CLINTON, Judge, concurring.

In his petition for discretionary review appellant asserts, in ground for review no. 1: "The Court of Appeals erred in holding that hypnotically-induced testimony is admissible in Texas." This states too broadly, however, what I understand to be the holding of the court of appeals. Appellant refers us to a number of cases which address admissibility of hypnotically enhanced memory under the socalled Frye rule, a version of which this Court has previously adopted to exclude testimony as to the results of polygraph and "truth serum" tests. Though the court of appeals mentioned some of these cases in its analysis, it expressly limited its holding to encompass admissibility as a function of due process, and did not decide the broader evidentiary question. Nor would I, and hence I concur with the majority's conclusion that we do not have to reach this issue.

Regarding appellant's due process claim I would hold that appellant failed to sustain the burden of establishing impermissible suggestiveness during the May 18 hypnotic session. Accordingly, I would not reach the question of whether the evidence reveals an "independent origin" for the incourt identification.

I. A.

As a valid psychotherapeutic device hypnosis has long been accepted in the medical and scientific communities. American Medical Association: Medical Use of Hypnosis. JAMA 1958; 168: 186-189. In the therapeutic setting, however, the value of hypnosis is in no way contingent upon the historical accuracy of the memory that may come to light thereunder. Not so uniformly accepted is the use of hypnosis as a means of "refreshing" memory reliable enough to be vented in the criminal adversarial process. See American Medical Association: Scientific Status of Refreshing Recollection by the Use of Hypnosis. JAMA 1985; 253: 1918-1923, wherein it is recommended that "[t]he use of hypnosis with witnesses and victims to enhance recall should be limited to the investigative process[,]" and even then, should be subject to certain delineated safeguards, id., at 1922-1923, designed to minimize the latent suggestiveness that is inherent in the phenomenon of hypnosis.

Proponents of the use of hypnosis to restore a crime victim's memory to facilitate his trial testimony, most notable of whom is Dr. Martin Reiser, a psychologist and forensic hypnotist with the Los Angeles Police Department, advocate a "videotape recorder" theory of human memory. By this theory the human mind is thought to receive and store in the subconscious every bit of data taken in by the senses. Hypnosis is regarded as a legitimate vehicle for tapping the subconscious to retrieve data recorded therein which has proven to be inaccessible to the subject's conscious memory. "The assumption, however, that a process analogous to a multichannel videotape recorder inside the head records all sensory impressions and stores them in their pristine form indefinitely is not consistent with research findings or with current theories of memory." Id., at 1920. Currently accepted theories of memory deem it to be a reconstructive process as much as reproductive. Orne, The Use and Misuse of Hypnosis in Court, 27 Int.J. Clinical Experimental Hypnosis 311, 321 (1979). The problem with hypnosis which sets it apart from other methods of "refreshing" a witness' memory is that it tends greatly to facilitate not only the retrieval of genuinely remembered data, but also construction of false but nevertheless plausible data to fill in gaps in true memory. Moreover, once this "confabulation" takes place, neither expert nor jury nor even the witness himself can differentiate historical fact from fantasy.

The Supreme Court of California, in its recent exhaustive opinion in People v. Shirley, 31 Cal.3d 18, 641 P.2d 775, 181 Cal.Rptr. 243 (1982), cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982), after a review of the pertinent professional literature on the subject, aptly identified and articulated the dangers of using hypnosis to "restore" the memory of an eyewitness or victim, thus:

"1. Hypnosis is by its nature a process of suggestion, and one of its primary effects is that the person hypnotized becomes extremely receptive to suggestions that he perceives as emanating from the hypnotist. The effect is intensified by another characteristic of the hypnotic state, to wit, that the attention of the subject is wholly focused on and directed by the hypnotist. The suggestions may take the form of explicit requests or predictions by the hypnotist; or they may be inferred by the subject from information he acquired prior to or during the hypnotic session, or from such

cues as the known purpose of that session, the form of questions asked or comments made by the hypnotist, or the hypnotist's demeanor and other nonverbal conduct. The suggestions can be entirely unintended — indeed, unperceived — by the hypnotist himself.

