dissenting.
This appeal presents for reconsideration the question of whether the State may initially interject evidence that the accused was offered and refused to take a breathalyzer test. It is contended that Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951), and cases following'it which held such evidence inadmissible, should be overruled in light of Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972).
Appellant was convicted by a jury of driving while intoxicated. In his only ground of error, appellant contends that the trial court erred in admitting, over objection, testimony from the arresting officer on direct examination that appellant had refused an offer to take a breathalyzer test to determine intoxication. The same matter was also inquired of appellant on cross-examination. He relies on the long line of cases following Cardwell v. State, supra, in which this Court wrote:
“The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt.”
Olson v. State, supra, brought Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) into effect in Texas and held the scope of the privilege against self-incrimination embodied in Art. I, Sec. 10, Texas Constitution, to be coextensive with that of the Fifth Amendment to the United States Constitution. Olson specifically held that there was no constitutional prerequisite of consent to subjecting an accused to a chemical test or other type of test for the purpose of obtaining evidence.1
It is clear that the exclusionary rule of Cardwell v. State, is founded not upon the breathalyzer statute, Art. 6701/ -5, V.A. C.S., nor upon the provisions of the federal or state constitutions. Olson v. State, supra. Rather, the rule is based upon the Texas confession statute, Art. 38.22, V.A.C. C.P., and the evidentiary rule prohibiting admissions by silence.
The appellant’s refusal to take the test amounted to a refusal to submit to the lawful exercise of statutory authority. Art. 6701/-5, Sec. 1, V.A.C.S. Such a refusal may take the form of an accused’s holding his breath or turning his head. This is tantamount to withholding or destroying evidence. It is analogous to flight or escape, which are non-testimonial circumstances admissible to show an accused’s guilt. Clearly, then, the fact of refusal, if not the actual words used, would be admissible. For this reason alone, the Supreme Court’s holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) is distinguishable.
The case at bar, however, presents more than the mere fact of refusal. The appellant testified, “I was told that I was to stand and that I was about to be given a breath test. I said no thank you.” (Emphasis added). There was a timely objection to this line of questioning. We thus have the actual words used by appellant when he refused to submit to the administration of the test. This raises the prob*716lems under Art. 38.22 V.A.C.C.P., upon which the Cardwell line of cases has been based.
I am of the opinion that such verbal evidence of a refusal to submit does not constitute an admission or confession proscribed by said statute, even though it may be introduced against an accused as tending to show his guilt. Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973) (dissenting opinion). Such a refusal is a concrete factual circumstance tending to show guilt, and should be admissible as such. Cohen, “The Case for Admitting Evidence of Refusal to Take a Breath Test,” 6 Tex.Tech.L. Rev. 927 (1975).
In practical terms, it is difficult to square the opinions of the majority — that evidence of refusal to submit to a chemical test for intoxication is inadmissible — with the rule announced in Olson v. State, supra, that evidence of a coerced chemical test (or handwriting exemplar) is admissible. If handwriting exemplars, urine specimens, voice samples and sobriety tests are admissible despite Art. 38.22, recalcitrance in the giving of such evidence should also be admissible. To the extent that Butler v. State, supra; Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971); Cardwell v. State, supra (and cases following it), would hold such non-inculpatory post-arrest statements inadmissible under Art. 38.22, they should be overruled.
It follows that evidence of appellant’s refusal to submit to a breathalyzer test was admissible and the trial judge committed no error in so ruling.
Appellant’s ground of error should be overruled and the judgment should be affirmed.
ODOM, J., joins in this dissent.. See the very thorough discussion of my Brother Onion further explicating this subject matter.