Sanchez v. State

¶1OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

¶2Appellant was charged by indictment with the offense of murder. Trial was before a jury and appellant was convicted of the lesser included offense of voluntary manslaughter; punishment was assessed by the jury at twenty years in prison and a fine of $10,000.00.

¶3Appeal was taken to the Corpus Christi Court of Appeals. Appellant asserted six grounds of error, all of which were overruled by the Court of Appeals. Sanchez v. State, 622 S.W.2d 491 (Tex.App. — Corpus Christi 1981). Appellant petitioned to this Court for discretionary review concerning his third ground of error in which he asserted that the trial court erred in allowing the State’s attorney to question appellant about his silence while in custody. The Court of Appeals had concluded that the complaint was not properly before them for review because no objection was made to the prosecutor’s question. We granted appellant’s petition, examined the record and concluded that an objection to the complained-of question was in fact made; we then remanded the case to the Court of Appeals for reconsideration of appellant’s third ground of error. Sanchez v. State, 628 S.W.2d 780 (Tex.Cr.App.1982). On remand, the Court of Appeals again overruled appellant’s third ground of error and affirmed the judgment of the trial court, Sanchez v. State, 655 S.W.2d 214 (Tex.App.1982) in a published opinion. Appellant again sought discretionary review in this Court, which we granted on the issue of whether the trial court erred in permitting the prosecutor to question appellant about appellant’s post-arrest silence.

¶4The facts regarding the questioning are as follow. Appellant, while testifying on direct examination in his own behalf, admitted stabbing the victim when it appeared to appellant that the victim was reaching for a weapon. On cross-examination, and after timely objection, the prosecutor was permitted to ask appellant whether, after his arrest and while in custody, he had told the *577arresting officer that the victim was reaching for a knife or gun. Appellant responded that he had not discussed the case with the officer. The record does not indicate that appellant had received Miranda1 warnings during the time in which he remained silent after his arrest.

¶5Before the Court of Appeals, appellant argued that the trial court erred in allowing the prosecutor to question appellant concerning his post-arrest silence, citing the United States Supreme Court holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).2 The Court of Appeals rejected this contention, finding that Doyledid not apply: “Without a showing that appellant had received Miranda warnings at the time inquired about by the prosecutor we are unable to apply the holding in Doyle v. Ohio.’’ The Court of Appeals added that, based upon Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982),3 no violation of' due process was shown.

¶6As a general rule, when a defendant voluntarily takes the stand before the jury, he is subject to the same rules as any other witness in that he may be impeached, contradicted and cross-examined as to new matters. Williams v. State, 607 S.W.2d 577, 578 (Tex.Cr.App.1980); Ayers v. State, 606 S.W.2d 936, 939 (Tex.Cr.App.1980). Where there are overriding constitutional or statutory prohibitions, however, the defendant may not be treated as just another witness. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Sensabaugh v. State, 426 S.W.2d 224 (Tex.Cr.App.1968).

¶7The United States Supreme Court presented an example of federal constitutional prohibitions in Doyle. The Court held that a defendant could not be impeached concerning his failure to relate exculpatory matters to officers after he had been arrested and after he had been advised of his Miranda warnings. The Court based its decision upon two factors. First, since the required Miranda warnings are a prophylactic means of safeguarding an arrestee’s Fifth Amendment rights, silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these rights. Second, inherent in the Miranda warnings is an implicit assurance that an arrestee’s silence will not be used against him in violation of due process. The Court stated:

“[Wjhile ⅛ ⅛ true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”

¶8Doyle, supra,426 U.S. at 618, 96 S.Ct. at 2245. Thus, impeachment of an arrestee by the use of post-arrest, post-Miranda silence violates the arrestee’s privilege against self-incrimination and his right to due process under the federal constitution.

