Thomas v. State

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OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of the offense of driving while intoxicated. V.A.C.S., Art. 6701l -1 (1977).1 Punishment was assessed at 15 days confinement in jail and a $500 fine. The Fifth Court of Appeals, in an unpublished opinion, affirmed appellant’s conviction. Thomas v. State, No. 05-84-00010-CR (Tex.App.— Dallas 1/18/85). We granted appellant’s petition for discretionary review to decide two questions: 1) whether the admission of appellant’s refusal to submit to a breath test violated state law,2 and 2) whether the jury should have been given an instruction on a fact issue involving appellant’s refusal to provide a breath sample. We will affirm.

On June 11, 1982, appellant was arrested by Officers Holcomb and Freeze for suspicion of driving while intoxicated on the North Central Expressway in Dallas. After Officer Holcomb placed appellant in his squad car, appellant was informed of his Miranda rights.3 After taking appellant to the city jail, Officer Holcomb then asked appellant to provide a breath sample for chemical analysis of its alcohol concentration, warning him of the consequences of a *698refusal.4 Appellant refused to submit to the test. Officer Holcomb filed his report of the arrest and presented appellant to the jail guards for booking.

On the first day of his trial, appellant filed a motion in limine that sought to keep the State from introducing any evidence surrounding his refusal to provide a breath sample. See Appendix A, post, at p. 708. Appellant also filed a memorandum in support of the motion that focused the trial court’s attention upon the self-incrimination clause of Article I, § 10, of the Texas Constitution. See Appendix B, post, at pp. 709-710. The motion was denied the same day. See id., at p. 709.

Appellant also filed a pre-trial motion, entitled “Trial Objection No. One,” that sought to suppress evidence of his refusal to provide a breath sample. See Appendix C, post, at pp. 710-712. The motion also sought to provide a shorthand method for objecting, during trial, to admission of evidence of appellant’s refusal to give a breath sample. In pertinent part, the motion stated:

The [appellant], by reference to this Trial Objection No. One, objects to the testimony of the police officers as to whether they offered or the [appellant] refused a breath test which is inadmissible under Art. I, § 10 of the Texas Constitution and Art. 1.05, Tex.Code Crim. Proc.Ann.
WHEREFORE, PREMISES CONSIDERED, the [appellant] prays that this Trial Objection No. One be granted and that he be allowed to object to the introduction of such testimony by reference to this Trial Objection No. One rather than stating each individual ground alleged herein.

Appellant’s motion was denied the same day it was filed. See id., at p. 711.

During trial, the State asked Officer Holcomb, on direct examination, to tell the jury which rights appellant was advised of prior to being asked to provide a breath sample. The following colloquy ensued:

MR. TESSMER [Appellant’s counsel]: Your Honor, at this time I again renew my trial objection number one that I would call to Your Honor’s attention in the interest of time.
THE COURT: Overrule the objection. Note your exception. Go ahead.

Officer Holcomb listed the warnings that he gave to appellant. See n. 4, ante, at p. 698. He then testified that he asked appellant to provide a breath sample. Before Officer Holcomb testified as to appellant’s reply, appellant’s attorney objected:

MR. TESSMER: Your Honor, I again renew trial objection number one on each and every objection therein and may I have a continuing objection along this line of evidence, Your Honor?
THE COURT: All right. Well, I’ll sustain the objection to the exact words that were used, but I’ll give you — overrule the objection to the nature of the response in general.
I’ll give you the same objection to everything related to this matter.

Officer Holcomb, without repeating the exact words used by appellant, testified that appellant refused to take the breath test. On cross-examination, appellant’s at*699torney asked Officer Holcomb if appellant said, when refusing the breath test, “Not without my lawyer being present.” Officer Holcomb agreed that appellant had made the statement.

On redirect examination, the State asked Officer Holcomb if appellant made any other statement relating to his refusal to take a breath test. Appellant’s attorney objected:

MR. TESSMER: Now, Your Honor, unless he establishes the exact time, unless it is explained in a prior statement, we would object to it as not being res gestae and not being pertinent to the questioning concerning refusal of the test when he’s asking for his lawyer to be present.

The trial court sustained appellant’s objection. However, later in the trial, on further redirect examination, the State again asked Officer Holcomb whether appellant made any other statements when refusing to take the breath test. Appellant did not object, and Officer Holcomb testified: “He [appellant] said that in — in eight hours when his lawyer got there, he’d be sober as the Judge anyway.”

Appellant later testified to the circumstances surrounding his arrest. However, he did not testify as to what statements he made in response to Officer Holcomb’s request for a breath sample.

