concurring in part and dissenting in part.
Our holdings in Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975), and Sherman v. State, 532 S.W.2d 634 (Tex.Cr.App.1976), stand for the proposition that where an accused alleges that his confession was coerced, someone who was present when the alleged coercive acts took place must take the stand and refute the allegations of the accused; that if none who were present are called by the State, their absence must be explained; and that if neither of the above occurs, the allegedly coerced confession is inadmissible as a matter of law.
In the cases at bar, FBI agent Thomas did not testify that he was present when the Louisiana officers allegedly beat appellant Donald Elliot Smith. He was not in the car when this was alleged to have occurred, nor was he at the jail where subsequent beatings were alleged to have occurred. The Louisiana officers who allegedly beat Donald Elliot Smith were not called to refute this appellant’s allegations, nor was their absence explained. Consequently, Donald Elliot Smith’s confession was inadmissible as a matter of law.
There is no difference in the fact situation between the two appellants’ cases as far as fulfilling the requirements of Farr and Sherman. Therefore, I dissent to the affirmance of Donald Elliot Smith’s conviction and concur in the reversal of Louis Albert Smith’s conviction only because I feel both convictions should be reversed. I do not imply by my concurrence that I am part and parcel of the majority’s illogical decision today.
The appellants were tried jointly. Both appellants’ primary contention was that the trial court abused its discretion in admitting their confessions into evidence because such confessions were shown to be involuntarily given and such showing was insufficiently rebutted by the State. Farr and Sherman dictate that this ground of error be sustained in both causes and that they both be reversed.
The issue is whether the confessions should have been admitted into evidence by the trial court.1 A lengthy Jackson v. Den-*16no2 hearing was held, during which each appellant took the stand for the limited purpose of challenging the voluntariness of his confession. Henson v. State, 452 S.W.2d 448 (Tex.Cr.App.1970).
Appellant Louis Albert Smith testified to numerous acts of physical abuse and coercion that he was allegedly subjected to by members of the New Orleans city police from the time he was initially apprehended in New Orleans and put in the New Orleans House of Detention until he was visited by the FBI agents who ultimately took his alleged voluntary confession. He further testified that he was told by the New Orleans police officers that he would have to plead guilty and that he was going to keep getting the “same treatment” until he did.
The State called FBI agents P. M. King and B. S. Thomas. They testified that the appellant Louis Albert Smith appeared to be proceeding voluntarily in the confessions he gave them on June 5th and June 6th, 1973. However, they testified that they had no personal knowledge of what, if anything, was done to the appellant between the date of his arrest on May 29, 1973, and June 5, 1973, the date the first statement was taken from the appellant.
Appellant Louis Albert Smith also testified to alleged acts of physical coercion by the New Orleans police during the period between the statements he gave the FBI agents on June 5, 1973, and June 6, 1973, respectively.
None of the New Orleans police officers were called to refute appellant’s testimony concerning the alleged acts of physical coercion. Nor was their absence explained. No one present at the New Orleans House of Detention between May 29, 1973, and June 6, 1973, testified in rebuttal to appellant’s claim of physical coercion.
Appellant Donald Elliot Smith testified that he was arrested near Slidell, Louisiana by officers of the Saint Tammany Parrish, Louisiana, Sheriff’s Department. After his arrest, Smith was taken to the Saint Tammany Parrish jail. After spending approximately two days there, he was sent to Jackson, Mississippi, where he was interviewed by Texas Ranger Joe Davis. Appellant gave Ranger Davis a written confession at that time.
Appellant Donald Elliot Smith also testified to numerous acts of physical violence and coercion allegedly perpetrated upon him by officers of the Saint Tammany Sheriff’s Department while being held at the jail. These acts of coercion allegedly occurred from the time of his arrest until the time he was transported to Jackson, Mississippi, where he met with Ranger Davis. Specifically, appellant alleged that in the automobile on the way to the jail the officers riding in the automobile with him hit him, kicked him and bent his fingers back while telling him, “You’re going to talk; we’re going to get everything from you; we’re going to know everything you did; you’re going to tell us everything.” *17Agent Thomas did not testify that he was in the automobile when this occurred. No one present in the automobile at that time was called. The absence of such witnesses was not explained. Donald Elliot Smith alleged that he was also beaten at the jail. Agent Thomas did not testify that he was at the jail when this occurred. No one from the jail was called, nor was their absence explained. If we accept appellant Donald Elliot Smith’s allegations as true, and we must under Farr, supra, and Sherman, supra, it is easy to see why FBI agent Thomas was of the opinion that appellant Donald Elliot Smith’s first oral confession to him was at the appellant’s invitation and on appellant’s initiative and why he also felt that the appellant seemed eager to talk at the subsequent interview.
Ranger Davis testified that he warned appellant Donald Elliot Smith of his constitutional rights and that after doing so appellant indicated that he still wanted to make a statement. Davis further testified that appellant appeared to be proceeding voluntarily, but had no knowledge of what, if anything, was done to the appellant by other law enforcement officers connected with this case.