¶9The Court’s holding in Doylewas modified in Fletcher, cited as authority by the Corpus Christi Court of Appeals. In Fletcherthe prosecutor cross-examined the defendant as to why the defendant had, when arrested, failed to advance his exculpatory explanation to the arresting officers. The record, however, failed to establish that the arresting officers had given the defendant his Miranda rights, just as in the instant case. The Supreme Court held that:

“In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post-arrest [pre-Miranda ] silence when a defendant chooses to take the stand. A *578State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest [pre-M-randa ] silence may be deemed to impeach a criminal defendant’s own testimony.”

¶10Fletcher, supra,102 S.Ct. at 1312. The Court apparently applied only the second Doylefactor, found that impeachment by the use of post-arrest, pre-Miranda silence did not violate federal due process, and left the decision as to what extent such impeachment is proper under state law to the States.

¶11We are now called upon to resolve the question left for state determination by the Supreme Court: to what extent may a defendant’s post-arrest, pr e-Miranda silence be used to impeach the defendant with regard to exculpatory matters he or she testifies to at trial.

¶12An examination of caselaw provides a ready answer to the question left to us by the United States Supreme Court. Based upon at least two rationales, a defendant’s post-arrest silence may not be used against him at trial. First, such use would violate the accused’s right to be free from compelled self-incrimination under Art. I, § 10, Texas Constitution. Redding v. State, 149 Tex.Cr.R. 576, 197 S.W.2d 357 (Tex.Cr.App.1946); Weatherred v. State, 129 Tex.Cr.R. 514, 89 S.W.2d 212 (Tex.Cr.App.1935); Johnson v. State, 100 Tex.Cr.R. 215, 272 S.W. 783 (Tex.Cr.App.1925); Skirlock v. State, 100 Tex.Cr.R. 178, 272 S.W. 782 (Tex.Cr.App.1925). Second, rules relating to impeachment prohibit the use of such evidence since post-arrest silence is not probative as prior inconsistent conduct. Moree v. State, 147 Tex.Cr.R. 564, 183 S.W.2d 166 (Tex.Cr.App.1944); Thompson v. State, 88 Tex.Cr.R. 29, 224 S.W. 892 (Tex.Cr.App.1920); Gardner v. State, 34 S.W. 945 (Tex.Cr.App.1896). We shall separately address both rationales underlying the rule.4

¶13Prior to the United States Supreme Court decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), where the Fifth Amendment to the federal constitution was made applicable to the state, Art. 1, § 10 of the Texas Constitution was used to support holdings prohibiting the use of post-arrest silence against an accused.5 That provision provides, in pertinent part, that “an accused has the right to be free from compelled self-incrimination.” Four cases are particularly illustrative. First, in Skirlock, supra, the defendant was convicted of burglary. The district attorney made the following comment during argument to the jury:

“Gentlemen of the jury, if you had been arrested, charged with burglarizing the home of J.B. Jones, as was the defendant, wouldn’t you have explained to the officers that you had nothing to do with it, and not sit silent as did the defendant when arrested?”

¶14In holding that the argument was improper, we stated the following:

“Under our law the defendant, when arrested, has the unqualified right to choose either of two courses, he may talk under the penalty of having what he says under some conditions used against him; on the other hand, he may stand mute with the full assurance that his silence cannot be used in evidence against him. According to the argument objected to, appellant chose to remain silent, and having made this choice, it was manifestly wrong for counsel to use this silence as a *579circumstance of guilt.” Id,., 272 S.W. at 783.6

¶15Although the accused’s right to remain silent under the Texas Constitution is not mentioned, language such as “unqualified right” and “silence cannot be used in evidence against him”, implicitly invokes constitutional precepts.

¶16Second, in Johnson, supra, the defendant was convicted of murder. An eyewitness to the killing testified that the defendant was handling a gun which accidently discharged, killing the deceased. The State sought to contradict this testimony by evidence of the defendant’s failure to attend the funeral or to explain the killing. We stated:

“We have here a clear case of where silence was the sole substance of [the defendant’s] sinning, and under the provisions of our Bill of Rights, which provides that a party charged with a crime shall not be forced to give evidence against himself, we hold that the mere silence of a party under the circumstances above detailed in this case, cannot be used against him, and its admission in evidence is reversible error.” Id.,272 S.W. at 784.

