dissenting.
In 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.
During 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.
*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.
The 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).
The 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.
It 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).
In 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.
BAIRD, J., joins.