The State also called Ed Brown and Ernest Gallat, deputy sheriffs from Caldwell County, .Texas. They testified that they accompanied Ranger Davis to Jackson, Mississippi, to take the confession of appellant Donald Elliot Smith. They corroborated Ranger Davis’ testimony that appellant had been warned of his constitutional rights and appeared to be proceeding voluntarily. However, they also testified that they lacked personal knowledge of what, if anything, was done to the appellant by the law enforcement officers who held the appellant prior to their meeting with him in Jackson, Mississippi.
None of the officers of the Saint Tammany Sheriff’s Department who allegedly physically coerced appellant Donald Elliot Smith into ultimately giving his confession, nor anyone present at the Saint Tammany Parrish jail while appellant was being held there, were called to testify in rebuttal to appellant Donald Elliot Smith’s allegations. Nor was their absence explained.
In Farr, supra, the interrogating officer testified that he read the defendant his rights, which were willingly waived, and then proceeded to take his confession. The officer further testified that he observed the defendant’s demeanor and the defendant did not appear agitated. However, the officer admitted that he had no personal knowledge of anything which took place before the defendant was brought to the station for interrogation. This left uncon-tradicted the defendant’s prior allegations of physical coercion and threats.
We held in Farr that: “It has long been the law of this State that whenever the testimony of the accused as to alleged coercive acts is undisputed, then as a matter of law the confession is inadmissible.” Id., at 880. We further stated that: “Had the police officers testified and denied any coercion or someone present at the incident denied any use of force, thus contradicting appellant’s testimony, the trial judge as trier of fact could have determined the confession to be voluntary.” Id., n. 4. (Emphasis added).
In Sherman, supra, the defendant testified that he signed his confession only because one of the interrogating officers had told him he would receive the death penalty if he didn’t. This officer was not called to refute such allegations and his absence was wholly unexplained. Other officers who did testify could not deny the defendant’s allegations because there was no showing that they were present when the statements were allegedly made.
We followed Farr, and held that the State failed to fulfill its burden of showing that the defendant’s confession was voluntary. However, we further stated that:
“It should be understood that if the State had presented a reasonable explanation of Cochran’s (the interrogating officer) failure to testify, such as his death or their inability to locate him, the trial court would have been free to disbelieve appellant’s testimony. When the State neither placed Cochran on the stand nor *18explained his absence, the obvious inference is that he did not testify because he could not deny appellant’s allegations. (Citations) No such inference could be made, however, if there were an explanation of the absence of the witness.” Sherman, at 636, n. 2.
In the cases at bar, the State has not fulfilled its burden of showing that either of appellants’ confessions were voluntarily given. Consequently, the trial court abused its discretion in admitting them into evidence.
Although I would reverse both appellants’ convictions because of this, I am not unmindful of other|; evidence in the record which would support their convictions notwithstanding the erroneous admission of their confessions. However, the Supreme Court of the United States has mandated that:
“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, (citation), and even though there is ample evidence aside from the confession to support the conviction. (Citations).” Jackson, supra, 378 U.S. at 376, 84 S.Ct. at 1780.
This rule has been followed by lower federal courts and courts of our sister states on occasions too numerous for citation. I can only conclude that it must be regarded as a rule so basic to a fair trial that its infraction can never be treated as harmless error.3 Chapman v. California, 386 U.S. 18, 23, n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Payne v. Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).
The judgments of the trial court should both be reversed and both causes should be remanded.
. In this regard I note that the jury was instructed not to consider the confessions unless they were found to be voluntary beyond a reasonable doubt. This instruction should not have been given, since there was insufficient evidence to support it: The only testimony on the issue of voluntariness came from the law enforcement agents who took the confessions and who were not alleged to have engaged in any of the alleged acts of coercion. See, Sher*16man v. State, supra, and Farr v. State, supra. The appellants did not testify, nor did they put before the jury any evidence to raise the issue of the voluntariness of their confessions.
Thus, there was no evidence of probative value before the jury from which it could find that the confessions were or were not voluntary. Consequently, the case is in the same position as if no charge had been given, and this Court is “limited to the admissibility of the confession(s) as a matter of law.” Morris v. State, 488 S.W.2d 768, 772 (Tex.Cr.App.1973). Accord, Taylor v. State, 498 S.W.2d 346 (Tex. Cr.App.1973).
However, I emphasize that this reasoning does not apply in those situations where the trial court exercises its discretion under Art.
38.22, Vernon’s Ann.C.C.P., and admits evidence before the jury on the fact issue of volun-tariness. In such a case the accused does not waive the right to have the jury’s determination on voluntariness supported by sufficient evidence simply because he fails to take the stand and testify on the voluntariness of his confession. The failure of the accused to testify before the jury on the issue of voluntariness may be based upon wholly valid reasons other than the fact that he has no evidence to present. See, Jackson v. Denno, 378 U.S. 368, • 389, n. 16, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
. This conclusion only applies, however, to the type of confession we are dealing with in the case at bar — the “coerced” confession. I note that there is a difference between the genus of unlawfully obtained confessions and the species of unlawfully “coerced” confessions. Smith v. Estelle, 527 F.2d 430, 431 (5th Cir. 1976). While the former may be subjected to the harmless error rule, Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), the latter may not. Jackson, supra; Chapman, supra; Payne, supra; Smith (and cases there cited), supra.