¶17Third, in Redding, supra, the defendant was charged with possessing intoxicating liquor for purposes of sale in a dry area. After the defendant testified at trial that he had obtained the whiskey for medicinal purposes, the State was allowed on cross-examination to show that he did not advance that explanation to the officers at the time of his arrest. We stated: “The accused has a right to keep silent when arrested, and the fact of such silence may not be shown by the State, either in testimony or in argument as a guilty circumstance.” Id.,197 S.W.2d at 357, citing Weatherred, supra.

¶18Fourth, in Boggess v. State, 158 Tex.Cr.R. 466, 257 S.W.2d 111 (1953), the defendant was charged with driving while intoxicated.

¶19The defendant testified that he had experienced a diabetic black-out at the time the officers observed his erratic driving. On cross-examination, the defendant was required to testify that, at the time of arrest, he did not inform the officers of the blackout. We stated that “the rule is well settled that, after arrest, the State cannot avail itself of the silence of the accused as evidence of guilt or as destructive of the explanation of his conduct.” Id., at 111, citing Redding, supra.

¶20As indicated by the preceding four cases, use of a defendant’s post-arrest silence against him at trial has been prohibited on purely state constitutional grounds. Moreover, the use of such evidence was prohibited without reference to whether the defendant had been advised of his right to remain silent. In the case at bar, the State urges us to restrict application of this prohibition according to the Doyle/Fletcher analysis: only where the record affirmatively shows that the defendant was advised of his right to remain silent will post-arrest silence be considered impermissible evidence for impeachment purposes. We decline to so restrict the present rule.

¶21Although the State’s position seemingly passes federal constitutional muster, the State’s position does not comport with the Texas privilege against self-incrimination. In Doyleand Fletcher, the United States Supreme Court held that impeachment through the use of post-arrest, pre-M-randa silence did not violate due process and implicitly did not violate the Fifth Amendment to the federal constitution as well. In the instant case, the State maintains that, according to Fletcher, the accused’s right to remain silent (and as-sumedly the right not to have that silence used against him) arises at the moment the accused is advised of his rights. We find this to be an inadequate formulation of the privilege against self-incrimination under our law.

¶22An accused’s right to be free from compelled self-incrimination under the Texas Constitution arises at the moment an *580arrest is effectuated. The court in Skir-lock, supra, referred to the “unqualified right” to remain silent at the time of arrest. Id., 272 S.W. at 783. The Reddingcourt stated that the right to remain silent arises when the defendant is arrested. Id.,197 S.W.2d at 357. Under the decisions of this Court, once the State has restrained the liberty of the defendant to the degree that an arrest has occurred, privilege attaches to its fullest extent. Conversely, the right to remain silent does not arise when arresting officers deign to verbalize that right, but rather at the very moment the arrest is accomplished. Since the defendant’s right against self-incrimination arises when he is arrested, post-arrest silence is presumed an exercise of that right. The State may not, therefore, violate the defendant's right against self-incrimination by the use of post-arrest silence. Accordingly, we hold that pursuant to Art. I, § 10 of the Texas Constitution, when the defendant is arrested, he has the right to remain silent and the right not to have that silence used against him, even for impeachment purposes, regardless of when he is later advised of those rights.

¶23We have had previous occasion to compare the Texas and federal constitutional provisions vis-a-vis the privilege against self-incrimination. In Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969), Presiding Judge Onion, writing for the Court on motion for rehearing, stated that the Texas constitutional privilege against self-incrimination was comparable in scope to the Fifth Amendment to the federal constitution. Judge Onion, however, in noting the difficulty in determining the exact scope of the Texas privilege, stated:

“Of course, the history of the privilege does not finally settle its scope or policies and the strength of these underlying policies will largely determine whether future construction will be restrictive or expansive.”

