dissenting.
Eddie James Johnson, henceforth appellant, was charged by indictment and convicted by the jury of committing the murders of Virginia Cadena and Elizabeth Gal-van, who were mother and daughter. Another individual, David Magee, who lived with Cadena and Galvan, was also murdered on the night in question. Because the murders of Cadena and Galvan were alleged to have been committed during the same criminal transaction on the same day in question, this caused the two murders to become the offense of capital murder. See V.T.C.A., Penal Code § 19.03(a)(6). After the jury answered the submitted special issues in the affirmative, the trial judge assessed appellant’s punishment at death by lethal injection. See Art. 37.071, V.A.C. C.P. Appeal to this Court is automatic. See Art. 37.071(h), supra, and Rule 40(b)(1), Tex.R.App.Proc.
Testimony was adduced that a pair of Wrangler blue jeans and Fruit of the Loom underwear, both of which were of the same type and size as apparently worn by appellant, and both of which were found to have been soaked in blood, but which had also apparently been recently washed, were found at the bottom of a dumpster located near appellant’s trailer home.
At trial, during the State’s ease in chief, the State called appellant’s wife to testify, and she was required to refuse to testify in the presence of the jury. Also over objection, the State had admitted into evidence a portion of the transcription of appellant’s wife’s testimony that she gave on cross-examination at the pretrial hearing that was conducted on appellant’s motion to suppress evidence that had been seized by the police from his residence, pursuant to his wife’s consent to search. This testimony reflected that appellant and his wife had separated approximately one week before the murders were committed because “all he [appellant] was doing was laying around the house, watching television and not working ... and getting fat ... and that she had purchased appellant a new pair of Wrangler blue jeans [approximately three weeks before the murders were committed] “because he had gained weight.”
The majority opinion agrees with appellant that his first two points of error should be sustained. (See page 14 of slip opinion.) I agree. Appellant’s points of error are as follows: (1) “[T]he trial judge erred [at trial] in permitting the prosecutor to call Appellant’s wife to the stand as a witness for the State, and in the presence of the jury forced Appellant to object to her testimony and forced her to claim her privilege,” and (2), “[I]t was harmful error for the Court to allow the State cross-examination testimony of Appellant’s wife [sic], taken during a pre-trial hearing, to be *294introduced at trial against him in that said prior testimony exceeded the scope of proper cross-examination by the State and Appellant did not have the similar motive to develop his spouse’s testimony.” The majority opinion, however, erroneously concludes that the error was harmless under Rule 81(b)(2), Tex.R.App.Pro. I disagree with this determination.
The record reflects that the trial judge declined to instruct the jury that no inference could be drawn from the fact that appellant’s wife had invoked her spousal privilege not to testify against appellant in the jury’s presence.
The record reflects that after appellant was arrested pursuant to an arrest warrant, the validity of which is not challenged in this cause, the police attempted to obtain his consent to search his and his wife’s residence, a trailer home, but he refused to give his consent. However, the day after he was arrested by the police, his wife gave her written consent to Linda Thompson, a member of the Aransas Pass Police Department, to search her and appellant’s residence.
I pause to point out that the record is clear that by the time the trial judge conducted the pretrial hearing on appellant’s motion to suppress, appellant’s wife never indicated before that time, or thereafter, that she wanted to testify for the State and against appellant.
It is axiomatic that the spousal privilege is one of the oldest legal privileges still recognized by our courts. The privilege was applied by the Supreme Court of the United States as early as 1839 in Stein v. Bowman, 38 U.S. (13 Pet.) 209, 10 L.Ed. 129 (1839), and Texas recognized the privilege even before it became a member of the Union. See Republic of Texas v. Mumford, Dallam 374 (1840).
Por a brief history of what has been characterized as the “husband-wife” privilege, or the “spousal” privilege, see Trammel v. United States, 445 U.S. 40,100 S.Ct. 906, 63 L.Ed.2d 186 (1980). See also Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953).
The spousal privilege is based on the Common Law, In re Grand Jury Investigation of Hugle, 754 F.2d 863 (9th Cir. 1985), and not on constitutional grounds. See United States v. Lefkowitz, 618 F.2d 1313 (9th Cir.) cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980). See also Meeker and Kirk, “Evidentiary Privileges Under Federal and State Law” (Paper delivered at the Advanced Criminal Law Course, July, 1990).
