimony, and therefore the State should be allowed to have appellant examined by one of their experts. Over appellant’s objections, the trial court agreed with the State, and orally ordered appellant to submit to a psychiatric interview by the State’s psychiatrist.
¶38*72Appellant refused to cooperate with the State’s psychiatrist, Dr. Coons, and consequently, at trial, Dr. Coons could only testify based on a hypothetical. The trial court held that because of appellant’s failure to follow it’s order to be interviewed, that as a sanction, appellant’s second expert, Dr. Griffith, would be limited to testifying based upon a hypothetical. As a result of the court’s ruling, appellant decided not to call Dr. Griffith, but preserved error by making a bill of exception.
¶39The majority holds that appellant waived his Fifth Amendment privilege against self-incrimination when Dr. Grigson testified that appellant would not be a future danger. The majority also holds that the trial judge had the authority to order an examination as to future dangerousness. Neither the Supreme Court, nor this Court have held that a defendant waive his Fifth Amendment privilege against self-incrimination when he admits psychiatric testimony to show that he will not be a danger in the future. Furthermore, neither the Supreme Court nor this Court have held that a trial judge has the authority to compel a defendant to be interviewed by the State’s psychiatrist on the issue of future dangerousness. In Bradford v. State, 873 S.W.2d 15 (Tex.Cr.App.1993) (plurality op.), this Court held that “a trial court does not have the authority to appoint a psychiatrist for the purpose of examining a defendant for evidence relating solely to his future dangerousness, and that doing so was error”. See also Bennett v. State, 742 S.W.2d 664, 671 (Tex.Cr.App.1987), and McKay v. State, 707 S.W.2d 23, 38 (Tex.Cr.App.1985).
¶40The majority chooses not to follow this line of cases. Instead, they dismiss Bradford, and proceed to announce a new rule that allows compelled examination of a defendant by a State expert on the issue of future dangerousness. They simply expand the rule that gives judges permission to require psychiatric examination of defendant’s on the issues of sanity and competency because a defendant has made them issues, and extend the issue of future dangerousness. Compelled psychiatric examination is clearly distinguishable from required examination for ineompetency or insanity. By allowing trial judge to order capital defendant’s to be examined by the State’s expert simply because he has offered testimony that he will not be a danger in the future is forcing appellant to choose between two independent rights. Appellant has the right to introduce mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Appellant also has the right to not incriminate himself. The assertion of one of these rights should not negate the other.
¶41It cannot be said that it is necessary for an appellant to be forced into submitting to an examination by the State’s psychiatrist, who will undoubtedly testify that appellant poses a danger in the future. Even though a judge should not be permitted to order a defendant to such an examination, this does not mean that the State has no means of convincing the jury that the death penalty is the appropriate punishment for the defendant. Psychiatric testimony based on first hand observation is surely not the only way to rebut appellant’s assertion that he would not be a future danger. The State has the opportunity to cross examine appellant’s psychiatrist to discredit or create doubt in the juror’s minds of his opinions. And, the State also has the right to introduce the testimonial opinions of their own experts, based on detailed hypotheticals, as is often done. Additionally, there is no requirement that the State offer any psychiatric testimony at all to prove future dangerousness. For example, we have held that there are numerous factors a jury can consider in deciding future dangerousness, and in fact, “the circumstances of the offense alone, if severe enough can sustain an affirmative answer to special issue two against a sufficiency challenge.” Vuong v. State, 830 S.W.2d 929 (Tex.Cr.App.1992).
¶42In the ease at bar, several factors must be considered. First of all, it is important to note that the request by the State to have their doctor examine appellant came very late in the proceedings. In fact, this did not occur until the punishment phase, after the State’s case in chief, and after appellant had begun putting on his defense. Also, it should be troublesome to the Court that the order *73by the trial judge was not put in writing. Furthermore, the State did cross examine appellant’s psychiatrist, and introduced the expert opinion of their own doctor. Most importantly, it is inconsistent with the fair administration of justice for a trial judge to require a capital defendant to choose between his right to introduce mitigating factors, and his right against self incrimination. To put it simply, it is inconceivable that we would create a new law that gives judges the power to require capital defendants to be interviewed by the State’s psychiatric expert, for the purpose of providing the State with information that will be used in an attempt to put the defendant to death, and it is incredulous that this Court would agree with a sanction that punishes a defendant for failing to follow an order that the trial court had no authority to impose in the first place. For these reasons, I respectfully dissent.