concurring.1
I concur in the disposition of points of error five and six.
In Soria v. State, 933 S.W.2d 46, (Tex.Cr.App.1996), this Court recognized that in limited circumstances a defendant might waive his Fifth Amendment rights — by presenting the testimony of an expert who had conducted a psychiatric examination of the defendant. The Court took pains to explain that only by presenting the testimony of his own expert does a defendant “constructively testify” and thereby subject himself to examination by the State’s psychiatric expert. Soria, 933 S.W.2d at 57-58. Actual presentation of testimony by the defendant is necessary to effect a waiver of Fifth Amendment rights because until such testimony is presented it cannot be said that the defendant has constructively testified. As explained, “introduction by the defense of psychiatric testimony based upon an examination of the defendant ‘constitute[s] a waiver of the defendant’s fifth amendment privilege in the same manner as would the defendant’s election to testify at tñal.’” Id., at 54 (quoting Battie v. Estelle, 655 F.2d 692, 701-702 (5th Cir.1981)). Merely initiating or expressing an intent to initiate a psychiatric evaluation does not amount to constructive testimony.
The Court has today “decided that it is necessary to employ a sort of ‘legal fiction’ ... once [a defendant] has indicated an intent to present future dangerousness testimony.” Ante, at 611. Accordingly, the Court holds that “when the defense demonstrates the intent to put on future dangerousness expert testimony, trial courts may order defendants to submit to an independent, state-sponsored psychiatric exam prior to the actual presentation of the defense’s expert testimony.” Id. The Court justifies this holding by rationalizing that “[prohibiting the trial court from ordering a psychiatric exam until after the defense has actually presented his own expert testimony is bound to work against the State in almost every case.” Ante, at 611. I cannot agree we should ignore invocation of a defendant’s constitutional rights because recognizing them “works against the State in almost every case.”
However, the majority offers some further explanation to support its holding: “Our sense of justice will not tolerate allowing criminal defendants to testify through the defense expert and then use the Fifth Amendment privilege against self-incrimination to shield themselves from cross-examination on the issues which they have put in dispute.” Ante, at 611. While this explanation may support the holding in Soria, it plainly does not support its holding in this case where the defendant has not “testified through the defense expert” and the defendant has not put any “issues ... in dispute” because the defense expert has not testified. While the Court cites dicta from several cases in support of its holding, none of the cases cited hold as the Court holds today.
Therefore, the trial court erred in ordering appellant to submit to an examination by the State’s expert when appellant had not yet waived his Fifth Amendment rights by presenting psychiatric evidence of his own. Soria, supra. Accordingly, a harm analysis is appropriate. Tex.RApp. P. 81(b)(2).
In assessing harm under Rule 81(b)(2), the following factors should be considered: (1) the source of the error; (2) the nature of the error; (3) whether and to what extent the State emphasized the error; (4) any collateral implications of the error; (5) the weight a juror would probably place upon the error; and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Cr.App.1989).
The source of the error was the trial court’s order. Pursuant thereto, the State’s expert attempted to conduct a psychiatric examination of appellant to assess appellant’s future dangerousness for purposes of testifying at punishment. However, appellant refused to cooperate. Accordingly, in rebuttal of the defense expert who testified that he had examined appellant and concluded that he would not be a future danger, the State’s expert testified that he had attempted to *622examine appellant but appellant had not cooperated. He then testified based on a hypothetical. Appellant’s failure to cooperate with the State’s expert prevented the expert from drawing any conclusions based on an examination of appellant.
At the outset of his testimony, the State asked its expert about appellant’s lack of cooperation with his examination.2 After that initial inquiry, the State did not again mention the attempted examination in questioning the expert. The State did not even refer to its expert’s testimony in its closing argument. The State asked the jury to assess an affirmative finding of future dangerousness based on the facts of the case and appellant’s prior conduct. While appellant’s failure to cooperate in the examination might have been viewed negatively by the jury, it was not emphasized by the State.