2. The person under hypnosis experiences a compelling desire to please the hypnotist by reacting positively to these suggestions, and hence to produce the particular responses he believes are expected of him. Because of this compulsion, when asked to recall an event either while in 'age regression' or under direct suggestion of heightened memory ('hypermnesia'), he is unwilling to admit that he cannot do so or that his recollection is uncertain or incomplete. Instead, he will produce a 'memory' of the event that may be compounded of (1) relevant actual facts, (2) irrelevant actual facts taken from an unrelated prior experience of the subject, (3) fantasized material ('confabulations') unconsciously invented to fill gaps in the story, and (4) conscious lies — all formulated in as realistic a fashion as he can. The likelihood of such self-deception is increased by another effect of hypnosis, i.e., that it significantly impairs the subject's critical judgment and causes him to give credence to memories so vague and fragmentary that he would not have relied on them before being hypnotized.

3. During the hypnotic session, neither the subject nor the hypnotist can distinguish between true memories and pseudomemories of various kinds in the reported recall; and when the subject repeats that recall in the waking state (e.g., in a trial), neither an expert witness nor a lay observer (e.g., the judge or jury) can make a similar distinction. In each instance, if the claimed memory is not or cannot be verified by wholly independent means, no one can reliably tell whether it is an accurate recollection or mere confabulation. Because of the foregoing pressures on the subject to present the hypnotist with a logically complete and satisfying memory of the prior event, neither the detail, coherence, nor plausibility of the resulting recall is any guarantee of its veracity.

4. Nor is such guarantee furnished by the confidence with which the memory is initially reported or subsequently related: a witness who is uncertain of his recollections before being hypnotized will become convinced by that process that the story he told under hypnosis is true and correct in every respect. This effect is enhanced by two techniques commonly used by lay hypnotists: before being hypnotized the subject is told (or believes) that hypnosis will help him to 'remember very clearly everything that happened' in the prior event, and/or during the trance he is given the suggestion that after he awakes he will 'be able to remember' that event equally clearly and comprehensively. Further enhancement of this effect often occurs when, after he returns to the waking state, the subject remembers the content of his new 'memory' but forgets its source, i.e., forgets that he acquired it during the hypnotic session ('posthypnotic source amnesia'); this phenomenon can arise spontaneously from the subject's expectations as to the nature and effects of hypnosis, or can be unwittingly suggested by the hypnotist's instructions. Finally, the effect not only persists, but the witness' conviction of the absolute truth of his hypnotically induced recollection grows stronger each time he is asked to repeat the story; by the time of trial, the resulting 'memory' may be so fixed in his mind that traditional legal techniques such as cross-examination may be largely ineffective to expose its unreliability. [Footnotes omitted.]"

Id., 641 P.2d at 802-804, 181 Cal.Rptr. at 270-272. See also generally Orne, The Use and Misuse of Hypnosis in Court, supra; Diamond, Inherent Problems in the Use Of Pretrial Hypnosis on a Prospective Witness, 68 Cal.L.Rev. 313, 332-334 (1980); Mickenberg, Mesmerizing Justice: The Use of Hypnotically-Induced Testimony in Criminal Trials, 34 Syracuse L.Rev. 927, 951-952 (1983); Note, Hypnotically Enhanced Testimony in Criminal Trials: Current Trends and Rationales, 19 Hous.L.Rev. 765, 774-777 (1982); United States v. Valdez, 722 F.2d 1196, 1201-1202 (CA5 1984).

In short:

"Review of the scientific literature indicates that when hypnosis is used to refresh recollection, one of the following outcomes occurs: (1) hypnosis produces recollections that are not substantially different from nonhypnotic recollections; (2) it yields recollections that are more inaccurate than nonhypnotic memory; or, most frequently, (3) it results in more information being reported, but these recollections contain both accurate and inaccurate details. When the third condition results, the individual is less likely to be able to discriminate between accurate and inaccurate recollections. There are no data to support a fourth alternative, namely, that hypnosis increases remembering of only accurate information."

