dissenting.
I believe the majority to have strayed from sound principles of due process and due course of law in their determination that appellant's Grounds of Error 19, 20, 21, and 7 do not constitute reversible error. Although the crime committed was heinous, the rule of law must still control our determination. I therefore dissent for the ensuing reasons.
.1
In Grounds of Error 19, 20, and 21, appellant complains of the prosecutor’s use of the appellant’s failure to relate the exculpatory story related at trial during pretrial hearings at which appellant previously testified. This omission on the part of the appellant was used by the prosecutor to impeach the appellant’s exculpatory story during the prosecutor’s cross-examination of appellant.
The record of pretrial proceedings reflects that the appellant took the stand three times. The first time was for the *833limited question of whether he was competent at that particular time to assist his attorneys in conducting their pretrial hearing on appellant’s motion to suppress evidence and motion to suppress identification. At that time appellant testified to having sustained medical problems the night prior to the hearing which required medication and that there were some lingering aftereffects from such medication which impaired his ability to assist his attorneys. Later that day the actual hearings on the motion to suppress evidence and identification of appellant were conducted. Prior to such hearings, the following colloquy with the court took place:
“MR. PRIEST: Your Honor, I want to call the defendant to the stand for the purpose of the motion only. But, before I do I would reurge to the Court the motion we have previously filed to restrict the cross-examination of the defendant by the State to matters brought out on direct having bearing on the motion to suppress and nothing else.
“THE COURT: I think the case law holds if he takes the stand he can take the stand on the motion to suppress for limited purposes related to the motion itself. So, I assume that is what you are relating it to.
“MR. PRIEST: That is correct, your Honor.
“MR. CONAWAY: Judge, I am in perfect accordance with the proposition of the defendant taking the stand for limited purposes.” (Emphasis added)
The scope of the direct examination at this hearing related to the circumstances surrounding the appellant’s arrest and execution of the San Antonio Police Department consent to search form. The district attorney attempted to ask several incriminating questions, all of which were objected to and said objections were sustained.
The next time the appellant testified was at the subsequent hearing on the motion to suppress identification. Again, at the outset of that hearing, the following colloquy transpired with the court:
“MR. PRIEST: Your, Honor, again, we will call the defendant for the limited purpose of this motion and his rights to counsel and the issues surrounding that question.
“THE COURT: All right. Have a seat. Go ahead, counsel. Let’s proceed.”
At this hearing the appellant testified strictly to the question of whether he requested and was given the assistance of counsel before a lineup in the San Antonio Police Department. No questions relating to the exculpatory story were asked of the appellant while he testified.
During the cross-examination of appellant at trial by the same prosecutor who conducted the pretrial hearings, the following transpired:
“QUESTIONS BY MR. CONAWAY:
“Q Now, Donald, let me ask you something? Have you ever told this story that you just told here in the Courtroom today before?
“A Yes, I have. Part of it.
“Q Have you ever told that story to me before?
“A No, I haven’t.
“Q Isn’t it true that you have been under oath in a Courtroom before Judge Barlow in previous proceedings and you never told us one mumbling word about that talé you just told us?
“MR. PRIEST: We will object to that question. As your Honor knows we were then engaged in pretrial matters in which these matters were not relevant and we object to the question on that basis.
“THE COURT: Well, I will sustain the objection to it.
“MR. CONAWAY: I think I am entitled to show that he has had an opportunity under oath to offer that tale before and he did not do so, Judge.
“MR. PRIEST: We object, Your Honor.
*834“MR. CONAWAY: At a time whenever he waived his Fifth Amendment rights and took the stand.
“THE COURT: The problem is-
“MR. CONAWAY: I recognize his problem.
“MR. PRIEST: Object to the last statement of Counsel.
“THE COURT: The problem is this, I try cases one after another. I have Court records of what occurs in Court and, the truth is, I don’t remember all the time, what the issues were or what was involved.
“MR. CONAWAY: My question is does he remember it, Judge. Do you remember taking the witness stand in San Antonio, Texas?
“MR. PRIEST: He is repeating the very question we objected to and we request a ruling.
“THE COURT: What is the question?
“MR. PRIEST: The Court previously sustained the objection.
“THE COURT: What is the question?
“QUESTIONS BY MR. CONAWAY:
“Q Do you remember taking the witness stand, Donald Franklin, in San Antonio, Texas, before this same Judge, James E. Barlow; me asking you questions, Mr. Priest being present, this same Court Reporter being present in the Courtroom and me asking you questions about what happened out there at that house and did you say one word about Eugene Tealer or anybody being in that house or-
“MR. PRIEST: Don’t say a word until the Judge rules. It is our position he is making undue comments on the exercise of the Fifth Amendment privilege. We ask the Court to-first, we object to the question.
“THE COURT: All right. It is overruled.
“MR. PRIEST: Please note our exception.