Rule 504(2)(a), Texas Rules of Criminal Evidence, which is the present day version of Texas’ “husband-wife” privilege, and which was in effect when this cause was tried, expressly provides: “The spouse of the accused has a privilege not to be called as a witness for the state.(My emphasis.) Rule 513(b) also expressly provides: “In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.” (My emphasis.) Rule 513(c) expressly provides: “Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.” I find that none of the above rules were honored or adhered to by either the prosecution or the trial judge in this cause.
The record reflects that prior to trial the trial judge conducted a hearing on appellant’s motion to suppress the evidence that the police had seized from his residence pursuant to his wife’s consent to search. Besides Officer Thompson, the other witnesses who testified at the pretrial hearing were appellant’s wife and a Texas Ranger, whose testimony I find is not important to our discussion. Almost virtually all of the State’s cross-examination of appellant’s wife, which occurred over objection, was irrelevant to the issue that was then before the trial judge to resolve, that is, whether appellant’s wife’s consent to search her and appellant’s residence was voluntarily given to Thompson.
*295At trial, notwithstanding that the prosecution obviously knew or should have known that appellant’s wife was going to invoke her spousal privilege, the State, in the presence of the jury, called appellant’s wife to be a witness for the State. Over objection, and in the presence of the jury, the trial judge forced appellant’s wife to invoke her spousal privilege. The trial judge also declined to give the jury an instruction pursuant to Rule 513(c). Thereafter, the State had admitted into evidence, over objection, a partial transcription of appellant’s wife’s cross-examination testimony, which contained incriminating evidence against appellant.
In its response to appellant’s first and second points of error, as I understand same, the State argues that its calling appellant’s wife to testify in the jury’s presence, the trial judge’s forcing her to invoke her spousal privilege in the jury’s presence, and the trial judge admitting into evidence over objection the damaging and incriminating part of appellant’s wife’s cross-examination does not constitute reversible error because of Rules 804(a), 804(b)(1), 513(b), Rule 513(c), and Rule 610(b), Tex.R.Crim. Evid., all of which were in effect when appellant’s trial occurred. Under the facts of this cause, I am unable to agree with the State.
All of the commentators appear to be in agreement that except when absolutely necessary an unwilling spouse should not be called by the State and required to invoke his or her privilege in the presence of the jury. “Rather, the prosecutor should first ascertain, outside the jury’s presence, that the spouse will not object [to being called to testify on behalf of the State].” 2 Weinstein’s Evidence at 505-14. See also Louiselle & Mueller, Federal Evidence.
The sole issue that was presented by appellant at the pretrial hearing on his motion to suppress was whether his wife’s consent to search his and her residence that she gave to Linda Thompson, a member of the Aransas Pass Police Department, was voluntary. Appellant’s wife’s testimony on direct examination was totally limited to that issue. The State, however, over objection, exceeded the scope of the wife’s direct examination by questioning appellant’s wife about many matters which I find were irrelevant to the issue of whether appellant’s wife voluntarily gave her consent to Thompson so that the police could search her and appellant’s trailer home without the necessity of obtaining a search warrant. .
It is undisputed that appellant was married to Elaine Johnson; that appellant, Elaine, and her natural son Michael lived in the trailer home that was later searched by the police pursuant to appellant’s wife’s consent to search; that prior to appellant’s arrest only appellant and Michael, and the family dog “Magnum,” were inside of the trailer home, appellant and his wife having temporarily separated from one another, with the wife staying at a friend’s residence; that after appellant was arrested, his wife gave the police her written consent to search their trailer home. It appears from the record that when appellant’s wife gave Thompson her written consent to search her and appellant’s residence she and appellant were not on the best of terms. However, by the time the pretrial hearing was held on appellant’s motion to suppress, she and appellant had “made up.”