Prior to submission of the charge to the jury, appellant requested that the jury be given the following instruction: “That the Jury is to completely disregard any evidence in this record from police officer or officers concerning the refusal to take a [breath] test.” In requesting the charge, appellant made the following objection:

MR. TESSMER: Defendant bases this objection on Article I, Section 10 of the Texas Constitution and Article 105 (sic) of the Texas Code of Criminal Procedure.
The Defendant further objects in that the evidence in this case does not establish the refusal on the part of the Defendant to take the test but only a request that his counsel be present.
The Defendant further says that although this objection would not be good if the Defendant asserted Federal Constitutional grounds only to the aforementioned violation of his Fifth Amendment rights to allowing proof of refusal to take the test, that Defendant relies wholly and totally upon the Texas Constitution and Code of Criminal Procedure heretofore dictated.

I.

In his first ground of review, appellant argues that admission into evidence of his refusal to provide a breath sample violated state law. As we noted earlier, this ground of review presents several separate legal theories. See n. 2, ante, at p. 697. We will address separately each of appellant’s claims under his first ground of review, and in doing so we examine the holding of the Court of Appeals.

The Court of Appeals overruled these various claims in a single sentence by citing Gresset v. State, 669 S.W.2d 748 (Tex.App. — Dallas 1983, pet. granted). Thomas, supra, at 2. In Gresset, supra, a defendant challenged the admission at trial of his refusal to provide a breath sample on the basis of the Fifth Amendment privilege against self-incrimination and Article 38.22, § 3, V.A.C.C.P. The Court of Appeals held that Article 38.22, supra, the Fifth Amendment and Article I, § 10, supra, all provide comparable protection against self-incrimination and do not prevent admission of a defendant’s refusal to provide a breath sample.

A.

Appellant argues that the admission of evidence of his refusal to provide a breath sample violated Article 38.22, supra,5 citing Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977). In Dudley, two members of this Court relied, in part, on Article 38.22, supra, to prohibit the introduction of evi*700dence that a defendant had been offered and had refused to take a breath test. Id., at 708 (Phillips, J.); id., at 709-11 (Onion, P.J., concurring).6

The Court of Appeals summarily rejected appellant’s claim by citing Gresset, supra. Thomas, supra, at 2. However, we need not decide whether Gresset, supra, was properly decided on the issue of Article 38.22, supra, because no asserted error was preserved for review.

Generally, to preserve asserted error for review on appeal, a defendant must object in a timely and specific manner at trial. Granviel v. State, 552 S.W.2d 107, 121 (Tex.Cr.App.1976), cert. denied 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Hinkle v. State, 442 S.W.2d 728, 732-33 (Tex.Cr.App.1969). In addition, if an objection made in the trial court differs from the complaint made on appeal, a defendant has not preserved any error for review. Hodge v. State, 631 S.W.2d 754, 757 (Tex.Cr.App.1982); Williams v. State, 549 S.W.2d 183, 187 (Tex.Cr.App.1977).

In the instant case, appellant did not object at trial on the basis of Article 38.22, supra. Nothing is preserved for review, and we express no opinion as to the merit of appellant’s claim.

B.

Appellant, again citing Dudley, supra, argues that evidence of his refusal to provide a breath sample was inadmissible because Article 6701l-5, supra, did not explicitly provide that such evidence was admissible at his trial.7 In Dudley, one member of this Court suggested that a suspect’s refusal to provide a breath sample could not be admissible absent “a definitive legislative provision to that effect.” Id., at 714 (Onion, P.J., concurring).

The Court of Appeals summarily rejected appellant’s claim by citing Gresset, supra. Thomas, supra, at 2. However, again we need not decide whether Gresset, supra, controls the instant claim because no error was preserved for review.

At no time during the trial did appellant object on the basis of Article 6701/ -5, supra. Nothing is preserved for review, and we express no opinion as to the merit of appellant’s claim.

C.

Appellant argues that admission of evidence of his refusal to provide a breath sample violated his privilege against self-incrimination under the state constitution and its statutory equivalent. Our state constitution provides: “In all criminal prosecutions the accused ... shall not be compelled to give evidence against him-self_” Art. I, § 10, supra. Article 1.05, supra, contains identical language.

The State argues that appellant, in both the form and substance of his trial objection, failed to preserve any asserted error for review. We disagree.

We recently restated the purposes of an objection:

first, a specific objection is required to inform the trial judge of the basis of the objection and afford him or her an opportunity to rule on it; and second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony, [citation omitted]

Maynard v. State, 685 S.W.2d 60, 64-65 (Tex.Cr.App.1985). Thus, to the extent that an appellate record adequately shows that the trial judge and opposing counsel were aware of the substance of a defendant’s objection, thereby meeting the purpose of an objection, an objection preserves *701the complaint for appellate review.8 Id. See Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977) (“Thus, where the correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection.”). See also Hill v. State, 641 S.W.2d 543 (Tex.Cr.App.1982).

