           TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00470-CR

                                     Gary Hampton, Appellant

                                                 v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
           NO. 003476, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                                          OPINION


                Appellant Gary Hampton appeals his conviction for indecency with a child by

contact. See Tex. Pen. Code Ann. ' 21.11(a)(1) (West 2003).1 The jury found appellant guilty and

assessed his punishment at seven years= imprisonment but recommended probation. The trial court

suspended the imposition of the sentence and placed appellant on probation subject to certain

conditions.


                                          Points of Error

                Appellant advances two points of error. He contends that there was a violation of (1)

his federal and (2) state constitutional rights against self-incrimination when the trial court, over

objection, permitted the State to cross-examine him before the jury on his post-arrest silence to law




       1
           The current code is cited for convenience.
enforcement personnel. Appellant relies upon the Fifth and Fourteenth Amendments to the United

States Constitution and article I, section ten of the Texas Constitution.

                                                  Facts

                 We will briefly discuss the facts to place the points of error in proper perspective. In

February 2000, appellant lived in his rural Travis County home with his fiancée, Shelly Bland,2 and

her five-year-old son, Tyler. A few days before the date of the alleged offense, Shelly and her friend,

Rebecca Brannon, left on a trip to Mexico. Appellant then received an invitation to join a group of

friends at a party in the Warehouse District of Austin on Friday night, February 25. Appellant was

caring for Tyler and knew that he had to find a babysitter. Appellant contacted Deidre Loftice, an

acquaintance of his and Shelly=s, and a friend of Rebecca Brannon. Appellant understood Loftice had

a daughter who was interested in babysitting. After several conversations, it was decided that

Loftice=s twelve-year-old daughter, A.G., and her eleven-year-old friend, T.K., would babysit Tyler on

Friday night. It was agreed that appellant would take the girls home the next day, or that Loftice,

who had been invited to the party by appellant, could pick them up after the party.

                 Appellant was feeding Tyler supper when Loftice and the two girls arrived at

appellant=s home on Friday evening. Loftice told appellant that she had other plans for the evening

but she would call him later if she decided to join the party. Appellant then went to the party leaving

the girls in charge of Tyler.

                 After they put Tyler to sleep in his room upstairs, A.G. testified that she and T.K.

eventually went to bed in the downstairs bedroom. After 2:00 a.m. on Saturday morning, A.G.

awoke and saw appellant standing in the doorway with Tyler. He said: ALook, there they are.

        2
            By the time of the trial in March 2002, appellant and Shelly were married.
They=re sleeping. Don=t worry.@ Appellant and Tyler then left. A short time later, according to

A.G., appellant returned to the bedroom, knelt by the bed, and began rubbing her leg with his hands.

He eventually worked his hand into her shorts and fondled her vaginal area, her Aprivates.@ A.G.

turned and twisted and then hit appellant with her shoulder while turning. At this point, appellant

rose and left the room.

               A.G. asked T.K. if she had seen what appellant did and T.K. acknowledged that she

had seen appellant in the room. First, the girls hid in the closet. T.K. then went to the kitchen and

got the cordless telephone. She called her father, Greg Keville, and told him that appellant had

touched A.G. on her leg and they wanted to go home. Unable to reach Loftice by telephone, Keville

drove to her house, where he found her asleep with his stepson, Jaome Brasher, Loftice=s live-in

boyfriend. These three drove to appellant=s house and without disturbing appellant took the girls

from the living room and left the house.

               They stopped to discuss what action to take next. After discarding the suggestion of

returning and beating up appellant, they telephoned the police. A sheriff=s deputy or deputies3 arrived

at the rural intersection where they were parked. Loftice testified that while the officer was there,

A.G. told her that appellant had not only touched her leg but touched her vaginal area. A.G.

testified that she told her mother this when they stopped at a convenience store on the way home.

Loftice denied that they ever stopped at a convenience store.


       3
           There was some testimony that there were two deputies. When Deputy Michael Villanueva
testified, he did not indicate that he was accompanied by another officer.




                                                  3
                T.K. confirmed that appellant first came with Tyler to the bedroom where she was

asleep with A.G. in the early morning hours of February 26, 2000. T.K. stated that appellant later

returned to the room, knelt beside the bed where A.G. was sleeping and clapped his hands together.

She admitted that she could not see what appellant then did with his hands, but A.G. turned and

twisted and nudged her.

                After some inconsistencies, T.K. stated that when appellant left the room, A.G.

reported to her that appellant Atouched her@ and Atouched her on the leg@; and that it was only later

in the car that she heard A.G. tell her mother that appellant had touched her vaginal area.