“QUESTIONS BY MR. CONAWAY:
“Q Did you say one mumbling word about Eugene Tealer swapped pants with you, Eugene Tealer came and set fire to that poor woman’s purse, did you say one word about never having seen that knife before, did you say one word about loaning that car to Eugene Tealer in open Court under Oath before this same Judge in San Antonio, Texas? Did you say one word at all?
“MR. PRIEST: If it please the Court, he was not asked any of those questions.
“MR. CONAWAY: That wasn’t the question. Did you-you could have told that tale down there and you chose not to, didn’t you?
“MR. TINKER: Your Honor, there was a hearing in this Court for a specific purpose that had nothing to do with what he may or may not have said. The Court, in my opinion, is committing error in allowing this kind of interrogation to go on. The first reason you have pretrial proceedings is because they are supposed to be done prior to getting into anything in the presence of the jury. This witness was not asked this question. In fact, this Court specifically would not permit that kind of question of this man.
“MR. CONAWAY: He wasn’t there.
“MR. TINKER: I have read the record, Your Honor. It is here and I will offer it to the Court.
“THE COURT: We are no longer in pretrial, Counsel. The objection is overruled.
“MR. TINKER: Let me make a tender of the Court’s ruling at that time.
“THE COURT: The point is, in pretrial you are bound by certain rules that do not necessarily apply before the jury.
*835“MR. TINKER: That’s right. And at pretrial you ruled you would not permit him to answer questions. Now, he is trying to make it look like this man tried to disguise or hide something because you ruled that he could not testify about it. Now-and I offer, Your Honor, the Court Reporter’s notes from that proceeding. It was your ruling that prevented him from testifying.
“THE COURT: All right.
“MR TINKER: Your Honor, also, we request a mistrial at this time because of what has already occurred and I reurge the Court to look at the Statement of Facts and see the Court’s ruling at that time, which did not permit him to testify to these facts.
“THE COURT: Objection overruled. Motion for mistrial overruled. Go ahead, Counsel.
“QUESTIONS BY MR. CONAWAY:
“Q Now then, my question, again, I don’t think you ever did answer it, was did you ever tell-you had the opportunity sitting on the witness stand in a different Courtroom, same Judge, same defense lawyer,at least well, two of them, Mr. Williams and Mr. Priest were there, I was there, Judge Barlow was there and you were certainly there and we were talking about what happened out there at your house on the morning when you were arrested. Do you remember that?
“A Yes, sir; I do.
“Q Now then, do you remember telling me anything about, T loaned my pants to Eugene Tealer?’ Did you tell me anything like that?
“A I only answered the questions that you asked me. I did tell them at the time that they arrested me, the same thing I have just finished stating.”
The majority cites Wigmore on Evidence for the general proposition “that the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination.” Ante at 825. Section 1042 of Wig-more on Evidence reads as follows:
“A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. This is conceded as a general principle of evidence (Section 1071 infra).
******
“There are several common classes of cases:
“(1) Omissions in legal proceedings to assert what would naturally have been asserted under the circumstances.
“(2) Omissions to assert anything, or to speak with such detail or positiveness, when formerly narrating, on the stand or elsewhere, the matter now dealt with.” 3A Wigmore, Evidence, See. 1042 (Chadb-ourn Rev.1970)
Notwithstanding the expressed statements of Wigmore and the majority’s acknowledgment of the principle that the silence must occur under circumstances wherein an expressed disclaimer or statement would seem more natural, they proceed to disregard the context in which the appellant allegedly failed to relate his exculpatory story. It was not natural for appellant to have given the exculpatory story at the pretrial hearing since it was not relevant to any issue at hand. Further, when he was testifying at the pretrial motion hearings, he was not narrating on the matter now dealt with because, as stated, the issues raised by the motions did not bring to bear the facts of the particular offense or facts preceding the offense testified to by the defendant at the trial-in-chief. It is therefore evident that the use of appellant’s silence in this case did not fit the justification cited by Wigmore.