In assessing punishment the jury considered all the evidence at guilt/innocenee, as well as the punishment phase evidence. The following evidence was before the jury at punishment:
1. Appellant had sexual intercourse with the ten-year-old victim on multiple occasions, resulting in the victim’s pregnancy.
2. The morning after being informed that the sexual assault charges against appellant would not be dropped, appellant went to the residence with a double-barrel shotgun and brutally murdered the ten-year-old victim, her two great aunts, and shot and injured her uncle.
3. Appellant was previously convicted of murder in 1977 and was sentenced to twenty years.
4. Two police officers testified that they had observed appellant dealing cocaine.
5. Two women testified that appellant had forced them at gunpoint to remove their clothing, had tied them up and attempted to perform oral intercourse on them.
6. Numerous police officers testified to appellant’s bad reputation.
Even if the jury might have viewed appellant’s lack of cooperation with the State’s expert as inculpatory, the other evidence supporting an affirmative finding on future dangerousness dissipated the effect of that evidence. In other words, evidence that appellant did not cooperate with a State’s expert fades to insignificance when compared to other evidence of appellant’s behavior indicative of future dangerousness.
In addition, at the time of the trial court’s order, it did not have the benefit of this Court’s opinion in Soria. Soria clearly sets forth the circumstances in which a defendant is deemed to have waived his Fifth Amendment rights by introducing psychiatric testimony. In light of the dictates of Soria it is unlikely that the State would continue to ask the trial court to order an evaluation by the State’s expert prior to introduction of such evidence by a defense expert (were it not for the Court’s holding today).
Considering these factors, I find beyond a reasonable doubt the trial court’s error in ordering the defendant to submit to an examination by the State’s expert was harmless in that it did not contribute to the punishment assessed. Accordingly, I concur in the disposition of points of error five and six and, therefore, join only the judgment of the Court.
MEYERS, J., joins this opinion. OVERSTREET, Judge, concurring.I disagree with the majority’s discussion regarding appellant’s points of error num*623bers five and six wherein he complains of the trial court ordering him to be examined by the State’s psychiatrist. However, because appellant in fact was allowed to present his expert testimony in spite of his refusal to succumb to the State’s psychiatrist’s efforts to interview him, I concur with the disposition of the points.
As I indicated in my recent dissent to this Court’s treatment of the same issue in Soria v. State, 933 S.W.2d 46, 71 (Tex.Cr.App.1996) (Overstreet, J., dissenting), there is no constitutional or statutory legal authority for forcing a defendant to submit to interrogation by a State-sponsored psychiatrist so that the State can make its future dangerousness case against the defendant at punishment. The majority continues to disregard this Court’s holding in Bradford v. State, 873 S.W.2d 15 (Tex.Cr.App.1993)(plurality opinion of the Court), cert. denied, 513 U.S. 925, 115 S.Ct. 311, 130 L.Ed.2d 274 (1994). In fact, the majority now, in derogation of the Bradford opinion of the Court, citing the dissenting opinion in Bradford states that its “sense of justice will not tolerate allowing criminal defendants to testify through the defense expert and then use the Fifth Amendment privilege against self-incrimination to shield themselves from cross-examination on the issues which they have put in dispute.” Lagrone v. State, 942 S.W.2d 602, 611. Yet in this case, appellant did not testify — he did not take the stand to testify in his defense. This Court has even held that out-of-court statements do not constitute “testimony” such as to require corroboration. Bingham v. State, 913 S.W.2d 208 (Tex.Cr.App.1995)(op. on reh’g). Yet the majority states that even though appellant did not present in-court “testimony” he is still subject to cross-examination. Thus, in light of such reasoning, would the majority approve of the State having called appellant personally as a witness and forced him to be cross-examined before the jury based simply upon him presenting a defense at punishment? Surely, such forced cross-examination would be intolerable, wouldn’t it? Is not forced cross-examination by the State-sponsored expert psychiatrist likewise intolerable?