¶24Olson, supra at 762. See also Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979); Hitt v. State, 548 S.W.2d 732 (Tex.Cr.App. 1977); Clinard v. State, 548 S.W.2d 716 (Tex.Cr.App.1977); and Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977).

¶25The Olsoncase and its progeny indicate that in some instances the Texas and federal privileges against self-incrimination are co-extensive. As stated in Olson, supra484 S.W.2d at 762: “As to the outer reaches of ‘due process’ or ‘self-incrimination,’ we give great weight to the reasonings and holdings of the United States Supreme Court. Nevertheless, as to the true scope of the Texas Constitution, we must ultimately follow our own lights.”

¶26With regard to the use of post-arrest, pre-Miranda silence against the accused, however, we cannot equate the two privileges and yet accord the accused his rights as already set down by prior state caselaw. To do so would require us to overrule a long line of cases decided upon state constitutional and evidentiary 7 grounds.

¶27We reiterate the need, however, for a dynamic approach to defining the limits of our state privilege as observed by Presiding Judge Onion in Olson, supra. Each issue must be decided according to the policies and considerations germane at the time. Accordingly, our holding which gives a broader construction to the state privilege than that given by the United States Supreme Court to the federal privilege is restricted to the issue now before us.

¶28Even if we construed the Texas constitutional privilege against self-incrimination to be equal to that afforded by the federal constitution, impeachment through the use of post-arrest silence remains improper according to Texas evidence law. When the State seeks to impugn the explanation of the defendant offered at trial by showing that the defendant failed to advance his position at the time of the arrest, the State is essentially impeaching the defendant through the use of prior inconsistent conduct. The general rule concerning the use of silence as prior inconsistent con*581duct was set forth in Franklin v. State, 606 S.W.2d 818 (Tex.Cr.App.1979):

“[I]t is a general rule of evidence that the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination.”

¶29Id., at 825, citing 3A Wigmore, Evidence, § 1042 (Chadbourn rev. 1970). See also Wharton’s Criminal Evidence, Impeachment of Witnesses § 470, Vol. II, 13th ed., Torcia, 1972. Silence may, therefore, be used as evidence of prior inconsistent conduct only if two requirements are met: the person must have been expected to speak out under the circumstances, and the fact that he or she did not speak out must actually be inconsistent with a later position. See also Williams v. State, 607 S.W.2d 577 (Tex.Cr.App.1980).

¶30There is authority for the contention that a defendant, once placed under arrest, is not expected to speak out. In Meyers, supra, the defendant was charged with unlawfully manufacturing liquor. At trial, the defendant testified that he had seen three men near the stills involved. On cross-examination, the State was permitted to ask the defendant why, at the time of arrest, he had not mentioned the three men to the officers. We held that proof of silence at the time of arrest was prohibited since the defendant was not called upon to speak out while under arrest, and proof of his failure to do so should have been rejected.

¶31In Moree, supra, we indicated that an arrestee is under no burden of replying to statements made in his presence which call for a reply. Moreover, merely having the opportunity to say something does not constitute a circumstance in which one would he expected to speak out. Franklin, supra606 S.W.2d at 848.

¶32Given that an arrestee is not expected to speak out while under arrest, the fact that he does not do so would not be used against him as evidence of prior inconsistent conduct. Hence, evidence of post-arrest silence fails to satisfy the first requirement of impeachment by prior inconsistent conduct.

¶33Even if we were to assume, and we do not, that a person is expected to speak out after arrest concerning exculpatory matters, the second requirement of prior inconsistent conduct is not satisfied. As previously discussed, in order for impeachment with prior inconsistent conduct to be permissible, the prior conduct must be inconsistent with some later position taken at trial. The United States Supreme Court acknowledged this requirement under the Federal Rules of Evidence in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), where the court stated:

“If the government fails to establish a threshold inconsistency between silence ... and later exculpatory testimony at trial, proof of silence lacks any significant probative value and must therefore be excluded.” 422 U.S. at 176, 95 S.Ct. at 2136.