During trial, immediately prior to introduction of any testimony relating to appellant’s refusal to provide a breath sample, appellant referred the trial court to his “Trial Objection No. One.” This pre-trial “objection” was directed at the very evidence appellant sought to exclude and obviously relied upon a particular section of the state constitution: namely, the Self-Incrimination Clause.9 See Appendix C, post, at pp. 710-712. The trial court immediately overruled appellant’s objection. Moments later, appellant made an identical objection and also requested a continuing objection. The trial court partially sustained appellant’s objection and stated: “I’ll give you the same objection to everything related to this matter.”

Although appellant’s objection came in the form of an objection by reference, the trial court accepted the objection in that form and overruled it. The trial court’s acceptance of the form of appellant’s objection was made even clearer when it granted appellant a continuing objection on the same grounds. Cf. Kemp v. State, 171 Tex.Cr.R. 612, 352 S.W.2d 281 (1961).

Moreover, having granted appellant a continuing objection, after appellant twice referred to “Trial Objection No. One,” the trial court obviously was aware of the substance of that pre-trial objection. Therefore, we find that the asserted State constitutional error was preserved as to appellant’s privilege against self-incrimination under Article I, § 10, supra.10

Appellant urges this Court to read the state privilege against self-incrimination in Article I, § 10, Tex. Const., as preventing admission of evidence of his refusal to provide a breath sample. In so arguing, appellant acknowledges the absence of any similar protection under the Fifth Amendment.11 See South Dakota v. Neville, 459 *702U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (use of refusal against defendant at his trial does not violate Fifth Amendment privilege against self-incrimination). See also McCambridge v. State, 712 S.W.2d 499, 504 (Tex.Cr.App.1986); Appellant argues that the privilege against self-incrimination, under our state constitution, provides broader protection than the federal counterpart in the Fifth Amendment. In particular, in his brief, appellant argues that “[t]he distinction between our state and federal provisions ... lies in the terminology that an accused shall not be compelled ‘to give evidence against himself’ contained in Art. I, § 10 of the Texas Constitution ... as opposed to being ‘a witness against himself contained in the Fifth Amendment to the federal counterpart.” For this proposition, appellant relies upon Dudley, supra, and Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951).12

The Court of Appeals rejected appellant’s claim under Article I, § 10, supra, by citing Gresset, supra. While the defendant in Gresset did not raise a claim under Article I, § 10, supra, the Court of Appeals commented that the self-incrimination clause “of the Texas Constitution that is similar to the Fifth Amendment has been held to be no broader in scope than the federal right.” Gresset, supra, at 750, citing Olson v. State, 484 S.W.2d 756, 762 (Tex.Cr.App.1969) (Opinion on Rehearing). We must now examine the continuing viability of the principle announced in Olson, supra, and its application to the instant case.

In interpreting the meaning of the privilege against self-incrimination under our state constitution, we have made it clear that, while Supreme Court opinions on the privilege are given some weight, final determination of the scope of the privilege must come from this Court. Sanchez v. State, 707 S.W.2d 575, 580 (Tex.Cr.App.1986). In recent years, this Court has had three opportunities to examine the differences and similarities between the privilege against self-incrimination under Article I, § 10 of the Texas Constitution and the Fifth Amendment of the U.S. Constitution. Sanchez, supra; Ex parte Shorthouse, 640 S.W.2d 924 (Tex.Cr.App.1982); Olson, supra. In two of these cases, Article I, § 10, supra, was found to be comparable in scope to the Fifth Amendment. Cf. Shorthouse, supra (grant of use immunity sufficient to compel testimony of witness over claim of privilege under Article I, § 10, supra), with Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (grant of use immunity sufficient to compel testimony of witness over claim of privilege under Fifth Amendment); cf. Olson, supra (compelling handwriting exemplar from defendant does not violate privilege under Article I, § 10, supra), with Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (compelling handwriting exemplar from defendant does not violate privilege under Fifth Amendment). In the third case, Article I, § 10, supra, was found to be more protective than the Fifth Amendment. Cf. Sanchez, supra (use of defendant’s post-arrest, pre-Miranda silence to impeach violates privilege under Article I, § 10, supra), with Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (use of defendant’s post-arrest, pre-Miranda silence to impeach does not violate the Fifth Amendment). These cases indicate that, while Article I, § 10, supra, may sometimes be comparable in scope to the Fifth Amendment, an independent examination of the history, policy, and precedent surrounding relevant state law is necessary before such a conclusion can be reached. See, e.g., State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985).

Appellant’s argument regarding the differences in language between Article I, § 10, supra, and the Fifth Amendment was addressed in Olson, supra. After examining the history of Article I, § 10, supra, we concluded:

*703... [W]e have found no historical evidence for [defendant’s] position that the framers of our state constitution meant, by choice of language, for Article I, § 10, to be more encompassing than, “witness against himself,” as used in the federal constitution or other formulations of the privilege then in existence in other states.

