dissenting.
An examination of this record reveals several reversible errors. The majority’s treatment of these grounds of error is whol*778ly inadequate. For the reasons that follow, I dissent to the affirmance of these convictions.
I.
During the punishment phase of the trial, the state presented expert testimony on the issue of future dangerousness. The state elicited this testimony not from a psychiatrist or a psychologist, but from the pathologist who performed the autopsy on the deceased. In response to a hypothetical question, the pathologist expressed his opinion to a “reasonable medical certainty” that Doyle Skillern would constitute a continuing threat to society.
Skillern contends that the admission of this evidence, over his objection, was reversible error. The majority concedes that the trial court erred in permitting the pathologist to render an expert medical opinion on the second punishment issue. The majority concludes, however, that this error was harmless beyond a reasonable doubt.
In evaluating the majority’s conclusion, it must be kept in mind that a jury’s determination on the second punishment issue is qualitatively different from its determination on the guilt-or-innocence issue. Predicting future dangerousness is far less precise than resolving the issue of guilt or innocence. With this crucial difference in mind, let us now consider the type of evidence whose admission the majority deems harmless error.
It is widely recognized that many lay persons show an inordinate amount of deference to members of the medical profession. Consequently, prosecutors go to great lengths to obtain psychiatric testimony on the second punishment issue. They obviously believe that such testimony significantly influences a jury’s punishment deliberations.
The only distinction between this testimony that prosecutors find so valuable and the testimony in the instant case is that here the testimony was given by a pathologist rather than a psychiatrist. However, the circumstances under which the pathologist testified suggest that this distinction was largely lost on the members of the jury. When defense counsel objected on the ground that the pathologist did not have the training and experience to render an expert medical opinion on the second punishment issue, the trial court made the following comment in the presence of the jury:
THE COURT: There is no question but what the jury makes the decision but this witness is'a medical doctor and I believe that the testimony shows that he has studied human behavior, had experience with it, and is giving this testimony to aid the jury, if it does. Overruled, (emphasis added.)
This statement was an expression of the trial court’s opinion that the pathologist’s training and experience in the field of human behavior qualified him to render an expert medical opinion on the issue of future dangerousness. As such, it constituted a comment on the weight of the evidence, in violation of Article 38.05, V.A.C.C.P. This comment enhanced the pathologist’s standing in the eyes of the jury, thereby compounding the court’s error in admitting his testimony. Moreover, the court permitted the pathologist to express his opinion in terms of a “reasonable medical certainty.”
Expert medical testimony on the second punishment issue can have a significant impact on a jury’s punishment deliberations. In holding that the admission of such testimony was harmless error, the majority necessarily concludes beyond a reasonable doubt that the pathologist’s testimony could not have influenced even one of the 12 jurors to vote “yes” rather than “no” on the second punishment issue. Even viewed in its most favorable light, the majority’s position is untenable.
At trial it was undisputed that Sanne, not Skillern, shot the deceased. Notwithstanding Skillern’s prior conviction for murder without malice, jurors reasonably could have answered “no” to the second punishment issue. Jurors have supplied a negative answer to this issue in cases far more egregious than the present one. See D. *779Crump & G. Jacobs, Capital Murder (1977) (the cases of John Stiles Griffin and Ber-nardino Sierra are cogent examples).
The majority’s assertion that the pathologist’s testimony could not have changed the vote of even one juror is a bold departure from reason. It simply cannot be concluded with the required degree of certainty that the admission of this evidence failed to contribute to the jury’s assessment of the death penalty. The majority errs in holding this error harmless.
II.
Both Skillern and Sanne contend that the trial court committed reversible error in overruling their motions for a continuance. They submit that the court gave defense counsel insufficient time to prepare for trial. In separate grounds of error, they complain of the court’s refusal to appoint a second defense attorney. The basic thrust of both claims, according to appellants, is that the trial court’s actions denied them effective assistance of counsel. Under the facts of this case the two claims are functionally inseparable, and for that reason I will treat them together.
The record reflects that the trial court appointed one defense attorney to represent each appellant and set their cases for trial on March 13, 1978. This date was 21 days after the appointment of counsel. On three separate occasions the defense attorneys asked for a continuance because they needed more time to prepare for trial. On each occasion they specifically stated to the court their reasons for needing more time. In spite of the compelling nature of defense counsel’s reasons, the court overruled all requests for a continuance.
One reason given by the defense attorneys was that they needed more time “to fully read and digest the voluminous record of the [prior] trial,” at which appellants were represented by other counsel.1 The attorneys pointed out that only one copy of that record was available, which they had to share.2 The attorneys also told the court that sufficient time to review the record from the prior trial was essential to their providing effective representation.