¶34Given this second requirement, it is clear that silence following arrest is, at best, ambiguous. In Thompson, supra, the Court stated:

“It will be noticed that this [evidence of silence following arrest] was not the offered testimony of a statement that appellant had made, but it was proving the fact that he made no statement, especially the statement with reference as to how the shooting occurred. We are of the opinion that the court was in error in requiring appellant to answer the question. He was asked nothing, and said nothing about the matter to the sheriff. It was simply a question of silence. It is therefore we think unnecessary to discuss what might have been the attitude had he made a confession while under arrest and unwarned. That involves a different question. Here we have the simple question presented that appellant may be impeached by failing to make a statement, and in keeping silent at the time of his arrest and while under arrest. We do not think this is permissible.”

¶35*582Id.224 S.W. at 893. Although the Thompsoncase referred to Ripley v. State, 58 Tex.Cr.R. 489, 126 S.W. 586 (1910), which involved the confession statute, the Ripleycase was merely exemplary and was not urged as authority. The decision in Thompsonmay more clearly be associated with impeachment concepts, rather than confession law, since the holding focused on the ambiguity attendant to post-arrest silence. Moreover, the United States Supreme Court acknowledged the “insoluble ambiguity” of post-arrest silence in both the Doyleand Fletcherdecisions. See Fletcher, supra,102 S.Ct. at 1311.

¶36Given the inherent ambiguity of post-arrest silence, such silence cannot be considered inconsistent with defensive matters later raised at trial. Absent a showing of actual inconsistency, post-arrest silence is not probative as evidence of prior inconsistent conduct;8 therefore, impeachment through the use of such evidence is improper.9

¶37Accordingly, we hold that a defendant may not be impeached through the use of post-arrest, pre-Miranda silence since such impeachment violates the defendant’s right to be free from compelled self-incrimination, and also since such impeachment is improper from an evidentiary standpoint. We further agree with Judge Clinton’s concurring opinion and incorporate its reasoning herein. We decline to adopt the federal standards set forth in Doyleand Fletcher, supra. The trial court in the instant case, therefore, erred in permitting the prosecutor to cross-examine appellant regarding his post-arrest silence, since the State was thereby permitted to violate appellant’s rights against self-incrimination.

¶38The judgments of the Court of Appeals and the trial court are therefore reversed and the cause is remanded to the trial court for action not inconsistent with this opinion.

¶48concurring.

¶49In pertinent part the Fifth Amendment provides:

“nor shall [any person] be compelled in any criminal case to be a witness against himself ...”

¶50Article I, § 10, Texas Bill of Rights, provides in pertinent part:

“[An accused] shall not be compelled to give evidence against himself ...”

¶51So also does Article 1.05, V.A.C.C.P.

¶52The core of § 10 privilege that one may not be compelled to give evidence against oneself is the right to remain silent. Stanton v. State, 94 Tex.Cr.R. 366, 252 S.W. 519, 521 (1923); Butler v. State, 64 Tex.Cr.R. 482, 142 S.W. 904, 907 (1912); Ex parte Park, 37 Tex.Cr.R. 590, 40 S.W. 300 (1897).1

¶53The thesis of the dissenting opinion seems to be “the rule against the use of a *583defendant’s post-arrest originated from the rule that silence was an act and, as such, was to be treated as a confession and governed by the statutes relative to admission of confessions.”2Ergo meaning, scope and extent of our constitutionally guaranteed privilege against selfincrimination depend upon rules of evidence legislatively fashioned. Whatever may be the rule when an accused has not remained silent— and much of the discussion in the prior opinions quoted at length in dissent was to equate “acts performed” and “confessions made” — the notion that “silence” is an “act” is a specious rationale for that conclusion.