                Loftice testified that she brought the matter to Shelly Bland=s attention upon Shelly=s return

from Mexico. Loftice stated that she had brought a civil suit against appellant seeking money damages. She

added, AWhat I want is for him to get into trouble. That=s what I want to make sure of, but we haven=t

derived [sic] at some dollar amount.@

                Deputy sheriff Michael Villanueva testified that he responded to the call in the early morning

hours of February 26, 2000. He talked with the adults or Aparents@ at a rural road intersection. He did not

talk to the young girls. Villanueva cautioned the group not to return to appellant=s home. He informed the

group that he would make a report to a detective, who in turn would contact them. Villanueva made no

effort to contact appellant.

                Detective Nancy Zimmerman of the Travis County Sheriff=s Office related that she made

appointments for the girls at the Children=s Advocacy Center, took possession of videotapes made there,

and took a statement from Loftice. Zimmerman did not testify that she contacted or attempted to contact

appellant.

                                                     4
                  Appellant testified that he returned home in the early morning hours of February 26, 2000.

He found A.G. and T.K. asleep in the downstairs bedroom. Appellant denied that he appeared with Tyler

in that bedroom as described by A.G. and T.K. Appellant stated that he did observe that one of the girls

was near the edge of the bed. He entered the room to push her to the middle so that she would not fall off

the bed. As he did so, appellant reported that he stepped on something. He knelt down to see what it was

and discovered a leaf from a flower arrangement in the room. He placed the leaf on a window sill.

Appellant pushed the girl through the covers towards the middle of the bed. He went upstairs to check on

Tyler and then went to bed. When appellant got up the next morning, he found that the girls had left. He

discovered a recorded message on his telephone from T.K.=s mother that a family emergency had arisen

and the girls had been taken home. Appellant denied the offense charged and denied that he was

intoxicated.

                  There was no testimony concerning the circumstances surrounding appellant=s arrest. The

record shows that an arrest warrant was issued on April 13, 2000, and on the same date, appellant

executed a personal bond. The indictment was returned on May 31, 2000. At his March 2002 trial,

appellant appeared with counsel and entered a plea of not guilty. This background becomes important in

light of appellant=s post-arrest silence contentions and the State=s response on appeal that appellant was

never arrested.


                                            The Alleged Error




                                                     5
                 The points of error upon which appellant relies on appeal arose at trial. On direct

examination, appellant stated that several days after Shelly returned from Mexico, she questioned him about

the Saturday morning incident. Shelly had talked to Loftice. Appellant re-enacted for Shelly his actions that

morning. The eucalyptus leaf upon which he had stepped was still in the window sill.4 On cross-

examination, the record reflects:


        Q. Have you had any conversation with anyone else about this?

        A. Yeah. I talked to a lot of people about this.


                 Thereafter, the prosecutor approached the bench and inquired of the trial court whether she

could ask if appellant had ever given a statement to the police department. The trial court assumed that the

State=s request was based on the answer to the question asked. Appellant objected on the basis of the

AFifth Amendment.@ The trial court cautioned that the State would not be able to establish that appellant

had earlier invoked his rights under the Fifth Amendment to the United States Constitution, but a question

could be asked because appellant Aopened it up@ by the answer to the earlier question. Appellant=s counsel

pointed out that it was the State=s question on cross-examination.




        4
            The leaf was introduced into evidence as defense exhibit number nine.


                                                     6
                 The prosecutor then inquired if she could ask if appellant Arefused@ to give a statement to

the police. The trial court rejected that request because a refusal would be an invocation of appellant=s

rights. The trial court stated that it would allow the first proposed inquiry. Appellant=s counsel objected that

to indicate appellant did not give a statement to the police would infer refusal based on the Fifth Amendment

and article I, section ten of the Texas Constitution. The objection was overruled.

                 Thereafter, in the presence of the jury, the prosecutor inquired:

        Q. Mr. Hampton, did you ever give a statement or tell what you are telling us to Nancy
           Zimmerman or anyone with the Travis County Sheriff=s?

        A. No, I did not.


                                           Preservation of Error

                 To preserve error for review, a party may make a timely, specific objection Aunless the

specific grounds were apparent from the context.@ Tex. R. App. P. 33.1(a)(1)(A). Where the proper

ground of exclusion was obvious to the trial court and opposing counsel, no waiver results from a general or

imprecise objection. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). Moreover, when

the trial court hears objections to offered evidence out of the presence of the jury and rules that such

evidence is admitted, such objection shall be deemed to apply to such evidence when it is admitted before

the jury without the necessity of repeating those objections. Tex. R. Evid. 103(a)(1); Ethington v. State,

819 S.W.2d 854, 858 (Tex. Crim. App. 1991). We conclude that appellant preserved error for review.

The State does not contend otherwise.




