¶1delivered this concurring opinion,
¶2joined by JOHNSON, J.
¶3In point of error twenty-two appellant claims the trial court erred in admitting victim impact evidence regarding the effect of the victim’s death on the victim’s family members. Appellant argues such evidence is irrelevant to any of the special issues. Appellant’s trial took place before Mosley v. State, 983 S.W.2d 249, 264 (Tex.Crim.App.1998), which held such evidence is relevant to the mitigation special issue. Per Mosley, the majority rejects appellant’s relevance claim, and notes the only other limitation on such evidence, Rule 403, was not raised by appellant.
¶4*482Appellant cannot be expected to have anticipated the Court’s ruling in Mosley, which came two years after appellant’s trial. It was appellant’s position at trial, based on caselaw existing at that time, that such evidence was irrelevant. Appellant had no reason to assert Rule 403, which only applies to evidence determined to be relevant.
¶5Moreover, the Court emphasized in Mosleythat such evidence is not relevant to the issue of future dangerousness. Since all of the special issues are considered by the jury together, if evidence is relevant to one issue, but not to another, the jury should be instructed to that effect. In appellant’s case, the evidence came in at punishment for all purposes, contrary to Mosley.
¶6I continue to hold to the view that we ought to examine more closely cases tried prior to this Court’s opinion in Mosley, where trial courts’ admit victim impact evidence without limitation, in contravention of the few, but specific limitations set forth in Mosley.
¶7. The limitations being that such evidence is patently irrelevant to the issue of future danger, that such evidence is admissible only in "the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence, that there are numerous considerations to make in the context of Rule 403, and that such evidence should not involve comparative worth analyses.” Other issues can be raised under Mosley. Defendants may now waive altogether "submission and reliance” on the mitigation special issue and thereby avoid the State’s admission of victim related evidence. Mosley, at 264. At the time of appellant’s trial, the law suggested special issues could not be waived. Powell v. State, 897 S.W.2d 307, 314-18 (Tex.Crim.App.1994)(plurality opinion); id. at 318 (Clinton, J., concurring)(holding "deliberateness” issue could not be waived, even affirmatively, by defendant). Mosleyheld Powellinapplicable to the mitigation issue. We have no way of now knowing what choice appellant would have made had he been aware of this option at the time of his punishment hearing.
¶8delivered the concurring opinion.
¶9I 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.
¶10In 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.
¶11In 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 *483said defendant establishes a substantial need for such assistance and denial of said assistance would be fundamentally unfair.
¶12Appellant, 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.
¶13Finally, 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.”
¶14As polygraph evidence is not admissible, the trial court did not abuse its discretion in denying appellant funds to retain a polygraph examiner.
¶15With these comments I join the opinion of the Court.
¶16. 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.