The majority goes on to cite a number of unrelated cases concerning the proper scope *836of cross-examination. It is worthy of note that these cases were not deemed convincing to the Supreme Court in its decision to preclude the use of an arrestee’s silence following receipt of Miranda warnings for purposes of impeachment upon cross-examination. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). It is acknowledged that Doyle expressly reserved decision on the specific issue now before this Court; i. e., whether use of a defendant’s silence at a pretrial hearing can constitutionally be utilized for purposes of impeachment. Notwithstanding the Supreme Court’s reluctance to address this issue, certain principles can be distilled from the opinion in Doyle. The Supreme Court noted that “every post arrest silence is insolubly ambiguous ...” in light of its mandate that every arrestee be accorded certain warnings, one of which being the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The decision went on to state that since the arrestee had been advised that he has a right to remain silent, “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” 96 S.Ct. at 2245. In this vein and with respect to the particular issue before this Court concerning the use of appellant’s silence at the time of his pretrial hearing to impeach him, the case of Simmons v. U. S., 390 U.S. 377, 381, 88 S.Ct. 967, 969, 19 L.Ed.2d 1247 (1968), takes on a role similar to that held by Miranda in the Doyle decision. In Simmons, a co-defendant testified at the motion to suppress hearing that he owned the suitcase in which money wrappers from the bank that was recently robbed were found. This same testimony was introduced at the trial-in-chief to establish the co-defendant’s ownership of the suitcase, and the Supreme Court held that “when a defendant testifies in support of a motion to suppress evidence 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.” 390 U.S. at 394, 88 S.Ct. at 976. Again, however, Simmons is not directly in point here since no particular express statement made by the appellant at his pretrial hearings was introduced for the purpose of showing his guilt or for impeachment. Instead, it was what the appellant did not say at the pretrial hearings that was used against him to create the inference that his version of events at the trial was a recently fabricated “tale” unworthy of belief.1 Before the two pretrial hearings on appellant’s motion to suppress evidence and idéntification, the court was advised that his testimony was for the limited purpose of the issues raised by said motions-a limitation acknowledged both by the court and the prosecutor at the time of the pretrials. At no time during the course of the pretrial hearings were the facts or circumstances surrounding the actual crime relevant. Although no formal warnings were rendered to the appellant at the time of the pretrial hearings as required to be offered an arres-tee at the time of arrest pursuant to Miranda, it was clear that the appellant was relying on the principle of Simmons v. U. S., supra, i. e.: that the testimony appellant was to offer at the pretrial hearings was for the limited purposes of determining the legal questions raised by the motion to suppress and any inquiry would be no broader than necessary.
An analogous situation is presented in the case of Johnson v. U. S., 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943). At Johnson’s trial the defendant took the stand and testified to numerous issues, but chose to invoke the Fifth Amendment privilege against self-incrimination after having testified to certain matters. The judge granted the claim of privilege, albeit erroneously, yet the prosecutor argued that its invocation *837showed the defendant to be a liar and to be guilty of the crime charged. Of particular importance to the case at bar is the following excerpt from Johnson:
“An accused having the assurance of the court that his claim of privilege would be granted might well be entrapped if his assertion of the privilege could then be used against him. His real choice might then be one different from his apparent one. * * * Elementary fairness requires that an accused should not be misled on that score. If advised by the court that his claim of privilege though granted would be employed against him, he well might never claim it. If he received assurance that it will be granted if claimed, or if it is claimed and granted outright, he has every right to expect that the ruling is made in good faith and that the rule against comment will be observed.”
Although this decision was rendered pursuant to the supervisory powers of the Supreme Court, it is relevant to the determination that the use of appellant’s silence in the case at bar violated concepts of elementary fairness and deprived the appellant of due process and due course of law. Principles of elementary fairness are equally applicable to the states. Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959).
In another case decided pursuant to the Supreme Court’s supervisory power over lower federal courts, it was determined that the probative value of a defendant’s silence at the time of arrest with respect to his alibi defense was outweighed by the prejudicial impact of using that silence to impeach the defendant. U. S. v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). The court expressly avoided the constitutional question of whether Raffel v. U. S., 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), survived the decisions of Johnson v. U. S., supra, and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).2 The court in Hale further wrote:
“If the government fails to establish a threshold inconsistency between silence at the police station and later exculpatory testimony at trial, proof of silence lacks any significant probative value and must therefore be excluded.” 422 U.S. at 176, 95 S.Ct. at 2136.
This principle is equally applicable to the case at bar in making our determination that the appellant’s silence at the pretrial hearings concerning the transactions he testified to at trial presented no inconsistencies justifying the introduction of the evidence for any purpose. Since the issues raised by the pretrial motion did not involve questions concerning the actual offense itself, there was a valid reason, other than culpability, for the appellant to remain silent at the pretrial stages concerning his exculpatory story. This demonstrates the ambiguity that can attach to silence and how the use of that silence to subsequently impeach can unfairly prejudice a defendant who chooses to testify in his own behalf.
The majority cites numerous cases that are of unquestioned validity, but which do not address the particular issue before us. It is clear that when the defendant engages in a clear falsehood on the stand, his previous inconsistent statements can be used to impeach him.3 But it is characteristic of the cases cited by the majority that the items being used to impeach the witness at the trial consist of actual statements which carry significantly more probative value than silence.
I would be remiss in not confronting and addressing the potential question of harm*838lessness in the prosecutor’s actions in this case. It appears clear that the harmless error rule does apply to Doyle -like errors. Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977). The rule as set forth in Chapman, supra, is as follows:
“... When the prosecution uses defendant’s post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant’s ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous. [Citations omitted.]
“When the prosecutor does not directly tie the fact of defendant’s silence to his exculpatory story, i. e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or indicia of guilt not overwhelming. [Citation omitted.]
“When there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error. Chapman’s fate is to instantiate this third rule.
“The infusion of ‘harmlessness’ into error must be the exception, and the doctrine must be sparingly employed. A miniscule error must coalesce with gargantuan guilt, even when the accused displays an imagination of Pantagruelian dimensions.” 547 F.2d at 1249-1250.
