Poskey v. State

WOODLEY, Judge. The opinion on original submission is withdrawn and the following substituted therefor. The offense is the possession of whisky in a dry area for the purpose of sale, with prior convictions alleged to enhance the punishment; the punishment, 12 months in jail and a fine of $400. On the day in question an officer armed with a search warrant went to the home of appellant and there found him dressed [578] in a sport shirt with the tail hanging out. He ordered the appellant to raise his shirt, and when the appellant complied saw a pint of whisky in his belt. The prior convictions alleged were proved and it was shown that the area was dry. Bill of Exception No. 2 recites that the appellant did not testify and that the county attorney in his closing argument, among other things, said: “I don’t think he has a defense. If he has he has not shown it. Who did he put on the stand? Did they prove it was not? He didn’t testify.” The court approved the bill, but qualified it by certifying that the appellant did not object and that the county attorney did not use the words “He didn’t testify,” and did not at any time refer to the fact that the appellant did not testify. The appellant excepted to the court’s qualification, and the court did not prepare his own bill, as it became his duty to do under Rule 372 (i), Rules of Civil Procedure. We must therefore consider the bill without the court’s qualification. See Palmer v. State, 154 Texas Cr. Rep. 251, 226 S.W. 2d 634; Patterson v. State, 156 Texas Cr. Rep. 489, 244 S.W. 2d 217. The bill as presented to the trial judge shows a clear violation of Art. 710 C.C.P. in that the county attorney alluded to and commented upon the defendant’s failure to testify and calls for reversal. See Brown v. State, 159 Texas Cr. R. 357, 264 S.W. 2d 119; Jackson v. State, 129 Texas Cr. Rep. 314, 87 S.W. 2d 482; Johnson v. State, 31 Texas Cr. Rep. 464, 20 S.W. 980; Branch’s Ann. P.C., Sec. 375, p. 209. The appellant’s motion for rehearing is granted, the judgment is now reversed and the cause remanded.