American Medical Association: Scientific Status of Refreshing Recollection by the Use of Hypnosis. JAMA, supra, at 1921.

B.

Review of the cases since 1980 from the various jurisdictions which have dealt with the question of the admissibility of incourt identification testimony from a witness whose memory has been hypnotically enhanced reveals that such testimony has been assailed on essentially three legal bases. The first and most prevalent of these is the claim that such testimony should be excluded because it fails to meet the criterion set out in Frye v. United States, 54 App.D.C. 46, 293 Fed. 1013 (D.C. Cir. 1923), wherein it was held that "while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id., at 1014. Almost every court which has reviewed the question of the admissibility of hypnotically enhanced testimony since 1980 has at least addressed Frye.

Accordingly, some courts have admitted hypnotically enhanced testimony, subject to certain mandatory procedural "safeguards," on the assumption that when these safeguards are followed, hypnosis will yield memory "comparable to normal recall in its accuracy." Many other courts have admitted testimony derived from perceptions demonstrated to have been recalled by the witness prior to hypnosis, but have excluded testimony as to any matter "remembered" only during or after the hypnotic session. At least one jurisdiction to date has judged any witness hypnotized in order to enhance his recall of certain events to be incompetent to testify as to any matter concerning those events, regardless of whether it can be demonstrated that he recalled those events prior to the hypnosis. A handful of jurisdictions continue to adhere to the position that the reliability of hypnotically enhanced testimony is primarily a question of weight and credibility rather than admissibility, and expressly refuse to apply Frye at all. This Court has relied upon a Frye analysis to exclude testimony of the results of polygraph tests, see Romero v. State, 493 S.W.2d 206 (Tex.Cr.App. 1974), and of amytal sodium or "truth serum" tests, see Cain v. State, 549 S.W.2d 707 (Tex.Cr.App. 1977). To date the Court has not passed upon the admissibility of hypnotically enhanced testimony in this context.

A second attack to which hypnotic testimony may be vulnerable derives from the Sixth Amendment to the United States Constitution. It is argued that because hypnosis has the effect, inter alia, of rendering what may previously have been a tentative identification practically certain in the mind of the witness, the accused is effectively deprived of the ability to crossexamine him on his incourt identification. Though appellant raised this point in his brief to the court of appeals, that court dismissed it because it had not been expressly raised in the trial court. Vester v. State, 684 S.W.2d 715, 724 (Ct.App. — Amarillo 1983).

The third attack on hypnotically enhanced testimony reflected in the cases is that the hypnotic session was so unduly suggestive a procedure as to render any identification of the accused made thereunder violative of his due process rights under the Fourteenth Amendment to the United States Constitution, and that any incourt identification following that procedure would be tainted evidence. The court of appeals determined that in the instant case only this particular issue was before it, Vester v. State, supra, at 719, and in my view the record bears this out.

C.

In his motion to suppress the testimony of Edelia Ybarra appellant raised only the issue of a violation of due process. At the pretrial "Martinez" hearing, as it was designated by appellant's trial counsel, the question of scientific acceptance, vel non, of hypnosis as a means of refreshing a witness' memory was not broached. Dr. Alvin J. Cronson, a psychiatrist testifying on behalf of appellant, and Mathias Stricherz, a psychologist testifying for the State, simply disagreed as to the degree of suggestiveness to which Ybarra had been subjected during the hypnotic session on May 18. The level of acceptance hypnosis has gained in the relevant scientific community as a reliable catalyst to memory was not addressed by either witness. Nor was it argued to the trial court at the conclusion of the hearing that Ybarra's identification testimony ought to be excluded under a Frye analysis.