Id., at 762. After also reviewing the policy and precedents surrounding Article I, § 10, we “adopt[ed] the view that the Texas constitutional self-incrimination privilege extends its protection to testimonial compulsion. ” Id., at 772. This holding overruled the prior view that Article I, § 10, supra, prevented police from forcefully collecting physical evidence from a defendant.13 Therefore, we reject appellant’s claim that Article I, § 10, supra, provides broader protection than the Fifth Amendment because of differences in language.

Alternatively, appellant argues that a defendant’s refusal to take a breath test is testimonial in nature, thus violating Article I, § 10, supra.14 However, Article I, § 10, supra, only protects a defendant from providing evidence that is both testimonial and compelled. Because we will hold that appellant’s refusal was not compelled, we need not decide whether it was testimonial in nature.

This Court has never addressed the question whether Article 6701l-5, supra, compels a defendant to refuse a breath sample in violation of Article I, § 10, supra. However, the Supreme Court, in addressing a similar state statute, has held that the Fifth Amendment is not violated by use of evidence of a defendant’s refusal to take a chemical test for alcohol concentration because “no impermissible coercion is involved when [a] suspect refuses to submit to take [a] [blood-alcohol] test, regardless of the form of refusal....” South Dakota v. Neville, 459 U.S., at 562, 103 S.Ct., at 921-22.15 See McCambridge, supra, at 504. See also State v. Neville, 346 N.W.2d 425, 430 (S.D.1984) (defendant’s refusal not compelled in violation of state constitutional privilege against self-incrimination). However, before South Dakota v. Neville, supra, or State v. Neville, supra, can serve as persuasive authority in rejecting a similar claim under our state constitution, we must make an independent examination of the meaning of “compulsion” in Article I, § 10, supra.

Occasionally, a state constitutional provision may provide broader protections despite language identical or similar to a federal constitutional provision. See, e.g., Sanchez, supra (right to silence under state constitution provides broader protection than federal constitution); State v. Neville, supra (failure to warn defendant that refusal might be admissible at his trial does violate state due process requirements, even though it does not violate federal due process requirements).

Historical evidence of the adoption of the Self-Incrimination Clause in Article I, § 10, supra, is silent as to whether any distinction was intended between compulsion under the state constitution versus compulsion under the federal constitution. See generally Olson, supra, at 761. In addition, we can discern no countervailing policy considerations for developing a broader *704meaning of compulsion under our state constitution than is present in the federal constitution. We also can not find any distinction created by our early cases.16 See Millican v. State, 143 Tex.Cr.R. 115, 157 S.W.2d 357 (1942); Beachum, supra; Apodoca, supra.

For example, in Millican, supra, a defendant claimed that police officers compelled him to say and do things while in jail that violated his privilege against self-incrimination under Article I, § 10, supra.17 This Court, inter alia, found that the police officer “did not force him to do anything.” Id., 157 S.W.2d at 358. Rejecting the defendant’s claim that he was “ordered” from his jail cell for observation by the officers, the Court found that the defendant voluntarily responded to a request made by police officers. Id. On rehearing, the Court held that no violation of the privilege against self-incrimination was present “if [defendant] performed any act of his own volition while thus being observed.” Id., at 359. See Apodoca, supra, 146 S.W.2d at 382, quoting 16 Corpus Juris 566 (“Compulsion is the keynote of the prohibition [against self-incrimination]; and to render evidence inadmissible on the ground that defendant was compelled to produce it against himself, it must appear that such compulsion was used as to rob him of volition in the matter.”)

The Supreme Court has repeatedly held that “the Fifth Amendment is limited to prohibiting the use of ‘physical or moral [mental] compulsion’ exerted on the person asserting the privilege.” Fisher v. United States, 425 U.S. 391, 397, 96 S.Ct. 1569, 1574, 48 L.Ed.2d 39, 47 (1976) and cases cited therein. Physical compulsion includes such obvious force as physical torture or extended deprivation of food and water. See United States v. Carignan, 342 U.S. 36, 41, 72 S.Ct. 97, 100, 96 L.Ed. 48 (1951). Mental compulsion includes the more subtle force associated with offering a defendant two choices, one of which results in a penalty, punishment or detriment from which the defendant is entitled to be free. See South Dakota v. Neville, 459 U.S., at 563, 103 S.Ct., at 922; State v. Neville, supra, at 429. Notably, both physical and mental compulsion remove the element of voluntariness from a defendant’s decision to incriminate himself.

We find that both the state and federal privileges against self-incrimination are aimed at preventing involuntary testimonial incrimination. Thus, we find that the meaning of compulsion in the Article I, § 10, supra, is comparable in scope to the meaning of compulsion in the Fifth Amendment. Realizing this, we find the reasoning of South Dakota v. Neville, supra, and State v. Neville, supra, to be persuasive.

