Jones v. State

134 S.W.2d 255, 138 Tex. Crim. 121, 1939 Tex. Crim. App. LEXIS 600

Opinions

CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

It is shown in bill of exception No. 1 that in his closing argument the district attorney used language as follows: “The defendant could have taken the stand and testified if he had wanted to.” Appellant’s objection to the argument was overruled and he duly excepted. The bill of exception is qualified to the effect that when the foregoing statement was made by counsel for the State he had just finished reading that portion of the court’s charge with reference to the defendant’s failure to testify, and that he followed it by admonishing the jury to obey the court’s charge in that respect. It is made clear from the bill of exception' that appellant did not testify. The charge of the court upon the subject of the failure of the accused to testify was as follows: “The law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and you must not allude to, comment on, or discuss in your retirement the failure of .the defendant to testify in this case, nor will you refer to or discuss any matter not before you in evidence.”

Article 710, C. C. P., reads in part as follows: “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.” The provisions of this article are mandatory. The opinion is expressed that the language used by the district attorney constituted a violation of the terms of the statute and a comment on the failure of the appellant to testify. While the district attorney was warranted in reading that portion of the court’s charge relative to the failure of the accused to testify, his statement to the jury following such reading cannot be held to have been authorized. Sec. McPhail v. State, 26 S. W. (2d) 218. His statement was clearly an allusion to the fact that appellant did not testify. The expression “The defendant could have taken the stand and testified if he had wanted to” was not in the charge of the court which the district attorney had read to the jury but was purely gratuitous, and clearly and unequivocally referred to the failure of the appellant to take the witness stand in his own behalf. See Brumbelow v. State, 54 S. W. (2d) 528, and authorities cited.

The judgment is reversed and cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.