¶54Before and after the “Old Code” “[i]n the administration of the criminal law, the common law, where not modified by the constitution or statute has been held to furnish the rule of decision, as well in matters of practice as principle.” Hyde v. The State, 16 Tex. 446, 455 (1856). That was equally true in construing the constitutional right to remain silent. Thus it was held that any witness was immune from compulsion to answer a question tending to degrade him or subject him to a civil or criminal suit. See, e.g., Simons v. Simons, 13 Tex. 468 (1855); Jordan v. The State, 14 Tex. 426 (Ct.App.1855); Floyd v. The State, 7 Tex. 215 (1851), quoting and relying on the opinion of Chief Justice Marshall in The United States v. Burr, 1 Rob.R. 207, and the opinion of the court in The People v. Mather, 4 Wend. 254, as “a true exposition of the rule.” Id., at 216; Holman v. Mayor, 34 Tex. 668, 673 (1871) (contempt order void when made by Mayor after witness refused to answer questions regarding occurrences in certain house leading witness to believe it was house of prostitution, citing Simons, supra);Owen v. The State, 7 Tex.App. 329, 334 (Ct.App.1879). In Cain v. The State, 18 Tex. 387, 389-390 (1857), it was consulted regarding confessions.

¶55In short, early on Texas courts developed a body of common law for application of this privilege, derived largely from judicial decisions in other jurisdictions and from learned commentators. That common law construction of the constitutional guarantee was to be applied independently of provisions of the Old Code and its successors.3

¶56Similarly, in Nolen v. The State, 14 Tex.App. 474 (Ct.App.1883), which the dissenting opinion identifies as the seminal decision that “acts as well as words would be treated the same under the statute, then Article 750, Code of Criminal Procedure,” from its reading of common law found in learned treatises the Court did indeed overrule prior opinions distinguishing acts and words: “Acts, it is said, speak louder than words, and this being generally true they should be regarded as confessions, as much so as words, and the law does so regard them.”

¶57While Nolen may have pointed in silence to the hill where body of deceased had been found, the opinion treats his act of pointing — not his silence at the time. The decision ultimately turned on whether he had been “cautioned,” as article 750 then required. See article 750, set out in Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973), quoted in dissenting opinion at page 588.

¶58As to the purpose for which the dissent has appropriated it, the lesson of Nolenis that neither acts nor words amounting to a confession before being cautioned were admissible under article 750. It teaches nothing about silence being treated as words or *584acts constituting a confession, however, and its rationale for equating acts and words is inapposite to silence.

¶59On the matter of “silence” the only value of Nolento the dissent is its reference to a treatise by Mr. Wharton, viz:

“Mr. Wharton says that ‘confessions may be by acts as well as words’ (Whart. Cr.Ev., sec 683); and even silence, under certain circumstances, is taken as a confession. (Id., sec. 679).”

¶60Mr. Wharton was not writing about article 750 or any other Texas statute. We need to know what those circumstances are — as prescribed by common law interpretation.4

¶61In § 679, cited in Nolen, supra, Mr. Wharton is discussing a general rule of evidence regarding silence. He says that statements made to another who listens in silence and interposes no objection may be put in evidence “whenever silence is of such a nature as to lead to the inference of assent.” Accord: Gilford v. State, 78 S.W. 692 (Tex.Cr.App.1903) (Testimony recounting statements made by another “in the presence and hearing of appellant, who was not under arrest ” clearly admissible, id., at 693). However, in § 680 he explains that such a silent party must be in a position to respond, and when he comes to one in arrest, Mr. Wharton states a different rule, viz:

“... nor can silence, when a party is under arrest, be used as sustaining the hypothesis of acquiescence.”

¶62Please notice that under the common law reported by Mr. Wharton the status of an accused is simply that he be “under arrest,” and to the significance of that I now turn.