In Chapman, the government prosecutor asked the arresting police officer if the defendant said anything after his arrest to which a single, negative answer was given. No further questioning of any witness concerning the defendant’s post-arrest silence was conducted, nor was any reference made during closing arguments to such silence. In light of the evidence showing that the defendant was arrested at the rear bank door with a crowbar inserted into the door, the single question and answer was considered harmless error. A similar conclusion was reached in Meeks v. Havener, 545 F.2d 9 (6th Cir. 1976). See U. S. v. Impson, 506 F.2d 1055 (5th Cir.) (per curiam), vacated and remanded, 422 U.S. 1031, 95 S.Ct. 2647, 45 L.Ed.2d 688 (1975), on remand, 531 F.2d 274 (5th Cir. 1976); and U. S. v. Sharp, 513 F.2d 786 (5th Cir. 1975), vacated and remanded, 423 U.S. 919, 96 S.Ct. 258, 46 L.Ed.2d 246 on remand, 536 F.2d 601 (5th Cir. 1976) (per curiam).
In the case at bar there was not merely a single reference to the appellant’s failure to relate the exculpatory story at the pretrial hearing. As the colloquy reproduced above shows, the question was pressed to the appellant five times during the prosecutor’s cross-examination of him and the purpose of the question was clearly stated by the prosecutor in that he wished to show that it was a “tale” and that his failure to relate it previously was indicative of his dishonesty and, inferentially, his guilt. Yet the prosecutor did not choose to stop here. The prosecutor inquired of several police officers as to the defendant’s failure to relate the exculpatory story to them following his arrest and Miranda warnings.4 This tactic exacerbated the error the prosecutor fell into upon his initial cross-examination of *839the appellant and was additionally reprehensible in light of the fact that the prosecutor knew from the voir dire examination of the same witness during the trial-in-chief that that witness knew that an exculpatory story was related to other investigating officers outside his presence. This same witness admitted on recross-examination during the rebuttal portion of the trial that he knew that such a story had been related to other officers during the investigation of this cause. It was also known to the prosecutor from the cross-examination of one of the investigating officers that this exculpatory story had been related to that particular officer.
A similar line of inquiry was also submitted during the rebuttal portion of the trial to the police officer who conducted the lineup examination and who admitted that he was not involved in any actual interrogation.5
Although the inquiries related to above were not objected to on the basis of a Doyle v. Ohio violation of due process, they are relevant to the determination by this Court of whether the complained of cross-examination was harmless error. Of additional *840relevance to our determination of the question of harmlessness vel non, are the closing arguments of the prosecutor referring to the appellant’s silence at various times following his arrest which he attempted to link up to the implausibility of the exculpatory story.
“Taken out there and left while this convicted lying rapist would have you believe that he goes and sees a man. that he didn’t even know his name and it wasn’t known by Smokey. You heard what Lieutenant Keene said. Now, who is entitled to believe? Lieutenant Keene or this convicted lying rapist?
‡ * ⅝: * ⅜ ⅝
“So, they bring Donald Gene Franklin’s father with them. And, here is another interesting point. I had Donald Gene Franklin’s father brought into the courtroom here. You know he is here in Corpus Christi, Texas. He is out there with them, with the police. Now, why did they not call Donald Gene Franklin’s father to tell you that he had told the Smokey story? [Objection overruled.] “He is right there for them to call, if they wanted to. He is there and if there is one centilla [sic] of truth in that Smokey story that Donald Gene Franklin, the step-son of the man-not his son, the step-son, told you, don’t you know he would have got up here and said that. Even a step-son, blood being thicker than water, or even someone that you have raised in the capacity of a step-son, if what he had said were true, don’t you know that man would have been up here testifying? Yes. We were there and Donald Gene Franklin, my step-son, told the Smokey story to him. He had loaned him the pants, told him about the ten dollars, told him he loaned him the car. Told them Smokey just left. He didn’t say that. He was here and could have if he, in fact, was in a position to do so without violating an oath.
* * * * * *
“Now assume that he did tell them that Smokey story, and I believe that he did. He told those officers, T loaned my car to Smokey.’ But, that is all he told them. Because, you see, he knew, driving that car, that two people out there, Mr. Carter and Mr. Galvin, are going to put him in that parking lot.
* * * * * *
“But, he has got to, when he testifies, account for a lot of other bits and pieces of evidence against him, too. They take him down to the police station and they talk to him. They interrogate him. By this time his mother is present. The testimony shows, as well as his father.
“Now then, if this raping-kidnapping-ten year sentence murderer had told them that Smokey story that morning don’t you think that maybe his mother would have come forward and told you that? It flat did not happen. The Smokey story only came into the picture very very late in the game, you see. They talked to him that morning before they put him in any lineup.
“Now, who in the name of good sense-Now, by this time, recall that by the time he is sitting up here in the witness stand he is cool. That’s right. There is no way I am going to, with my lack of ability in cross-examination of this man, I am ever going to shake his story about Smokey, if I talk to him for a week. Because he has testified before, he knows how to testify.
“MR. PRIEST: That is outside the evidence again, Your Honor.