In his original brief to the court of appeals appellant raised only the Fourteenth Amendment issue and, as alluded to ante, the Sixth Amendment issue. Ironically, the question of "the use of hypnosis as a valid means to refresh the memory of a witness" was initiated by the State in its reply brief. Relying on the seminal case of Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968), the State argued that the fact that Ybarra had been hypnotized prior to trial in an effort to enhance her memory of the offense was a matter going to the weight or credibility the jury might wish to attribute to her identification testimony in its deliberations, not to admissibility in the first instance. Seizing upon this opening, appellant filed a supplemental brief in the court of appeals, in which he argued for the first time that "given the use of the intrinsically unreliable hypnotically induced pretrial identification procedure, the incourt identification was rendered inadmissible as a matter of law. People v. Shirley, supra." Thus the Frye issue crept into the case.

The court of appeals reviewed a number of cases concerning application of the Frye rule in the context of what it considered to be exclusively a constitutional inquiry. The result is a somewhat confused analysis, that confusion being manifest in the court's observation "that the effect of the decisions of the courts that follow the strict safeguard approach and the per se exclusionary rule, is to extend to the accused greater rights than those provided by the United States Supreme Court in other investigative identification cases [footnote omitted]." Vester v. State, supra at 721.

Ultimately, utilizing those Supreme Court cases, the court of appeals concluded "that post-hypnotic identification testimony is admissible where the totality of the circumstances surrounding the hypnotic session shows the session was not so impermissibly suggestive as to give rise to a substantial likelihood of an unreliable [sic] or misidentification." Id., at 722. Having found the May 18 hypnotic session not to have been so impermissibly suggestive as to taint Ybarra's incourt testimony, the court of appeals proceeded to conclude, in my view gratuitously if one is to accept the finding that the session was not suggestive in the first instance, that "the record reveals clear and convincing evidence that the prosecutrix's incourt identification was of independent origin." Id.

Notwithstanding that admissibility of Ybarra's identification testimony under a Frye analysis has been extensively briefed to this Court by appellant and by the Texas Criminal Defense Lawyers Association as amicus curiae, that issue as such is not presently before us. No objection was lodged on this basis at any time in the trial court. The court of appeals expressly limited its decision to the constitutional due process claim; hence, that is the only decision before this Court for review. Article 44.45, V.A.C.C.P. See Lambrecht v. State, 681 S.W.2d 614 (Tex.Cr.App. 1984).

D.

The majority also declines to decide "whether hypnotically induced testimony is admissible in Texas[,]" but for a markedly different reason, viz: that "[t]he fact that such testimony was admitted in appellant's case was not harmful, if indeed it was error at all, because it was merely cumulative of already reliable identification testimony." Maj. op. at p. 924.

As I understand it the majority thus reasons that because it has determined the May 18 hypnosis did not affect what Ybarra would have been able to testify to anyway, based upon her prehypnotic identification which the majority finds was reliable, the subsequent hypnosis contributed nothing new to the incourt identification, and thus did not "harm" appellant. Her posthypnotic testimony at trial was "cumulative" of what the majority finds she would have testified to had she never been hypnotized.

This of course ignores the thrust of appellant's assertion under Frye, an evidentiary rule, that the effects of hypnosis on the memory are so subtle and ineradicable that a witness whose memory has been so "refreshed" is rendered incompetent as a matter of law to testify as to any matter opened during the hypnotic session. If we were to accept this assertion, then admission of Ybarra's identification testimony would constitute error regardless of how the chips might fall on the due process question. While its present disposition of the due process issue may signal how the Court would ultimately resolve a Frye claim, it would not excuse the Court from undertaking the analysis, provided that claim were properly before the Court as such. Here it simply is not.

E.

In resolving appellant's constitutional claim the majority opinion affirms the judgment of the court of appeals "while not expressly adopting its entire rationale." Slip op. at p. 9. Just what the majority has not adopted is unclear, since both it and the court of appeals conclude (1) that the hypnotic session was not unduly suggestive, and that even if it was, (2) the incourt identification had an origin independent of whatever suggestiveness may have occurred. Maj. op. at p. 923. It is to these holdings that I now turn.

