(concurring).
I agree that this conviction must be reversed, but I would hold that Article 40.-09(4), Vernon’s Ann.C.C.P., does not alone control our determination of the issue presented.
Appellant’s counsel urged that the record should reflect the occurrence of certain observable events, which counsel described with specificity. On the basis of these events, which were part of the prosecutor’s argument, counsel objected that the prosecutor was commenting on the appellant’s failure to testify.
The prosecutor then urged that the record should reflect that he was talking about Dr. Stockton in his previous comments. This statément by the prosecutor was merely a self-serving statement of alleged intent; in no way did it dispute the statement of appellant’s counsel that the observable events had in fact occurred.
The same is true of the trial court’s comment, “I’ll overrule your objection.’’ This statement failed to dispute or deny the truth of the facts stated by defense counsel. Instead, it merely served to express the trial court’s disagreement with counsel’s assertion that the stated events were in fact objectionable.
The recitation of counsel thus stood unre-butted and unqualified by court or prosecutor, and hence in the same posture as it would have if neither had spoken.
I concur.