concurring.
I agree the testimony proffered by appellant was properly excluded. However, for *902the following reasons, I cannot join the majority opinion which holds Tex.R.Crim. Evid. 701 permits lay witness opinion testimony concerning a third person’s culpable mental state.
I.
Gary Mosby, Deryk Middleton, Andre Mosley and appellant entered a nightclub to rob its patrons. Appellant vaulted the bar and was physically confronted by the victim. During this confrontation, appellant attempted to shoot the victim but the gun would not fire. Mosby provided appellant with a second gun which appellant used to strike the victim. Mosby obtained a third gun and fatally shot the victim.
The State called Middleton as a witness. Out of the jury’s presence, appellant sought to question Middleton concerning Mosby’s intent.1 The trial judge excluded the testimony. Appellant was convicted of capital murder and sentenced to confinement for life.
The Court of Appeals affirmed, holding:
... Middleton could not properly testify whether Mosby, at the time [of the shooting], had the culpable mental state necessary to convict appellant of capital murder, which requires an intentional killing, rather than felony murder, which does not.
Fairow v. State, 920 S.W.2d 357, 360 (Tex.App.—Houston [1st Dist.] 1996).2
We granted review to determine whether Tex.R.Crim. Evid. 701 permits lay witness opinion testimony concerning a third person’s culpable mental state.
II.
To ensure only reliable evidence goes before the fact finder, witnesses must be competent. Tex.R.Crim. Evid. 601. Competency requires personal knowledge. Tex. R.Crim. Evid. 602 provides:
Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.3
To fulfill the personal knowledge requirement the witness must “have actually observed the fact” about which he will testify. Fed.R.Evid. 602 advisory committee’s notes. Personal knowledge is required because testimony without personal knowledge is pure speculation and conjecture. Obviously, such testimony lacks probative value and should be excluded.
III.
The personal knowledge requirement of Rule 602 applies to opinion testimony of lay *903witnesses. Bigby v. State, 892 S.W.2d 864, 889 (Tex.Cr.App.1994). Rule 701 provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.4
As we held in Bigby, the “perception of the witness” portion of the rule incorporates the personal knowledge requirement of Rule 602. Bigby, 892 S.W.2d at 889. See also, H. Wendorf and D. Sehlueter, Texas Rules of Evidence Manual, at VI-3 (4th ed.1995). Therefore, lay witness opinion testimony is limited to first-hand knowledge or observation. Fed.R.Evid. 701 advisory committee’s notes; see also, Ethicon, Inc. v. Martinez, 886 S.W.2d 826, 831 (Tex.App.—Austin 1992); and, Goode, Wellborn and Sharlot, 2 Texas Practice § 701.2, at 4 (1993).
In Arnold v. State, 853 S.W.2d 543, 547 (Tex.Cr.App.1993), the defendants attempted to admit testimony from lay witnesses as to whether the defendants acted “willfully.” The trial judge refused to admit the testimony and we affirmed. Quoting Ray’s Texas Law of Evidence, § 1428, we stated:
In general our courts permit a witness to testify as to his own intention or other state of mind where the same is material * * * On the other hand decisions purporting to apply the opinion rule, uniformly exclude the testimony of a witness as to another person’s state of mind. It is said that since one person cannot possibly know another’s state of mind, his testimony is necessarily based on conjecture. This argument really invokes the rule requiring the witness to have personal knowledge of the matter about which he is to testify.
See also, Winegarner v. State, 505 S.W.2d 303, 305 (Tex.Cr.App.1974); and, Lehman v. Corpus Christi Nat. Bank, 668 S.W.2d 687, 689 (Tex.1984).
Therefore, consistent with our holdings in Bigby and Arnold, the Court of Appeals correctly held the trial judge in the instant case did not err in excluding the testimony of Middleton concerning the culpable mental state of Mosby.5
In addition to the lack of personal knowledge, lay witness opinion testimony concerning a third person’s culpable mental state is inadmissible because it does not satisfy Rule 701’s requirement that the testimony be helpful to a clear understanding of the witness’ testimony or in determining a fact in issue. In Holloway v. State, 613 S.W.2d 497, 500 (Tex.Cr.App.1981), we held:
... Clearly, there is nothing to be gained by permitting a witness to proffer an opinion on a subject when any other person in the courtroom, any member of the jury, could form an opinion on the issue equally readily and with the same degree of logic as the witness.
