ON appellant’s motion for rehearing
WOODLEY, Judge.A re-examination of appellant’s Bill of Exception No. 7, in the light of his motion for rehearing, convinces us that it deals with a single subject and is not multifarious.
The bill begins with the statement: “Be it remembered that on the trial of this case the following things and matters happened, while the defendant was under afrest, which were highly prejudicial to his rights and calls for a reversal of this case, to wit:”
There follows a number of questions and answers, objections, remarks of counsel, rulings of the court and exceptions to the rulings, all of which relate to the testimony of an officer to the effect that appellant, while under arrest, refused to take a sobriety test based on co-ordination, offered by a doctor of the city health department.
The bill concludes with the following paragraph: “The matters and things complained of herein were permitting in evi*461dence statements, acts and declarations of the defendant while under arrest, not having been warned or the Statute complied with regarding confessions. The evidence which the Court admitted is very damaging and prejudicial and is reversible error.”
The trial court approved the bill without qualification.
The state cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt. See Carter v. State, 23 Tex. App. 508, 5 S.W. 128; Elliott v. State, 152 Tex. Cr. R. 285, 213 S.W. (2) 833; Sharp v. State, 153 Tex. Cr. R. 96, 217 S.W. (2) 1017.
The testimony should not have been admitted and the bill certifies reversible error.
Appellant’s motion for rehearing is granted, the affirmance is set aside and the cause is now reversed and remanded.
Opinion approved by the court.