“THE COURT: Sustain the objection to it.
“MR. CONAWAY: I thought somebody testified he had been in previous hearings. In fact, he argued he had been in previous hearings.
* * * * * *
“The point is, he wants you to believe he is driving down the street, sees Smokey. Smokey says, ‘Let me borrow your car *841and your pants and I will give you ten dollars,’ and that Smokey then reappears later in the evening, checks into his house, and that is how these items got into his house.
“But, Smokey was here, if that is Smokey. They told you that they were going to call Smokey. Why didn’t they do it? Because Smokey ain’t going to go along with that. He is not going to take the rap for this guy’s rape-murder, you see. They could have called him if they wanted to, they didn’t. They could have called his mother, they didn’t. They could have called his father, they didn’t. The first time that entire tale got heard by anybody is when he got up there and told it to you." (Emphasis added)
In conclusion, it is clear that elementary fairness was denied to this defendant by the prosecutor’s attempt to impeach him with his failure to relate the exculpatory story during his testimony at pretrial hearings at which time such story was not relevant. But the majority’s disposition of this ground of error would in effect open the door to prosecutors using any pretrial silence save for that following defendant’s arrest and the giving of Miranda warnings, for impeachment purposes. The majority’s disposition once again places a criminal defendant upon the horns of a dilemma when evaluating whether to pursue his Fourth Amendment rights at the pretrial stages. This Hobson’s choice was erased from criminal jurisprudence in Simmons v. U. S., supra, but the majority would resurrect it to once again haunt the courtrooms of this State.
Aside from the constitutional issue involved, the prosecutor’s actions violated most clearly a mandatory procedural statute of this State. Article 38.08, V.A.C.C.P.6
Although the appellant did testify at the preliminary hearings, the prosecutor’s reference to his failure to relate the exculpatory story was clearly a comment upon the appellant’s invocation of his Fifth Amendment rights as accorded him through the Fourteenth Amendment to the United States Constitution and Simmons v. U. S., supra. The prosecutor’s questions were clearly designed to comment upon appellant’s failure to testify to specific yet irrelevant facts. A similar line of inquiry was found to be reversible error in Scroggins v. State, 97 Tex.Cr.R. 573, 263 S.W. 303. This Court construed Article 790, C.C.P.7 to apply not only to comments on the defendant’s failure to testify at his trial but also his failure to testify at any pretrial proceedings. During cross-examination of the defendant in Scroggins, the prosecutor asked if the defendant was testifying for the first time to which he affirmatively responded. The objection to the question and answer was sustained, yet the prosecutor continued by asking “When they had an examining trial at Malakoff, were you suffering from lockjaw or any impediment to your speech?” The objection was sustained, but the prosecutor pursued by asking, “Why didn’t you tell the court up there at that examining trial what you have told the jury here?” Each objection to these questions was sustained, yet this Court construed it as reversible error. The principle of Article 38.08, V.A.C.C.P., and its predecessor, to protect defendants when they invoke their Fifth Amendment rights against self-incrimination, apply just as readily to the case at bar *842notwithstanding the fact that appellant actually testified at the pretrial hearings. As repeatedly noted above, he had a right not to’incriminate himself on matters necessary to the disposition of his Fourth Amendment issue nor collateral and irrelevant issues. Thus, the questions propounded by the prosecutor during his cross-examination were clearly a comment upon appellant’s failure to testify to matters beyond the scope of the pretrial hearings.8 See Article I, Sec. 10, Texas Constitution; Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.).
Finding the error involved in appellant’s Grounds of Error 19, 20, and 21 to violate fundamental notions of fairness, defendant’s right to due process and due course of law, a mandatory State statute, and that the error cannot be considered harmless beyond a reasonable doubt, I must dissent from the majority’s disposition of these issues.
II
The majority disposes of appellant’s ground of error number seven regarding venireperson Askey’s disqualification as a juror by selectively quoting excerpts from the voir dire examination and concluding that she was disqualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).9
*845The Witherspoon decision was founded on the rationale:
“Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen [sic] for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” 391 U.S. at Page 521, 88 S.Ct. at Page 1776-1777.
Consequently, a defendant is entitled to a jury which represents an impartial cross section of the community. In any given community there will be people opposed to the death penalty. Many of those people will be able to follow the law and decide a case based on the evidence presented and would not automatically vote against the imposition of the death penalty. This is not to say that those individuals may not consider their feelings towards the death penalty; but as long as they will be able to consider the death penalty and be able to evaluate the evidence presented, even in light of their opposition to such penalty, those people will be qualified under the Witherspoon test. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.).
As stated by the United States Supreme Court in Witherspoon:
“Unless a venireman [sic] states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” 391 U.S. at Page 515, Footnote 9, 88 S.Ct. at Page 1773, Footnote 9.
The court in Witherspoon further stated that the only venirepersons who could be excluded for cause:
“... were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” U.S. at Page 522, Footnote 21, 88 S.Ct. at Page 1777, Footnote 21.