The record reflects that the trial court gave defense counsel insufficient time to familiarize themselves with the statement of facts from the prior trial.3 The value of a transcription of the court reporter’s notes from a prior proceeding has been recognized by the Supreme Court. See Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). Where a defendant is indigent, the failure to furnish a free transcription generally is reversible error. Id. The corollary of appellants’ right to have the statement of facts from the prior trial is that their attorneys must be given *780enough time to read and familiarize themselves with it. By refusing to grant a continuance to allow defense counsel sufficient time to study the record, the trial court denied appellants effective assistance of counsel.
The defense attorneys also sought a continuance because they needed time to interview the key witnesses. Counsel pointed out that at the prior trial the state called more than 50 witnesses, none of whom lived anywhere near Rockport.4 The attorneys stated to the court that interviewing some of these witnesses was absolutely essential to their providing effective assistance of counsel.
In response, the court suggested that reading the record of the prior trial was an adequate substitute for interviewing witnesses. Defense counsel were quick to point out the inadequacies of this approach. First, they had too little time to fully acquaint themselves with the record. Second, they were unable to evaluate the credibility of the witnesses by reading the record. Third, their reading of the record raised numerous questions that could be resolved only by interviewing witnesses. Moreover, the record of the second trial reflects that the state called critical witnesses who did not testify at the first trial.
After jury selection had been completed but before the evidentiary phase of the trial had begun, the trial court told defense counsel that they would be given an opportunity to interview the state’s witnesses before they took the stand. However, the record reflects that because of the trial process defense counsel were able to interview only a few of the state’s witnesses.
In Flores v. State, 576 S.W.2d 632 (Tex. Cr.App.1978), this Court held that “an attorney must acquaint himself ... with ... the facts of a case before he can render reasonably effective assistance of counsel.” Writing for the Court, Presiding Judge Onion set forth the factors to be considered in determining the size of defense counsel’s burden to become acquainted with the facts:
... The size of the burden on the counsel to acquaint himself with the facts will vary of course depending upon the complexities of the case, the plea to be entered by the accused, the punishment that may be assessed, and other such factors
Id. at 634. See Callaway v. State, 594 S.W.2d 440, 445 (Tex.Cr.App.1980).
When the factors enunciated in Flores are applied in the present case, it is clear that the defense attorneys had an enormous burden to acquaint themselves with the facts. Both appellants pleaded not guilty, and both were subject to the death penalty.5 There was the usual complexity in a capital case of selecting a jury in accordance with Witherspoon v. Illinois,6 and V.T.C.A.Penal Code, § 12.31(b). Compare Adams v. Texas, - U.S. -, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) with Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976). In addition, for a variety of reasons appellants’ cases were unusually complex: (1) the voluminous record from the prior trial; (2) none of the state’s witnesses lived in the county where the second trial was held; (3) the joint trial; (4) the unusually large number of witnesses called by the state; (5) the disputed issue involving ballistics; and (6) the expert medical testimony presented by the state on all three punishment issues.
Discharging the burden to become acquainted with the facts is not strictly an armchair pastime. Usually it requires that witnesses be interviewed and the facts otherwise investigated. Although studying the record from a prior trial is critical, it is not *781an adequate substitute for independently investigating the facts. Unless counsel conducts an independent investigation, there is no way of knowing whether counsel at the prior trial adequately investigated the case.
In spite of the enormous burden on the defense attorneys to acquaint themselves with the facts, the majority concludes that counsel discharged this burden merely by reading the testimony of the witnesses from the prior trial. I cannot agree that such minimal preparation discharged this burden, nor can I associate myself with such a cavalier attitude toward an accused’s constitutional right to effective assistance of counsel.
In the present case the record clearly shows that the trial court gave defense counsel insufficient time to interview witnesses and otherwise investigate the facts. This situation was not remedied by the court’s authorization of $500 for investigation and expert testimony. The record also shows that, notwithstanding the defense attorneys’ diligence, they had insufficient time to obtain the services of either an investigator or a ballistic expert.7 In light of the enormous burden on defense counsel to acquaint themselves with the facts, the conclusion is inescapable that the trial court gave them insufficient time to discharge this burden. As a result, appellants were denied effective assistance of counsel, and the court’s refusal to grant a continuance constituted an abuse of discretion.
In the alternative, given the 21 days allowed for trial preparation, the trial court abused its discretion in overruling appellants’ motions for appointment of a second defense attorney. Had the court granted this motion, the 21 days might have been enough time for two defense attorneys to render effective assistance of counsel. Although I do not advocate a rule requiring the appointment of two defense attorneys in all capital cases, the complexity of such cases strongly suggests that appointing two attorneys almost always would be the better practice. This is especially true where, as here, at least one attorney had never before tried a capital case.
III.
