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Click here for the full text of this decision FACTS:The appellant argues that the trial court erred in 1. permitting the prosecutor to cross examine him about his post-arrest silence; 2. permitting the prosecutor to elicit rebuttal testimony about his post-arrest silence through Detective James Fitzgerald; and 3. overruling the appellant’s objections to the prosecutor’s comments on his post-arrest silence during final argument in the guilt-innocence stage of trial. HOLDING:Affirmed. The appellant contends that the trial court erred in allowing the state to refer to appellant’s post-arrest silence in violation of Article I, 10 of the Texas Constitution. The state, however, urges that appellant did not preserve error because his objections at trial were based solely on the Fifth Amendment. The Fifth Amendment of the federal constitution protects post-arrest silence made only after Miranda warnings have been given. Article I, 10 of the Texas Constitution, however, protects a defendant’s post-arrest silence even before such warnings have been administered. Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986). Thus, in the present context, the trial judge properly overrules an objection based on “the Fifth Amendment.” An objection referring specifically to the Texas Constitution or the Sanchez case, however, pointing out that this court has barred the use of post-arrest, pre-Miranda statements to impeach a testifying defendant, would be an entirely different matter. While it is true that the court’s discussions in Cantu v. State, 994 S.W.2d 721 (Tex. App. Austin 1999, pet. dism’d), and Barnum v. State, 7 S.W.3d 782 (Tex. App. � Amarillo 1999) are dicta, the cases give support to the notion that presenting a claim based solely on federal grounds will not suffice to put the court on notice to claims based on state grounds, unless the state ground is apparent from the context. An analogy can be made using the Fourth Amendment and Article 38.23 of the Texas Code of Criminal Procedure. In one case dealing specifically with the Fourth Amendment and Article 38.23, Nelson v. State, 607 S.W.2d 554 (Tex. Crim. App. 1980), the defendant filed a motion to suppress in which he relied exclusively on federal constitutional rights. In holding that only the federal claim was preserved for review, the court reasoned that “neither the motion to suppress nor trial objection invoked the laws of this State; rather, [defendant] sought only that protection provided by federal constitutional law.” Appellant’s case can be compared to Nelson. Appellant relied solely on federal grounds, citing only the Fifth Amendment in almost every objection. Due t 1. the lack of time-specific questions by the prosecutor; 2. counsel’s failure to cite to the state constitution or even specify that he was objecting to post-arrest silence; 3. and the lack of commentary by the judge in making his rulings on the objections, the court holds that appellant did not preserve error on any of the grounds he presents for review. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Womack, Keasler, Hervey, and Cochran, JJ., join. Johnson, J., filed a dissenting opinion, in which Price, and Holcomb, JJ., join. DISSENT:Johnson, J., filed a dissenting opinion, in which Price and Holcomb, JJ., join. “I respectfully dissent. The prosecution made repeated references to appellant’s failure to protest his innocence. While some of those comments arguably referred to appellant’s pre-arrest silence, the majority of them clearly pertained to time periods after appellant had been arrested.”

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