#### Clarence David MINTON, Appellant, v. The STATE of Texas, Appellee.

No. 27911.

Court of Criminal Appeals of Texas.

Jan. 11, 1956.

Roy Joe Stevens, Clem Calhoun, Amarillo, for appellant.

Leon B. Douglas, State’s Atty., Austin, for the State.

DAVIDSON, Judge.

This is a conviction for murder with malice; the punishment, twenty-five years in the pénitentíary. '

No statement of facts accompanies the record.

For- a; reversal of this' case, appellant relies tipon two bills of exception and the facts certified therein.

Each bill of exception .complains of the closing argument of state’s counsel to the jury as being a reference to the failure of the appellant to testify as a witness.

The argument set forth in bill of exception No. 1 is as follows:. . ,; •

> “ ‘There is no witness that the State can call who can testify what was' in that man’s head, no way we'can fell you.what his intent was.’” • ’ ■

The argument set forth in bill of exception No. 2 is as follows:

> “‘We cannot open up that .man’s head and tell what was in his mind.’ ”

•Each bill of, exteption certifies: (a) that the closing argument was made by *761■ state’s counsel in connection with his argument as to the difference between mur’der with'malice and-murder without malice; (b) that appellant did riot'testify'as a witness in the case; (c) that the argument was not in reply to, invited or provoked by, or in answer to any remarks or argument of appellant’s counsel that the argument of state’s counsel was not a proper comment upon any 'evidence in the case; (d) that appellant’s objection to each argument as being a ‘reference to his failure to testify was promptly sustained by the trial court; (e) that the jury were instructed to disregard the argument' arid not consider it for any‘purpose; and (f) that appellant’s motion for a mistrial was refused. .

When the trial court sustained the objection and instructed the jury not to consider ■ the argument for any purpose, he recognized — and' properly so — that the argument was a reference to the ■ fail'tire of the appellant' to testify.

in Bell v. State, 130 . Tex.Cr.R. 57, 92 S.W.2d 450, a very similar argument was held to be a reference to the failure of the accused to testify.

Such’is also true of'the base of Sanders v. State, 123 Tex.Cr.R. 409, '59 S.W.2d 1116, where, in closing. argument, state’s counsel used the following language:

> . “ ‘Gentlemen of the. Jury, we cannot tell you whether this defendant knew that car was stolen or not; -we,, cannot go over there where he sits and .split his mind open with an áxe • and show it to you.’ ”■

That argument was held to violate art. 710, C.C.P. The similarity between that argument and, that. jn thp instant case is apparent.

Necessarily, then, the argument, here, of state’s counsel and that set forth in bill of exception No. 2 must be construed as a reference to the failure of the appellant to testify, in violation of art. 710, C.C.P.

■ Does the absence of a statement of facts affect the situation!*

If this court has a discretionary right to detefmirie ■ the probable effect'of the error, then of courseffhe absence of a statement of facts would preclude a,determination thereof. On the other hand, if the argument was such as to constitute reversible errpr, of and within Jtself, then the facts could not .alter the situation nor would this court have discretion in the matter.

Art. 710, C.C.P., which has remained unchanged since its adoption in 1889, pro- , vides that “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 fhe cause.”*(Emphasis added.)

It' has been the consistent holding of this court that this statute is a mandate to counsel, prohibiting the allusion to or dom-riient - upon the failure of the accused to testify in the case. Indeed Judge Morrow, speaking for this court in Haley v; State, 84= Tex.Cr.R. 629, 209 S.Wi 675,'676,''3 A.L.R. 779, said:

> “A disregard of this command of the statute has been from the date of its passage uniformly held an, impera-, tive cause for reversal.”

. See, also, Steele v. State, ’ 134 Tex.Cr.R. ‘ 620, 117 S.W.2d 74.. '' "

■ Notwithstanding the construction this court has'given to'the statute-and to'the ' mandatory'feature-thereof, the legislature has not'seén proper to change the statute.

By, the .plain language , of, the, statute, prosecuting attorneys are -prohibited from alluding to or commenting upon the failure of the accused to- testify. State’s counsel have been repeatedly admonished agáirist a'violation'Of the statute and reminded of the fact that when a violation does'occur it is the duty of this court to reverse the conviction. -

Because of the argument of state’s counsel, which was a reference to the failure of the appellant to testify and violative of art. 710, C.C.P., the judgment'is -reversed and the cause'is remanded.=■