(concurring in part and dissenting in part).
There are three overlapping issues in this case — the adequacy of a pre-trial determination of competence to stand trial, the right to effective representation by counsel at the pre-trial sanity hearing, and the right to such counsel at the trial itself. The majority have dealt effectively with the third issue only.
In view of appellant’s long history of mental and nervous disorders while in the armed services, in Veterans’ Administration hospitals, and in correctional institutions, he was entitled under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) to an adequate pre-trial inquiry into his competence to stand trial. It is my opinion he was not accorded an adequate hearing.
The majority stand on two findings of the district court: (a) that Greer was examined by at least one local physician and the result was not satisfactory to his counsel for the sanity hearing, and (b) that the trial court at the sanity hearing had the benefit of the testimony of another physician, Dr. O. H. Box, who concluded on the basis of examination of Greer himself and of his hospital records, that he was competent to stand trial. The first of these is irrelevant to the adequacy of the hearing. Under Pate v. Robinson the hearing was required because of appellant’s past history. When required, and held, it was not made into an adequate inquiry by matters which may (and may not) have been known to Greer’s counsel but were not made known to the court at the sanity hearing. This finding was relevant only to whether a judicial inquiry into sanity was constitutionally required, which is not even in dispute, not at all to the issue of whether the inquiry was constitutionally defective.
What was presented at the sanity hearing was testimony of Dr. Box, a doctor from a Veterans’ Administration hospital, who examined Greer’s records. In my view the record does not adequately support the conclusion that Dr. Box ever examined Greer. Greer’s counsel for the sanity hearing did not testify in district court but submitted an affidavit stating, as to this issue, only that “My recollection is that Dr. Box testified to having examined the defendant Greer and his conclusion was based upon his personal observations of the defendant and examinations of the defendant.” In this case where the facts are of utmost importance in the vindication of a constitutional right I would require more evidence than an affidavit, presumably made some years after the event, as to what counsel recalls as the substance of the testimony of a witness. Moreover, even if such an examination took place we have no information on how thorough or reliable it was.1 Greer denies he was examined at all by Dr. Box.
In addition to being irrelevant, the determination of the district court, reiterated by the majority, that Greer was examined by a local physician and that “his lawyer was not satisfied with the result” does not have adequate support in the record. What Greer’s counsel said in his affidavit was “There were no funds with which to hire outside doctors or psychiatrists and such medical exam*927inations as [Greer] had here and were available were not too satisfactory from my position”. 259 F.Supp. at 893. Counsel’s statement very well could mean he did not deem the local doctors capable of making a reliable psychiatric examination and evaluation. The local physician (or physicians) who allegedly examined Greer did not testify at the sanity hearing and was not produced before the district court and, in fact, has never been reliably identified. The state prosecutor testified in district court that he understood Greer’s counsel had a local physician (who may have had competence in the psychiatric field) examine Greer. This is totally insufficient to establish the extent or reliability of a psychiatric examination and evaluation, or in fact even to establish that it was made at all. Again, adjudication of questions of constitutional entitlements must be made on better evidence than this. And, I reiterate, the judicial inquiry into sanity cannot be shown adequate by evidence of an extra-judicial examination by a physician, if made, and by what evaluation the accused’s attorney put on that examination. Adequacy rests on evidence presented at, and the conduct of, the judicially-convened inquiry.
The scope and depth of medical testimony at such hearings, by psychiatrists and by doctors who are not psychiatrists, and the extent of examination of the accused on which their opinions fairly may be based, are part of a developing field of the law. See the discussion in Greer v. Beto, 259 F.Supp. 891 (S.D.Texas 1966) ; Bush v. McCollum, 231 F.Supp. 560 (N.D.Texas), aff’d, 344 F.2d 672 (5th Cir. 1965); United States ex rel Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed.2d 549 (1953); Krupnick v. United States, 264 F.2d 213 (8th Cir., 1959); Williams v. United States, 102 U.S.App.D.C. 51, 250 F.2d 19 (1957).
Turning to the issues of effective assistance of counsel at the sanity hearing and the trial (and the accompanying right to medical testimony), it is my opinion that counsel is not shown to have had effective medical assistance for the sanity hearing. This is based on matters recited above, plus the fact that if any kind of psychiatric service was available in Fannin County an attempt by appointed counsel to obtain it at public expense would have been futile. Crain v. State, 394 S.W.2d 165 (Tex.Crim.App.1964). Nor do I fault appellant’s counsel for the sanity hearing in any manner. There is nothing to show that he did not avail himself of the maximum in medical talent and facilities available.
On remand I would require the district court to follow the course directed by Pate v. Robinson, supra. An initial inquiry should be made into whether at this time an effective hearing can be held on the issue of Greer’s competence at the time of trial. If such a hearing is feasible, it must be held; if it is not, Pate v. Robinson requires retrial.
I agree with the majority on the issue of lack of effective counsel at trial and concur in their substantive disposition of that issue.
I add that I am not in favor of a blanket rule that in all cases an indigent defendant is constitutionally entitled to the services of a psychiatrist at state expense. But on the facts presented here, Greer’s counsel needed the assistance of psychiatric examination of his client, and expert testimony of one qualified to testify on psychiatric matters, for the sanity hearing and for trial on the merits. Greer needed this assistance fully as much or more than did the defendant in Bush v. McCollum, supra. The record shows he did not receive them.
. See the suggestion in McCollum v. Bush, 344 F.2d 672 (5th Cir. 1965), that an examination by a clinical psychologist during a 40 minute lunch recess during trial was not adequate. 344 F.2d at 672, n. 1. For federal prisoners 18 U.S.C.A. 4244 requires examination “by at least one qualified psychiatrist”. An inquiry by a probation officer will not meet this requirement, United States v. Day, 333 F.2d 565, 567 (6th Cir., 1964). A two-hour examination by a qualified psychiatrist may be of doubtful reliability. Birdsell v. United States, 346 F.2d 775 (5th Cir.), cert. denied, 382 U.S. 963, 86 S.Ct. 449, 15 L.Ed.2d 366 (1965). It is worthy of note that recent studies have cast significant doubt on the reliability of single-interview psychiatric evaluations. Stoller & Geetsma, The Consistance of Psychiatrists’ Clinical Judgment, 137 J. Nervous and Mental Diseases 58 (1963); Rosenweig, et al., A Study of the Mental Status Ex-mination, 177 Am.J. Psychiatry 1102 (1960).