concurring and dissenting.
I disagree with the reasoning employed by the plurality to resolve appellant’s first point of error and I dissent to the disposition of appellant’s second point of error.
I.
I disagree with the majority’s treatment of appellant’s first point of error regarding the admission of the psychiatric testimony at the punishment phase of appellant’s trial.1 The majority deems appellant’s point of error as an attack on the use of psychiatric testimony in general and summarily dismisses the point. Maj. op. at 195. My reading of the point of error and supporting arguments leads me to the conclusion that the thrust of appellant’s argument is against Dr. James Grigson, the psychiatrist who testified for the State. In reading this point, the plurality places its judicial stamp of approval on all future testimony by Dr. Grigson. Indeed, the plurality relying on several decisions by this Court, holds that objecting to Dr. Grigson’s testimony is “futile.” Maj. op. at 195, n. 1.
A.
Dr. Grigson is a now famous psychiatrist frequently employed by the State to testify in the punishment phase of a capital mur*212der trial that the defendant is a sociopath who shows a complete disregard for authority and the lives of other people. Dr. Grigson’s usual opinion is “[t]hat most certainly an individual such as you described [in a hypothetical question based on defendant’s criminal history and the evidence presented in that case] is going to be a threat to people in our society no matter where they are, whether in confinement or in the free world.” Amos v. State, 819 S.W.2d 156, 162 (Tex.Cr.App.1991). Further, Dr. Grigson routinely testifies that he is “absolutely one hundred percent certain” of his predictions. Cook v. State, 821 S.W.2d 600, 602 (Tex.Cr.App.1991). See also James v. State, 772 S.W.2d 84, 89 (Tex.Cr.App.1989) (vacated on other grounds at 805 S.W.2d 415 (Tex.Cr.App.1990)). Dr. Grigson’s notoriety comes not only from his testimony but from his participation in the trials of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) and Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). These opinions have shaped the admissibility of psychiatric testimony presented in Texas capital murder trials. Based on my experience, no other witness has generated such controversy.2
B.
The controversy continues in this case where appellant argues that “the time has come to re-examine Grigson jurisprudence in light of [appellant’s] analysis. This Court has now seen enough cases to show that the usual methods of insuring fairness through cross-examination and the use of other experts simply does not work in the case of Dr. Death.”3 Appellant argues that Dr. Grigson appears as the disinterested expert while all the while being an advocate for the State.4 “Donning the sheep’s cloth of an unbiased ‘expert,’ Grigson testifies as an uninformed advocate for the State, with disturbingly effective results and remarkably carbon-copy performances on the stand.”5 Appellant further attacks *213Dr. Grigson’s integrity and requests that we exclude Dr. Grigson’s testimony regarding future dangerousness from all future trials and reverse the instant case.6
C.
The use of psychiatric testimony in the punishment phase of a capital murder trial was first addressed by the United States Supreme Court in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In Smith, Dr. Grigson was appointed to determine the competency of Smith to stand trial. Dr. Grigson examined Smith and concluded the defendant was competent. During the punishment phase of the trial, the State called Dr. Grigson to testify with respect to the “future dangerousness” of Smith.7 The Supreme Court held that Dr. Grigson’s testimony, based upon the pretrial competency examination, violated the Fifth and Sixth Amendments to the United States Constitution. However, the Supreme Court expressly held psychiatric testimony to be admissible. Estelle v. Smith, 451 U.S. at 473, 101 S.Ct. at 1878.
Dr. Grigson’s testimony, in the context of a hypothetical question, was reviewed by the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). The Court reviewed the following questions: Whether psychiatrists, individually and as a group, are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future and so represent a danger to the community; and, whether psychiatrists may testify about future dangerousness in response to a hypothetical question without the benefit of an examination of the individual. Barefoot v. Estelle, 463 U.S. at 896, 103 S.Ct. at 3396. The Court held that psychiatric testimony, through the use of a hypothetical question, is permissible. The Court reasoned that the reliability of such testimony is tested through cross-examination and that using a hypothetical question to examine an expert witness is common.
If they [expert psychiatric witnesses] are so obviously wrong and should be discredited, there should be no insuperable problem in doing so by calling members of the [American Psychiatric] Association who are of that view and who confidently assert that opinion in amicus brief. Neither petitioner nor the Association suggests that psychiatrists are always wrong with respect to future dangerous*214ness, only most of the time. Yet the submission is that this category of testimony should be excised entirely from all trials. We are unconvinced, however at least as of now, that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case.
