Conviction is for burglary. Punishment, two years in the penitentiary.
Only one question is before us, viz, alleged misconduct of the jury in considering and discussing the failure of appellant to testify. This was made an issue upon the hearing of the motion for new trial, and after the evidence of the jurors was heard the trial judge announced his finding upon the facts as follows:
"The Court finds, as a matter of fact, that there was no discussion in the jury room about the failure of the Defendant to testify.
The Court finds, as a matter of fact that one juror remarked that the Defendant did not take the stand, and that immediately another juror cautioned him that the Court had charged them not to discuss or consider that fact, — that the defendant did not take the stand; and that there was no other discussion or consideration of that fact.
The Court finds, as a matter of fact, that the twelve jurors had decided upon the verdict of "guilty" before the above stated remark of the juror was made.
The Court finds as a matter of fact, that none of the jurors were influenced by the said remark, and that the verdict was arrived at *Page 539 without being influenced in any way by the remark, that the Defendant had not taken the stand in his own behalf.
The Court finds, as a matter of fact, that each and every juror knew that the Defendant had not taken the stand in his own behalf before the remark was made, and the Court having instructed the jury in his charge upon that question.
The Court further finds, as a fact, that there was no such remark made in the jury room, — that "the defendant did not have nerve enough to testify in his own defense."
Upon such finding of facts the motion for new trial was overruled, which is assigned as error.
The matter having resolved itself into a question of fact to be determined by the lower court we would be bound by such determination unless the record disclosed an abuse of judicial discretion in respect to the matter complained of. Sanchez v. State, 90 Tex.Crim. Rep., 236 S.W. Rep., 734; Howe v. State, 77 Tex.Crim. Rep., 177 S.W. Rep., 500; Shaw v. State, 32 Tex.Crim. Rep., 22 S.W. Rep., 588; Branch's Ann. P.C., Sec. 574, p. 295; Potts v. State, 56 Tex.Crim. Rep., 118 S.W. Rep., 535. In the light of the statement of facts before us, we cannot so hold. A review thereof leads us to the conclusion that the trial court announced correct findings. To be good ground for a new trial there must be more than an allusion by the jury to a defendant's failure to testify. It must be shown that the jury discussed the failure to testify to such an extent that it appears they took such failure as a circumstance against him. Leslie v. State, 49 S.W. Rep., 73; Mason v. State, 81 S.W. Rep., 718; Parrish v. State, 48 Crim. Rep., 347; 88 S.W. Rep., 231; Jenkins v. State, 49 Tex.Crim. Rep., 93 S.W. Rep., 726; Johnson v. State, 53 Tex.Crim. Rep., 109 S.W. Rep., 936; Powers v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 1020; Pullen v. State, 70 Tex.Crim. Rep., 156 S.W. Rep., 935; Howard v. State, 76 Tex.Crim. Rep., 174 S.W. Rep., 607; Greer v. State, 91 Tex.Crim. Rep., 238 S.W. Rep., 924.
The judgment is affirmed.
Affirmed.
ON REHEARING. November 8, 1922.