¶63John A. Gardner was arrested in Dallas for killing another. To Sheriff Ben E. Ca-bell he claimed to have been at several other places on the night and at the time of that homicide, so Sheriff Cabell took Gardner to those places and presented him to persons staying there or doing business there. In the presence of Gardner each person stated to Sheriff Cabell that Gardner had not been there at the time he told Sheriff Cabell he had been. Gardner made no reply to any of that. At trial all that Sheriff Cabell did and all that those persons stated to him and silence of Gardner were introduced in evidence “as confessions of appellant to the truth of those statements.”

¶64In Gardner v. State, 34 S.W. 945 (Tex.Cr.App.1896), one question Judge Hurt noticed for the Court is, as framed by him:

“The appellant being under arrest for this crime (whether cautioned or not), can his silence or failure to deny statements made in his presence be used against him, as a confession of the truth of the statements?”

¶65Id., at 945-946. According to the thesis of the majority, if he had been cautioned pursuant to former article 750, the answer is “yes.” However, the answer by the Court is “no” — “these facts, and especially the silence of the appellant, [were not] competent evidence.” Id., at 946.

¶66As had been its wont, see ante, p. 577, the Court looked to decisions in other jurisdictions and findings by Mr. Wharton in § 680 to reach its conclusion, viz:

“We deem these authorities sufficient to support the rule that, if the party is under arrest, silence cannot be used to support the hypothesis of consent to statements made in his presence by others. From the bill of exceptions, we infer that the learned judge who tried this case admitted this evidence because appellant had been cautioned. Our Code of Criminal Procedure (article 750) provides that ‘the confession shall not be used if at the time it was made the defendant ... is in custody of an officer, unless such confession ... be made voluntarily after having first been cautioned *585that it may be used against him,’ etc. As above stated, the learned trial judge admitted in evidence the silence of appellant upon the ground that the appellant had been cautioned. We are of the opinion that appellant had been cautioned was an ADDITIONAL reason, to being under arrest, for excluding his silence. … We are of the opinion that, whether cautioned or not, his silence should not have been received in evidence against him.”

¶67Ibid, [all ellipsis mine].5

¶68In Stanton v. State, 94 Tex.Cr.R. 366, 252 S.W. 519 (1923), another sheriff was asked by the prosecutor, “When you opened the flap [to a tent] and found the still and liquor there, did he make any explanation to you or claim innocence?” Sheriff Head answered, “No sir; he did not. I asked him if he wanted to make a statement after I brought the still in and brought him downstairs in the jail in the presence of the county attorney, and he said he did not want to make any.” The objection to that testimony was “because he was under arrest.” Id., at 520.

¶69Writing for the Court, Presiding Judge Morrow noted the effect and sequence of things, viz:

“The effect and apparent purpose of the question was to elicit the fact that appellant did not specifically disclaim his innocence at the time; in other words to make his silence speak against him. The answer to the question showed that, while he was silent at the time inquired about, he at another time and place, while he was formerly under arrest, expressly refused to make any statement.”

¶70Id., at 521. Characterizing the answer as unresponsive, Presiding Judge Morrow said it was not admissible “under any circumstances developed by the record.”

“It was violative of the statute against proving unwarned statements while under arrest. It was ALSO contrary to the constitutional inhibition against requiring witness to give evidence against himself. At the time to which the answer given by the sheriff refers the appellant had a right to be silent, and the law did not permit his silence to be used against him. … [U]nder the circumstances it was incumbent, we think, upon the trial court to exclude it upon the objection made, namely, that the appellant was under arrest.”

¶71Id., at 521 [ellipsis mine].

¶72What Gardnerand Stantonand their host of progeny find or hold is that the right to remain silent under arrest is of constitutional dimension, and the protection thus afforded is not at all dependent upon statutory support.6

¶73Thus the thesis underlying the conclusion of the dissent is demonstrably untenable. Silence is a constitutional guarantee. The constitutional protection provided by § 10 forbids using mere silence against an accused under arrest, including for impeachment.

¶74I join the judgment of the Court.