concurring on appellant’s motion for rehearing.
The question presented by this appeal is whether a defendant in a criminal case may be impeached as a witness at the trial on the merits by his silence as a witness at pre-trial hearings about his defense of alibi1 when he was called to testify for the limited purpose of those hearings in accordance with the trial court’s rulings.
Appellant testified at the pre-trial hearing to determine his competency to stand trial. He testified again in hearings on motions to suppress evidence of a search and seizure and to suppress a possible future in-court identification which he claimed was tainted. He was expressly called as a witness for the limited purpose of each hearing under the correct rulings of the trial judge. He was not expected to speak out about any defense of alibi or other defensive matter which was totally irrelevant to any issue before the court on the pre-trial hearings. Such defensive matters were clearly outside the scope of the pre-trial hearings.
At the trial on the merits, the appellant testified, among other things, in connection with his defense of alibi that he had loaned his Buick automobile and a pair of pants to a Eugene Tealer on the night in question and that Tealer around 1 a. m. on July 26, 1975 returned the same and that Tealer had placed the pants in a pail of water saying he had thrown up on the pants. Appellant claimed he was not at the scene of the crime.
*851On cross-examination the prosecutor, who had represented the State at the pretrial hearings and knew that the appellant had been called for the limited purpose of the hearings, elicited, over vigorous objections, from the appellant he had testified in court under oath before the same judge and had never revealed his “tale”-his defense of alibi. The defense counsel did what they could to prevent the error, calling the trial court’s attention to its earlier pre-trial rulings limiting the scope of such pre-trial hearings, which were correct, pointing out to the court that error would occur if the court permitted the State to impeach the appellant before the jury with his silence as to his alibi defense at the pre-trial hearings when the defense of alibi was not relevant to any issue before the court at the pre-trial hearings. Nevertheless, the trial court permitted such impeachment.
This is the condition in which the record of the trial below reached this court. Given the facts of this brutal, heinous crime, it is difficult to understand why the prosecutor chose to engage in such highly questionable conduct and insisted on impeaching the appellant, and why the trial judge, despite his pre-trial rulings, permitted such impeachment, endangering the conviction on appeal.
It may be argued that the jury was not likely to believe appellant’s defense of alibi, but he was entitled to have that defense presented to the jury without the inference that he had testified at earlier court hearings under oath, had an obligation to speak out, had an opportunity to do so and yet failed to relate his alibi defense. The implication was that his testimony was being advanced for the first time under oath before the jury although he had the opportunity to do so in previous court appearances. Recent fabrication was the theme of the prosecutor’s interrogation. The majority on appellant’s motion for rehearing reverses the conviction. I concur.
It may be that this court’s ruling on rehearing will be better understood if the background of the law as it has developed over the recent years is mentioned.
Under our former Code of Criminal Procedure, it was said that “[w]hen defendant takes the stand as a witness he is subject to the same rules as any other witness. 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 hearing, and the like.” 1 Branch’s Ann. P.C., 2nd ed., § 168, p. 170, and cases there cited. (Emphasis supplied.) See also Shelton v. State, 397 S.W.2d 850 (Tex.Cr.App.1965); Texas Law of Evidence, McCormick and Ray, 2nd ed., § 443, p. 381; 62 Tex. Jur.2d, Witnesses, § 205, p. 130; 98 C.J.S. Witnesses § 369, p. 121; § 370, p. 123. Thus, when an accused voluntarily took the witness stand he subjected himself to any legitimate cross-examination within the rules of evidence, any relevant inquiries about the charge against him.
And it was consistently held for many years that an accused may not take the witness stand for a limited purpose. Perez v. State, 170 Tex.Cr.R. 586, 343 S.W.2d 256 (1961); Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781 (1956); Tyler v. State, 163 Tex.Cr.R. 441, 293 S.W.2d 775 (1956); Holder v. State, 140 Tex.Cr.R. 55, 143 S.W.2d 613 (1940); Gonzales v. State, 160 Tex.Cr.R. 548, 272 S.W.2d 524 (1954); Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242 (1958); 62 Tex.Jur.2d, Witnesses, § 210, p. 140.
