¶1dissenting.
¶2Appellant was convicted of driving while intoxicated and assessed punishment at 45 days confinement, probated, and a fine of $600. The Dallas Court of Appeals in an unpublished opinion affirmed appellant’s conviction. Gassaway v. State, No. 05-94-01898-CR, 1996 WL 616331 (Tex.App.—Dallas, October 25, 1996). Appellant’s ground for review asserts that his Fifth Amendment rights were violated when the jury was allowed to view that portion of the DWI videotape showing appellant counting and reciting the alphabet during the course of taking a sobriety test.
¶3Appellant was arrested and taken to a Dallas County jail. There, without being advised of his Miranda rights, he was asked' “book-in” questions and subjected to six sobriety tests: (1) the Six Flags Card; (2) recitation of the alphabet; (3) counting backwards; (4) the walk and turn; (5) the head tilt; and (6) the one legged stand. Appellant complains that the sobriety tests requiring him to recite the alphabet and count backwards elicited responses which were testimonial and thus violated his Fifth Amendment privilege against self-incrimination.
¶4In Miranda v. Arizona, the U.S. Supreme Court determined that “prior to any questioning, the person must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706-07. Unless a suspect “knowingly, voluntarily and intelligently” waives these rights, any incriminating responses to questioning may not be introduced into evidence in the prosecution’s case in chief in a subsequent criminal proceeding. Ibid
¶5The majority has characterized this case as one which is determinant on whether the answer given by the suspect is “testimonial” as the U.S. Supreme Court first articulated in Doe v. United States and later applied in Pennsylvania v. Muniz. The U.S. Supreme Court stated in Doe that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States 487 U.S. at 210, 108 S.Ct. at 2347, 101 L.Ed.2d at 197 (1988). I disagree completely with the court’s reasoning on this issue. The Fifth Amendment privilege against self incrimination extends to any evidence a person is compelled to furnish against himself.
¶6When a person is taken into custody to be questioned, that person is arrested. Before any questions are asked of that person, they should be mirandized so that they are made aware of their constitutional rights. This case should not turn on a subjective test of what constitutes “testimonial” verbalizations, but rather should be governed by the objective standard of acquainting all arrestees *52with their rights under Miranda before any questioning commences.
¶7During the counting test, appellant failed because he was unable to count from 30 to 22. In fact he repeated the numbers 28 and 27. As well, he was unable to recite from d to x. The mistakes made during the count supported the inference that he was unable to do so because he was intoxicated. These responses were incriminating for purposes of Miranda even if he had counted and recited correctly. The Supreme Court has stated in Innis that “by ‘incriminating response’ we refer to any response whether inculpatory or exculpatory that the prosecution may seek to introduce at trial.” Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The counting and recitation of the alphabet provided the state with factual evidence that the appellant was too intoxicated to do what was asked of him. In effect, this was evidence which the state used to convict him. By allowing a jury to view this evidence, any reasonable juror would assume that because the appellant could not complete the task, he was intoxicated. The majority states that “a recitation of the alphabet and counting backwards are not testimonial in nature because these communications are physical evidence of the functioning of appellant’s mental and physical faculties.” To believe that jurors would only give attention to the physical aspect of his speech is, I think, disingenuous.
¶8Because appellant was not advised of his Miranda rights until after the videotaped proceedings at the booking center were completed, any verbal statements should have been suppressed. Accordingly, I would reverse the judgment of the trial court. As the majority finds differently, I respectfully dissent.
¶9BAIRD, J., joins.