dissenting.
The record reflects that Raymond Edward Coffey, henceforth appellant, was convicted by the jury of causing injury to a child, Christopher Kalmbach, who was then 2V2 years old, which occurred as a result of asphyxia due to aspiration of a foreign substance, namely, ground pepper, or, to put it another way: The 214 year old Christopher died from aerial obstruction caused by the clots and clumps of ground pepper in his throat and lungs.
Patty Kalmbach, the natural mother of Christopher, who was appellant’s live-in girl-friend, was also charged with the same offense but by separate indictment.
It appears to me that other than cite the reader to a few more cases than the court of appeals did, which I find are not on point, and thus will not distinguish them, the majority opinion merely “echoes” what the Houston First Court of Appeals stated when it overruled appellant’s contention that it was improper for the trial judge in this cause to force Kalmbach, the mother of the 2% year old victim, to verbalize her *181refusal to testify for the State in the jury’s presence, notwithstanding that it was conclusively shown out of the jury’s presence that she was not going to testify for the State in the jury’s presence. See Coffey v. State, 744 S.W.2d 235 (Tex.App.—Houston [1st] 1987).
The majority opinion, like the court of appeals did, holds that because Kalmbach had been granted “use” immunity1 she did not have a valid basis for refusing to testify in the jury’s presence, and thus it was not error for the trial judge to force her to verbalize her refusal to testify in the jury’s presence, notwithstanding that it was conclusively shown that Kalmbach was not going to testify in the jury’s presence.
The majority opinion also holds: “To the extent that the State could have sought to compel Kalmbach’s testimony, in lieu of allowing her to assert a non-existent privilege, appellant was not unfairly prejudiced.” I must ask: If it was not error, then what difference does it make whether appellant was or was not unfairly prejudiced?
The State’s response to appellant’s contentions regarding the trial judge’s actions is the following: “Since [the mother] no longer had a privilege [not to testify], the State was entitled to call her as a witness, to question her, and to comment upon her failure to answer questions.” (Page 11 of State’s Appellate Brief.) I find it rather interesting that at no time does the State ever attempt to justify, by either case law, logic, or common sense, where it has been conclusively shown out of the jury’s presence that the witness will not testify in the jury's presence, that it should still be permitted to call the witness in the presence of the jury and force the witness to refuse to testify in the jury’s presence. Again, from this record, as far as I can tell, the following is the only justification that the State has offered to date for the trial judge’s actions: “Since Patty Kalmbach no longer had a privilege, the State was entitled to call her as a witness, to question, and to comment upon her failure to answer questions....” (Page 11, State’s Appellate Brief.) This, of course, under the circumstances of this case, is no legal justification for the trial judge to have forced Kalmbach to verbalize her refusal to testify in the jury’s presence.
The record reflects that pursuant to the State’s request, which was made during appellant’s trial, but out of the jury’s presence, the trial judge granted Kalmbach “use” immunity. Thereafter, notwithstanding this grant of immunity, or the threat of being held in contempt of court if she refused to testify, except for stating in the jury’s presence her name and how her last name was spelled, Kalmbach refused to testify in the jury’s presence for the State because, as she demonstrated outside the jury’s presence, she believed that such would have tended to incriminate her.2
*182After the trial judge made it clear to everyone that he had granted Kalmbach “use” immunity, Kalmbach’s attorney then informed her, inter alia, that if she refused to testify the trial judge probably would find her guilty of contempt of court, which he did.
Outside of the jury’s presence, after the trial judge granted Kalmbach “use” immunity, the prosecutor then attempted to question Kalmbach, but, except for stating her name, the fact that none of her children then lived with her, and the fact that she was the mother of the 2lk year old victim, she refused to answer the prosecutor’s questions, “under the grounds that it’s going to incriminate me against my rights of the Fifth Amendment of the Constitution of the United States, I refuse to answer that question.”
I find that appellant’s present counsel is quite correct when he stated the following in the petition for discretionary review that he filed on behalf of appellant: “[By this time it was] crystal clear that [Kalmbach] did not intend to testify before the jury.” (Page 1, Appellant’s Petition for Discretionary Review.)
Thereafter, but out of the jury’s presence, Kalmbach was held in contempt of court by the trial judge for refusing to answer the prosecutor’s questions.