In Gonzales and Rubens, it was particularly established that an accused may not be permitted to take the stand for the single and limited purpose of testifying that his extrajudicial confession was not a voluntary one.
It must be remembered that when these cases were decided we had little or no pretrial hearing evidence in this state. A mo*852tion to suppress evidence was not recognized. There were, of course, examining trials and habeas corpus hearings to reduce bail, etc.
Under the influence of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964),2 this court in Lopez v. State, 384 S.W.2d 345 (Tex.Cr.App.1964), overruling Gonzales and Rubens sub silentio, held that an accused might testify for a limited purpose in a hearing conducted in the absence of the jury to determine the voluntariness of the confession. There the court said:
“Should the defendant testify at such a hearing, the cross-examination of the defendant shall be limited solely to the facts surrounding the voluntariness of the confession, and the defendant shall not be subject to cross-examination except for the limited purpose of facts involving the voluntary nature of his confession, nor shall the defendant be compelled to take the stand upon the trial of the cause upon its merits because of his testimony at this hearing.”
In Masters v. State, 545 S.W.2d 180 (Tex.Cr.App.1977), it was held that the court reversibly erred in refusing to allow the defendant to take the stand for the limited purpose of testifying on the voluntariness of his confession in a separate hearing in the absence of the jury. See Article 38.22, V.A.C.C.P.
With the advent of the 1965 Code of Criminal Procedure, Article 28.01, V.A.C. C.P., provided for pre-trial hearing procedures including a motion to suppress evidence. See Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967).
It became common for the voluntariness of a confession to be challenged by a pretrial motion to suppress rather than to delay a trial in progress by holding a hearing in the absence of the jury on the voluntariness and admissibility of the confession as mandated by Jackson v. Denno, supra.
In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,19 L.Ed.2d 1247 (1968), the Supreme Court of the United States ruled that testimony of a defendant in support of a motion to suppress evidence on Fourth Amendment grounds may not thereafter be admitted against him at trial on the issue of guilt. The basis of the Supreme Court’s ruling was that otherwise the defendant would be put to the choice of asserting his Fourth Amendment claim or exercising his Fifth Amendment privilege against self-incrimination.
Thus, where the defendant has a right to an evidentiary hearing on a motion to suppress evidence, he may take the stand and limit his waiver of his privilege against self-incrimination to that hearing. See Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1967). Cf. Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969).
In Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969), following the dictates of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), it was held that once in-court identification of the accused is sought to be introduced and the court is apprised that identification is questioned on the basis of a prior police station or lineup identification, then upon motion of defense a hearing should be held outside the presence of the jury, and should the court determine that such identification at the police station or elsewhere was violative of the United States Supreme Court mandates or of due process, then the prosecution is precluded from offering any evidence of such identification before the jury.
Here again, as with hearings to determine the voluntariness of a confession, a hearing on a pre-trial motion to suppress evidence became the accepted procedure to determine whether the in-court identification was tainted, and the defendant is often called as a witness for the limited purpose of the hearing with the understanding that his testimony at such hearing could not be *853used against him at the trial on the merits, and that by so testifying at said hearing he did not waive his Fifth Amendment privilege against self — incrimination at the trial on the merits.
Much, much more could be written about the pre-trial hearing practice and a defendant taking the stand for a limited purpose, but the above should serve as a guide for understanding of the practice.
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 case.”
The forerunners of the statute have also provided the same.