And now, the majority goes even beyond Soria and authorizes trial courts to order defendants to submit to State-sponsored psychiatric exams on future dangerousness when the defendant even “plans to introduce ” his own future dangerousness expert testimony. Lagrone, supra, 942 S.W.2d at 611 (emphasis in original). Just how one determines in advance whether a defendant “plans to introduce” such evidence is not specified. Is the defendant required to file some pre-trial, or pre-punishment, motion? Or is the defendant required to submit to interrogation about whether he even “plans to introduce” such evidence? Or does a defendant’s shifty scheming eyes provide such a basis for concluding that he “plans to introduce” such evidence? We can only wonder; but it certainly appears pursuant to the majority’s reasoning and attitude that potentially each and every capital defendant can be ordered to submit to an interrogation by a State’s psychiatric expert because each and every capital defendant could choose to proffer their own expert psychiatric evidence at punishment. Is this what the majority intends— that all capital defendants be compelled to submit to an interrogation and interview with a State’s psychiatric expert so that the State can present the evidence obtained from such interview and interrogation in proving up the special issues? As noted above, there is no constitutional or statutory legal authority for forcing a defendant to submit to such interrogation and interview for the State to make its case against the defendant on the special issues at punishment.
Likewise, there is no constitutional or statutory legal authority for sanctioning a defendant who refuses to submit to interrogation by a State sponsored psychiatrist by precluding the defendant from presenting his own expert’s testimony. Such sanction denies the defendant his right to present witnesses with relevant information for his defense. The defendant’s right to present his own witnesses to establish a defense is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). The right to offer testimony of witnesses and the right to present a defense is the right to present the defendant’s version of the facts *624as well as the prosecution’s so that the jury may decide where the truth lies. Id. This right is especially critical at punishment in a capital murder case where the issues are literally matters of physical life and death. To preclude and forbid a defendant from presenting evidence that is indisputably relevant to the potentially lethal special issues that the jury has to answer simply because he chooses to exercise his constitutional rights to silence is the epitome of imprudence.
Nevertheless, as the majority points out, the trial court did indeed allow appellant to present testimony from his expert, Dr. Schmitt. Lagrone, supra, 942 S.W.2d at 610. Thus he was not precluded from presenting his expert testimony based upon his refusal to comply with the order to be interviewed by the State’s expert.1 And that State’s expert did testify as to appellant’s future dangerousness without the benefit of appellant submitting to the forced interview. Thus the State was able to make its case on future dangerousness and convinced the jury to return a verdict resulting in assessment of the death sentence, without appellant submitting to the forced interview. As the United States Supreme Court said in Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 859, 373 (1981), “the State must make its case on future dangerousness in some other way[,]” and in the instant cause, the State obviously was quite able to make its case on future dangerousness in some other way, i.e. without appellant submitting to the forced interview.
Because the majority continues to preach so as to abridge the Texas Constitution’s and the United States Constitution’s Bill of Rights’ Fifth Amendment privileges against self-incrimination and the due process right to present a defense, I respectfully dissent to the discussion contained in points five and six. However, because the trial court did allow appellant to present testimony from his expert, Dr. Schmitt, I concur in overruling points five and six.
Otherwise, I concur only in the judgment.
. This opinion was prepared by Judge Frank Maloney prior to his leaving the Court.
. The following exchange occurred:
[Prosecutor]. And were you able to interview the Defendant and evaluate the Defendant?
[State’s expert]. I spoke with [appellant] about 30 minutes, and he gave me some basic information ... but he basically declined to be evaluated.
Q. Did you inquire as to why he didn't want to be evaluated?
A. I did.
* * * * * *
Q. What did he tell you as a reason for not being willing to be evaluated?
A. That I was hired by the prosecution and probably would not be fair and that it was unlikely my evaluation would help him.
. In fact, since there was no preclusion of appellant’s presentation of Dr. Schmitt’s testimony, the entirety of the majority’s discussion about such preclusion being an appropriate sanction for not submitting to a forced and compelled interrogation by a State’s psychiatric expert appears to be utter obiter dictum.