II. A.

A pretrial identification procedure may be so unnecessarily suggestive and conducive to mistaken identification that to use that identification at trial would deny the accused due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). However, it is the "substantial likelihood of misidentification" that may be engendered by such suggestive procedure that works the deprivation. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Thus, if the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed "reliable," "reliability [being] the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

To be weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances are the following nonexclusive factors: "The opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154. The Manson Court found these factors set out in Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 375, 34 L.Ed.2d at 401, which in turn seems to have gleaned them from United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1165 (1967).

B.

In deciding that the May 18 session was not unduly suggestive the court of appeals focused on the conduct of Sheriff McPherson during Ybarra's hypnosis, and concluded: "After listening to the tape of the hypnotic session, we are not convinced that McPherson lead the prosecutrix to identify the appellant as the perpetrator of the crime, nor are we convinced that he did so by direct, indirect or subtle suggestions." Vester, supra, at 723.

Neither the court of appeals nor the majority opinion discusses what appear to me to be the relevant circumstances surrounding the hypnotic session. I now proceed to set them out as I gather them to be from reading the transcript of the pretrial hearings and listening to the tape of the session itself, a transcript of which does not appear in the record before this Court.

On April 8, 1979, approximately a week after the offense, Deputy Barclay showed Ybarra a photo array consisting of fourteen photographs. Barclay testified at the Martinez hearing that appellant's was "the picture that she stopped on out of the stack[,]" and that at this point the following exchange occurred:

"A: . . . And, She [sic] said something to the effect, 'That's him,' or, 'I think that's him,' and — or, 'That looks like him,' something like that.

And [sic] said, 'What do you mean that looks like him?'

And she said, 'That's him.'

And I said, 'Now, what do you mean?' I said, 'Are you positive?'

And she said, 'I'm almost positive.'

To the best of my memory that was it.

Q: So, she was almost positive but not positive?

A: Well, in my opinion what she was thinking, I don't know."

However, referring specifically to the photograph of appellant contained in the April 8 array, Ybarra herself agreed on crossexamination that "the best [she] could do was to say that the features looked like the man." Appellant was not arrested at this point, not because Barclay was unsure of Ybarra's identification, but because he "wanted some additional evidence" before doing so.

On May 18, 1979, Ybarra was placed under hypnosis by Sheriff McPherson. In the course of the two hour session she was hypnotized, apparently with some difficulty, and asked to proceed step by step over the events of the afternoon and evening and through the offense itself. Under continual prompting by McPherson, Ybarra gave a narrative that is substantially identical to those she gave later at a habeas corpus hearing, at the Martinez hearing, and again at trial, as summarized in the court of appeals' and this Court's majority opinions.

At the Martinez hearing appellant advanced a theory of suggestiveness, based upon the transcript of the hypnotic session, that McPherson repeatedly exhibited to Ybarra a single photograph of appellant in an attempt to obtain a definite identification. The record does not bear out this theory, at least not entirely, and appellant abandoned it on appeal.

Twice during the hypnotic session Ybarra was asked repeatedly to close her eyes and picture the man who committed the killing, then to open her eyes and compare the picture in her mind with a "picture" that was exhibited to her. The first such episode took place in the middle of her narrative of the killing itself. However, both Barclay and McPherson testified that, while not certain, they believed the "pictures" exhibited to Ybarra at this point were from a "composite identikit," by which McPherson was attempting to make or verify a likeness of her assailant. It appears that no photographs were exhibited at this point.

Later, however, at the conclusion of her narrative, a similar ritual took place, except that this time Ybarra was asked to picture her assailant in her mind's eye, and then open her eyes and compare that picture to a photograph. McPherson had been given a five photo array which contained a different photograph of appellant than that in the April 8 photo spread. He exhibited these photographs in this manner, one at a time, to Ybarra. While each of the first four photographs were displayed thusly to her, Ybarra was asked if the man in the photograph was the same man she pictured in her mind. For each of these first four questions the tape reveals no audible answer, but, without delay, McPherson proceeded to the next photo as if he had received a negative response. Finally Ybarra was shown appellant's picture. A long pause ensued, after which Ybarra stated: "Looks like him." Immediately McPherson had her close her eyes again, and for a sixth time she was instructed to picture the assailant. On this occasion, however, she was told to:

". . . look at him real good. Now I want you to put that face on a blackboard. This is nothing else but that man's face. The one that shot Robert. You see nothing else. Now, I want you to keep that blackboard blank, except for that face. Do you see it? You got it real good? Okay. Now, I want you to look. You have got to put that man's face up there. You can see him? No? Okay. Now I want you to go deeper and deeper, deeper and deeper. Deeper and deeper. Do you see him, see that face — see his face? Now, I want you to put this picture right beside it. Is that the same picture as the picture in your mind?"