It has long been held that the inhibition of the statute was not limited or restricted to the pending trial but includes the failure of the defendant to testify at a former trial. Richardson v. State, 33 Tex.Cr.R. 518, 27 S.W. 139 (1894); Wilson v. State, 54 Tex.Cr.R. 505, 113 S.W. 529 (1908); Hare v. State, 56 Tex.Cr.R. 6, 118 S.W. 544 (1909); Brown v. State, 57 Tex.Cr.R. 269, 122 S.W. 565 (1909); White v. State, 83 Tex.Cr.R. 252, 202 S.W. 737 (1918); Lee v. State, 165 Tex.Cr.R. 113, 303 S.W.2d 406 (1957).
It was held error to permit the State, for the purpose of discrediting the defendant’s story, as being of recent fabrication, a defense brought out for the first time on the second trial and defendant’s examination, to show that the defendant did not testify at the former trial. Dorrs v. State, 40 S.W. 311 (Tex.Cr.App.1897).3
It has also been held improper for the district attorney to ask the accused whether he testified at a hearing on habeas corpus, since he had the right to testify or not at such hearing, as he saw proper, and his failure to so do was not a circumstance against him. Swilley v. State, 73 Tex.Cr.R. 619, 166 S.W. 733 (1914); Scroggins v. State, 97 Tex.Cr.R. 573, 263 S.W. 303 (1924). Further, it has been held that reference to the accused’s failure to testify in an examining trial was erroneous on the trial on the merits. Hays v. State, 101 Tex.Cr.R. 162, 274 S.W. 579 (1925); Scroggins v. State, supra, and cases there cited.
It is clear from the more recent cases that if a defendant takes the stand on a pre-trial motion to suppress evidence of a search and seizure, such as the appellant did in the instant case, his testimony at the pre-trial hearing cannot be used against him even if he takes the stand as a witness at the trial on the merits. Simmons v. United States, supra. Further, if he does not testify at a former trial or a pre-trial hearing, his silence cannot be used against him at the trial on the merits. Article 38.08, supra.
In the instant case, the appellant testified at three pre-trial hearings including a rao*854tion to suppress evidence of a search and seizure. The State did not try to use that testimony against him at the trial on the merits, but they did, over objection, use his silence or his failure to testify about his defense of alibi at the pre-trial hearings when that subject was totally irrelevant to any issue before the court at the time and was outside the scope of the hearings. Such action was a violation of Article 38.08, supra, and of due process and due course of the law of the land (Article I, § 19, Texas Constitution) and the rule of fundamental fairness. For the totally unnecessary error, I concur in the result reached. This court has no choice. Under the circumstances, the case must be reversed.
. The other opinions refer simply to “exculpatory matters” testified to by appellant but the same was part and parcel of his alibi defense, and the holding is far better understood when it is clear that the prosecutor was asking why he hadn’t produced his defense at the earlier hearings.
. See footnote 16 in Jackson v. Denno, supra.
. The dissenting opinion on rehearing cites Sanders v. State, 52 Tex.Cr.R. 156, 105 S.W. 803 (1907). Sanders held that where three prosecutions grew out of sales from the same case of liquor and on the trial of the first two cases accused did not take the stand to dispute the witness Rountree who testified accused made the sales, but on the third trial after Rountree’s death accused testified in his own behalf it was not error to require the accused to answer whether Rountree had testified on the other trials that accused sold the liquor, and whether he (the accused) had not failed to deny the statement since it was a proper method of impeaching accused’s testimony, and the statute inhibiting reference to accused’s failure to testify refers to the trial in a case in which he does not testify.
The Sanders opinion acknowledged that it was without benefit of briefs or citation of authorities, and believing the direct question had not been adjudicated (overlooking Dorrs v. State, supra, and Richardson v. State, supra), proceeded to its conclusion without citation of authority. Sanders stands alone. It has never been cited with approval by this or any other court in Texas and is in sharp conflict with the cases both before and after it interpreting Article 38.08, supra, and its forerunners. While it may never have been expressly overruled, it has been overruled sub silentio. Why the dissent relies upon such holding is not easy to understand.