                                                       7
                                                 Discussion

                 As a general rule, when an accused voluntarily takes the stand before a 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. Feldman v. State, 71 S.W.3d 738, 755 (Tex. Crim. App. 2002); Bryan v. State, 837

S.W.2d 637, 643 (Tex. Crim. App. 1992); Huffman v. State, 746 S.W.2d 212, 219 (Tex. Crim. App.

1988); Sanchez v. State, 707 S.W.2d 575, 577 (Tex. Crim. App. 1986); Brown v. State, 617 S.W.2d

234, 236 (Tex. Crim. App. 1981); Williams v. State, 607 S.W.2d 577, 578 (Tex. Crim. App. 1980);

Brumfield v. State, 445 S.W.2d 732, 735, 741-42 (Tex. Crim. App. 1969) (on State=s motion for reh=g).

Where there are overriding constitutional or statutory prohibitions, however, the accused may not be

treated as just another witness. Alexander v. State, 740 S.W.2d 749, 763 (Tex. Crim. App. 1987);

Sanchez, 707 S.W.2d at 577; Lopez v. State, 990 S.W.2d 770, 777 (Tex. App.CAustin 1999, no pet.).

One of the limitations on the prosecution=s cross-examination of an accused may be the constitutional

privilege against self-incrimination. Sanchez, 707 S.W.2d at 582; Raney v. State, 958 S.W.2d 867, 876

(Tex. App.CWaco 1997), pet. dism=d, improvidently granted, 982 S.W.2d 429 (Tex. Crim. App.

1998). The privilege ceases only when liability to punishment no longer exists. Bryan, 837 S.W.2d at 643.

                 The use of a defendant=s post-arrest silence is akin to a comment on his failure to testify at

trial because it attempts to raise an inference of guilt arising from the invocation of a constitutional right.

Dinkins v. State, 894 S.W.2d 330, 556 (Tex. Crim. App. 1995).

                 In Veteto v. State, 8 S.W.3d 805 (Tex. App.CWaco 2000, pet. ref=d), the court wrote:




                                                      8
        Under the U.S. Constitution, the State cannot use the post-arrest silence of an accused,
        after assurances such as Miranda warnings, to impeach an explanation subsequently
        offered at trial. Doyle v. State [of Ohio], 426 U.S. 610, 618, 96 S. Ct. 2240, 2245, 49
        L. Ed. 2d 91 (1976); see also Greer v. Miller, 483 U.S. 756, 763, 107 S. Ct. 3102,
        3107, 97 L. Ed. 2d 618 (1987). After attempts by lower courts to broaden the language
        of Doyle, the Supreme Court reiterated its prohibition of the use of post-arrest, post-
        Miranda silence against the accused for impeachment purposes. Fletcher v. Weir, 455
        U.S. 603, 607, 102 S. Ct. 1309, 1312, 71 L. Ed. 2d 490 (1982). The decision was then
        left to the states to determine under their rules what was proper impeachment. Id.;
        Sanchez v. State, 707 S.W.2d 575, 578 (Tex. Crim. App. 1986). Based on two
        rationales, the Texas Court of Criminal Appeals determined that in addition to the
        Doyle/Fletcher prohibition, post-arrest, pre-Miranda silence also may not be used against
        an accused at trial. Id. First, the Court reasoned, the use would violate the accused=s right
        to be free from self incrimination under Article I, Section 10 of the Texas Constitution. Id.
        Second, the use would be improper impeachment under the evidentiary rules since, absent
        actual inconsistency, post-arrest silence is not probative as prior inconsistent conduct. Id.
        at 578, 582.


Id. at 810.5

                 In Harris v. State, 866 S.W.2d 316 (Tex. App.CSan Antonio 1993, pet. ref=d), the court

explained the development of the law since Doyle and Sanchez by stating:


        In Texas, post-arrest silence may not be used against a defendant, even if he has not been
        warned pursuant to Miranda. Sanchez v. State, 707 S.W.2d 575, 580 (Tex. Crim. App.
        1986); see also Cuellar v. State, 613 S.W.2d 494, 495 (Tex. Crim. App. [Panel Op.]
        1981); Womack v. State, 834 S.W.2d 545, 546 (Tex. App.CHouston [14th Dist.] 1992,
        no pet.); Juhasz v. State, 827 S.W.2d 397, 405 n.3 (Tex. App.CCorpus Christi 1992,
        pet. ref=d). Even when the defendant testifies, he may not be cross-examined about
        his post-arrest silence unless it is first established that he made a post-arrest
        inconsistent statement. Turner v. State, 719 S.W.2d 190, 193 (Tex. Crim. App.
        1986).