The record reflects that at the pretrial hearing, to counter the testimony of Thompson, that appellant’s wife had voluntarily given her consent to search, appellant called his wife, Elaine, to testify solely on the issue of the voluntariness of her consent to search. Elaine’s consent to search was obtained after appellant was arrested by the police, and after he had refused to give the police his consent to search. All of appellant’s wife’s testimony that was adduced on direct examination at the pretrial hearing went to facts that might have demonstrated to the trial judge that her consent to search was not a voluntary act, but was obtained through mental coercion or, as one of appellant’s attorneys described it, “psychological pressure.” Appellant’s wife was cross-examined, over objection, inter alia, about her purchasing appellant a new pair of blue jeans approximately three weeks before the murders *296were committed. She was also cross-examined about her separation from appellant; about her “fight” with appellant which occurred outside of the place of business where she worked; and about certain pieces of evidence that the police had seized from her and appellant’s residence pursuant to her consent to search that she gave Thompson. The testimony concerning appellant’s wife purchasing appellant a pair of new blue jeans was relevant to the State’s case because a pair of the same size and brand of jeans matched a pair of jeans that was later found in a dumpster that was located near appellant’s residence, except the pair of jeans found in the dumpster had once been soaked in blood. An unsuccessful attempt had been made by someone to wash the blood from the jeans. I find that virtually all of the questions that the State asked appellant’s wife on cross-examination at the pretrial hearing were totally irrelevant to the issue whether appellant's wife's consent to search that she gave the police was voluntarily given.. Thus, appellant’s objections to such questions should have been sustained, rather than overruled, by the trial judge.
Appellant’s wife was cross-examined, over objection, by the prosecutor, inter alia, about her purchasing appellant a new pair of blue jeans approximately three weeks before the murders were committed. She was also cross-examined about her separation from appellant; about her “fight” with appellant which occurred outside of the place of business where she worked; and about certain pieces of evidence that the police had seized from her and appellant’s residence pursuant to her consent to search that she gave Thompson.
The testimony concerning appellant’s wife purchasing appellant a pair of blue jeans was relevant to the State’s case because a pair of the same size and brand of jeans matched a pair of jeans that was later found in a dumpster that was located near appellant’s residence, except the pair of jeans found in the dumpster had once been soaked in blood. An unsuccessful attempt had been made by someone to wash the blood from the jeans. I find that virtually all of the questions that the State asked appellant’s wife on cross-examination at the pretrial hearing were totally irrelevant to the issue whether appellant’s wife’s consent to search that she gave the police was voluntarily given. Thus, appellant’s objections to such questions should have been sustained, rather than overruled, by the trial judge. See and compare Nelson v. State, 765 S.W.2d 401 (Tex.Cr.App.1989).
I find, however, that the following was properly brought out by the prosecutor during his cross-examination: In response to one of the prosecuting attorney’s questions to appellant’s wife at the pretrial hearing, "Are you saying that Linda Thompson forced you to sign that consent to search?,” appellant’s wife responded: “She told me unless I signed it they were going to get a search warrant.” Appellant’s wife also testified that “I told them I wanted to be there when the trailer was searched so I knew what they took out of the trailer.”
It should be obvious to almost anyone that the purpose of a trial judge conducting a pretrial hearing on a defendant’s motion to suppress evidence, and deciding the issue pretrial, is to enable the trial judge to avoid delays occurring during the trial. E.g., Bosley v. State, 414 S.W.2d 468, 470 (Tex.Cr.App.1967).
Of course, a pretrial hearing on a particular motion should only encompass relevant matters that the parties and the trial judge desire to resolve prior to trial. In this instance, the sole issue at the pretrial hearing on appellant’s motion to suppress evidence was whether appellant’s wife had voluntarily consented to the police searching her and appellant’s residence. Any testimony on that issue would have been relevant, whether brought out on direct or cross-examination, either by the State or appellant.
I agree with the State that under the Rules of Criminal Evidence, that govern the husband-wife privilege, there is no longer the restriction that when one spouse voluntarily testifies on behalf of the other spouse, either during a pretrial hearing or at trial, his or her testimony on cross-exam-*297¡nation is restricted to that given on direct examination. Of course, the testimony adduced on cross-examination must be relevant to an issue in the proceeding then being conducted. In fact, Rule 402, Rules of Criminal Evidence, expressly provides: “Evidence which is not relevant is inadmissible.” I see no reason to make a distinction between irrelevant evidence offered at a pretrial hearing on a motion to suppress and irrelevant evidence offered at the accused’s trial. Thus, irrelevant evidence should not, over objection, ever be admitted into evidence, either during a pretrial hearing or during the trial itself.
Today, I would belatedly resolve the dilemma that appellant faced in the trial court, and hold that when one spouse voluntarily testifies at a pretrial hearing on the other spouse’s behalf, the testifying spouse, by so testifying, does not waive for trial purposes his or her marital privilege.