It is clear from the reproduced voir dire of venireperson Askey that she would not “automatically vote against the imposition of capital punishment without regard to any evidence” or would be biased in determining the defendant’s guilt. Thus, her exclusion was in direct violation of the mandate of Witherspoon v. Illinois, supra, and constitutes reversible error. Even the exclusion of one venireperson in violation of Wither-spoon v. Illinois, constitutes reversible error. See Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 399 (1976).
For the foregoing reasons, both individually and together, I dissent from the majority’s disposition of this cause.
ONION, P. J., and ROBERTS, J., join in this dissent.Before the court en banc.
. See the colloquy concerning the subject cross-examination reproduced at infra 838 & 839.
. It should be noted that the majority relies on Raffel v. U. S., supra. In that case the petitioner did not testily at the first trial but chose to testify at the second trial to refute the testimony of a State’s witness. The court found that since the testimony of the State’s witness at the two trials was the same, the silence at the first trial was of some probative force and was therefore admissible to impeach the petitioner at the second trial.
. See Footnote 11 in Doyle v. Ohio, 96 S.Ct. 2240 at 2245.
. “Q At any time during the course of the conversation you had with Mr. Franklin there was he ever kept from telling you any kind of-now [at this point clarification was sought on which Mr. Franklin the district attorney was referring to and it was made clear that he was referring to the defendant.]
“Q Was there anything that any policeman did, either yourself, under your instructions, any of those homicide officers at all that prevented Mr. Donald Gene Franklin from telling you anything he wanted to about the killing of Mary Margaret Moran?
“A No, sir; he was given plenty of opportunities.
*839“Q Now then, let me ask you, sir, whether or not you questioned him about the presence of those bloody trousers inside the bucket inside his house?
“A Yes, sir; I did.
“Q Whenever you would question him about that, what happened?
“A He would just clam up and wouldn’t say anything.
“Q Let me ask you, sir, whether you questioned him about the presence of articles that belonged to Mary Margaret Moran in his garbage can?
“A Yes, sir, I did.
“Q When you were questioning him about those items, what would he do?
“A Refuse to answer and just clamed [sic] up.
“Q Let me ask you, sir, whether you questioned him about the blood that was found on the carpet inside his house, whether or not you questioned him about the blood that was found on the carpet inside his car?
“A Yes, sir.
“Q When you asked him about that, what would he do?
“A Refuse to answer and he would clam up.
“Q Did either of the parents, either the father or the mother ever come to you and say, ‘You better look for somebody else named Smokey. Our son loaned the car to him. He told us that.’ Any of that story ever come to you from any source? [Objection on the basis of hearsay was sustained.]
“Q At any time during the period you were speaking to Donald Gene Franklin about this case, did Donald Gene Franklin ever tell you he was driving down the street in his Buick and saw a man he only knew as Smokey and that Smokey wanted to borrow his car and that Smokey had loaned him ten dollars to borrow his car? Did he ever tell you that?
“A No, sir; he did not.
“Q At any point during the course of your interrogation of Donald Gene Franklin did he ever tell you that there was an individual by the name of Eugene Tealer, T-e-a-1e-r, that he thought was Smokey?
“A No, sir.
“Q Did he ever, Donald Gene Franklin, ever offer to take you to a location where he thought he could find Smokey? Did he ever do that?
“A No, sir.
“Q Did he ever tell you he thought he knew where Smokey lived?
“A No, sir.
“Q Did he ever tell you the name of anybody, other than just Smokey? Did he ever tell you anything other than that?
“A No, sir; he didn’t even tell me the name Smokey.”
. “Q At any time whenever you were with him there, during the course of conducting these lineups, did he ever tell you anything about having loaned his car to someone on the night that she disappeared for ten dollars and having loaned his pants to someone on the night that she disappeared, and having-[objection to the multiple questions-no ruling]
“Q At any time did Mr. Donald Gene Franklin tell you he had loaned his car to Smokey on that night?
“A No, sir.
“Q Was there anything-did you gag him or in any way prevent him from telling you anything he wanted to tell you?
“A No, sir.
“Q Now then, did he, at any time, tell you that he had met a man named Smokey that night and that Smokey had borrowed his car?
“A No, sir. Mr. Franklin never mentioned anything to me in reference to Mr. Smokey or anybody.”
. Article 38.08, V.A.C.C.P., provides:
“Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”
. “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause; provided, that where there are two or more persons jointly charged or indicted, and a severance is had, the privilege of testifying shall be extended only to the person on trial.”
As noted in the special commentary to Article 38.08, V.A.C.C.P., only the proviso of the preceding Article 790 was stricken in the reenactment of Article 38.08 in 1965.
. When a defendant takes the stand to testify in his trial,
“... He may be contradicted, impeached, discredited attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of defendant, except where some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the present case, his failure to testify on a former trial or a hearing, and the like .... ” (Emphasis added.) 1 Branch’s Ann.Penal Code, 2nd Edition, Sec. 168, p. 170.