Barefoot v. Estelle, 463 U.S. at 900-901, 103 S.Ct. at 3396. The Court found no reason for the general rule governing hypothetical questions to change when psychiatric evidence is offered. Barefoot v. Estelle, 463 U.S. at 903-904, 103 S.Ct. at 3400. Since the Supreme Court’s decisions in Smith and Barefoot, Dr. Grigson has testified in the punishment phase of many capital murder trials.8
An individual may testify as an “expert” in Texas if the requirements set forth in the Texas Rules of Criminal Evidence are met. The expert must have some scientific, technical, or specialized knowledge which will assist the trier of fact to determine an issue. Tex.R.Crim.Evid. 702. The facts or data upon which the expert bases his opinion, if such are commonly relied upon by experts in his field, need not be restricted to those which are admissible in evidence. Tex.R.Crim.Evid. 703. Upon request, the expert witness may be required to submit to examination out of the presence of the fact finder. If the trial judge determines that the witness does not have a sufficient basis for such opinion, the witness’ opinion shall be inadmissable until such a time as a sufficient basis for such opinion is shown. Tex.R.Crim.Evid. 705(a), (b), & (c).
D.
Appellant argues that we should “outlaw” the testimony of Dr. Grigson in all future capital murder cases. However, appellant fails to provide the Court with a legal basis for excluding the testimony. The testimony of an “expert” witness is not per se inadmissible because his opinion, integrity, or theories are questioned by his colleagues or members of the bar. Though I would not personally vouch for Dr. Grig-son’s testimony, the only legal basis by which such testimony may be excluded per se, would be to reverse the decision of the United States Supreme Court in Barefoot. Such action is not within the powers of this Court.
Although Dr. Grigson’s testimony is not incompetent per se, his testimony should not receive our judicial stamp of approval. With every witness, including the famous and infamous, the State has the burden of satisfying the requirements set forth in the Texas Rules of Criminal Evidence. If the rules are not satisfied in any particular case, the familiarity of this Court with a particular witness does not matter. Dr. Grigson is not immune from our Rules; his opinions are subject to the same scrutiny as any other expert. Therefore, the trial judge is required to independently determine the admissibility of Dr. Grigson’s testimony in each case. If Dr. Grigson does not have a sufficient basis for his opinion, his opinion is inadmissible. Tex.R.Crim. Evid. 705(c).
However, review is not required in this case because appellant did not object to Dr. Grigson’s qualifications or the basis of Dr. Grigson’s opinion. Appellant’s only objection was “to any testimony, as not being recognized within the field in which he [Dr. Grigson] practices.” This issue has been resolved against appellant. See Barefoot v. Estelle, 103 S.Ct. at 3396-3397; and Nethery v. State, 692 S.W.2d 686, 709 (Tex.Cr.App.1985). Therefore, I concur in the resolution of appellant’s first point of error.
*215II.
I dissent to the disposition of appellant’s second point of error. I believe the plain wording of Tex.R.Crim.Evid. 104(b) places upon the trial judge the ultimate burden of determining the relevancy of evidence which is offered subject to the fulfillment of a condition of fact. In other words, contrary to the plurality’s assertion, the trial judge has the duty to notice whether the evidence is eventually “connected up” because the judge, not the defendant, availed himself of the procedures in Rule 104(b). To that extent I agree with Judge Miller. See page 211 (Miller, J., concurring).
Additionally, it should be noted that the plurality has premised the disposition of appellant’s second point of error on an argument neither raised nor argued by the State. The State does not contend that appellant failed to preserve the error for appellate review.9 Rather, the State addresses the merits of appellant’s point of error.
The procedural bar argument advanced by the plurality is not properly before this Court. In Tallant v. State, 742 S.W.2d 292, 294 (Tex.Cr.App.1987) we held:
Transgressions of rules of appellate procedure which this Court has insisted to be followed cannot be summarily dismissed. ... Just as an appellant must properly present points of error to the court of appeals for its decision in order to complain of an adverse determination by way of ground of review, we hold that the State must call to the attention of the court of appeals in orderly and timely fashion that an alleged error was not preserved.10
See also, Leal v. State, 773 S.W.2d 296, 297 (Tex.Cr.App.1989). However, the plurality invents the procedural bar which requires that “the objecting party must re-urge his relevancy complaint after all the proof is in, ask the offending evidence be stricken, and request that the jury be instructed to disregard it.” Maj. op. at 198. This procedural bar is contrary to the plain wording of Tex.R.Crim.Evid. 103(a)(1):
Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; ...
