dissenting.
For the reasons that I state herein, as well as the reasons I have stated in the dissenting opinions that I have filed in Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986), Mc Ginty v. State, 723 S.W.2d 719 (Tex.Cr.App.1986), and McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986), I respectfully dissent.
This is another driving while intoxicated case where the accused, after being arrested and receiving his Miranda warnings,1 when requested to do so, refused to take the chemical breath test.
The facts reflect that the appellant was arrested for the offense of driving while intoxicated. Thereafter, he was apparently given the Miranda warnings. He was also requested to give a chemical breath test by the arresting officer, which he eventually refused to take. The trial court admitted into evidence over objection the appellant’s refusal to take the test. The El Paso Court of Appeals, relying upon its decisions of Nevarez v. State, 671 S.W.2d 90 (Tex.App. —El Paso 1984), and Casselberry v. State, 631 S.W.2d 542 (Tex.App. — El Paso 1982), in which this Court refused the State’s petition for discretionary review, reversed. Nevarez, supra, and Casselberry, supra, had relied upon this Court’s decisions of Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977), also see Martinez v. State, 548 S.W.2d 719 (Tex.Cr.App.1977); Boney v. State, 548 S.W.2d 730 (Tex.Cr.App.1977); Hitt v. State, 548 S.W.2d 732 (Tex.Cr.App.1977); Clinard v. State, 548 S.W.2d 716 (Tex.Cr.App.1977), Sutton v. State, 548 S.W.2d 720 (Tex.Cr.App.1977), all of which decisions the bench and the bar of this State — for almost ten years — have believed stood for the proposition that in a prosecution for driving while intoxicated, unless some exception came into play, it was error for the trial court to admit testimony that the accused had been offered and refused to take a breath test. Today, an aggressive and assertive majority of this Court “deep-sixes” that belief. It apparently does so in order that it can overcome the decision by the El Paso Court of Appeals in this cause.
Judge Clinton, the author of the aggressive and assertive majority opinion, implicitly latches onto what he stated in the dissenting opinion that he filed in Thomas v. State, supra, namely, “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).”2 My research to date reveals that with the exception of Rodriguez v. State, supra, since Dudley et al were decided, this Court has not been confronted with a single case on direct appeal where it was contended that a trial court erred in admitting over objection the accused’s refusal to take the test. In light of the fact that Rodriguez, supra, only represents a two judge majority panel opinion of this Court, with Presiding Judge Onion writing the majority opinion and Judge Clinton joining him, with the undersigned dissenting without opinion, it is certainly questionable that it is as authoritative as Judge Clinton implies.
In his dissecting manner, Judge Clinton appears to find fault with what Dudley v. State, supra, and its progeny held, and how they have been religiously adhered to by most members of the Bench and Bar of this State. He does so because “The five judges on the court who decided Dudley were split four ways in their view of how that cause should have been disposed of.” In light of the fact that his “authoritative” *693source of Rodriguez v. State, supra, represents only a mere majority panel opinion of this Court, thus representing the views of only two judges of this Court, how he can implicitly state that this causes Dudley, et al to lose the meaning attributed to it by most of the members of the Bench and Bar escapes me.
Judge Clinton is correct, however, in advising us that the issue before this Court in this cause is “whether state law, and more specifically, either Article I, § 10 of the Texas Constitution, or Article 38.22, V.A.C.C.P., or both afford an appellant greater protection vis-a-vis the admissibility of refusal evidence than does the Fifth Amendment.” (Page 689) However, he is dead wrong when he holds for the aggressive and assertive majority of this Court that “the refusal of appellant in the instant cause to submit to the breathalyzer test did not come about as the result of ‘custodial interrogation’ for purposes of Article 38.22, supra.” (Page 691)
For the reasons I have expressed in my dissenting opinion in Me Ginty, supra, I am unable to understand how any rational appellate court judge can state without any qualification that an accused, who has been arrested, placed in a police car, asked questions by the arresting officer, to which he gives responses, albeit negative ones, is not then in the grips of “custodial interrogation”.
It has been stated: “The most damaging result of a refusal to submit to a chemical test is usually not the suspension or revocation of the client’s driver’s license but rather the effect that the fact of refusal will have on a trial. For certainly any jury will draw from a refusal the adverse inference of consciousness of guilt, i.e., that the defendant refused to submit to a chemical test because he knew the result would reflect the many drinks he had taken ...” Taylor, Drunk Driving Defense (1981), at page 257. Furthermore, this kind of law that permits comment upon the accused’s refusal to take the test “reverses the traditional presumption of innocence_” Taylor, “Blood-Alcohol Analysis and the Fourth Amendment,” Vol. 10, No. 4, Search and Seizure Law Report, May, 1983.
In writing for the aggressive and assertive majority of this Court, Judge Clinton holds that refusal evidence by the accused is not protected by the provisions of Art. I, Section 10, of the Texas Constitution. I am not yet ready to concede such a point. See the dissenting opinion that I filed in Thomas v. State, supra. I will now express additional reasons that support my position.