. “THE COURT: Mrs. Askey-
“MR. TINKER: Your Honor, it is difficult to hear. I just want to remind the Court it is-when this Court talks to the witness it is difficult to hear.
“THE COURT: Under the law whenever you are brought up here as a juror in a capital case it is my duty to ask you a question in the beginning to be sure that you understand the question. The Texas legislature passed a statute that says no person is qualified to serve as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not effect [sic] his deliberation on any issue of fact. What I construe that to mean is this: In any case in which a man is charged with a capital offense-in this case the defendant is charged with capital murder-there are basically two possible punishments in that case. If he is found guilty the possible punishments are death or imprisonment for life. That is all the punishment that is involved. And, the question is the statute assumes that you are going to know that when we start, you see? And, if you are selected as a juror you are going to have to look at all the issues in the case and go through all the issues in the case and decide what the facts are in the case and what exactly occurred in the case.
“Now, would the fact you knew what the punishment was or what the punishment could be, would that effect [sic] you in your deliberations on the facts in the case?
“JUROR: You said would it effect [sic] me?
“THE COURT: Yes, sir.
“JUROR: No, it won’t.
“THE COURT: All right. Go ahead.
“MR. CONAWAY: Thank you, sir.
“QUESTIONS BY MR. CONAWAY:
“Q Let’s see, Mrs. Askey, the question that the Judge posed to you is required to be asked of everybody that is about to be qualified or talked to in terms of jury service. And, he asked you that question for that reason. And, it touched somewhat on your feelings about the death penalty because he asked if the knowledge of the death penalty coming into play in a case like this, a capital murder case, whether that knowledge, that is the idea of the punishment being limited to either death or life, life or death, those are the limited punishments for someone convicted of capital murder-the Court asked if that would influence you in fact determinations if you served as a juror and you said it would not; is that correct?
“A No audible answer.
“Q And, if you would, this gentleman here with this machine is taking down everything everybody says in connection with this, and if you nod your head even though you nod your head affirmatively and I understand it, he just puts nodded head and so if you speak out so that he can effect on the record there what it is that you said it will make the record a whole lot clearer.
*843“I will ask you a little more about your feelings about the death penalty. Have you given it any thought at all since you knew from Tuesday, this being Thursday, that this was a capital murder case? The indictment charges that the defendant with capital murder. You have had at least since Tuesday until now to think about that aspect of it. So, let me ask you whether or not you have any conscientious scruples against the infliction of death as punishment for crime?
“A I don’t believe in capital punishment.
“Q All right.
“A Is that the question?
“Q The words that I used are ones that are required by law, not my choice at all. In fact, if it were up to me I would use simply these words, I would ask you, how do you feel about the death penalty, are you for it or against it? That is the way people usually think about it.
“A I am against it.
“Q All right. Now, is that based on-What is your religious preference?
“A Methodist.
“Q Are you active in your church?
“A Yes, I am.
“Q Do you attend regularly and do you go to the extent, maybe, of teaching Sunday School or are you an officer in the church or anything or [sic] that nature?
“A No, i just belong to the women’s society of Christian service.
“Q And is it a feeling that you have had for some time, that is all your life, that it is not proper to punish someone by taking his life regardless of what he might have done, no matter what his crime might have been? Is it your feeling taking someone’s life should be left to God and not men or women?
“A I believe they should be punished, you know, go to prison or, you know,-
“Q Right.
“A Some kind of punishment.
“Q Some sort of punishment, certainly.
“A Uh huh.
“Q If someone commits a crime he should be punished but if I understood your statement to me it was that you are opposed to the death penalty and you don’t go alone [sic] with punishing somebody that strong. Is that what you are telling me?
“A Well, I just don’t believe in it.
“Q You don’t believe in the death penalty, is that it?
“A Yes, sir.
“Q Is that a feeling that you have had for a long time?
“A Yes, sir; it is.
“Q Could you, under no circumstances, see yourself sitting on the jury and hearing evidence in a case, a capital murder case, listening to the evidence and hearing that somebody had committed a crime, a terrible crime, and knowing by your participation in the trial that the persons on trial might be put to death, could you ever do that in keeping with your own religious beliefs and in keeping with your conscience?
“A I don’t know. I guess-it is not my religious belief. I guess it is my conscience, I guess. I just believe in punishing them.
“THE COURT: She believes in punishing but she says she doesn’t believe in the death penalty. She said it three times.
“QUESTIONS BY MR. CONAWAY:
“Q Your feeling is you don’t object to punishment short of death but you are opposed to the death penalty?
“MR. WHITE: Against it.
“MR. CONAWAY: You are against the death penalty?
“JUROR: Yes, I am.
“QUESTIONS BY MR. CONAWAY:
“Q You are definitely against it, there is no question in your mind about that?
“A Yes, sir; I sure am.
“MR. CONAWAY: Thank you, ma’am. We will challenge for cause, Your Honor.
“MR. TINKER: May I ask some questions, Your Honor?
“THE COURT: Yes, sir.