However, the plurality requires that appellant not only object, but to re-urge his objection and make a motion to strike. The plurality then utilizes its invention to forfeit appellant’s right of appellate review and in so doing, places yet another unnecessary burden upon the defendant. See Goss v. State, 826 S.W.2d 162, 171 (Tex.Cr.App.1992) (Baird, J., dissenting). The plurality by becoming both advocate and judge has lost any appearance of impartiality.
The plurality agrees that the evidence concerning the Aryan Brotherhood is irrelevant.11 Accordingly, the evidence was inadmissible under Tex.Code Crim.Proc.Ann. art. 37.07112 and it should not have been admitted.13 Believing that appellant’s timely objections preserved this point for *216appellate review and further finding that the evidence was irrelevant, I would proceed to conduct a harm analysis pursuant to Tex.R.App.P. 81(b)(2).
I cannot say, beyond a reasonable doubt, that this evidence did not contribute to the sentence imposed. The evidence established the Aryan Brotherhood as a neo-nazi, white supremist, racist gang which had a high propensity for violence. The gang worked to control the other members of the prison population through intimidation and fear. In gaining this control the gang committed murder for remuneration, murder and aggravated assaults. The evidence was offered to persuade the jury to affirmatively answer the second special issue by convincing the jury that appellant would commit criminal acts of violence that would constitute a continuing threat to society, which includes prison society. See, Boyd v. State, 811 S.W.2d 105, 188 n. 12 (Tex.Crim.App.1991). The jury made such an affirmative finding. Accordingly, I cannot conclude the admission of the evidence was harmless beyond a reasonable doubt and, therefore, I dissent.
. Appellant’s point of error number one provides:
AN EXPERT OPINION OFFERED BY DR. GRIGSON IN RESPONSE TO A HYPOTHETICAL QUESTION ON FUTURE DANGEROUSNESS VIOLATES DUE PROCESS OF LAW.
. In Belachheb v. State, 699 S.W.2d 709, 711 (Tex.App.—Ft. Worth 1985) the defendant argued that Dr. Grigson’s reputation is so poor and his bias so obvious that any trial judge who appointed him would be guilty of an abuse of discretion.
. Appellant’s Brief, page 4. In Dr. Grigson’s own words:
"I have developed a way to testify that I end up having a tremendous amount of influence although, again, I think they've [the jury] already made up their mind prior to the time that I’m — get on the witness stand. But it makes them feel a whole lot easier whenever they’re reassured that what they’re doing is correct.” Dr. James P. Grigson; C.B.S. News, West 57th, Deadly Diagnosis: Trying Testimony, October 15, 1988.
. This case is presented in a somewhat unusual light because Dr. Grigson, at the time he testified in the instant case, was accompanied by reporter Ron Rosenbaum, a contributing author for Vanity Fair. Appellant included Rosen-baum’s observations in much of his argument.
"I was watching her [a juror in a capital murder trial] and I could tell she didn't believe what the first [prosecution] psychiatrist told her, and she wasn’t gonna hear what we had to say. So we took a coffee break after the first psychiatrist, and I told the prosecutor, ‘you got trouble. You got one woman who’s gonna hang up this jury, because she’s not buying it.’ ... We discovered she had a fourteen-year-old daughter. And I got back on the stand and had the prosecutor ask me [about the defendant], ‘Is this the kind of man that would rape and kill fourteen-year-old girls?”’ Dr. James Grigson, Travels With Dr. Death, Vanity Fair; May 1990, 144.
"Midway on his hasty journey between death-penalty trials the Doctor is pumped up by his victory in Lamesa, [the instant case] primed for fresh battle this afternoon in Lubbock. ‘By God, if it isn’t war,’ he tells me, ‘I don’t know what war is.’ ” Rosenbaum, Ron; Travels with Dr. Death, Vanity Fair, May 1990, 166.
"And as a bonus for the prosecutors who hire him, the Doctor also does his lethal best to destroy defense attorneys and defense witnesses who challenge him.” Rosenbaum, Ron; Travels With Dr. Death, Vanity Fair; May 1990, 144.