It is difficult to discern her answer to this last question, although it certainly isn't hard to imagine her response.

McPherson continued:

"Is that the man who shot Robert? The picture I had in my hand, is that the man? You don't have to be afraid. If it is him, you say, 'yes,' if it is not you say, 'no.' You don't have to be afraid. Just relax. Do you think that is the man? Did you see any of those pictures that look like the man — look like that man?"

Ybarra's responses are inaudible. Finally McPherson instructed:

"When it comes time to identify this man, you will be able to see him, and you will be able to pick him out, because you will remember those eyes. Can you see those eyes? Now, you are going to have to look at a line-up at several men, and you will be able to pick this man out, the man who shot Robert . . . so I want you to identify the man when you see him."

At this point Ybarra was awakened. Deputy Barclay, Texas Ranger Joe Hunt and DPS polygraph operator Ron Rogers had been observing the session from an adjoining room via a two way mirror. After Ybarra was awakened, one or all of these officers entered the room. Ybarra was then shown the April 8 photo array again and asked if she could identify "the man who shot Robert." She was told, ". . . you are going to be able to. It is just very easy for you to do." After a pause Ybarra responded, "It is that man. It looks like him," or words to that effect, apparently referring to appellant's photograph. After another brief pause she asked: "Is that the same one?" One of the officers responded, "It's just an older picture."

C.

Appellant now asserts that by having Ybarra place "that face on a blackboard" immediately after she had tentatively identified appellant's photograph ("Looks like him"), and then reinforcing that connection by having her view the photograph a second time, McPherson indelibly printed appellant's visage in her mind as the perpetrator of the offense. In pressing this argument appellant refers us to the Frye cases, which in turn rely heavily on the scientific literature, see Part IA, ante.

Viewing McPherson's conduct in the context of the literature, it is possible to conclude that some suggestion occurred. Certainly McPherson did not deliberately set out to suggest to Ybarra that she should positively identify appellant. In fact, as the majority observes, McPherson was unaware appellant was a suspect when the session began. Even after Ybarra stated that the fifth photograph "looked like" her assailant, McPherson was careful not to tell her to place appellant's picture on the imaginary blackboard; rather, he instructed her to place the face of "the man who shot Robert" there, and compare that with the photograph of appellant. However, the cues that trigger confabulation or reliance upon "memories so vague and fragmentary that [the subject] would not have relied on them before being hypnotized" are usually unintentional and frequently imperceptible. The very fact that the subject has been hypnotized in order to make or confirm an identification may be enough. See Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, supra, at 333; Spector Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio State L.J. 567, 578 (1977).

Immediately after Ybarra again tentatively identified appellant under hypnosis (the first time having been when Barclay showed her a different photo of appellant in the photo array of April 8), McPherson instructed her for the first time to imagine a blackboard and place "that face" on it. Again he showed her appellant's photograph. Ybarra testified at the Martinez hearing that when she had said "It looks like him" she had meant:

"A: That I couldn't say it was him or not, I said, 'It looks like him.'

Q: What about the second time?

A: I was sure it was him."

It seems eminently possible that, under the influence of hypnosis, Ybarra perceived that McPherson wanted her to give up any doubt she may have entertained that appellant was "the man who shot Robert." Focusing thus on the susceptibility of Ybarra, rather than the deliverateness of McPherson, one might well conclude that the hypnosis was used, albeit inadvertently, to suggest to Ybarra that she positively identify appellant. The trial court, however, found otherwise.

D.