In South Dakota v. Neville, the Supreme Court held that “the values behind the Fifth Amendment are not hindered when the State offers a suspect the choice of submitting to the blood-alcohol test or having his refusal used against him.” The Court found that the defendant had not been physically compelled to refuse. As to the presence of mental compulsion to refuse, the Court noted that “the State could legitimately compel the suspect, against his will, to accede to the test.” 459 U.S. at 563, 103 S.Ct. at 922. Therefore, the Court reasoned, the State could instead present a suspect with the choice of providing a blood sample or having his refusal used against him. Id. In other words, the suspect, not being constitutionally protected from compulsion to provide physical evidence of his *705intoxication, could be persuaded to provide a sample through the physically less intrusive threat of a penalty.18

In the instant case, appellant was offered a choice between providing a breath sample or refusing. Providing the breath sample would have risked production of potentially damaging physical evidence of intoxication. Appellant’s refusal to provide a breath sample risked suspension of his driver’s license and use of evidence of the refusal against him at his trial. Nothing in the record indicates that appellant was physically coerced into choosing the option of refusal. Nor does anything in the record indicate that he was mentally coerced into choosing the option of refusal.19

The State could have legitimately relieved appellant of the relative benefit of making such a choice by compelling him to provide physical evidence of intoxication. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Olson, supra; Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Cr.App.1982). Instead, the State attempted to influence appellant into providing such evidence with the threat of a penalty for refusing. By refusing, appellant avoided what might have been compelled; but, in doing so, he accepted those consequences that the State could legitimately apply. Such difficult options do not necessarily create compulsion for a particular choice. Therefore, we find that appellant was not compelled to incriminate himself under Article I, § 10, supra, when he chose to refuse to provide a breath sample.

D.

Appellant argues that admission of evidence of his refusal to provide a breath sample violated his right to counsel under Article I, § 10, Tex. Const. and Article 1.05, V.A.C.C.P. Article I, § 10, supra, in pertinent part, provides: “In all criminal prosecutions the accused ... shall have the right of being heard by himself, or counsel, or both ...” Article 1.05, supra, contains identical language.

The State argues that appellant’s trial objection, in substance, has not preserved any error for review. We need not decide whether appellant’s right to counsel under Article I, § 10, supra, was violated because we agree with the State.

By referring to “Trial Objection No. One,” appellant directed the trial court’s attention to his pre-trial motion, which contained a specific citation to Article I, § 10, supra. As we found earlier, the form of objection, while not ideally suited to preserving asserted error, was accepted by the trial court in the instant case and, therefore, satisfies the requirement that an objection be made during trial. See discussion, ante, at p. 701.

The substance of the objection, however, falls short of informing the trial court that appellant sought to exclude evidence of his refusal on the basis that he had been denied his right to counsel. Article I, § 10, supra, in its entirety, provides:

*706In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and a copy thereof. He shall not be compelled to give evidence against himself. He shall have the right of being heard by himself, or counsel, or both; shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor. No person shall be held to answer for a felony unless on indictment of a grand jury.

In his “Trial Objection No. One,” appellant merely cited Article I, § 10, supra. We have concluded that such a citation, given the obvious relevance of the Self-Incrimination Clause in the context of the surrounding testimony and pre-trial motions, sufficiently directed the trial judge’s attention to the Self-Incrimination Clause of Article I, § 10, supra. See n. 9, ante, at p. 701. However, there is nothing in the record to suggest to the trial judge or opposing counsel that appellant was also raising the Right to Counsel Clause of Article I, § 10, supra.

Appellant had not mentioned any concerns related to his right to counsel in his motion in limine or his pre-trial motion. See Appendices A, B & C, post, at pp. 708-712. Nor does the context of surrounding testimony and pre-trial motions suggest that appellant was raising a right to counsel claim.20 In fact, the initial testimony by Officer Holcomb of appellant’s refusal specifically avoided any reference to appellant’s request for counsel. Therefore, we find that appellant has not preserved any asserted error under the Right to Counsel Clause of Article I, § 10, supra.

E.

Appellant argues that admission of evidence of his refusal to provide a breath sample violated his right to counsel under Articles 38.22, V.A.C.C.P. Article 38.22, supra, establishes procedural requirements, including informing a defendant of his right to counsel, that control the admissibility of statements resulting from custodial interrogation.

The State argues that appellant never specifically objected on the basis of Article 38.22, supra, thus preserving nothing for review. The Court of Appeals summarily rejected appellant’s claim by citing Gresset, supra. We need not decide whether Gres-set controls the instant claim because appellant did not preserve any error for review.

No objection appears in the record raising Article 38.22, supra, as a basis for excluding evidence of appellant’s refusal to provide a breath sample. Therefore, nothing is preserved for review.

II.

