The State has filed a motion for rehearing in which it asserts that we erred in reversing the judgment of conviction in the trial court, based on the ground that the District Attorney, in his argument to the jury, referred to the appellant's failure to testify. The State contends that inasmuch as the trial court withdrew the argument from the jury and instructed them not to consider it, no harm resulted to the appellant.
Article 710, C.C.P., provides 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, *Page 457 nor shall the same be alluded to or commented on by counsel in the cause, etc."
It will thus be noted that the District Attorney in this case has violated the mandatory provisions of the statute referred to, and the instruction from the court could not cure the error committed. In support of what we have said, we refer to the following authorities: Thompson v. State, 113 Tex.Crim. R.; Weatherred v. State, 129 Tex.Crim. R., 89 S.W.2d 212.
Believing that the case was properly decided on the original submission and that the motion for rehearing should be overruled, it is so ordered.
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.