Usually a determination of suggestiveness must be made on the basis of the totality of circumstances surrounding the complained of identification procedure, viewed in light of common sense. It is common sense that informs that a one man showup is inherently suggestive, especially under circumstances implying to the witness that the police believe they have found their man. See, e.g., Jackson v. State, 657 S.W.2d 123 (Tex.Cr.App. 1983). Likewise common sense dictates that a lineup containing five stocky short men and one wiry six foot suspect is suggestive. As the discrepancies are diminished, the judgment becomes more difficult, but that judgment is still predicated on simple common sense. That hypnosis may be inherently suggestive as a means of obtaining an identification, however, does not lend itself readily to a common sense determination. There are those who would believe, as noted in Part IA, ante, that an identification obtained through hypnosis will invariably be accurate. While the scientific literature almost uniformly discounts this belief, the uninformed layman (or trial judge) does not necessarily know this. Evidence of the potential for confabulation, reduction of critical judgment or the like should be presented to the trial court so that it may make its factual determination on the issue of suggestiveness in that context.

The instant trial court, however, was not provided the full panoply of scientific evidence preparatory to its ruling on appellant's suppression motion. Instead the court heard only the testimony from the two "expert" witnesses, Dr. Cronson, for appellant, and psychologist Stricherz, on behalf of the State. Both witnesses testified that their training and experience were primarily in the field of therapeutic hypnosis, although Stricherz had previously "used hypnosis in criminal investigations."

Dr. Cronson testified that in his opinion the May 18 hypnotic session was "suggestive and biased," at least "regarding the identification:"

"A: I thought that the procedure was too tedious and smacked of pressuring the patient, the client.

Q: And what do you mean by pressuring the patient?

A: I felt there were an awful lot of leading questions.

Q: What is the danger of leading questions?

A: If you ask leading questions, you will get the answer you ask for, because if a person is at all suggestable, they will — they will be aware of what you are revealing to them, or what you want to reveal."

Though Cronson had reviewed the transcript of the taped hypnotic session, he listened to only an undesignated portion of the tapes. It appears that he subscribed to the theory advanced by appellant's counsel that McPherson had displayed a single photograph of appellant to Ybarra over and over, each time asking "is this the one?" Cronson also testified that exhibiting pictures to a hypnotic subject one at a time is more suggestive than laying them out, since the potential for cueing is greater; and that exhibiting a photograph which the subject had tentatively identified previously would tend "to make the [subject] want to identify that person," "especially since it was a police officer interviewing her" in a law enforcement ambience. On crossexamination Cronson recognized that "investigative hypnosis is a valuable tool for the use in discerning truth," so long as the hypnotist is not "biased."

The State's expert, Stricherz, while apparently cognizant of at least some of the dangers of hypnosis, nevertheless found no suggestiveness at work in the May 18 session:

"Q: Let me give you a hypothetical situation in which a person had made a positive identification prior to being put under hypnosis and prior to hypnosis being induced. In that situation, would that in itself, the fact that she had identified a particular individual, and then was later put under — or induced into a hypnotic state, would that in itself create a suggestion if she were showed a group of photographs in which the same person was present in that group of photographs at the subsequent hypnosis session, such that the identification could not be trusted?

A: That in itself would probably not be the case.

Q: Assume further that in that same situation that the hypnotic expert or the forensic hypnotist in a situation did not have any idea as to who she had identified before, or who in this particular group of photographs in the hypnotic session was a suspect in this particular situation, is there any way that he could transfer or suggest to her any particular photograph when he didn't have any idea who she had identified before and any idea of who the police were even looking for in the current context?

A: Yes. There are ways in which that could be done.

Q: Based on your review of this situation, do you have an opinion based on our experience in the field of investigative hypnosis as to whether or not that occurred in this situation?

A: After listening to the tapes, looking at the transcripts, listening to his tone of voice, his inflections, it appears to me that there was not an indirect suggestion put into the verbal

interchange between Travis and Edelia during that hypnotic session."

