dissenting.
Before stating my grounds for dissent, and without excessive emphasis, I call attention to one statement in the majority opinion that may lead some to misconstrue that opinion in one respect. Although the majority state that Officer Airhart testified regarding the complained of statement “without objection,” this should not be construed as holding that Article 38.22, V.A.C.C.P., issues may be raised whenever there is no objection. The majority also point out that appellant objected and secured a ruling in a hearing outside the presence of the jury when the matter first arose. The issue was preserved under Article 40.09(6)(d)(3), V.A.C.C.P.
I will now state my grounds for dissenting to the majority’s disposition of the issue upon which the judgment is reversed.
In his second ground of error appellant contends the trial court erred in admitting over timely objection a prior statement made while in custody. This was a volunteered exculpatory oral statement made after his arrest and warnings of constitutional rights, and offered for the purpose of impeaching appellant’s alibi defense and his denial of having made the volunteered exculpatory statement. No issue of voluntariness 1 is present in this case, and, although no statutory or case authorities are cited by appellant, he apparently relies on Art. 38.-22, Sec. 1, V.A.C.C.P.2 The exculpatory statement is not a confession, and therefore is not within the ambit of Article 38.22, Sec. 1, supra.
In Butler v. State, 493 S.W.2d 190, the Court confronted a similar situation. In that case, after a review of the legislative *815history of the confession statutes, the Court reached a conclusion on the legislative policy underlying those acts:
“Thus, the legislature has made a statutory determination that proof of extrajudicial oral confessions made while in custody are generally unreliable.” (Emphasis added) Butler v. State, 493 S.W.2d at 193.
Butler also stands for this second significant proposition:
“For over seventy-five years, the law in Texas has been that a confession, inadmissible in the State’s case in chief, is not admissible for the purpose of impeaching an accused as a witness in his own behalf.” (Emphasis added) Butler v. State, 493 S.W.2d at 193.
For these two propositions, Butler is still sound authority.3
Beyond these two firmly established rules, Butler examined the “continuing conflict in the cases as to whether exculpatory statements are included within the confession statute . . . .” 493 S.W.2d at 196. In reviewing decisions on the matter, it was demonstrated that the authorities indeed are in conflict. Among the cases holding exculpatory statements within the ambit of the statute are Hernan v. State, 42 Tex.Cr.R. 464, 60 S.W. 766 and Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163. Among the cases holding exculpatory statements not within the ambit of the statute are Whorton v. State, 69 Tex.Cr.R. 1, 152 S.W. 1082; Mason v. State, 74 Tex.Cr.R. 256, 168 S.W. 115, and Terry v. State, Tex.Cr.App., 420 S.W.2d 945. Thus, the winds of change have swept over this issue on repeated occasions in the past.
In Butler, however, “The oral statement used for impeachment was not an exculpatory one.” 493 S.W.2d at 196. The oral statement used for impeachment in the case at bar was exculpatory. At trial appellant testified to an alibi at the time of the shooting. In his volunteered statement, unsolicited and not in reply to any questions, appellant related to the arresting officer during the ride to the police station that while he was cleaning the gun it accidentally discharged, striking the deceased. Today the question is again squarely presented, of whether an exculpatory statement is within the ambit of Article 38.22, Sec. 1, supra.
We should hold that a wholly exculpatory statement, such as the one in this case, is not a confession, and overrule Butler v. State, supra, to the extent of its conflict with that proposition. It is not necessary to enter upon a lengthy discussion of why an exculpatory statement is not a confession or of why a denial is not an admission. That one is not the other is plain from the words. If a detailed explanation is desired, one may be found in Whorton v. State, supra, and Mason v. State, supra, both of which are quoted at length in the opinion of Judge Prendergast in Dover v. State, 81 Tex.Cr.R. 545, 197 S.W. 192. Article 38.22, Sec. 1, supra, and its predecessors, by the very language used, address confessions, not exculpatory statements.
The majority rely on two ill-founded positions to hold the exculpatory statement within the ambit of Art. 38.22, Sec. 1, supra. First, the majority quote Art. 38.22, See. 2, supra, and emphasize the repeated use of the phrases “confession or statement” and “statement or confession” as evidence of legislative intent to draw no distinction between confessions and exculpatory statements. The use in section 2 of two distinct terms, “confession” and “statement,” indicates that the Legislature did not consider them synonymous or identical in scope. The issue in this case, furthermore, is not one of the voluntariness of a statement under Section 2, but rather, one of the admissibility of a confession under Section 1. Reliance on the language of Section 2 is misplaced.
Second, the majority rely on the failure of the Legislature to disapprove the interpretation given Art. 38.22, supra, in Butler v. State, supra, as approval of that interpretation. That position is unpersuasive because the Legislature has consistently failed to show disapproval of this Court’s con*816struction of the statute despite repeated changes in that construction, as pointed out above and in Butler. Compare Hernan and Lightfoot with Whorton, Mason, and Terry, all supra. Furthermore, legislative disapproval of the Butler construction is beside the point because, as acknowledged by the majority, “In Butler, we specifically declined to decide if Art. 38.22 embraced exculpatory statements.” (Majority opinion, at 812, 813). Because Butler did not decide the issue presented here, the Legislature’s failure to act has no significance.
I would overrule the ground of error and affirm the judgment.
ROBERTS, J., joins in this dissent.. Cf. Art. 38.22, Secs. 2 and 3, V.A.C.C.P.
. This article was significantly changed by Acts 1977, 65th Leg., ch. 348, p. 935. The amendment does not apply to this case.
. But see note 2, above.