Depena, 148 S.W.3d at 466 states art. 39.14(b) contains no exception for expert witnesses who are prepared to testify in rebuttal to defense testimony and thus overruled the holdings in Elkins and Hoagland (which were based on the theory that evidence offered in rebuttal cannot be foreseen because the State does not know the defense theory in advance). Judge Baird says "the reason the legislature did not make [such an exception] is readily apparent- many times the expert's testimony is not relevant unless and until the defendant has raised a defense which requires expert testimony to rebut." Could someone please explain to me what Baird is saying? The legislature chose to introduce more pretrial discovery into a criminal case because the State should anticipate the relevance of testimony that may or may not ever be relevant because the State can now learn the identity of defense experts? Do holdings like this end up as dicta when the court could have said something like "assuming the State had a duty to disclose Dr. Rose's identity sometime after it learned of his existence and possession of relevant evidence, Appellant should have anticipated that once he tried to deceive the jury about his state of intoxication at the time of the offense the State would call witnesses to establish the truth about the December 30 urine sample."