In his second ground of review, appellant contends that the trial court erroneously refused to instruct the jury on a fact issue relating to his request for counsel being interpreted as a refusal to provide a breath sample. Appellant apparently relies upon Article 38.23, V.A.C.C.P.21

*707The State argues that appellant did not object on the basis of Article 38.23, supra, at trial, thus failing to preserve any asserted error for review. The Court of Appeals held that the general charge to the jury sufficiently protected appellant’s right to a resolution of factual dispute surrounding evidence of his refusal to provide a breath sample.22 We will affirm on different grounds.

Normally, the failure to object at trial preserves nothing for review. See discussion, ante, at p. 700. However, where jury charge error is first raised on appeal, this Court will consider the complaint, albeit under a more exacting harm analysis if error is found. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985) (Opinion on Rehearing) (“... [I]f no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ ”) Cf. Kelly v. State, 669 S.W.2d 720 (Tex.Cr.App.1984) (failure to include Art. 38.23 instruction is not fundamental error in absence of objection). Therefore, whether appellant properly preserved any asserted jury charge error will only be relevant should we find that error actually occurred. Because we find that no error occurred, we need not decide whether appellant preserved any asserted jury charge error.

Article 38.23, supra, in mandatory terms, provides that a jury is to be instructed to resolve factual disputes over whether evidence was illegally obtained and, therefore, inadmissible. Jordan, supra. An instruction under Article 38.23, supra, therefore, directs a jury to disregard evidence if it resolves, in a defendant’s favor, the factual dispute concerning the manner in which the evidence was obtained.

In the instant case, appellant requested an instruction which would have ordered the jury to disregard any evidence of his refusal to provide a breath sample. See ante, at p. 699. Such an instruction essentially would have removed the fact question from the jury’s consideration. As such, appellant’s requested instruction did not follow Article 38.23, supra, and, in fact, would have constituted a comment on the weight of the evidence. Art. 36.14, V.A.C.C.P. However, we still must determine whether the trial court should have submitted a properly worded Article 38.23 instruction.

A trial court is required to include a properly worded Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained. Murphy v. State, 640 S.W.2d 297, 299 (Tex.Cr.App.1982); Morr v. State, 631 S.W.2d 517, 518 (Tex.Cr.App.1982); Turpin v. State, 606 S.W.2d 907 (Tex.Cr.App.1980); Jordan, supra.; Merriweather v. State, 501 S.W.2d 887, 891 (Tex.Cr.App.1973). In the instant case, there is no dispute as to the facts surrounding appellant’s refusal to provide a breath sample. Appellant responded to Officer Holcomb’s request for a breath sample by stating, “Not without my lawyer.” Appellant also stated that he would be sober before arrival of his lawyer. Although appellant testified, he never controverted these facts. Thus, no instruction was required.

The judgments of the Court of Appeals and the trial court are affirmed.

MILLER, J., dissents.

*708APPENDIX A

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*709Certificate of Service

This is to certify that a copv of the above and foregoing Motion in Limine - III has been furnished to Assistant District Attorney, Dallas County Courthouse, Dallas, Texas, 75202, by United States mail, postage prepaid, or by hand delivery on this _ day of . , 1983.

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MEMORANDUM OF AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE

TO THE HONORABLE JUDGE OF THE COURT:

Now comes FRED KENNEDY THOMAS, the defendant in the above

styled and numbered cause, and in support of his Motion in Limine - III, would show the Court as follows:

I.

Defendant would show the Court that the testimony of the

police officers as to whether they offered or the defendant refused a breath test is inadmissible under Art. 1, §10 of the Texas Con-

stitution and Art. 1.05, Tex. Code Crim. Proc. Ann.

*710XX.

It is error to admit evidence which is inadmissible on the basis of Texas Constitution, Art. 1, §9 which deals with searches and seizures, and more specifically self-incrimination under Art. 1, §10 of the Texas Constitution, even though it might not be error on federal constitutional grounds only. Where evidence is inadmissible on State constitutional grounds, but said objection is made only on the federal constitution, no error is presented. See, Gressett v. state, 723 S.W.2d 695 (#05-82-00493-CR, Tex.App.-Dallas 1983; now on Petition for Discretionary Review, #806-83 in the Texas Court of Criminal Appeals), wherein the court, in an unpublished opinion, held that DWI breath test "refusals" were admissible under the Fifth Amendment, but it is noted that appellant did not raise the inadmissibility of refusal under the Texas Constitution. See also, . White v. State, 521 S.W.2d 255 (Tex.Cr.App. 1975), cert.qtd., Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), on remand 543 S.W.2d 366, 369 (Tex.Cr.App. 1976), where the defendant's sols reliance in the trial court was on U.S. Const., amend IV and he at no time urged that Art. 1, §9 of the Texas Constitution supported his motion to suppress illegally obtained evidence. And in Bell v. State, 582 S.W.2d 800, 807 (Tex.Cr.App. 1979) (En Banc), the testimony of a laboratory technician as to the blood type of the defendant, who was required to give a blood sample out of the jury's presence during the course of his capital murder trial, was properly admitted over defendant's objection, which was grounded primarily on U.S. Const., amend V.