“QUESTIONS BY MR. TINKER:
“Q Mrs. Askey, first, in a capital case you will be called upon, if you are selected on the jury, to decide the facts and conclude whether or not the person on trial is guilty or not guilty. Okay? We start out with that.
“A Yes.
“Q You don’t have to worry about the death penalty at that time, you are just trying to decide the fact about whether the person is guilty of [sic] not guilty.
“MR. CONAWAY: I will object to this line of inquiry. I take it he has the prospective juror on voir dire for the purpose of rehabilitating her in light of the Court’s sustaining my challenge for cause. Now, to recite to her
“THE COURT: That is the purpose, Counsel. So, try to direct it to that issue.
“MR. TINKER: Your Honor, my intentions
“THE COURT: Okay, Let’s get with it.
“MR. TINKER: Sir?
“THE COURT: Let’s go.
“MR. TINKER: The question, as I understand it, is whether or not it will effect [sic] her deliberations on any issue of fact.
“THE COURT: You are asking her about-I don’t understand you are directing it at that but let’s proceed.
“MR. TINKER: I promise, Your Honor, that is what I am trying to get at.
“THE COURT: Well, let’s go.
“QUESTIONS BY MR. TINKER:
“Q So, you find the person guilty or not guilty based upon the facts you hear, first. Okay?
*844“A Uh huh. Yes.
“Q In any kind of capital murder case or any kind of murder case. Okay. Then, there will be a second hearing in which you, as a juror, would be called upon to answer, if you found the individual guilty of capital murder, then you would be called upon to answer two questions, either answer the questions yes or no. And, one of them, generally, would say whether or not the person who you had found guilty had committed the murder deliberately and with the expectation that death would result and you and the other jurors would be called upon to answer that question based upon the evidence, yes or no. After you answered that question you would be called upon to answer an additional question and that is whether or not there is a probability that the person you had found guilty is likely to commit crimes of violence in the future which will cause that individual to be a continuing danger to society. And, you would be called upon to answer that question yes or no depending upon how you felt the facts caused you to answer it. Okay?
“Now, you don’t have to vote whether or not the person gets the death penalty or does not get the death penalty. All you will be called upon to do is to answer the questions. Okay?
“A Yes.
“Q You understand that?
“A Yes, sir.
“Q All right. Now, under those circumstances the law then would determine, depending on your answers, whether or not the person got the death penalty or got life in the penatentiary [sic]. And, it would be the law that would either cause the death penalty or not and not you as a juror. Do you understand what I am saying to you?
“A Yes.
“Q Under those circumstances, then, could you listen to the facts in the case and determine whether the individual was guilty of capital murder or not guilty of capital murder without being effected [sic] in that decision by the fact that the law might impose the death penalty?
“A I wouldn’t know.
“Q I am sorry, ma’am?
“A I said I don’t know.
“Q You don’t know whether it would effect [sic] you or not in making the determination whether or not the individual is guilty?
“A I wouldn’t know whether he was guilty or not. I wouldn’t know.
“Q All right. What I am getting at is you understand that you, as a juror, would not be called upon to say, ‘Yes, I think this person ought to get the death penalty,’ or should not get the death penalty. All you have to do is decide what the facts are in this case. Do you follow me that far?
“A I think 1 do.
“Q Okay. Now, in deciding what the facts are can you do that without worrying about whether or not the punishment might be death or life in the penitentiary? Do you think you can consider the facts and decide about the facts without being effected [sic] by the fact that there is a possibility that the sentence will be life or death?
“A I think the sentence would be life.
“Q Okay. But, in deciding about the facts could you disregard the possible punishment of life or death in deciding whether the person is guilty? Could you decide guilty without worrying about what the punishment might be?
“A Yes, I could.
“Q And then in answering these two questions that 1 mentioned to you, after you found an individual guilty, could you answer those questions and decide the fact answers to those questions without worrying what the punishment might be, because the law would assess the punishment, depending upon your answers?
“A Yes, I could.
“Q You could answer those questions of fact without being effected [sic] by the fact that the death penalty might result or the life sentence might result, depending on your answers? You could do that?
“A Yes, sir.
“MR. TINKER: Your Honor, I hold she is qualified under our law.
“The COURT: I think she is disqualified. You can go back to the central jury room. He will explain to you where to go.
“MR. TINKER: Mrs. Askey, you are excused. Are you related to Douglas?
“JUROR EXCUSED.
“MR. TINKER: Your Honor, at this time I do want to object to Mrs. Askey being excused and would show the court she is qualified under the statutes and said she would not be effected [sic] both in answers to the questions by the Court and in answers to the questions by me, that she would not be effected [sic] in her determination of issues of fact. Further, I object because the-our client has the right to have a cross section of the community serve on his jury and that, of course, includes those folks who do not believe in the death penalty.
“Your Honor, may the record further reflect that this lady was black.
“THE COURT: Yes, sir. Overruled.
“MR. TINKER: Does the record reflect that, Your Honor.
“THE COURT: I don’t think it does but I will let it reflect that.”