¶1dissenting.
¶2I acknowledge that the United States Constitution is the supreme law of the land. I acknowledge that decisions of the United States Supreme Court on questions of federal constitutional law are superior to those of this Court. I acknowledge the duty of this Court not to implement any law of Texas in a manner contrary to the United States Constitution as authoritatively construed by the Supreme Court. But I do not acknowledge that the Supreme Court is the final arbiter of what is purely Texas law, nor do I acknowledge that the Supreme Court has authority to insist that the courts of Texas provide relief for the violation of federal constitutional rights in a forum or by a means not available under Texas law. See Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965); Ex parte Crispen, 777 S.W.2d 103, 107 (Tex.Crim.App.1989) (Clinton, J., concurring).
¶3The opinion in Trevino v. Texas, — U.S. -, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992) is unclear to me, as is the opinion upon which it relies, Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). Specifically, it is unclear whether, in con*389text of complaints about racially discriminatory peremptory challenges, the Court held that questions of procedural default, preservation of error, specificity of objection, and other usually local matters affecting the reviewability of legal questions, as opposed to the merits of those questions, is itself now a question of federal constitutional law in the state courts or if, instead, the Court held only that local rules affecting reviewability do not bar federal judicial review under some circumstances. If the former, it is clear that the rule of forfeiture we imposed on original submission in this case is unconstitutional, with the consequence that we must reach the merits of Appellant’s claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), on remand. See Trevino v. State, 815 S.W.2d 592 (Tex.Crim.App.1991). If the latter, it is equally clear to me that Appellant’s proper remedy is by writ of habeas corpus in a federal district court.
¶4My preference, of course, is to believe that our rules of procedural default, and especially the rule of specificity by which Appellant’s complaint was forfeited on original submission in this case, are not unconstitutional as applied to any situation. The particular rule now in question does not discriminate between federal and state errors, nor between errors of constitutional, statutory, and decisional origin. It simply provides that, in circumstances where some complaint is necessary to preserve a question for appellate review, such complaint must be specific enough fairly to apprise the trial judge of its basis. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977). We have long applied this rule so as to insist that a claim of right potentially emanating from more than one source reasonably identify the source relied upon. It follows that identification of only one source fails to give notice that reliance might also be placed on another. This has been the rule in Texas time out of mind, and it is inconceivable to me that anyone would think it unreasonable, let alone unconstitutional, to apply it in context of a Batsoncomplaint.
¶5It may be, of course, that the Supreme Court considers our rule to be unobjectionable in the abstract but too strict in practice. Again, however, the proper application of a state rule is undoubtedly a matter of state law, upon which this Court, not the United States Supreme Court, has ultimate authority. Consequently, if I believed the Supreme Court meant only to hold that Appellant’s objection was, as a matter of constitutional law, specific enough for the Fourteenth Amendment, I should necessarily conclude that the Texas rule is unconstitutional in some degree, since it undoubtedly holds, just as we said on original submission, that Appellant’s objection was not specific enough in this case.
¶6Although there are reasons for thinking the Supreme Court did mean to declare our forfeiture rule unconstitutional as applied to Batsonclaims, there are some better reasons, in my judgment, for thinking otherwise. For example, I find it more than a little interesting that the Supreme Court chose to describe its holding in Fordas a decision that Georgia’s procedural default rule “cannot bar federal judicial review of petitioner’s equal protection claim.” 498 U.S. at -, 111 S.Ct. at 858, 112 L.Ed.2d at 950. Intellectual support for this holding can be traced to Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), wherein the Supreme Court held that “a litigant’s procedural defaults in state court do not prevent vindication of his federal rights unless the State’s insistence on compliance with its procedural rule serves a legitimate state interest.” Id. at 447, 85 S.Ct. at 567. Yet, in remanding to Mississippi for a further evidentiary hearing to determine whether petitioner had affirmatively waived his Fourth Amendment rights, the United States Supreme Court emphasized that,
... we neither hold nor even remotely imply that the State must forgo insistence on its procedural requirements if it finds no waiver. Such a finding would mean only that petitioner could have a federal court apply settled principles to test the effectiveness of the procedural default to foreclose consideration of his constitutional claim. If it finds the pro*390cedural default ineffective, the federal court will itself decide the merits of his federal claim, at least so long as the state court does not wish to do so. By permitting the Mississippi courts to make an initial determination of waiver, we serve the causes of efficient administration of criminal justice, and of harmonious federal-state judicial relations. Such a disposition may make unnecessary the processing of the case through federal courts already laboring under congested dockets, or it may make unnecessary the relitigation in a federal forum of certain issues.
¶7Id. at 452-453, 85 S.Ct. at 570.
¶8Clearly, Henrycannot be read to hold that application by a state court of its forfeiture rules to a federal claim violates the United States Constitution, but only that such rules should be considered inadequate to bar federal review whenever they are unreasonable by constitutional standards. As we observed recently in Rosales v. State, 841 S.W.2d 368 (Tex.Crim.App.1992), “We are frankly puzzled at the remand in Ford v. Georgia, supra, and hence in Trevino as well ... [because] a state holding that a trial objection is insufficiently specific to meet its own rules governing procedural default is inadequate to bar federal judicial review would not seem to require further action at the state court level, other than an analysis for harm[.]” At 380 (emphasis in original). Although peculiar in some respects, there is really nothing inconsistent about the notion that state forfeiture rules may be inadequate to bar federal judicial review, yet constitutionally unexceptionable. Questions of adequate and independent state grounds are altogether different from questions of constitutionality. Cf. James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984).
