ON STATE’S MOTION FOR REHEARING
DOUGLAS, Judge(dissenting).
The majority overrule the State’s motion for rehearing. The conviction was reversed because appellant was not allowed to prove before the jury that the special prosecutor James had told counsel for the accomplice witness Whitehurst that he would not be prosecuted even though this was not communicated to the witness. While I agree with practically everything that was said in the original dissent, my views are set out below:
The record shows that this is a case where the appellant, Dr. Burkhalter, hired the accomplice witness Del Monte White-hurst and others to kill Dr. Burkhalter’s partner, Dr. Pendleton. There had been some personal difficulties between the two doctors and Dr. Burkhalter was to benefit from an insurance policy on the life of Dr. Pendleton.
The majority based the reversal upon the case of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104. In that case there was a direct agreement with the accomplice witness Taliento to grant him immunity. In the present case all the testimony in the record at the trial and on the motion for new trial shows that there was no communication or agreement with the *222witness Whitehurst that he would not be prosecuted. These two fact situations are quite different.
How would statements between counsel affect the credibility of a witness who had not heard nor been informed about the conversation? No fact issue was made. Giglio v. United States, supra, was reversed because there was an agreement, or at least an affidavit by a prosecutor, that there was a direct agreement with the witness that immunity would be granted him if he testified.
The majority, in reversing the conviction in the present case, stated: “Arguably, the Giglio opinion has no application in the present case, since there is no showing that the prosecutor ever spoke directly with or conveyed to Whitehurst a direct promise that he would not be prosecuted if he testified for the State.”
The majority in the above quote have made the obvious distinction and by omitting the word “arguably” the statement would be entirely correct.
In the next paragraph the majority state that they would not agree that the Giglio decision turned on this point. This statement is correct because the fact situation in the present case was not before the Supreme Court when it handed down the Giglio decision.
The majority state:
“We find it unrealistic to draw a line between an outright promise not to prosecute and a very real inference not to prosecute.”
and
“The suggestions and innuendos in the present case bring appellant within the rule announced in Giglio.”
Then the majority, using the testimony about the attorney Green who, this record shows, had no authority to make any promise to Whitehurst, offered to have defense counsel in the present case defend him if he would claim immunity in open court.
Surely, it must have struck the trial judge as unusual, to say the least, that a lawyer without being sent for and who vyas in an apparent violation of the code of ethics would go to the jail and offer the services of appellant’s counsel in the present case to Whitehurst in his future trials.
Counsel for the defense have not attempted to show that this attorney who visited Whitehurst was sent by the prosecution, nor have they shown that defense counsel did not send him so that they might argue before the jury about what occurred.
Cannot some sort of an inference be reached when any co-defendant testifies for the State against a defendant ?1 Does it not follow from the majority opinion that in each case where a co-defendant testifies for the State that no promises have been made him, that a defendant can then call the assistant district attorney trying the case, the first assistant district attorney, the district attorney and perhaps other prosecutors to determine if the prosecution intended to dismiss charges or grant immunity ? This would be analogous to the present situation though no promise had been made. The defense could explore the minds of those in the district attorney’s office to determine their future plans because the innuendos or inferences would be there.
The majority state that they appreciate the State’s position that there was no false evidence here since Whitehurst did not know he would not be prosecuted. Then it is stated, “Even if we assume this ignorance, arguendo, we find that the prosecutor’s silence as to the plan not to prosecute conveyed an impression to the jury which the State knew to be false and one which should have been corrected.” It has always been the rule that when witnesses *223testify before a trial judge, it is his and not this Court’s function to decide their credibility. There is nothing for this Court to assume. The witnesses at the trial, outside the presence of the jury, and on the motion for new trial, were heard by the trial judge. He saw and heard the witnesses and observed their demeanor on the stand. He apparently believed them, because he did not grant a new trial.
Again, referring to the example where the prosecutor in his mind had decided not to prosecute a co-defendant witness for the State who testifies that he expects to be prosecuted: Does the prosecutor then and there have to inform the jury that he does not expect to prosecute to keep from leaving a false impression before the jury?
The majority quote from Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959): “A lie is a lie, . . .” That case holds that the district attorney has a duty to correct what is false. In the present case no lie or false testimony has been shown. No correction was required; no fact issue created.
It was shown that Whitehurst was an ex-convict. He had served sentences in New Mexico and in Texas. He obtained the “trigger man” and helped carry out the murder in the present case. There is no doubt that he hoped to obtain leniency and just as much as the State would recommend, but still there is no proof that leniency or immunity was offered to him. It does not take much logic or common sense for anyone to realize that he was not going to incriminate himself unless he thought his chances for at least some leniency was good. Jurors have common sense and they no doubt thought Whitehurst was testifying in an effort to help himself. They heard the evidence that he had been convicted before. They could and probably did infer that he wanted to help himself.
If there was any doubt that the jury did not have this in mind, it was erased when counsel for the defense argued that one must wonder if the charges against White-hurst will be dismissed and if he would go “scot free” and “one must wonder if he succeeded in his effort to earn advantage for himself.”
No constitutional or statutory right was denied the appellant. This reversal is apparently on some new rule or concept that proof to disprove an innuendo or suggestion on a collateral matter must now be admitted even though all of the direct evidence is to the contrary.
This Court has always permitted impeachment of a witness on what he says and what he does to show bias or interest. See Jackson v. State, Tex.Cr.App., 482 S.W.2d 864. No prior inconsistent statement is shown in the present case. The rules for impeachment because of a prior inconsistent statement are clear, but by what rules may one impeach an innuendo or a “very real inference not to prosecute?”
For the above reasons, the State’s motion for rehearing should be granted and the judgment affirmed.
. 1C. McCormick & R. Ray, Texas Evidence, Section 673 (2d ed. 1956).