Deason v. State

320 S.W.2d 670, 167 Tex. Crim. 324, 1959 Tex. Crim. App. LEXIS 1834

Opinions

MORRISON, Presiding Judge.

The offense is passing as true a forged instrument; the punishment, 2 years.

In view of our disposition of this cause, a recitation of the facts will not be deemed necessary other than to observe that the appellant did not testify. The prosecutor in his argument, in part, said:

“* * * but I do not think he brought you any testimony, nor did he show you in explanation as to what you were doing, Katharine Deason, with this check which was made out to Barbara Kenyon. The Defense has never hinted at an explanation as to how she would have a check payable to Barbara Kenyon, and under what right or what authority * *

In Smith v. State, 131 Texas Cr. Rep. 322, 98 S.W. 2d 806, the prosecutor said:

“They have not brought you any frank explanation of this defendant’s possession of the fruits of this robbery. It has been unexplained to you, gentlemen, where this defendant came into possession of this pistol.”

This court held that this constituted a violation of the mandatory terms of Article 710, V.A.C.C.P., was a comment upon the defendant’s failure to testify, and called for a reversal of the conviction.

In the case at bar, the trial court agreed that the argument violated the statute because the bill certifies, without qualification, the follownig:

“* * * That such argument on the part of the Prosecuting Attorney was a comment on the Defendant’s failure to take the witness stand in her own behalf, which was so highly prejudicial and manifestly improper that the effect could not be withdrawn from the jury and no other instruction by the Court could cure the effect of this type of argument.”

Recently, in Richard v. State, 164 Texas Cr. Rep. 230, 298 S.W. 2d 146, we said:

“Bill of Exception No. 5 complains of a similar remark in the opening argument for the State: ‘Nobody denies the burglary.’

“The court certifies in this bill: ‘And such statement and argument on behalf of the State of Texas by the Assistant •Criminal District Attorney constituted a comment on the failure of the defendant to testify in said cause * * *.’

“We are not in position to say from the record that the trial court’s certification is incorrect, and hence we are unable to agree with the State’s position.”

Likewise, in the case at bar, we are not in a position to say from the record that the trial court’s certificate is incorrect.

The judgment is reversed and the cause remanded.