In three grounds of error, Skillern contends that the trial court erred in overruling his challenges for cause to three prospective jurors. The majority summarily disposes of these grounds on the theory that Skillern failed to show how the trial court’s rulings harmed him. The majority’s treatment of these contentions is as follows:
... The three grounds can be dealt with together, inasmuch as Skillern has not shown how he was harmed by the impaneling of these jurors. Although Skillern exhausted his peremptory challenges, the trial court gave an extra one without request, and this extra strike remained unused. Skillern has not taken the steps prerequisite to a showing of harm. Pay-ton v. State, Tex.Cr.App., 572 S.W.2d 677.
Peremptory challenges are exercised differently in capital cases than in noncapital cases. In noncapital cases peremptory challenges are made after all prospective jurors have been questioned. See Arts. 35.25 & 35.26, V.A.C.C.P.; Fuller v. State, 409 S.W.2d 866 (Tex.Cr.App.1966). In capital cases, however, such challenges are exercised at the time a prospective juror is examined. See Arts. 35.13, 35.17, & 35.20, V.A.C.C.P.; Fuller, supra. In spite of this critical difference, the majority applies to a capital case a harmless error rule devised in the context of noncapital cases. See Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978). The majority does so, without discussion or analysis, even though the application of this rule to capital cases is illogical.
Applying this rule to capital cases would make sense only if a defendant were permitted to exercise unused peremptory challenges after all prospective jurors had been examined. But such a procedure would violate the Code of Criminal Procedure. See Arts. 35.13, 35.17, & 35.20, supra; Fuller, supra. Moreover, in the present case the *782trial court twice refused Skillern’s request that he be allowed to reserve the exercise of his peremptory challenges until all prospective jurors had been examined.8
The errors Skillern alleges could be rendered harmless only if he had been given three extra peremptory challenges that he was entitled to use retrospectively. Instead, he was given one extra challenge that could be used only prospectively. Consequently, the majority errs in holding that Skillern failed to show harm because he did not use his extra peremptory challenge.
Because of the errors discussed above, I dissent to the affirmance of these convictions. The judgments should be reversed and the causes remanded.
ROBERTS, J., joins in dissent.. That trial resulted in convictions that were reversed on appeal. See Skillern v. State, 559 S.W.2d 828 (Tex.Cr.App. 1977). The record from that trial consists of 14 volumes and approximately 4,000 pages.
. Skillem’s attorney testified that it was necessary for Sanne’s attorney to have the statement of facts during the week of February 20-26 because the following week Sanne’s attorney had prior commitments.
. Skillem’s attorney testified that he had insufficient time to review the statement of facts. He added that such a review was necessary for proper trial preparation. Sanne’s attorney testified that he had no time to read the parts of the statement of facts that concerned the argument of the preliminary motions and the examination of prospective jurors. He explained that a review of the voir dire was necessary because this was his first capital murder case.
The majority attaches great significance to the testimony of Sanne’s attorney that he had the opportunity to read the testimony of the witnesses from the prior trial. This position ignores the value of other parts of the statement of facts. To render effective assistance of counsel, an attorney must become acquainted with the law of the case. Flores v. State, 576 S.W.2d 632 (Tex.Cr,App. 1978). In several respects the law applicable in capital cases substantially differs from that applicable in non-capital cases. Because this was the first capital murder case for Sanne’s attorney, an opportunity to review the voir dire and the argument of the preliminary motions would have been a valuable tool for his becoming acquainted with the law unique to capital cases. By denying him this opportunity, the trial court impaired Sanne’s right to effective assistance of counsel.
. Venue of appellants’ cases was changed from Live Oak County to Aransas County.
. Sanne filed a pretrial motion of former jeopardy concerning the death penalty because at his prior trial the jury answered the second punishment issue in the negative. The trial court overruled this motion, thereby subjecting Sanne to the death penalty. We recently have held, however, that the principles of double jeopardy apply to this situation. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980).
. 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
. The defense attorneys told the court that they needed to obtain the services of a ballistic expert. At the prior trial the court admitted in evidence a .38 revolver, and there was a disputed issue as to whether this was the murder weapon.
. [Skillern’s attorney]: Your Honor, Defendant Skillern has no challenge for cause and, at this time, I will reserve my right to exercise any peremptory strikes.
THE COURT: Reserve it? Either accept the juror or challenge her peremptorily.
[Skillem’s attorney]: Your Honor, that denies the defendant the right that he has in any non-capital criminal case in this State to have impaneled a number of qualified jurors who are not subject to challenge for cause and then exercise sensibly and intelligently the limited number of peremptory strikes that are available to him. I object to that procedure and for that reason claim my right to defer exercising peremptory challenges until the panel is completed.
THE COURT: Well, either accept the juror or reject her... .
******
[Skillem’s attorney]: Your Honor, Defendant Skillern offers no additional challenge for cause and again I reserve the right to make peremptory challenges until such time as—
THE COURT: Make it now.
[Skillem’s attorney]: Has the Court overruled my right to reserve peremptory challenges at a time later? Let the record reflect that I reiterate the same objection that I have before.
THE COURT: All right. Same ruling....