This Court has long equated the spousal privilege with the privilege of self-incrimination. In regards to the latter, this Court has held that “by testifying at a preliminary hearing, at an inquest, before a grand jury or at a previous trial one does not waive his right to claim his privilege against self-incrimination at a later trial ... Thus, it would appear that a waiver does extend beyond the particular proceeding and by voluntarily testifying at one’s own trial the witness does not lose his privilege at a later proceeding.” Davis v. State, 501 S.W.2d 629, 630 (Tex.Cr.App. 1973). See also People v. Stufflebeam, 19 Ill.App.3d 462, 311 N.E.2d 601, 602-603 (1974). Therefore, I would hold that appellant’s wife did not, by voluntarily testifying at the pretrial hearing on appellant’s motion to suppress, waive her spousal privilege not to testify against appellant at his trial. Compare, however, Jones v. State, 501 S.W.2d 308 (Tex.Cr.App.1973); Rogers v. State, 368 S.W.2d 772 (Tex.Cr.App.1963); Thrash v. State, 170 Tex.Crim. 97, 338 S.W.2d 447 (App.1960).
I stress that the trial judge should have sustained appellant’s counsel’s “irrelevant” objections that were leveled to many of the questions the prosecuting attorney asked appellant’s wife on cross-examination at the pretrial hearing. Had the trial judge sustained appellant’s objections, as she should have, this would have made moot appellant’s second point of error.
I pause to point out that my research, nor apparently does the majority’s, does not reveal anything that might reflect or indicate that when this Court adopted Rule 504(2)(a), Rules of Criminal Evidence, it intended to abolish everything that it had ever held about the husband-wife privilege.
Art. 38.11, V.A.C.C.P. (1965 Code of Criminal Procedure), as amended, which is Rule 504(2)(a)’s predecessor, previously controlled the boundaries of the husband-wife privilege. That statute expressly provided: “The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution.” Prior to the enactment of Art. 38.11, supra, former Article 714, 1925 Code of Criminal Procedure, provided in part that “neither husband nor wife shall, in any case, testify as to communications made by one to the other, while married ... The husband and wife may, in all criminal actions, be witnesses for each other; but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.” Rogers v. State, 368 S.W.2d 772 (Tex.Cr.App.1963). This Court’s past cases make it clear that the “husband-wife” spousal privilege, as set out in Art. 38.11, supra, as amended, was treated like it was of constitutional dimension. The cases make it appear that the spousal privilege was to be given the same dignity that the constitutional privilege of self-incrimination had been given.
Under Art. 38.11, supra, as originally worded, except for the exceptions listed within the statute, no other exceptions existed, including being called as a witness by the State against the defendant spouse where the defendant spouse had committed an assaultive offense against his, her, or their children. Art. 38.11, supra, as amended, however, provided for the following exceptions: “[A] wife or husband may volun*298tarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under 16 years of age, or in any case where either is charged with bigamy, or in any case where either is charged with interference with child custody, or in any case where either is charged with nonsupport of his or her spouse or minor child.”
Under Art. 38.11, supra, “The disqualification of a spouse as an adverse witness could not be waived.” Johnigan v. State, 482 S.W.2d 209, 210 (Tex.Cr.App.1972). “In forcing such prejudicial action to occur, the Court and the State were guilty of an injustice and committed reversible error. (Citations omitted.)” Wall v. State, 417 S.W.2d 59, 63 (Tex.Cr.App.1967). See also Willard v. State, 719 S.W.2d 595, 597 (Tex. Cr.App.1986), citing Eads v. State, 74 Tex. Crim. 628, 170 S.W. 145 (App.1914).
This Court has also ruled, if not expressly, at least implicitly, that the protection embraced by Art. 38.11, supra, was so fundamental that it could not be vitiated by consent, could not be lost by failure to object to its violation at trial, and it also applied to hearsay statements not objected to by the defendant. Jones v. State, 501 S.W.2d 308, fn. 1, 2, 3, and 4, pp. 309-311 (Tex.Cr.App.1973). The majority opinion’s reliance upon much of the dictum found in Aguilar v. State, 715 S.W.2d 645, 649 (Tex. Cr.App.1986), to support its holding that the State’s error in calling a disqualified witness to testify is subject to a harmless error analysis, is terribly misplaced.