¶9The Texas forfeiture rule merely operates to deny Appellant a state forum in which to press his federal claim. It does not deny his federal claim on the merits. Because it is apparent that the United States Constitution does not require the states to provide an appellate forum for the vindication of federal constitutional rights at all, it seems probable that the states may also opt to deny an appellate forum for claims of all kinds under objectively rational and even-handed standards. The rule of procedural default here in question does not discriminate against federal claims, but subjects all claims, state and federal alike, to the same general principles of forfeiture. Compare NAACP v. Alabama, 377 U.S. 288, 293-302, 84 S.Ct. 1302, 1306-1311, 12 L.Ed.2d 325 (1964); NAACP v. Alabama, 357 U.S. 449, 454-458, 78 S.Ct. 1163, 1168-1170, 2 L.Ed.2d 1488 (1958). Accordingly, there is no reason to think that the rule itself is offensive to any provision of the federal constitution, even when applied to the assertion of constitutional violations in state court.
¶10It is an entirely different matter, however, whether and under what circumstances state procedural rules operate as adequate grounds, independent of federal law, for a result reached in state court. Irrespective of the constitutionality of such rules, it is a federal question whether judicial review, either direct or collateral, will be foreclosed in the federal courts on account of a state procedural bar. See Ford, 498 U.S. at -n. 6, 111 S.Ct. at 857 n. 6, 112 L.Ed.2d at 948, n. 6 and accompanying text. A number of Supreme Court decisions elaborate the conditions under which such state rules may thus be considered inadequate. For example, if application of the state rule is, in the opinion of the federal judiciary, “without any fair or substantial support,” federal review of the claim is not barred. Staub v. City of Baxley, 355 U.S. 313, 319— 320, 78 S.Ct. 277, 280-281, 2 L.Ed.2d 302 (1958). Cf. Ward v. Board of County Com’rs of Love County, Okl., 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751 (1920). Likewise, federal courts may reach the merits of a federal claim if the state procedural bar does not serve a “legitimate state interest[,]” Henry, 379 U.S. at 447, 85 S.Ct. at 567, or is not a “firmly established and regularly followed state practice[.]” James, 466 U.S. at 348, 104 S.Ct. at 1835. Evidently, they may even do so if to do otherwise would result in similarly situated claimants being treated differently *391without a rational basis, as in the instant cause. See Trevino, — U.S. at -, 112 S.Ct. at 1550. Slip Op. at 6. But the state rule need not itself be unconstitutional for a federal court to support any of these findings, and none of the cited cases need necessarily be construed so to hold. In short, it does not follow from the fact that a matter is reviewable in federal court that it is a violation of the United States Constitution not to review it in state court.
¶11I understand, of course, that the Supreme Court is in a disagreeable position when it comes to the kind of default at issue here. After all, the Court did choose in Batsonitself, over vigorous dissent by the Chief Justice, to announce a new rule of Equal Protection in a case which arguably raised only Sixth Amendment issues. But that is a problem of federal procedural default law. It does not affect Texas jurisprudence. Indeed, as should be apparent from our holding on original submission in this case, Batson himself would have received no decision from this court respecting Equal Protection violations in the racially discriminatory exercise of peremptory jury challenges.
¶12Finally, although it is not essential to an analysis of the problem in this case, I would also note that Appellant can probably still pursue a remedy by way of federal habeas corpus because his conviction in this cause did not become final before the Supreme Court announced its opinion in Batson. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986); Teague v. Lane, 489 U.S. 288, 305-310, 109 S.Ct. 1060, 1072-1075, 103 L.Ed.2d 334 (1989). Moreover, because the rule of specificity which operated as a procedural bar to his claim in this Court on original submission would necessarily not be regarded by the federal habeas court as an adequate and independent state ground for decision after the Supreme Court’s opinion in this case, Appellant would also probably not have to demonstrate cause for his state default or prejudice resulting from it. Cf. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977). But such matters are not the concern of this Court. I call attention to them here only because, as in Henry, they tend to suggest that remand in the instant cause was just a courtesy.
¶13The relationship between state and federal courts is often strained in cases of this kind, and it is not my purpose to exacerbate the problem. But it is my duty as a Texas judge to implement the laws of this state except where it is clear to me that those laws either violate the United States Constitution in practice or have authoritatively been held to do so by a court with power to declare federal law in Texas. Principles of federalism quite properly allow Texas courts and the courts of other states to establish their own rules of procedural default. And it follows that those principles similarly require the federal courts to respect dispositive provisions of Texas law. Just as Texas law may sometimes provide greater protection than cognate provisions of the federal law, so also may it provide less protection in some circumstances. Cf. Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). That is the nature of a federal system. It seems to me that by providing an exception to our procedural default rule in the instant case we might indeed make it unconstitutional because other defendants, similarly situated in the sense that they also made nonspecific objections at trial, would be barred from having the appellate courts review their claims.
¶14For the reasons given above, I am unwilling to read the Supreme Court’s opinion in this case as a declaration that the Texas procedural rule requiring a specific objection in the trial court for preservation of the right to complain on appeal is unconstitutional as applied to Appellant on original submission in this cause. And, as I remain satisfied after reconsideration that Appellant’s complaint, although no less specific than that of Batson himself, was nevertheless ineffective to preserve the alleged error for appellate review under the laws of Texas, I would reaffirm his conviction and sentence of death. Because the majority fails to do so, I respectfully dissent.