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APPENDIX C

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*711TRIAL OBJECTION NO. ONE

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*712[[Image here]]

. The offense of driving while intoxicated has since been redefined. See V.A.C.S., Art. 6701/-1 (Supp.1986); Forte v. State, 707 S.W.2d 89, 93-94 (Tex.Cr.App.1986).

. In his petition for discretionary review, appellant argues that evidence of his refusal to provide a breath sample should have been excluded for several reasons: 1) it violated Art. 38.22, V.A.C.C.P. and V.A.C.S., Art. 6701l-5 (1977), 2) it violated his privilege against self-incrimination under Art. I, § 10, Tex. Const. and Art. 1.05, V.A.C.C.P., and 3) it violated his right to counsel under Art. I, § 10, Tex. Const. and Arts. 1.05 & 38.22, V.A.C.C.P.

While these arguments all involve state law, they present at least three different legal theories in a single ground of review. In the instant case, appellant’s arguments are sufficiently clear for this Court to address. However, by combining more than one legal theory in a single ground, an appellant risks rejection on the ground that nothing is presented for review. Brooks v. State, 642 S.W.2d 791, 793 (Tex.Cr.App.1982).

(All emphasis is supplied throughout by the author of this opinion unless otherwise indicated.)

.Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. At the time of appellant’s arrest, Texas law was silent as to whether a police officer was required to inform a suspect of the consequences of a refusal. V.A.C.S., Art. 6501l-5 (1977). Nevertheless, Officer Hoicomb stated to appellant:

You’re under arrest for the offense of driving while intoxicated. I hereby request that you submit to a chemical breath test to determine the alcoholic content of your blood. If you refuse to take this test, your driver’s license and driver’s privileges can be suspended. In addition to the breath test, you can have a physician, a qualified technician, a chemist or qualified nurse of your own choosing to administer a test or tests within a reasonable time, no more than two hours after your arrest. ... Will you take the test?

We note that Officer Holcomb’s warnings did not include information that evidence of appellant’s refusal might be used against him at his trial. Texas law has since been amended to require a police officer to inform a suspect of the particular consequences of a refusal to provide a breath sample, including use of the refusal against him at his trial. V.A.C.S., Art. 6701l -5, § 2(b) (Supp.1986).

. Article 38.22, supra, establishes procedural requirements that control the admissibility of statements resulting from custodial interrogation.

. Neither judge relied solely upon Article 38.22, supra, in their opinions. See id., at 708 (Phillips, J.); id., at 711-15 (Onion, P.J., concurring).

. At the time of appellant's arrest and trial. Article 6701/ -5, supra, was silent as to whether the State could introduce evidence of a defendant’s refusal to provide a breath sample. Effective January 1, 1984, Article 6701l-5, supra, has been amended to include a specific provision providing that a suspect’s refusal to provide a breath or blood sample "may be introduced into evidence at the person's trial.” V.A.C.S., Art. 6701l-5, § 3(g) (Supp.1986).

. We note that a specific objection made at a hearing outside of the jury’s presence would also be sufficient to preserve the asserted error for appellate review without the need for objecting again in the presence of the jury. Maynard, supra, at 65. This principle would seemingly respond to the State’s argument, as to the form of appellant’s objection, because appellant filed a pre-trial motion to suppress. However, the record only indicates that the motion was denied on the same day that the trial began. See Appendix C, post, at p. 711. It does not indicate whether a hearing on the motion was held outside the jury’s presence or whether the trial judge denied the motion prior to introduction of evidence of appellant’s refusal. Cf. Maynard, supra, at 65. Although such a sequence of events may indeed have occurred, ”[t]his Court is bound by the record on appeal as presented to us.” Evans v. State, 622 S.W.2d 866 (Tex.Cr.App.1981). Therefore, we must rely upon separate reasoning to find that appellant preserved his asserted error for appellate review.

. The pre-trial "objection” did not specifically mention the Self-Incrimination Clause of Article I, § 10, supra. It merely cited Article I, § 10, supra. However, given the context within which appellant made his objection and his earlier motion in limine and memorandum specifically mentioning the Self-Incrimination Clause, see Appendices A & B, post, at pp. 708-709, the trial judge's and opposing counsel’s attention had certainly been directed at that clause. We acknowledge, of course, that the motion in limine, alone, did not preserve any asserted error. Maynard, supra, at 64.

