ON MOTION FOR REHEARING.
MORROW, Presiding Judge.We understand that, when a motion for new trial is sought upon the averment that there was misconduct of the jury in discussing the appellant’s failure to testify and the court has heard the declarations of the jurors upon the hearing of the motion for new trial, as was done in the present instance, and their testimony develops a conflict of evidence, the settlement of the conflict by the trial judge is binding upon the reviewing court, unless it is apparent from the record that in reaching his decision the trial judge has abused his discretion. The precedents on the subject are numerous. See Williams v. State, 43 S. W. (2d) 98; Robertus v. State, 45 S. W. (2d) .595. In the present appeal, the trial court apparently heard or had before him the testimony of all the jurors who served in the case. It appears from the testimony that some of the jurors, when the question of the insanity of the appellant arose, suggested that they would have been better satisfied and better able to determine the question if the appellant had testified. In the recent case of Graham v. State, 57 S. W. (2d) 850, we had occasion to review the subject in hand, and from it the following quotation is taken: “The question on appeal is whether the facts make evident that the appellant’s failure to testify was taken by the jury as a circumstance against him. See Cooper v. State, 72 Texas Crim. Rep., 266, 162 S. W., 364. On appeal, the decision of the trial judge will prevail when the evidence is conflicting as to whether the jurors disobeyed the statute. A reversal will not result unless the evidence heard on motion for new trial convinces this court that, in overruling the motion, the trial court abused its discretion. See Scrivnor v. State (Texas Crim. App.), 50 S. W. (2d) 329, 330. See page 332 for citation of authorities.”
From our understanding of the matter, we are constrained to regard the decision of the trial judge as conclusive.
The motion for rehearing is overruled.
Overruled.