(dissenting).
I am unable to agree with my brethren that appellant’s, motion for rehearing should be granted and state my reasons therefor.
The amended motion for new trial and the juror’s affidavit made a part thereof by reference alleged that the jury was guilty of misconduct because they “discussed at length” the fact that the defendant did not take the stand in his own behalf.
Art. 710, C.C.P., reads as follows:
“Any defendant in a criminal action shall be permitted to testify in his own *176behalf therein, but 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 the cause; provided, that where there are two or more persons jointly charged or indicted, and a severance is had, the privilege of testifying shall be extended only to the party on trial.”
As pointed out in Stewart v. State, 151 Tex.Cr.R. 164, 206 S.W.2d 88, the italicized portion of this statute applies to the jury in their deliberation, but the remaining portions apply only to the prosecuting attorney.
This court has held that the motion for new trial must specifically allege the matter or error relied upon. Art. 756, C.C.P.; Harvey v. State, 150 Tex.Cr.R. 332, 201 S.W.2d 42; Slaughter v. State, 154 Tex.Cr.R. 460, 231 S.W.2d 657; 4 Tex.Jur. 106.
There was no allegation that the jury considered appellant’s failure to testify as a circumstance against him.
As to the testimony on the motion for new trial, it is shown without dispute that the jury’s discussion as to appellant’s failure to testify did not occur until after they had agreed upon his guilt of the present crime.
It remained only for them to determine the historical fact that appellant had been twice previously convicted of a felony, as charged in the indictment, otherwise they were to assess his punishment as a first offender.
Joe E. McLean, Ft. Worth attorney, testified that he was First Assistant District Attorney and was present when the Tarrant County case was tried. This is the conviction first described in the portion of the indictment alleging former convictions. McLean identified appellant as the defendant who was convicted and sentenced in that case for forgery. The conviction was for an offense committed on November 4, 1950.
Chester Kernan, detective with the New Orleans Police Department, testified that he was present when appellant pleaded guilty to the offense of forgery in the Louisiana conviction alleged. He was positive in his identification of appellant and produced pictures and fingerprints taken of him. He was the officer who investigated the case.
A finding by the jury to the effect that appellant had not been previously convicted as alleged would necessarily have been an arbitrary one. There is nothing in the record from which they might reasonably have concluded that he was not in fact the person previously convicted in the cases alleged, and nothing before us suggests that he was not so convicted.
Under the facts the trial court was warranted in concluding that the failure of appellant to testify was not considered by the jury in determining that appellant was a third offender as alleged in the indictment. At most, an issue was raised and the trial court found that the jury did not consider appellant’s failure to testify as a circumstance against him.
The jury did not assess the punishment, and were not required to do so.
For the reasons stated, I respectfully enter my dissent.