The opinion
DOUGLAS, Judge
(dissenting).
The opinion as originally prepared by Judge Dally as a Commissioner for this Court, omitting the formal parts, is adopted as a part of this, the dissenting opinion:
[The appellant challenges the sufficiency of the evidence, his statement of this ground of error being “ . . . that there is no testimony from any witness that the defendant was intoxicated . ”
State Highway Patrolmen Wyatt and Cooley and their supervisor, Sergeant Cleckler, were cruising in a Highway Patrol car, about three miles north of Alvin, *728 in Brazoria County, on State Highway 35. The officers observed a car approaching them on that highway. The driver of the car refused to dim its lights, after the driver of the patrol car had twice signaled him to do so. The officers turned the patrol car around and followed this car. They observed that the car they were following was weaving on the road. After traveling “approximately a quarter to a half mile” they used the red lights on the patrol car and the car they were following pulled over and stopped. There were three people in the car. Two men were in the front seat and a woman was in the back seat.
As soon as the car stopped, Sergeant Cleckler observed “the driver and passenger switch places right fast.” Sergeant Cleckler testified the driver of the car “wasn’t walking properly, I wouldn’t say stumbling, but very unsteady on his feet. His clothes were disarrayed, he just didn’t handle himself proper or what I would consider good ... I observed he was unsteady on his feet, he could not walk properly, he held his head down most of the time, he did not speak unless he was urged to, he had a very strong odor of alcohol beverage about him; after he, well, after the arrest he passed out in the car on the way to the jail.”
The driver was taken to the Highway Patrol office in Angleton. After the driver had signed a written statement giving consent for the test, Sergeant Cleckler administered a “breathalyzer test” to him. The Sergeant testified the result of the test showed “.22 of 1%, 2a/ioo of 1;%.”
Officer Wyatt observed the appellant’s vehicle “was suspicious, driving all over the road, we didn’t know what we might have in the automobile.” Immediately after the automobile had been stopped, Officer Wyatt also observed the driver and passenger in the front seat change positions. He testified that appellant’s speech was “slurred and, I could smell alcoholic beverage on his breath, and he was unsteady on his feet at the time.” Wyatt also noticed that the other two occupants of the car had been drinking.
The officers found three cans of “Jax” beer in the appellant’s car. Appellant’s car was “cluttered with trash, clothes and empty beer cans.”
Officer Wyatt testified that the appellant was the driver of the car which the officers stopped. Although Sergeant Cleckler could not positively identify the appellant sitting in the courtroom as the driver of the car the officers had stopped, his testimony was related to and concerned with the driver of the car.
During the direct examination of Sergeant Cleckler, after he had testified to the stopping of the car, he was asked: “From your memory, how would you describe the driver of the automobile?” He answered: “In my opinion, the driver was very intoxicated.” The appellant’s objection that the answer was not responsive was sustained. Appellant’s request to strike that testimony was granted. Thereafter, neither witness was interrogated concerning his opinion of the appellant’s condition as to intoxication or sobriety.
The appellant testified that he was in the car stopped by the officers. He could not recall the names of the other two people in the car with him at the time. He testified that he had met them in a cafe in Angleton and the other man had requested that appellant take them home. Since he did not know where they lived, the appellant said he let the other gentleman drive the car. Appellant testified that during the evening prior to the time of being stopped by the officers, “I had, I say, two or three beers.” For the limited purpose of impeachment on cross-examination, it was shown appellant had been convicted of a felony offense and was on probation at the time of his trial.
Although the evidence is certainly not overwhelming, we conclude there is sufficient circumstantial evidence to support a jury finding of guilt. See e. g. Minor v. *729 State, 167 Tex.Cr.R. 344 , 320 S.W.2d 347 (1959).
The issues regarding appellant’s intoxication and whether he was the driver of the car stopped have been resolved against him by the jury’s verdict.
The appellant urges the trial court erred in not striking the testimony offered by the State of the result of the “breathalyzer test” administered to the appellant. After both the State and the appellant had rested, appellant’s counsel stated “At this point, Your Honor, the defendant moves the court to instruct the jury not to consider for any purpose the breath test or any evidence pertaining thereto, for the reason that there is no evidence to show that the test indicates intoxication from any witness upon the stand, and that as a result thereof, this evidence concerning the breath test and the results thereof should not be considered to determine the guilt or innocence of this defendant.” The court overruled this motion. The only testimony concerning the result of the test was as follows:
“Q. You recall the result of the test?
“A. Yes, sir, I do.
“Q. What was the result ?
“A. .22 of 1%, booths of 1%.”
As the motion states: “there is no testimony to show that the test indicates intoxication.” There was no expert testimony offered that the results of the test did show intoxication. 1 We have, therefore, concluded after considering all of the evidence in this case, that reversible error is not shown. The better practice would have been to strike the quoted testimony.
The appellant’s complaint to the admission of Officer Wyatt’s testimony that the other occupants of the car appeared to have been drinking does not show error. Such testimony was properly admitted. Yarbrough v. State, 384 S.W.2d 705 (Tex.Cr.App.1965); Long v. State, 375 S.W.2d 913 (Tex.Cr.App.1964), and Andrews v. State, 161 Tex.Cr.R. 550 , 279 S.W.2d 331 (Tex.Crim.App.1955).]