Until today, the Legislature of this State and this Court has long jealously guarded the right of an accused to remain silent. This Court has consistently held that under our self-incrimination laws the receipt of evidence in a criminal trial, over objection, of a defendant’s complete silence or refusal to answer questions is error. This has been on the theory that the fact that a defendant did what he had an absolute right to do cannot be used to create any unfavorable inference against him. See Dudley et al, supra.
To equate the taking of blood or breath from an accused to the refusal to give or take such a test is simply nonsensical. Refusal is, by definition, communication. As communication, it falls within the protective cloak of the self-incrimination clause of Art. I. Section 10, of the Texas Constitution. A statute or law which endeavors to compel such communication under penalty of having the refusal admitted in evidence against him, presumptively as evidence of consciousness of guilt, compels the accused to bear witness against himself, in violation of his self-incrimination rights, as guaranteed by the Texas Constitution.
It is apparent to me, if no one else, that the majority opinion proceeds on the non-sequitur that since submission to the test is non-testimonial, the refusal to submit is, likewise, non-testimonial. It is plain, however, that one does not follow from the other. Equally plain, refusal may be transmitted only by some form of communication or communicative act. State v. Rodri*694guez, 80 Misc.2d 1060, 364 N.Y.S.2d 786 (1975).
Given the above, how the refusal to submit to chemical or blood testing is not communicative in nature, which is what the majority holds, escapes me.
It should not be questioned that a refusal to take the test is communicative in nature rather than physical. In State v. Jackson, 195 Mont. 185, 637 P.2d 1 (1981), that Court correctly observed that “[ejvidence of a defendant’s refusal, whether expressed verbally or by physical resistance, is relevant in its testimonial aspect as the equivalent of the statement, ‘Because I fear that the.test will produce evidence of my guilt, I refuse to take the test.’ ”
Admission of such refusal is too high a price to pay for the privilege of driving a motor vehicle on a highway.
Furthermore, but as I pointed out in the dissenting opinion that I filed in Mc Ginty v. State, supra, how the refusal to take the test is relevant and sufficiently probative evidence to overcome its prejudical effects in a D.W.I. case also escapes me. “[T]he fact of the defendant’s refusal would be no more a relevant circumstance to establish consciousness of guilt than the fact of the arresting officer’s refraining from obtaining a warrant indicates that he believed that the defendant was not intoxicated ... [[Ejvidence of refusal] was simply not relevant evidence.” State v. Chavez, 96 N.M. 313, 629 P.2d 1242 (1981). Also see State v. Munroe, 22 Conn.Sup. 321, 171 A.2d 419 (1961); City of St. Joseph v. Johnson, 539 S.W.2d 784 (Mo.Sup.Ct.1976); Crawley v. State, 219 Tenn. 707, 413 S.W.2d 370 (1967); State v. Sverson, 75 N.W.2d 316 (N.D.Sup.Ct.1956); City of Columbus v. Mullins, 162 Ohio St. 419, 123 N.E.2d 422 (1954); People v. Knutson, 17 Ill.App.2d 251, 149 N.E.2d 461 (1958); People v. Hayes, 64 Mich.App. 203, 235 N.W.2d 182 (1975); State v. Parker, 16 Wash.App. 632, 558 P.2d 1361 (1976); People v. Hayes, 64 Mich.App. 203, 235 N.W.2d 182 (1975); State v. Wilson, 5 Kan.App.2d 130, 613 P.2d 384 (1980); City of Seattle v. Boulanger, 37 Wash.App. 357, 680 P.2d 67 (1984); People v. Duke, 136 Mich.App. 798, 357 N.W.2d 775 (1948). Lastly, to admit his refusal into evidence in this instance placed the appellant in a “Catch 22” or a “damned if I do, damned if I don’t position.”
In this instance, the arresting officer unquestionably gave the appellant the Miranda warnings after which the appellant refused to take the test. He was thus given a choice by the arresting officer and he refused to take the test. Thus, the arresting officer provided the appellant with a definite choice, and we should not render the appellant’s decision to refuse to take the test an illusory one. Cf. State Department of Highways v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971).
Anything that is said in Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969), about the admissibility of an accused’s refusal to take a chemical breath test and such being admissible evidence against him at his trial is pure dicta because Olson involved the taking of hand-writing exemplars. Thus, this Court’s panel opinion of Rodriguez, supra, which relied upon Olson, supra, was incorrectly decided and should be expressly overruled by the En Banc Court.
Today, it is unquestionably popular to “lock-step” with those who favor abolishing all rights which the respective Constitutions grant our people, because “it is only those who are guilty who hide behind those rights and innocent persons have no need to hide behind those rights.” However, I am confident that the majority of the people of this State will not join this method of thinking and will continue to subscribe to what is expressed in the respective Constitutions that were written in 1776 and 1836. Cf. Harrington, “The Texas Bill of Rights and Civil Liberties,” 17 Texas Tech Law Review, No. 5.
For all of the above and foregoing reasons, I respectfully dissent.
. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Rodriguez was filed in this Court on October 2, 1979, but was not decided by a majority of a panel of this Court until April 21, 1982. There was no motion for rehearing. The Dudley, supra, line of cases were actually decided in 1977.