Id., 613 S.W.2d at 500-501. A jury is as capable of determining the culpable mental state of the third person as the testifying witness. There is no need for an opinion for what “any fool can plainly see.” Cooper v. State, 23 Tex. 331, 342-343 (1859); see also, Salem v. United States Lines Co., 370 U.S. 31, 36-37, 82 S.Ct. 1119, 1123, 8 L.Ed.2d 313 (1962).
*904Simply put, it is the jury’s domain to interpret facts in the decision of the ultimate issues. Tex.Code.Crim. Proc. Ann. art. 38.04. It is fundamental to the notion of “presumption of innocence” that the jury, not the witnesses, determine the ultimate issues because the jury is in a better position, removed from the emotional circumstances, to determine what happened in the individual cases. Tex.Code.Crim. Proc. Ann. art. 38.03. Thus, lay witness opinions as to culpable mental state are not helpful, but superfluous and should be excluded.
IV.
For the foregoing reasons, I would reaffirm Bigby, supra, and Arnold, supra, and adopt a bright line rule that lay witness opinion testimony concerning a third person’s culpable mental state is not admissible. Because the majority does not, I join only the judgment of the court.
OVERSTREET, J., joins this opinion..Each of the following questions were objected to by the State and sustained by the trial judge: "Isn't it true, Mr. Middleton, that Gary Mosby did not intentionally and knowingly shoot Mr. Young?”
"Mr. Middleton, did it look like to you that Gary Mosby was intending to kill Joe Young?" "Did Mr. Mosby intend to shoot Mr. Joe Young?"
"Did it appear to you from the actions of Gary Mosby did he intend to kill Joe Young?"
"Mr. Middleton, from the actions that you saw Mr. Mosby make behind the bar, and he had a gun, did it appear that he intentionally shot Joe Young?"
“From the Actions that you saw Gary Mosby take — jumping over the bar, pointing the gun at Mr. Joe Young. — did you formulate in your mind an opinion as to whether or not Mr. Mosby shot Joe Young on purpose?”
“Did you see Gary Mosby shoot Joe Young? Yes. Did he accidently (sic) Joe Young?”
. All emphasis added unless otherwise indicated.
. The Fed.R.Evid. 602 and Tex.R.Crim. Evid. 602 are virtually identical (the federal rule was changed only to make the rule gender neutral). Generally, the Texas Rules of Criminal Evidence were patterned after the Federal Rules of Evidence. Therefore, we may rely on the Federal Rules Advisory Committee Notes to interpret our rules. See, Campbell v. State, 718 S.W.2d 712 (Tex.Cr.App.1986); and, Bodin v. State, 807 S.W.2d 313, 317 (Tex.Cr.App.1991).
. By specifically excluding Rule 703, Rule 602 specifically includes Rule 701. Established rules of construction require that, where an express exception exists in a statute, the statute must apply in all cases not excepted. Roberts v. State, 940 S.W.2d 655, 659 (Tex.Cr.App.1996). See also, Garcia v. State, 829 S.W.2d 796, 800 (Tex.Cr.App.1992); Ex parte McIver, 586 S.W.2d 851, 856 (Tex.Cr.App. [Panel Op.] 1979); and, State v. Richards, 157 Tex. 166, 168, 301 S.W.2d 597, 600 (1957).
Fed.R. Evid. 701 and Tex.R.Crim. Evid. 701 are virtually identical.
. If the majority's analysis of this issue is correct, the trial judge erred in excluding Middleton's testimony because his preferred testimony meets all the criteria set out in the majority opinion. In other words, Middleton clearly "possessed] personal knowledge of facts from which an opinion regarding mental state may be drawn.” Ante, at 899.