        5
            The Miranda referred to is Miranda v. Arizona, 384 U.S. 436 (1966).


                                                              9
Id. at 320 (emphasis added).

                 In Turner, 719 S.W.2d at 192-93, it was held error to permit the State to cross-examine a

defendant regarding his post-arrest silence as to his alibi without first establishing that the defendant made an

inconsistent statement during that time. In Turner, like the instant case, the prosecutor asked the defendant

if he had told Aany law enforcement@ about his alibi. In Sanchez, 707 S.W.2d at 582, the court stated:


        Given 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 of prior inconsistent conduct; therefore,
        impeachment through the use of such evidence is improper.
                In Bhakta v. State, it was held that the prosecution may not use a defendant=s post-arrest

silence to impeach or discredit a defendant=s exculpatory theory, including a self-defense claim elicited for

the first time at trial. 981 S.W.2d 293, 296 (Tex. App.CSan Antonio 1998, pet. ref=d) (citing Dinkins,

894 S.W.2d at 356). And in Johnson v. State, the prosecutor=s question to the defendant during cross-

examination, asserting that the defendant did not tell the police that the murder victim came at him with a

bottle, constituted an improper comment on the defendant=s post-arrest silence in violation of the state

constitution. 83 S.W.3d 229, 231 (Tex. App.CWaco 2002, pet. ref=d).




                                                               10
                 In the instant case, there was no showing of a prior inconsistent statement or conduct on

appellant=s part and appellant had not opened the door to the matter on direct examination. Yet, the State

used his post-arrest silence against him to discredit and impeach him on cross-examination by demonstrating

to the jury that he had never told the investigating officer or any sheriff=s deputy the exculpatory theory he

related from the witness stand. This was a violation of appellant=s rights under the Texas Constitution. Tex.

Const. article I, ' 10. Appellant=s counsel timely objected on this basis and preserved error. Tex. R. App.

P. 33.1. Bhakta, 981 S.W.2d at 296.

                 The error discussed resulted in a violation of appellant=s state=s constitutional right against

self-incrimination. We are required to reverse the conviction unless we determine beyond a reasonable

doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a); Dinkins,

894 S.W.2d at 356. When reviewing the record for harm, we examine a number of factorsCthe source

and nature of the error, the extent to which it was emphasized by the State, the weight a juror would

probably place upon the error, and whether finding the error harmless would encourage the State to repeat

it with impunity. Dinkins, 894 S.W.2d at 356 (citing Harris v. State, 790 S.W.2d 568, 597 (Tex. Crim.

App. 1989)); Veteto, 8 S.W.3d at 813.

                 The source of the error was the prosecutor=s insistence on asking the improper question

described. We have nothing in the record to explain why a prosecutor would depart from established rules

and question appellant about his post-arrest silence. See Johnson, 83 S.W.3d at 232. There was a sharp

conflict in the evidence as to the actual offense. Appellant=s exculpatory theory rested heavily upon his

credibility and the State improperly impugned his trial explanation offered before the jury. Not satisfied with


                                                      11
that impeachment of appellant, the prosecutor sought to show on cross-examination of appellant=s wife,

Shelly, that after she heard appellant=s version of the events in question, she failed to report that exculpatory

version to the sheriff=s office. The prosecutor further showed that in the deposition she gave in the civil

lawsuit, Shelly failed to mention the eucalyptus leaf and stem that appellant claimed to have stepped on in

the bedroom. 6 Moreover, the thrust of the State=s jury argument was that based on the evidence,

appellant=s exculpatory theory was a recent fabrication.

                  Credibility was a crucial issue for the jury. After their deliberations began, the jury

deadlocked on the issue of guilt or innocence and reported to the trial court that it could not reach a verdict.

The trial court gave an Allen v. United States, 164 U.S. 492, 501-02 (1896) or Adynamite@ charge to the

jury before it reached a verdict. To hold the instant post-arrest silence error harmless will only encourage

prosecutors to repeat the constitutional error with impunity. We are unable to conclude beyond a

reasonable doubt that the error did not contribute to appellant=s conviction. We sustain appellant=s second

point of error.

                  The judgment of conviction is reversed and the cause is remanded to the trial court.




                                                    __________________________________________



        6
         Shelly testified that she sought to supply the omission immediately after arriving home from
the deposition. This was later confirmed by her lawyer who testified concerning the correction.




                                                       12
                                                 John F. Onion, Jr., Justice

Before Justices Kidd, Patterson and Onion*

Reversed and Remanded

Filed: May 8, 2003

Publish




*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).




                                                   13