On this state of the record, based upon the evidence presented to the trial court at the Martinez hearing, I would hold that the court was justified in concluding the May 18 hypnotic session was not impermissibly suggestive. The specific theory of suggestiveness raised on appeal was never brought to the attention of the trial court, much less substantiated by Dr. Cronson's testimony. The trial court was within its discretion as factfinder in accepting Stricherz' assessment, for what it was worth, over that of Dr. Cronson.

Having concluded thus that the May 18 hypnotic session was not shown to be suggestive, I find it altogether unnecessary to look for an "independent origin" for Ybarra's incourt identification. See Williams v. State, 675 S.W.2d 754, 757 (Tex.Cr.App. 1984). Because the court of appeals' and majority opinions do so anyway, I venture a few observations as to the problems courts may encounter applying the Manson factors in a case where hypnotic suggestion has been found to have occurred.

E.

Assuming appellant had established suggestiveness, it would be necessary to inquire whether, under the totality of the circumstances, there was a substantial likelihood of misidentification, weighing the corrupting effect of the suggestive identification procedure against the factors set out in Manson, supra. These factors are not exclusive, but are intended to be exemplary of the kinds of considerations relevant to determining whether a witness' memory of the culprit was sufficiently definite prior to the suggestive procedure that the procedure itself in all probability could not have altered it. When it is shown that an identification was obtained or enhanced through hypnosis, however, the efficacy of some of the Manson factors for making this determination may come into question.

The majority emphasizes the opportunity Ybarra had at the scene to observe her assailant and to focus her attention on him. Unfortunately, apart from police testimony not elicited until trial of the lighting conditions on the night of the offense, the only testimony describing Ybarra's opportunity to observe her assailant came from Ybarra herself, subsequent to her having "relived" the episode under hypnosis. Any confabulation or credence given to false or fragmentary memory could well have been cemented in Ybarra's posthypnotic memory and regurgitated (indeed, honestly believed) by Ybarra on the witness stand. In short, Ybarra's description of her opportunity to observe may be as infected as her identification testimony. It is therefore problematical, to say the least, to rely on Ybarra's testimony of how closely, how well, how long, etc., she observed her assailant as evidence of the reliability of her incourt identification of appellant.

More troubling still is the majority's reliance on "unequivocal statements made at the suppression hearing and at trial showing the independent origin of [Ybarra's] in-court identification." Maj. op. at p. 924. Such unequivocal statements are exactly what one would expect to hear from a witness who has been instructed, under hypnosis, to relinquish all doubt as to who he believes might be the culprit. As a result of post hypnotic source amnesia, the witness may well have forgotten, by the time of trial, that he ever harbored doubt to begin with. One cannot take such statements at face value; they are as indicative of hypnotic suggestion as of any origin independent thereof.

Finally, and primarily, the majority relies on Ybarra's identification of appellant from the April 8 photo array, conducted prior to the hypnosis; an identification which Ybarra herself characterized at the Martinez hearing as having been tentative. However, this fact, too, strengthens as much as rebuts the notion that the positive identification at trial was a product of suggestiveness during hypnosis. Pressured to make an identification, a hypnotic subject is more likely than not to choose a familiar face and positively identify it — even if in actuality he never saw that face before tentatively identifying it in a previous, albeit unsuggestive, photo spread.

In short, the totality of circumstances has not been considered unless the nature and effect of hypnosis upon memory has been taken into account, not only in assessing suggestiveness, but also in applying the Manson factors to determine reliability of an incourt identification in light of that suggestiveness. It must be reiterated, however, that the trial judge in the instant case was not well enlightened in this regard — a deficiency which must militate against appellant, since he shoulders the burden of demonstrating suggestiveness. Had he been educated, the judge may well have concluded, after listening to the tapes of the hypnotic session, that the session resulted in a substantial likelihood of misidentification, and that Ybarra's incourt testimony was therefore inadmissible. I, for one, would then be inclined to agree.

For reasons stated I concur in the judgment of the Court in affirming the judgment of the court of appeals, but do not join the Court's opinion.

MILLER, J., joins.