dissenting.
In a pretrial Motion in Limine the State requested that the trial court prohibit the appellant from asking any questions of John Torino regarding his identity or aliases he used prior to January, 1982. In support of this request the State made the following statement to the court:
[Prosecutor]: Prior to January of ’82, Your Honor, this individual was in the Federal Protective Service Witness Program, and shortly after the event [this offense] he re-entered that program. He was out of the program during the occurrence of these particular events alleged in this trial. We just want to put a block from January of ’82 to some time in February or March of 1983 as to going into his occupation, his whereabouts, his names.
The appellant argued during the motion hearing and on appeal that such an order would effectively prevent him from investigating the witness’ background prior to 1982 and restricted his right of cross-examination.
The trial court granted the State’s Motion in Limine and the appellant did not question the witness as to his identity, or whereabouts prior to 1982.
The Federal Witness Protection Act, which is also known as the Witness Security Program, was originally established by Title V of the Organized Crime Control Act of 1970. See 18 U.S.C. prec. § 3481. The program was codified and revised by the Comprehensive Crime Control Act of 1984. 18 U.S.C. § 3521. The basic theory and principle purpose of the original Act was to protect the lives of witnesses in organized crime prosecutions. The later revisions, in addition to some necessary procedural changes, expanded the scope of the Act to include any witnesses.1
After one is admitted to the program “the Attorney General shall enter into a Memorandum of Understanding with that *235person.” 18 U.S.C. § 3521(d)(1). This “Memorandum of Understanding” (MOU) details the respective responsibilities of the government and the protected person under the Act. Pertinent to this case, the statute requires “the agreement of the person not to commit any crime.” 18 U.S.C. § 3521(d)(1)(B).
In the presence of the jury John Torino testified that on the date of this offense he was working with the El Paso Police Department as a “confidential source.” In addition, he testified that he had been working with them since June or July, 1982, with the understanding “that if I came across anything that was worthwhile or in the narcotics area we felt — I felt that I could do something, I was to let them know, which time I did [sic].” He then testified to the facts of the delivery of the marihuana and his feigning arrest and a broken arm to avoid revealing himself as an informant.
Torino also testified that he was introduced to the El Paso Police Department Narcotics Division while he was working with the DEA and the FBI and that he had worked on other cases for the El Paso police prior to this case.
On cross-examination Torino testified he had worked for the DEA and FBI since 1979 and recounted extensively and in exhausting detail the facts of the delivery and conceded that he was the only witness to the illegal drug delivery. Consistent with the trial court’s ruling on the State’s Motion in Limine, the appellant made no inquiries about his identity or his whereabouts prior to January, 1982.
In Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), which for some reason is not cited in the majority opinion, the United States Supreme Court reviewed a situation quite similar to the one now confronting this Court. In Smith the appellant, who was charged with the delivery of heroin, asked the government’s witness if “James Jordan” was his real name. He admitted that it was not; however, in sustaining the government’s objection, the trial court ruled that he did not have to provide his real name. Relying upon Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and conceding that the trial court’s ruling did not constitute a complete denial of cross-examination, the court nevertheless stated as follows:
Yet when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ [footnote omitted] through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
The most evident distinction between Smith v. Illinois, supra, and the present case is that in Smith the government “gave no reasons justifying the refusal to answer a quite usual and proper question,” id., 390 U.S. at 134, 88 S.Ct. at 751; whereas, in this case the State claimed the witness’ life would be jeopardized if his identity were revealed. This then becomes the essence of my dissent.
The Witness Protection Program specifically condemns a protected witness from violating the law. Torino was not a police officer when he purchased the marihuana from the appellant; thus, even if he had their authority he was technically and as a practical matter violating the law. Admittedly he would not be subject to prosecution because he was an employee of law enforcement. Nevertheless, he violated the terms of his agreement with the federal government.2 Consequently, it appears *236to me that by his own overt, affirmative conduct Torino waived any right to claim anonymity.
To hold otherwise, as the majority evidently does, will authorize law enforcement agencies to utilize protected witnesses as undercover agents and at trial, as in this case, insulate their identity from discovery while simultaneously hindering an appellant’s right of cross-examination.
In other words, it is inconceivable to me that the law will condone the manipulation of one’s constitutional rights in this manner. There is no question that on occasion a constitutional right must be infringed, but only for a compelling reason. Long v. State, 742 S.W.2d 302 (Tex.Cr.App., 1987). To hold, as the majority implicitly does, that a witness, while under the Witness Protection Program, can voluntarily expose himself to additional danger by violating the law, and then claim the protection of the Act defies reason.3
In a number of cases this Court has commented that “[t]he animus, motive or ill-will of a prosecuting witness who testifies against the appellant is never a collateral or irrelevant inquiry ...” Coleman v. State, 545 S.W.2d 831, 832, 833 (Tex.Cr. App.1977). If, however, the appellant is not authorized to know the witness’ identity then such an authorized inquiry is rendered impotent. In this case, the trial court’s pretrial order “emasculated the [appellant’s] right of cross-examination itself.” Smith v. Illinois, supra.
If the foregoing analysis is not persuasive, a careful reading of the record makes it clear that the basis for the Court’s ruling: Torino was in the Witness Protection Program prior to 1982, was not valid, despite the assurances of the State’s attorney. Torino testified pertinently as follows:
Q In fact, prior to 1982 and up until ’83 and today, you’re still under the Federal Witness Protection Program. Aren’t you?
A What dates are you saying, sir?
Q I guess we were cut off prior to 1982 and up until 1983 and ’84, you’re under the wing of the Federal Protection, whatever they call that?
A No, sir, I was not.
Q You’re not. You are now?
A Yes, sir.
Q But prior to 1982 you weren’t?
A No, sir.
Thus, the court’s ruling was factually erroneous.
I dissent.
TEAGUE, J., joins.. See: Comment, Organized Crime and Insulated Violence: Federal Liability for Illegal Conduct in Witness Protection Program, 76 J.CRIM.LAW AND CRIMINOLOGY 208 (1985). *236government does not want individuals it sponsors committing even “authorized" crimes.
. As a collateral but comparable point it should be observed that the federal government specifically prohibits parolees from performing as informants. The Conditions of Release, applicable to a federal parolee, as enacted by the Department of Justice, provide as follows: “The parolee shall not enter into any agreement to act as an informer or special agent for any law-enforcement agency.” 28 C.F.R. § 240(a)(7) (1985).
Although the analogy is not exact since Torino is not a federal parolee (which one actually does not know), the principle is still the same: the
. One must distinguish between a protected witness that actively pursues a role as an informant witness and one that may inadvertently become a witness. In the latter instance his identity would obviously remain confidential.