However, the spouse’s disqualification as an adverse witness to the other spouse was not without exceptions, such as testimony adduced pursuant to the res gestae exception to the hearsay rule of evidence; wife as a co-conspirator; wife as a co-defendant to the husband, if the husband was tried separately from the wife; and, where the defendant introduces part of a conversation between his wife and another, the State was entitled to introduce the remainder of the conversation on the same subject. Jones v. State, 501 S.W.2d 308 (Tex.Cr. App.1973). It was also incurable and reversible error for the State, in the presence of the jury, to call the defendant’s wife to testify as a witness for the State, “thereby forcing him to object in the presence of the jury, when such action was done in such a manner as to convey to the jury the impression that the wife, if allowed to testify, would rebut defensive testimony previously given in the case. (Citations omitted.)” Johnigan, supra, at pages 210-211. See also Wall, supra. Incurable and reversible error also occurred even when the defendant was not forced to object in the jury’s presence, if the jury received any impression that the wife’s or husband’s testimony would have been adverse to the defendant. Johnigan, supra, at page 211. Even where the trial was bifurcated, one spouse was disqualified from testifying for the State at the punishment stage of the other spouse’s trial. Carabajal v. State, 477 S.W.2d 640, 641 (Tex.Cr. App.1972).
Where the wife testified for the husband, or vice versa, the State was permitted to cross-examine the testifying spouse “on matters concerning which he or she testified on direct, and also as to matters that were germane and pertinent to his or her direct testimony but which were not brought out on direct examination.” Mitchell v. State, 517 S.W.2d 282, 287 (Tex. Cr.App.1975). Thus, it was impermissible for the State to bring out incriminating evidence on cross-examination unless same was brought out either on direct examination by the defendant spouse or was germane and pertinent to the direct examination testimony. Wiggins v. State, 109 Tex. Crim. 195, 3 S.W.2d 811 (App.1928). Also see Niles v. State, 104 Tex.Crim. 447, 284 S.W. 568 (App.1926); Branch’s Ann.P.C., § 152, at p. 187.
Although I acknowledge that the spousal privilege is not a constitutionally guaranteed privilege, I also find that the principle of law that the Supreme Court announced in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), should be applied to this cause, as part of this State’s “husband-wife” privilege. One of the issues that the Supreme Court had to resolve in Simmons, supra, concerned a defendant’s dilemma in either testifying at *299a pretrial hearing on a motion to suppress, in order to establish his “standing,” or not testifying at all, thus invoking his right of self-incrimination privilege, and eliminating the possibility that his own testimony could be used to convict him at his trial, but causing him to give up his claim that he had “standing” to contest a search. The Supreme Court stated and held the following: “Thus, in this case, Garrett [one of the defendants in Simmons] was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, I find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Simmons v. United States, supra, 390 U.S. at 393, 88 S.Ct. at 976.
The record in this cause is clear that in the trial court appellant was confronted with a similar dilemma as was the defendant Garrett in Simmons v. United States, supra. The record reflects that at the pretrial hearing on appellant’s motion to suppress evidence that was obtained pursuant to his wife’s consent to search, appellant was presented with two options: he could call his wife to testify in order to prove that her consent to the search was involuntarily obtained by Officer Thompson, but if he did so his wife became subject to cross-examination by the prosecutor. Although not foreseeable that the trial judge would permit the prosecutor to cross-examine appellant’s wife on irrelevant matters, this was an outstanding possibility, which actually occurred. Furthermore, it was also an outstanding possibility that at trial the trial judge would admit into evidence the prosecutor’s irrelevant cross-examination that had been adduced at the pretrial hearing. On the other hand, appellant could have avoided the above by choosing not to call his wife to testify at the pretrial hearing, but this would have prevented him from producing any independent evidence that his wife’s consent was involuntarily obtained.