After the jury was returned to the courtroom, and over objection, the prosecutor called Kalmbach to testify in the jury’s presence, but, except for stating her name and how her last name was spelled, Kalm-bach continued to refuse to testify. The prosecutor later during the trial, again in the jury’s presence, and again over objection, twice more called Kalmbach to testify for the State, but she again refused to testify for the State.
Contrary to the majority opinion, I am unable to state, without any reservations, that the jury did not draw a negative inference to appellant from Kalmbach’s verbally expressing in the jury’s presence her refusal to testify for the State, although, of course, I cannot conclusively state what that negative inference might be. The majority opinion states: “A jury may consider an invocation of a Fifth Amendment privilege under some circumstances.” (Page 4 of slip opinion.) Unfortunately, all of the cases that the majority opinion cites and discusses in support of its statement are not on point to the issue before this Court to resolve.
What the majority opinion overlooks is the rule that fits this situation. When, out of the jury’s presence, Kalmbach made it clear to everyone that she was not going to testify for the State, she then became an “unavailable” witness for the State: “If a witness simply refuses to testify, despite the bringing to bear upon [her] of all appropriate judicial pressures, the conclusion that as a practical matter he is unavailable can scarcely be avoided, and that is the holding of the great weight of authority.” (Footnote and citations omitted.) McCormick on Evidence, 2nd Ed., at page 612.
Thus, it would have been proper for the State, to account for Kalmbach’s absence as a witness for the State, to have put on evidence in the jury’s presence why Kalm-bach was not called by the State to testify for the State. See and compare what occurred in Bodde v. State, 568 S.W.2d 344, 351-352 (Tex.Cr.App.1978). For further discussion of the above rule, and examples of valid reasons why the prosecution was entitled to explain to the jury why a particular witness was absent when called to testify for the State, see 2 Wigmore, Evidence in Trials at Common Law (1979 edition), § 290.
In this instance, just as occurred in Bodde, supra, it would have been permissi*183ble for the trial judge to have allowed the State to put on the prosecuting attorney or a proper witness who had personal knowledge of the fact that notwithstanding the fact that the trial judge granted Kalmbach “use” immunity, she still refused to testify for the State. Of course, such witness would have been subject to the usual rules that govern cross-examination of a witness.
For all of the above reasons, I respectfully dissent to the majority’s holding that the trial judge did not err in forcing Kalmbach to verbalize her refusal to testify for the State in the jury’s presence.
. For a brief discussion of the two types of immunity, "use” and "transactional,” see 3 Texas Criminal Practice Guide, § 70.04. "Use” immunity, which was granted Kalmbach in this cause, "conveys immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony_” Id., § 70.04[2][b].
. It is now axiomatic that "a person may be compelled to testify if he or she is given protection against self-incrimination that is coextensive with that granted by the Fifth Amendment.” 3 Texas Criminal Practice Guide, § 70.04[1]. I pause to point out that the State's request to the trial judge to grant Kalmbach "use” immunity did not cover "the consequences of the transaction,” but was limited to "truthful" testimony, no matter how much or how little such related to Kalmbach’s culpability to the charged offense. Kalmbach’s attorney objected to the State’s request, incorrectly asserting that "under the laws of this State the only immunity which may be offered and approved by the Court is transactional immunity.” Counsel told the trial judge that he had “instructed [Kalmbach] accordingly, [and] also [had] instructed her not to testify prior to the granting of immunity by the Court ... I object and ask the Court to require the State to offer transactional immunity rather than use immunity.” The trial judge overruled the objection, denied the attorney’s request, and granted the State's request, to the extent of any testimony that Kalmbach might give during appellant’s trial, “and in all criminal proceedings had [in this jurisdiction or any other jurisdiction] after the date of entry hereof, but [such grant of immunity] does not extend to the offense of perjury or aggravated perjury committed during such testimony, [nor for contempt of court].” The indictment that was then pending *182against Kalmbach was not dismissed. However, the trial judge told Kalmbach: "At a later trial concerning yourself as the accused, of course, your right against self-incrimination would stand at that time. You will have the right not to testify at that time. Do you understand that?,” with Kalmbach responding: "Yes, sir.” Appellant did not argue in the court of appeals, nor does he argue in this Court, the fact that the indictment against Kalmbach was not dismissed, and was pending when she made known to the trial judge out of the jury's presence that she was not going to testify for the State, affected her decision not to testify for the State in the jury’s presence; therefore, it is not necessary to discuss that issue.