¶1filed a concurring opinion
¶2in which PRICE, HOLLAND, and WOMACK JJ., join.
¶3We granted review on two issues: (1) where a witness is compelled to testify in violation of the fifth amendment, and where a witness lies under oath, should the witness’ testimony be suppressed in a subsequent prosecution for perjury, and (2) is the commission of perjury a lawful method of asserting one’s fifth-amendment right against self-incrimination. This Court says today that the answer to each question is no. I concur in the judgment of the Court.
¶4The majority appears to decide this case largely on the basis of decisions distinguishable from the instant case. See Ante, at 451 nn. 21-23. In those cases, there *453was no fifth-amendment privilege at stake, as the defendant had either voluntarily testified, thus waiving his right,
¶5In our own decision in Twiggs v. State, 75 S.W. 531 (Tex.Crim.App.1903), we overturned a perjury conviction filed after the defendant gave false testimony to a grand jury, but without being warned as to his right to remain silent as was then required by statute.
¶6In State v. Caperton, 276 Mo. 314, 207 S.W. 795, 795-796 (Mo.1918), the defendant was haled before a grand jury and compelled, under oath, to give testimony which, if truthful, amounted to a confession. He lied and was charged with perjury. The Supreme Court of Missouri reversed for the reason that the questioning was a serious violation of defendant’s constitutional right not to be compelled to testify against himself.
¶7The Supreme Court of Utah addressed a similar issue in State v. Byington, 114 Utah 388, 200 P.2d 723 (1948), overruled on other grounds, First Fed. Sav. & Loan Ass’n of Salt Lake City v. Schamanek, 684 P.2d 1257 (Utah 1984). There, the defendant was compelled by the trial judge to testify at a contempt proceeding, and his testimony was thereafter used to prosecute him for perjury. Byington, 200 P.2d at 723-724. In reversing the conviction for perjury, the Supreme Court of Utah explained:
Since he did not know that he had the right to refuse to answer[,] his only alternative was to admit his guilt or give false testimony. That persons shall not be placed in such a position is one of the purposes of [federal and state prohibitions against compelled self-incrimination]. Under such circumstances such evidence is not admissible in a subsequent prosecution for perjury otherwise the immunity from giving self-incriminating testimony would be of no value to him ... If such testimony can be used against him in a case of this kind, then his privilege against self-incrimination may be violated and he can still be convicted as a result of such violation by the court. Such was not the intention of the framers of our Constitutions.
¶8Id. at 725-726. In deciding the issue, the Byingtoncourt cited to both Capertonand Twiggs.
¶9In State v. Coleman, 137 Fla. 80, 187 So. 793 (1938), the Supreme Comí; of Florida similarly ruled that, because a defendant could not lawfully be required to testify before a grand jury investigating him for embezzlement, his compelled testimony about the embezzlement at that proceeding could not be used as the basis for a perjury prosecution. Id. at 798 (opinion on original submission).
¶10While these decisions support the decision of the Court of Appeals, I find them unpersuasive. Our decision in Twiggswas grounded in statute rather than a constitutional right. To whatever extent the foreign cases were based on federal constitutional law, they have been limited by the decision in United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977). The defendant in Wongwas advised of her fifth-amendment privilege, but she did not understand the warning due to her limited comprehension of English. She then testified before a federal grand jury and lied. Id. at 176, 97 S.Ct. at 1824. The trial court found that the defendant had not been effectively warned of her fifth-amendment privilege and also accepted her testimony that she had believed that she was required to answer all questions. Id. at 177, 97 S.Ct. at 1825. Nevertheless, the Supreme Court noted that “even the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury.” Id. at 178, 97 S.Ct. at 1826 (citing United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969)).
¶11Ms. Wong was not warned as to her fifth-amendment rights. In contrast, appellant in the instant case claimed his fifth-amendment' right to silence, but was compelled to speak in violation of that right. State v. Butterfield, at 449. However, the Supreme Court, speaking in Wong, stated, “Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them ... Indeed, even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely.” Wong, 431 U.S. at 180, 97 S.Ct. at 1827 (emphasis added, citations and internal quotation marks omitted). The Supreme Court posed that circumstance as a hypothetical, but to appellant, it was reality. Appellant had two options: (1) to maintain his silence and contest contempt findings through habeas corpus, or (2) to answer truthfully and seek to suppress his testimony, if necessary later, as being acquired in violation of his fifth-amendment right not to incriminate himself.
¶12The majority asserts that we must allow the perjury prosecution because “to hold otherwise would grant an individual unbridled discretion to lie in a court of law, with no repercussions [and t]hat cannot be the purpose or intent of the Fifth Amendment.” Ante, at 451.
Immunity under these statutes need extend only to prosecution for past crimes — not to prosecution for future crimes or for perjury or contempt in connection with the very process of making the disclosure itself ... If argument were needed, it would be sufficient merely to appeal to the terms of the privilege, which forbids that one be compelled to give evidence against himself— for the perjured utterance is not “evidence” or “testimony” to a crime but is the very act of crime itself; the compulsion is not to testify falsely but to testify truly; and the privilege by hypothesis would have been violated only if the witness had truly given self-incriminating evidence, but if he falsely exonerates himself, he has confessed no fact “against himself,” hence his privilege has not been infringed by the actual answer even though it might have been by some other answer.
¶138 WigmoRE, Evidence § 2282 (McNaughton rev.1961).
¶14For the foregoing reasons, I concur in the judgment of the Court.
¶15. Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998); United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976).
¶16. United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980).
¶17. That statute appears to have evolved into Tex.Code Crim. Proc. art. 38.22.
¶18. See also State v. Hutchison, 114 Utah 409, 200 P.2d 733 (1948) (companion case to Byington ).
¶19. On motion for rehearing, a majority of the Court decided that the defendant had waived his constitutional rights and had thus voluntarily testified; therefore, his statements could be used in the perjury prosecution against *454him. Coleman, 187 So. at 798-800 (opinion on reh’g).
¶20. In Ruggeri, the Utah Supreme Court again cited Twiggsin support of its decision, interpreting it to mean that “the court held that the testimony given before the grand jury was not admissible because the defendant was denied his privilege not to give incriminating evidence against himself even though he did not claim such privilege.” Ruggeri, 429 P.2d at 974. See also Id.at 974-975 (citing Bying-ton).
¶21. In each of the cases cited above, the compelled testimony would have directly incriminated the defendant in a criminal offense. See O’Neal, 468 P.2d at 66; Ruggeri, 429 P.2d at 970, 975; Byington, 200 P.2d at 724-725; Coleman, 187 So. at 794-795 (opinion on original submission); Caperton, 207 S.W. at 795-796, Wong, 431 U.S. at 430-431, 97 S.Ct. at 1824. In the instant case, appellant was asked for information that might lead to incriminating evidence, but that, in and of itself, was not necessarily incriminating. See State v. Butterfield, No. 03-97-00085-CR, slip op. at 4, 1998 WL 104717 (Tex.App.—Austin March 12, 1998, pet. granted). However, the Court of Appeals fouhd that his testimony was compelled in violation of his fifth-amendment right (id.), and the State does not dispute this finding.
¶22.If the Court of Appeals had determined that there had been no constitutional violation, then a subsequent prosecution for perjury would unquestionably be permitted. Thus, a defendant would not have even a hypothetical "unbridled discretion to lie” unless he was *455forced to testify in violation of his right not to incriminate himself.
¶23. 8 Wigmore, Evidence § 2282 (McNaughton rev.1961).