In addition to the opinion by Judge Dally, it is noted that the majority opinion states that intoxication may be proved by circumstantial evidence. This is a correct statement.
It is hard to conceive a fact situation where circumstantial evidence of intoxication is stronger. The car was being driven in an erratic manner. The appellant who was on probation • for a felony offense switched places from the driver’s position with a passenger. The appellant had the smell of alcohol on his breath. He staggered when he walked and passed out on the way to the jail. The appellant took the stand and testified that he had drunk two or three beers. He did not deny that he was intoxicated or give any explanation for his passing out. Empty beer cans were found in the car. One of the highway patrolmen had been with the Department of Public Safety for twenty years. He had been to their breathalyzer school. After the appellant was given the breathalyzer test, he was placed in jail.
The result of the test was still before the jury even though the State did not go forward with proof by a chemist to show what amount would reflect intoxication.
Another circumstance to be considered was the failure of the accused, when he voluntarily took the stand, to deny the incriminating evidence against him. He did not explain his erratic driving, his stagger *730 ing or give any reason or testify to any other existing physical condition that caused him to pass out.
“It has long been the law that when an accused voluntarily takes the stand his failure to explain incriminating circumstances is subject to the inferences to be naturally drawn therefrom.” United States v. Sahadi, 2 Cir., 292 F.2d 565 , citing Caminetti v. United States, 242 U.S. 470 , 37 S.Ct. 192 , 61 L.Ed. 442 (1917); Johnson v. United States, 318 U.S. 189 , 63 S.Ct 549 , 87 L.Ed. 704 . In the Caminetti case the United States Supreme Court approved the following charge:
“A defendant is not required under the law to take the witness stand. He cannot be compelled to testify at all, and if he fails to do so, no inference unfavorable to him may be drawn from that fact, nor is the prosecution permitted in that case to comment unfavorably upon the defendant’s silence; but where a defendant elects to go upon the witness stand and testify, he then subjects himself to the same rule as that applying to any other witness, and if he has failed to deny or explain acts of an incriminating nature that the evidence of the prosecution tends to establish against him, such failure may not only be commented upon, but may be considered by the jury with all the other circumstances in reaching their conclusion as to his guilt or innocence; since it is a legitimate inference that, could he have truthfully denied or explained the incriminating evidence against him, he would have done so.” 2 (Emphasis added)
In United States v. Pledger, 409 F.2d 1335 (5th Cir. 1969), the Fifth Circuit affirmed a conviction where the defendant had assaulted an internal revenue service agent. The defendant testified and stated that he thought the agent was a hijacker. On cross-examination the government asked him why he had not stated this at the time of the assault or subsequent arrest. The Court held:
“When the accused testifies voluntarily he waives his privilege against self-incrimination, and his failure to deny or explain evidence against him, which he might naturally explain, is open to adverse interest.” Id., at 1336 .
Subsequently, in United States v. Woodall, 438 F.2d 1317 (5th Cir. 1970), the Court spoke of permitting unfavorable inferences to be drawn from action “which attempts to use privilege as a sword instead of a shield” and stated its holding in Pledger, supra, to be
“that a defendant who chooses to waive the privilege against self-incrimination by taking the stand, but fails to deny or explain matters within his knowledge, subject himself to the inference that his testimony on these subjects would have been adverse to his interest.” Id., at 1326.
A defendant cannot be compelled to testify and such failure cannot be considered as a circumstance against him. In the present case he did testify. The rule is “Where a statement is made in the presence of a party under such circumstances that he heard and understood what was said, had an opportunity to reply and would naturally have replied unless he admitted the truth of the statement his silence may be received as a tacit admission of its truth.” 2 McCormick and Ray, 2d Ed. 44, Section 1152.
This principle was applied in Counts v. State, 149 Tex.Cr.R. 348 , 194 S.W.2d 267 ; McNeill v. State, 128 Tex.Cr.R. 250 , 80 S.W.2d 995 ; Rice v. State, 49 Tex.Cr.R. 569 , 94 S.W. 1024 ; Graham v. State, 125 Tex.Cr.R. 531 , 69 S.W.2d 73 , and other *731 cases where defendant was not under arrest.
This has always been the rule in civil cases where the defendant can be compelled to testify. 1 McCormick and Ray, 2d Ed. 140, Section 102.
All of the circumstances in this case provide a greater degree and more credible proof of intoxication than where a non-expert witness testifies that he observed an accused and that he was intoxicated. This Court recently held evidence much weaker than in the present case to be sufficient to uphold a conviction for murder. Brown v. State, Tex.Cr.App., 475 S.W.2d 938 (1971).
From all the circumstances properly before the jury, the evidence is sufficient to support the conviction. 3
For all the above reasons, I respectfully dissent.
. Chapter 709, Acts of the 62nd Leg., R.S., 1971, amending Section 2 and 3, Chapter 434, Acts of the 61st Leg., R.S., 1969 (Art. 802f, Y.A.C.C.P.) providing that “ . . . evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by chemical analysis of his blood, breath, urine, or any other bodily substance, shall be admissible and if there was at that time 0.10 percent or more by weight of alcohol in a person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.” became effective June 7, 1971 and is not applicable to this case.
. Unfortunately, the opinion evidence in the present case was stricken and was not reoffered. For this reason the case is being reversed. This is not a case where the officer would not testify that the defendant was intoxicated.