"When Dr. Grigson appears in court, every aspect is planned carefully. Instead of a ‘weird’ psychiatrist, he comes across as a country doctor. ... Everything Dr. Grigson does on the stand is geared to making the jury believe him— which they usually do, judging by the verdicts." Jennings, Diane; Dallas Morning News, Section E-l, E-2, James Grigson, February 16, 1992.
"It's a personal type of satisfaction that makes me feel good. It’s like the Boy Scouts — you did your good deed for the day." Jennings, Diane, James Grigson, Dallas Morning News, February 16, 1992, quoting Dr. James Grigson.
. Appellant's brief, pg. 6. The following also illustrate the effectiveness of Dr. Grigson’s "performances”:
"A hundred fourteen times, he’s testified for the death penalty. A hundred five times the *213jury agreed with him.” C.B.S. News, West 57th Street; Deadly Diagnosis: Trying Testimony, October 15, 1988.
"Grigson’s confident predictions and repeated use of the term 'sociopath' have helped send more than 100 prisoners to Death Row_” A.B.C. News, 20/20, Dr. Death; November 25, 1988.
. Following is a description of Dr. Grigson’s testimony in the instant case:
For a brief moment there in Lamesa, it looked as if [appellant’s attorney] might have some momentum going into his assault on the Doctor. But then [appellant’s attorney] made a fatal mistake. He fell into a Doctor death trap, one of the patented devastating counter-punches that have earned the Doctor a reputation as a killing machine on cross examination. Many lawyers told me the best thing to do is not to cross the Doctor at all, to minimize the damage he can do.
... But [appellant's attorney] had done a lot of homework he didn’t want to go to waste. He began ... a bit smugly, 'In the case of Rodriguez v. Texas, 1978, [did you say of Rodriguez?], No matter where he is he will kill again'? ... Do you remember that?
Now, this might have been a good question because it was clear the Doctor couldn’t recall who the hell Rodriguez was. But the Doctor — a poker player as well as a chess player— shrewdly calculated that [appellant’s attorney] didn't know the details either. And so he felt free to spring a trap of his own.
The Doctor replied as if searching his memory and then coming upon a grim recollection. ‘Is Rodriguez the one that killed four women and raped thirty-eight?’
Of course, he had no idea what Rodriguez had done. But what the jury heard was: killed four, raped thirty-eight.
. "Dr. James P. Grigson, a practicing psychiatrist appointed by the court to examine appellant, testified that his examination had led him to conclude that the appellant, though medically and legally sane, felt no remorse or sense of guilt as the result of his participation in this robbery-murder. Grigson also expressed the opinion that appellant’s conduct in the future would not change. He further stated that his branch of medical science had found no cure for persons who were suffering from the type of personality disorder demonstrated by appellant.” Smith v. State, 540 S.W.2d 693, 696 (Tex.Cr.App.1976).
. See Cook v. State, 821 S.W.2d 600, 602 (Tex.Cr.App.1991) (opinion on rehearing); Amos v. State, 819 S.W.2d 156, 162 (Tex.Cr.App.1991); Hartley v. State, 790 S.W.2d 332, 333 (Tex.Cr.App.1990); Stoker v. State, 788 S.W.2d 1, 8 (Tex.Cr.App.1989); James v. State, 772 S.W.2d 84, 89 (Tex.Cr.App.1989); Rogers v. State, 774 S.W.2d 247, 262 (Tex.Cr.App.1989); Holland v. State, 761 S.W.2d 307, 319 (Tex.Cr.App.1988); Cook v. State, 741 S.W.2d 928, 945 (Tex.Cr.App.1987); Hogue v. State, 711 S.W.2d 9, 29 (Tex.Cr.App.1986); and, Nethery v. State, 692 S.W.2d 686, 708 (Tex.Cr.App.1985).
. The State in this case is represented not only by the elected District Attorney of Dawson County, but also the Attorney General’s Office of the State of Texas.
. Unless otherwise indicated, all emphasis herein is supplied by the author.
. "Because this testimony was legally inadequate to connect Appellant with the Aryan Brotherhood in any meaningful way, proof in the abstract of that organization’s beliefs and activities was ultimately irrelevant to any issue at the punishment phase of his trial.” Maj. op. at 198.
. Tex.Code Crim.Proc.Ann. art. 37.071 provides in part:
... In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, ...
. Having found the evidence inadmissible, there is no need to address appellant's contention that admission of the evidence was viola-tive of the First Amendment to the United States Constitution.