Rule 504(2)(a) provides that “a spouse who testifies on behalf of an accused is subject to cross examination as provided by Rule 610(b).” Rule 610(b) expressly provides, however, that “a witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” (My emphasis.) Thus, the trial judge clearly erred in permitting the prosecutor to cross-examine appellant’s wife about irrelevant matters. The majority opinion agrees, but then in a convoluted sort of way holds that such error was harmless to appellant. Given the facts and circumstances of the wife’s being called by the State in the jury’s presence, and forced not to testify in the jury’s presence, and pursuant to the principle of law announced in Simmons, supra, and, furthermore, because I would hold that appellant’s wife retained her spousal privilege at trial not to testify for the State and against appellant, I would not answer the State’s contention that when appellant’s wife invoked her privilege when called by the State to testify during appellant’s trial, she then became unavailable to testify at appellant’s trial. See, however, Rule 804(b)(1), Rules of Criminal Evidence.
Furthermore, by my holding that appellant’s wife retained her spousal privilege not to testify against appellant at his trial, and further finding that she timely and properly invoked same when called to testify by the State at appellant’s trial, the rule that “If a witness at a former trial of the same case is not available to testify at a retrial of the cause, his testimony at the former trial may be admitted,” see 24 Tex. Jur.2d, Evidence, § 696, at page 334, is not applicable to this cause. See also McCormick & Ray, Texas Evidence, Second Edition, § 942 & 948.
“When a witness claims his privilege, a natural, indeed an almost inevitable, inference arises as to what would have been his answer if he had not refused to testify.” United States v. Maloney, 262 F.2d 535 *300(2nd Cir.1959). In this regard, it was the State who called appellant’s wife to testify at appellant’s trial, with the apparent knowledge that the wife intended to invoke her spousal privilege not to testify against appellant. At this point, an inevitable inference arose that had the wife voluntarily testified, she would have done so on behalf of the State.
If the prosecutor calls a husband or wife to testify for the State, knowing that the spouse will invoke his privilege not to testify for the State, the prosecutor is charged with notice of the probable effect that the witness’ refusal might have upon the jury’s mind. In this instance, both the trial judge and the prosecution had prior notice that appellant’s wife would invoke her spousal privilege not to testify for the State and against appellant.
In this regard, I point out that there is no claim by the State that appellant “opened” the door to the State calling his wife to testify against him, or that his wife “waived” her privilege not to testify against appellant. Furthermore, appellant’s wife’s testimony that she gave at the pretrial hearing did not constitute extrajudicial statements against appellant to others. Even if they did, I would still subscribe to the rule that hearsay statements, if objected to, are blocked by the privilege. See Ivey v. United States, 344 F.2d 770 (5th Cir.1965); United States v. Williams, 447 F.2d 894 (5th Cir.1971); 8 Wigmore on Evidence § 2232 (rev. McNaughton 1961); 2 Wright, Federal Practice and Procedure § 405 at 87 (1969).
Rule 513(b) expressly provides that “the making of claims of privilege [shall be done to the extent practicable] without the knowledge of the jury.” This rule was obviously violated by the State in this cause. Rule 513(c) expressly provides that “any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.” Obviously, when the trial judge declined to so instruct the jury, she violated the terms of this rule. In United States v. Maloney, supra, that court held that it was “plain error” not to give such a cautionary instruction in the self-incrimination context. Also see Federal Rule 513(a) of the Federal Rules of Evidence, and 19 A.L.R.4th 368, annotation, “Propriety and prejudicial effect of prosecution’s calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused.”
Therefore, I would hold that the trial judge erred in the following particulars: permitting the State to call appellant’s wife to testify against him in the jury’s presence; permitting the State to cross-examine appellant’s wife about irrelevant matters at the pretrial hearing on appellant’s motion to suppress; and, because appellant’s wife at trial still had the spousal privilege not to testify against appellant her husband, erred in admitting into evidence over objection the transcription of appellant’s wife’s testimony adduced on cross-examination at the pretrial hearing on appellant’s motion to suppress.
Furthermore, I am unable to conclude beyond a reasonable doubt that the errors, either individually or collectively, made no contribution to appellant’s conviction. See Rule 81(b), Rules of Appellate Procedure. In this regard, the majority opinion’s contrary holding, that the error was harmless, supports what I registered in the dissenting opinion that I filed in Harris v. State, 790 S.W.2d 568, 597, 599 (Tex.Cr.App.1989). If it is the intent of the majority of this Court, in applying the provisions of Rule 81(b), as it might suit their fancy, under the “gorilla” theory, so be it. However, would it not be more responsible for a majority of this Court to rewrite Rule 81(b) so that no error can ever be harmful to the defendant?
Therefore, I respectfully dissent.