dissenting.
I.
In rejecting appellant’s claim that the trial court erred in admitting evidence of his refusal to submit to a breath test the majority refuses to entertain arguments advancing Article 38.22, V.A.C.C.P. and V.A.C.S., Article 6701l-5 (prior to amendment in Acts 1983, 68th Leg., p. 1577, ch. 303, § 4, eff. Jan. 1, 1984) as independent authorities in support of his position, finding that these authorities were not expressly made the basis of appellant’s objections in the trial court. With all due deference, I submit that it is not the proper function of this Court to make such determinations for the first time on petition for discretionary review. ■
In one ground of error in his brief to the court of appeals appellant argued: “The exclusion of evidence of the appellant’s refusal is not only founded upon Article I, § 10 of the Texas Constitution which prohibits compulsory self-incrimination, but also the statutory provisions of Article 1.05 [V.A.C.C.P.].” The court of appeals dispatched this ground as follows: “Appellant contends that admission of [refusal] evidence violated Article I, section 10 of the Texas Constitution, and Texas Code of Criminal Procedure Ann. article 1.05. We overrule this ground of error on the authority of Gressett v. State, 669 S.W.2d 748, 749-50 (Tex.App. — Dallas 1983, pet. granted).”
Thus the court of appeals directly decided only the question of admissibility of refusal evidence as a function of the state constitutional provision (and corresponding provision of the Code of Criminal Procedure) and did not expressly pass on the other authorities argued under appellant’s first ground of error. Undecided was appellant’s argument that Article 38.22 would exclude evidence of refusal to submit to a chemical breath test.1 Wholly ignored was appellant’s argument that because Article 6701/ -5 itself was silent as to admissibility before the 1983 amendment, the Legislature must have intended refusal evidence to be excluded. See Dudley v. State, 548 S.W.2d 706, 712-14 (Tex.Cr.App.1977) (Onion, P.J., Concurring).
If the court of appeals chooses to hold that these particular authorities, because not argued to the trial court, are not cognizable on appeal, that is its prerogative. We should not so hold for the first time on petition for discretionary review, however. I would remand the cause to the court of appeals for its consideration of all authorities raised but not resolved on appeal. Because the Court does not, I dissent.
II.
A major stumbling block in determining admissibility of refusal to submit to a chemical test for intoxication under Article I, § 10, and for that matter under the Fifth Amendment, is deciding how to characterize that refusal for purposes of constitu*713tional analysis. On the one hand it may be argued that such refusal constitutes exercise of the constitutional right to silence while under arrest, which right would be impermissibly penalized if the refusal were admitted in evidence as indicative of the accused’s guilty knowledge. It may also be argued that refusal, whether accomplished by spoken words or by failure to speak, constitutes a “compelled communication” that amounts to selfincrimination, and thus its admission constitutes a direct violation of the accused’s constitutional right to be free of any compulsion to “give evidence against himself.”
A.
The rule excluding evidence of an accused’s silence after arrest stems from his unqualified right under the State Constitution to remain silent in the face of custodial accusation. See Sanchez v. State, 707 S.W.2d 575 (Tex.Cr.App.1986) (Clinton, J., concurring). (For the federal analog see Miranda v. Arizona, 384 U.S. 436, at 468, n. 37, 86 S.Ct. 1602, at 1624-25, n. 37, 16 L.Ed.2d 694, at 720, n. 37 (1966).) Quite obviously, an accused who remains silent after arrest is exercising his constitutional right to do so. To use the fact of his silence at a subsequent trial to create the inference that because he was silent, he must have had nothing exculpatory to say, and therefore harbored a guilty mind, is to penalize exercise of the right.
An accused has no constitutional right, however, to refuse to submit to a chemical sobriety test. Rodriguez v. State, 631 S.W.2d 515 (Tex.Cr.App.1982). It has been argued that when silence is used to manifest refusal to submit to a breath test, the inference drawn is that appellant had no exculpatory physical evidence to give, not that he had nothing exculpatory to say. It is therefore anomalous to treat refusal, whether express or by silence, as inadmissible on the rationale that we would thereby avoid penalizing exercise of the constitutional right to remain silent. See People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401, cert. den. 389 U.S. 850, 88 S.Ct. 43, 19 L.Ed.2d 119, reh. den. 389 U.S. 996, 88 S.Ct. 460, 19 L.Ed.2d 506 (1966). However, because I view refusal to take a breath test, even if by silence, not as an exercise of the right to remain silent, but as an involuntary expression of a consciousness of guilt, I reject this analysis.2
*714B.