. Appellant, through cross-examination of Officer Holcomb, did elicit testimony that he declined to provide a breath sample without the presence of an attorney. However, such testimony did not cure any error because it was offered to rebut the State’s claim that appellant actually refused to provide a breath sample. See Maynard, supra, at 65 ("... [T]he harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, or explain it by the introduction of rebutting evidence”).

Appellant also allowed the State without explicit objection, on redirect examination of Officer Holcomb, to elicit testimony that appellant said he would be sober before an attorney arrived. However, the trial court had given appellant a continuing objection to such testimony on the basis of Article I, § 10, supra.

. ”[N]or shall [any person] be compelled in any criminal case to be a witness against him-self_" U.S. Const. amend. V.

. Neither case is applicable to the instant case because neither case was decided on the basis of the Self-Incrimination Clause of Article I, § 10, supra. Dudley, supra, only involved the Self-Incrimination Clause of the Fifth Amendment. Cardwell, supra, only involved state confession statutes.

. Specifically overruled were Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381 (Tex.Cr.App.1941) (collection of urine specimen over defendant’s objection violates Article I, 10, supra), Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706 (Tex.Cr.App.1942) (demand for voice exemplar violates Article I, § 10, supra), and Trammel v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487 (Tex.Cr.App.1956) (collection of blood sample without consent of defendant violates Article I, § 10, supra).

. A minority of states have found refusal to take a breath test to be testimonial communication. See South Dakota v. Neville, 459 U.S., at 560-62, 103 S.Ct., at 921; Dudley, supra, at 708. But see and cf. State v. Hoenschied, 374 N.W.2d 128, 129-30 (S.D.1985) (refusal to perform sobriety tests is "non-communicative and non-testimonial in nature”).

.This holding necessarily overruled Dudley, supra, to the extent that Dudley held that a defendant's choice of refusal to provide a breath sample was compelled in violation of the Fifth Amendment.

. Our reliance upon early case law is necessary because of the relative absence of cases raising Article I, § 10, supra, after the Fifth Amendment was made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Where this Court addresses claims based on state law, we are now careful to note when we rely upon cases that only interpret state law. See McCambridge, supra, at 501-502, n. 9.

. The defendant in Millican, supra, relied upon Apodaca, supra, for the principle that a suspect may not be required to provide incriminating physical evidence. Apodaca, supra, has been overruled because such evidence is not testimonial in nature. Olson, supra, at 772. However, Millican, supra, and Apodoca, supra, are still instructive as to the meaning of compulsion in Article I, § 10, supra. The same limitation applies to Beachum, supra.

. For similar reasoning applied to a state constitutional privilege against self-incrimination, see State v. Neville, supra, at 429-30. Cf. Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (witness could not be compelled to testimonially incriminate himself with threat of penalty).

. We acknowledge that appellant was not informed that his refusal to provide a breath sample might be used against him at his trial. However, the absence of this warning does not necessarily mean the State "compelled” appellant to select refusal as his option. The State would normally favor encouraging a defendant to provide a breath sample because it results in far stronger evidence of intoxication. In the absence of any evidence that the State “has subtly coerced [appellant] into choosing the option it had no right to compel,” South Dakota v. Neville, supra, we find that the failure to warn appellant concerning the use of his refusal at his trial did not compel appellant to refuse to provide a breath sample. See State v. Neville, supra, at 430.

Appellant has not raised any claim that the failure to warn him of a consequence of his refusal violated the due course of law clause under our state constitution, Article I, § 19, Tex. Const. Cf. State v. Neville, supra. Therefore, we express no opinion as to the merit of such a claim.

. We note that in objecting to the charge, appellant explained that he was aware of the lack of protection under the Fifth Amendment and, therefore, sought protection under state law. See facts, ante, at pp. 698-699. The Fifth Amendment is commonly used as a shorthand method of raising the Self-Incrimination Clause. While appellant’s explanation in connection to his request for an instruction does not restrict his trial objection, it reinforces our belief that appellant did not intend to raise the Right to Counsel Clause during trial.

. Appellant, in his petition and brief, never specifically mentions Article 38.23, supra. However, he cites two cases decided by this Court that directly rely upon Article 38.23, supra: Hall v. State, 649 S.W.2d 627 (Tex.Cr.App.1983) and Jordan v. State, 562 S.W.2d 472 (Tex.Cr.App.1978).

Article 38.23, V.A.C.C.P., provides:

No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any criminal case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a rea*707sonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

. The Court of Appeals, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), also commented that "no right to counsel under the sixth amendment to the United States Constitution or Article I, sec. 10 of the Texas Constitution was raised at the stage of the proceeding where appellant was requested to take the breathalyzer test.” Thomas, supra. Because we will affirm on statutory grounds, we express no opinion at this time whether a right to counsel under Article I, § 10, supra, attaches prior to a defendant being formally charged. Cf. Forte, supra (no right to counsel under Sixth Amendment prior to formal charges).