Although not a defense I read Jackson, 160 SW3d 568 as allowing testimony if it directly negates the mens rea element of the offense as long as the trial court does a R403 analysis. Trial Court also has discretion as to whether the diminished capacity testimony is sufficient to warrant lesser-includeds.

If defendant is going to rely on this type of evidence are they required to give notice to the State? Also does the State have the right to have its own expert examine defendant so it may possibly rebut defendant's claims?

Do we file a motion to exclude, motion in limine or what to get a ruling on this prior to trial?

You're not entitled to notice, although you would if we were in federal court.

Move for disclosure of expert witnesses under CCP 39.14(b). Then ask for a 702 hearing on the admissibility of the expert's opinion. You can examine the expert about his understanding of the legal definition of the mens rea involved and learn exactly what it is about his brain that prevents him from forming that mens rea. Only then should the expert's testimony be admissible. I'll bet it won't be admissible, though.

Finally, I would move to examine the D under Soria/Lagrone/Chamberlain. Those cases basically say that the trial court can compel examination by the State to rebut testimony of defense expert re future dangerousness because such defendants have made a limited 5th Am. waiver. If it's good enuf for capital cases, it should be good enuf for non-capital cases.

Thanks - I will try motion to disclose and motion in limine. May not be using an expert, might be using CPS workers evaluation since they were looking into allegations at time of death of child, but had not yet removed.

Let me know how it turns out. Seriously, these issues in Dallas usually fizzle out in the pretrial stage. I've never actually seen a D successfully assert diminished capacity at guilt.

The ADA on case found out Wed at docket call that it had preferential setting for Feb 20th. We got the Discovery motion filed and filed a mot for continuance. Defense atty may be trying to go fast so we will not have time to properly prepare for a diminished capacity argument. The death only occurred about 8-9 mos ago, only been indicted for about 6 mos. So we will see if it goes on the 20th.

Can a psychologist testify as to a defendant's future danger in a non-capital murder case?

Best we can find so far is Miller v. State 770 sw2d 865. Its from 1989 but appears to be valid law.

With the acknowledgment that I am but an expert witness and neither prosecute, defend, nor do appellate work (in criminal matters), read on: I have a hunch that save for the fact that expert witness, mental health testimony, is rebuttal in nature, the short and practical answer is �of course� � any testimony which is material and relevant can be presented. (And certainly I have done so for the past 25 years.) This is said with the caveat that I did not turn up a specific case on the issue of non-capital future dangerousness but many which were tangentially related. For example, the issue of what information can be presented is discussed � tangentially, and with respect to whether victim impact testimony could be presented, in Hernandez v. State, 726 S.W.2d 53, and Moreno v. State, 38 S.W.3d 774, 38 S.W.3d 774. Future dangerousness is a kind of 404 issue, i.e. character and expert testimony could be permitted. But, of course, the trial court has discretion in the matter.

In Moreno the court stated: �In non-capital felony cases, the State may present evidence "as to any matter that the court deems relevant to sentencing." See Tex. Code Crim. Proc. Ann. art. 37.07 �3(a) (Vernon Supp. 2000). Where such evidence constitutes victim impact testimony, the Court of Criminal Appeals has held that relevancy depends upon whether the testimony has "some bearing on the defendant's personal responsibility and moral guilt." Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991). Stated differently, the relevance of victim impact testimony in a non-capital felony case requires that such testimony have a "close, direct link to the circumstances of the case." Brooks v. State, 961 S.W.2d 396, 399 (Tex. App.--Houston [1st Dist.] 1997, no writ).�

In Buchanan V. Kentucky, 483 U.S. 402, (admittedly a death penalty case) the Supreme Court spoke about its decisions in Estelle and Barefoot, the thrust of which is that failure by the State�s expert to accurately represent the purpose of the examination could be construed as a 5th Amendment violation � though the court also pointed out that when the defense has introduced evidence, justice would not be served were the State not allowed to put on rebuttal testimony. That is, when the defense puts on mental health testimony, the defendant waives any 5th Amendment rights to the State�s use of mental health rebuttal testimony.