In essence the majority argues, following the lead of South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), that because appellant had the “option” to submit to the extraction of physical evidence, his refusal to submit was not “compelled,” and thus did not encroach upon his right under Article I, § 10 to be free from compulsion to “give evidence against himself.” The majority observes that “the suspect, not being constitutionally protected from compulsion to provide physical evidence of his intoxication, could be persuaded to provide a sample through the physically less intrusive threat of a penalty.” At pp. 704-705. From this it is concluded: “by refusing, appellant avoided what might have been compelled; but, in doing so, he accepted those consequences that the State could legitimately apply [emphasis supplied].” At p. 705. In this, the majority begs the very question that is in issue here, viz, whether admitting evidence of refusal to submit to a chemical breath test is indeed a consequence the State can legitimately apply.
As I understand it, the reasoning of the majority goes somewhat as follows: The State may legitimately compel the extraction of physical evidence of intoxication. Rodriguez v. State, 631 S.W.2d 515 (Tex.Cr.App.1982). Threat of a penalty for not submitting to such extraction is a legitimate and probably preferable means of compulsion, particularly inasmuch as actual physical coercion, perhaps implicating due process limitations, is thereby avoided. Because the objective itself, viz, the compulsion to provide physical evidence, is permissible, any penalty devised to effect that compulsion is legitimate, including the threat to introduce refusal to submit in evidence as a fact from which guilty knowledge may be inferred. That the refusal may be characterized as a “communication” does not matter; because there existed the option to submit to what the State could constitutionally have compelled (i.e., a detriment from which the accused was not entitled to be free), he was not compelled to refuse.
There must be boundaries, however, to what “penalties” can be imposed upon an accused as a means of compelling him to submit to the extraction of physical evidence. Certainly if the Legislature were to amend Article 6701l -5, supra, to provide that police officers may beat or torture a D.W.I. suspect until he agrees to submit a sample of his breath for chemical analysis, this Court would be of a mind to strike down the amendment as unconstitutional under both state and federal constitutions; likewise if it were provided that all D.W.I. suspects who fail to submit to chemical testing will be deprived of the assistance of counsel at trial. In short, there must be constitutional limitations upon what penalties may be imposed in order to compel even what is assuredly a constitutionally permissible objective.
State sponsored torture and denial of assistance of counsel are constitutional violations on their face, and thus they may not be used to penalize the failure to submit to a chemical breath test. Whether admission into evidence of the refusal to take such a test is a similarly invalid penalty depends upon whether the refusal itself constitutes a “compelled communication” under Article I, § 10.
Because in any event the question thus remains whether refusal evidence constitutes a “compelled communication” under Art. I, § 10, the Court should at least eschew the circuitous analysis whereby it *715finds evidence of refusal to be admissible as a “penalty” “that the State could legitimately apply” for failure to submit to physical testing. It would be far more straightforward simply to hold that evidence of failure to take the test is admissible in its own right. This is true, or so the argument goes, because the accused could opt to submit to what Rodriguez, supra, effectively held to be a “permissible detriment.” Having the option to submit, the accused is not “compelled” to refuse, and thus his refusal is not a “compelled” communication under Art. I, § 10.3
I cannot agree. The extraction of physical evidence of intoxication is a permissible detriment, not because it is not compulsion, but rather because what it compels is not communicative. For this reason the State may, within due process bounds, physically force him to submit, if not to the extraction of breath (which may present practical problems), at least to extraction of blood for chemical testing. But just because the State relents, granting a suspect the “right,” “power,” or what have you, to refuse, it does not follow that he has a concomitant “option” to submit. In fact, the initial choice belongs to the State. Its failure to exercise the option physically to take breath or blood does not render the suspect’s consequent decision whether or not to submit to it a volitional act. Having chosen not to remove such evidence by bodily force, the State simply transforms the compulsion to submit into a compulsion either to submit or to suffer the consequences. That the State could constitutionally have compelled actual submission does not render the “option” thus presented uncoercive. Indeed, the “option” the majority attributes to the D.W.I. suspect in this context is wholly contrived. Compulsion once removed is nonetheless compulsion.
In my view, then, the refusal to submit to a police officer’s request to submit to a chemical breath test is a product of compulsion for purposes of Art. I, § 10. Whether admission into evidence of the refusal is unconstitutional thus depends upon whether that refusal may properly be characterized as a “communication.” To that inquiry I now turn.
C.
It can hardly be said that the refusal to submit to a proffered test for intoxication is not an indicia of a consciousness of guilt. Otherwise it would have no relevance to any material issue in a D.W.I. prosecution, and, absent statutory language expressly admitting it, would be subject to exclusion if objected to at trial. By presenting an accused with the “choice” to submit or refuse, the police officer compels either physical evidence, which of course is not “communicative,” or the refusal, which, whether express or by silence, nevertheless translates into an expression of a consciousness of guilt.
As pointed out by Judge Roberts in his dissenting opinion in Dudley v. State, 548 S.W.2d 706, 715-16 (Tex.Cr.App.1977), it is possible to analogize to evidence of flight or destruction of evidence, which are considered to be circumstantial indicators of a consciousness of guilt, deriving from conduct of the accused. However, it seems to me there is a critical defect in this analogy.
A D.W.I. suspect, on the side of the road or at the stationhouse, is in such a position that, one way or another, upon request, he will supply the State with more evidence than is already apparent from the fact of his erratic driving, slurred speech, unsteady gait, etc. When he refuses the request, he involuntarily, yet unavoidably, provides a circumstance from which consciousness of guilt can be inferred. By contrast, neither flight nor destruction of evidence is conduct directly elicited during the course of a controlled arrest or investigatory detention. The decision to flee or to flush evidence is not responsive to any choice deliberately presented to the ac*716cused. Indeed, unlike flight or destruction of evidence, which are spontaneous reactions, refusal to submit to a test for intoxication is “communicative” conduct because it is directly responsive to a police officer’s request.
Because I view it to be the “compelled communication” of a consciousness of guilt, I would hold that the admission into evidence of appellant’s refusal to submit to a breath test violated his constitutional right to be free of the compulsion to “give evidence against himself,” under Art. I, § 10 of the Texas Constitution. Because the majority does not so hold, and for reasons stated in Part I of this opinion, ante, I respectfully dissent.
. See, however, the opinion in Bass v. State, 723 S.W.2d 687 (Tex.Cr.App.1986).
. Nevertheless, an argument can be made from our caselaw that refusal evidence does indeed impinge upon an accused’s Art. I, § 10 right to remain silent.
In his concurring opinion in Dudley v. State, 548 S.W.2d 706, at 710 Tex.Cr.App.1977), Judge Onion quoted the holding of Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951), thus:
“The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt.”
As was recently demonstrated, this "rule of evidence which forbids an accused’s silence to be used against him as tending to establish guilt[,]’’ Dudley v. State, supra, at 711, is actually a rule of state constitutional dimension. Sanchez v. State, supra. Thus, inasmuch as Cardwell v. State, supra, applied that rule as authority for excluding evidence of a refusal to submit to a sobriety test, it relied on Article I, § 10.
Cardwell, supra, relied, inter alia, upon Sharp v. State, 153 Tex.Cr.R. 96, 217 S.W.2d 1017 (1949). While Sharp seems to rely in part upon the confession statute, it also cites Gardner v. State, 34 S.W. 945 (Tex.Cr.App.1896), as do a number of the other cases referenced in Sharp. We have already shown that Gardner v. State, supra, established that the rule against using postarrest silence against an accused was one of state constitutional dimension, and applied irrespective of the confession statute. See Sanchez v. State, supra at 585-86. Inasmuch as Cardwell may be said to be an extension of the holding in Gardner, it can certainly be argued that the rule excluding evidence of refusal to submit to a sobriety test derived from the state constitutional right to silence. Hence, such evidence would be inadmissible under state law regardless of whether the Fifth Amendment would admit it. Cf. Weaver v. State, 43 Tex.Cr.R. 340, 65 S.W. 534 (1901). (The day after the murder occurred for which the defendant stood trial, he was brought to a house where the body of the deceased was laid out.
Having been warned according to the terms of the confession statute, he was asked to step into the house and view the body. This he refused to do, and this fact was allowed into evidence through the testimony of the sheriff, a man named Bell. The Court observed that in Gardner and several cases following it:
"... we held that where a person is in custody for a crime his silence cannot be used against him as confession of the truth of the statements made in his presence, whether he was cautioned as required by the statute or not. *714The bill (of exceptions] shows that Bell cautioned appellant that any statement he might make could be used against him, but not for him, as required by the statute. Thereupon • he invited appellant to look upon the body of the deceased. This he refused. Can such refusal be used as a circumstance against defendant? Clearly not. If so, then any refusal to answer questions or to comply with any statutory warning could be used as a crimina-tive fact against him. We do not think the rule authorizing the introduction of appellant’s statement while under arrest can be given the latitude shown by this bill of exceptions. If so, then, as stated, the sheriff could be permitted to testify to any character of denial or refusal the defendant might make as a criminative act against him. We do not think this testimony was admissible, and the court erred in permitting the sheriff to testify as indicated."
Id., at 537.)
. This is simply a reincarnation of the notion that because an accused has no right to refuse to give physical evidence, testimony that he refuses to do so does not penalize his constitutional right to remain silent. See Part IIA, ante.