(dissenting).
The majority reverses this conviction on the ground that the prosecutor commented on the failure of the appellant to testify. To reach that conclusion, the majority has elevated an unsworn statement of counsel to the heights of evidence. Heretofore objections and allegations of counsel have not been self-proving.
The majority has in effect unseated the trial judge.
During closing argument, the assistant district attorney was discussing and summarizing the testimony of the various witnesses and other evidence introduced during the course of the trial. The appellant, as a defense to the charge, had raised the issue of insanity and a Dr. Anderson testified as an expert witness for the defense. The record reflects the following:
“MR. CASEY: (Assistant District Attorney) He has had his lay witnesses to come up here as layman. Of course, we had a couple of laymen testify to you too. He said — that somehow or another he didn’t like the way I cross examined his lay witnesses. But, you know, Mr. and Mrs. Poe, he didn’t ask them one question. You all are entitled to consider that.
But, anyway, he looks — you know — he is sitting over there —you know — we had Dr. Anderson — Dr. Anderson had that thing there, and he had his lawyer arguing to you and everything. But there is somebody that we haven’t heard from in this case. And I think you all know who it is. (Emphasis Supplied)
“MR. CANTRELL: (Defense Counsel) Your Honor, we’re going to object to that comment. He is obviously commenting — inferring by the place he stood — let the record reflect that he stood right behind the defendant, raised his voice, at that time, and objected — excuse me — not objected — said, ‘We haven’t heard from somebody in this court.’ At that time, Mr. Casey looked down at the defendant in such that by his actions and inferences and comments made, was a comment on not testifying by the defendant.
“MR.- CASEY: I was referring to Dr. Stockton, Your Honor.
“MR. CANTRELL: You were not.
“MR. CASEY: Let the record clearly reflect that I was talking about the medical testimony, and Dr. Stockton, the man that took the EEG wasn’t up here testifying in Court. (Emphasis Supplied)
“THE COURT: I’ll overrule your objection.
“MR. CANTRELL: Note our exception.
“MR. CASEY: You heard Dr. Grigson say that if he was — as a physician, instead of asking a juror or anybody, he would want the man that actually ran the chart and interpreted the chart. Dr. Anderson told you that he didn’t run it. He couldn’t tell us anything about the chart. He had it there, but he said, T didn’t interpret it. I don’t even run those things.’ . . .”
*183The question is two-fold. First, it must be determined whether the assistant district attorney was in fact standing behind the appellant and looking at the appellant when he said “but there is somebody that we haven’t heard from in this case. And I think you all know who it is.” Second, if the record does not reflect those facts, did the comment examined from the standpoint of the jury necessarily refer to the appellant’s failure to testify?
The two statements of the prosecutor that appellant “is sitting over there” would indicate that the prosecutor was not standing behind appellant when these statements were made.
There is just as much, or more, in the record to show that appellant was “sitting over there” as there is in the record to show that the prosecutor was standing behind the appellant.
Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1965), is directly in point. Salazar in his trial for murder complained that the trial court allowed a State’s witness to exhibit his body to the jury to show two bullet wounds which were received during the confrontation that resulted in the murder of the witness’ brother. This Court wrote:
“. . . The record reflects that after the witness had exhibited one of the wounds, the jury was taken out and counsel for the defense stated:
“ ‘Let the record reflect the witness is showing and has exhibited to the jury his body. That he has pulled his shirt up and he shows the jury a scar across his abdomen about the area of his sternum approximately three and a half to four inches in length. The said scar is purple. It stands out vividly. And also it is a raised scar or proud flesh.’
“The trial court at no time certified that the facts related by defense counsel were true and correct.
“As stated in 5 Tex.Jur.2d 380, Sec. 200:
“ ‘The statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts that form the basis of the objection are true. It only shows that such an objection was made, and is accordingly insufficient. Further, mere recitals in a bill, not verified by the certificate of the judge, or otherwise revealed by the record, cannot be considered by showing injury.’
“And in Salinas v. State, Tex.Cr.App., 363 S.W.2d 265, this court held that where there were no photographs or description of the scars which would authorize this court to conclude that they had an ugly, ghastly, or revolting appearance or condition such as would be reasonably calculated to influence and prejudice the rights of the appellant before the jury, no error was shown.
“In the case at bar, there was no showing that the facts as set out in appellants’ objection were true, and therefore show no injury to the rights of the appellants.”
In the motion for rehearing the record was quoted. It showed that the judge certified that the wounds were exhibited to the jury.
In Wingate v. State, 487 S.W.2d 89 (Tex.Cr.App.1972), at page 92, we said:
“In his last ground of error, appellant complains of a ‘hoax’ perpetrated upon the court by the State’s counsel. Appellant, citing no authority, states that though the prosecuting witness Moore lay on a stretcher throughout the length of the trial, he had been seen on several occasions before the trial in a wheelchair. At the hearing on the motion for new trial, appellant’s counsel stated:
“ ‘Your honor, the man was laying on the stretcher under a blanket like a dead man and I want to make a statement now. This is different from argument. This is new evidence, something I received after the trial. And it was after the close of the trial that the *184District Attorney, Mr. Patterson, went to either the clerk or the court and had them call or called and said, “Come pick up the stretcher; we’re through with it.” This man doesn’t even have a stretcher; he has a wheel chair, and he goes to all of these beer joints and different places in a wheel chair, and he was laying on a stretcher under a blanket in the court room and it is highly prejudicial to the defense, highly prejudicial and it inflames the minds of the jury.’
“Nowhere other than here does the record reveal anything to back up the claim of a ‘stretcher hoax.’ Since the statement by appellant’s counsel, standing alone, may not be taken as ‘evidence’ of this claim, there is nothing for this Court to review.”
In Barrientez v. State, 487 S.W.2d 97 (Tex.Cr.App.1972), the appellant contended that during the testimony of appellant the prosecutor began showing photographs to the jury which the judge had ruled inadmissible. This Court wrote:
“. . . Appellant refers us to the record, where the following colloquy occurred:
“ ‘MR. DE GEURIN: Your Honor, I am sure it is not intentional, but Mr. Pecorino has pictures out that the Court ruled are inadmissible. They are in a position where they can be seen and it is prejudicial. We ask that he refrain from doing that.
“ ‘THE COURT: That is overruled. Go ahead.
“ ‘MR. DE GEURIN: That is overruled?
“ ‘THE COURT: You heard my ruling, sir. Be seated.’
“This statement is all we have in the record before us to substantiate appellant’s claim. There is no showing that the jury saw the photographs. Thomas v. State, 451 S.W.2d 907 (Tex.Cr.App.1970); Mills v. State, 455 S.W.2d 296 (Tex.Cr.App.1970); Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1966). Nothing is presented for this Court to review. See Hall v. State, 466 S.W.2d 762 (Tex.Cr.App.1971).”
What is the difference between the two cases? Does the majority take statements of some attorneys as true but not others? What is the guideline?
The occurrence of the event complained of must be reflected in the record by the court certifying it occurred, by evidence properly introduced in an informal bill of exception, at a hearing on the motion for new trial, through a formal or bystander’s bill of exception, or through some certification by the trial judge that the events in fact occurred as alleged. See Hardin v. State, 471 S.W.2d 60 (Tex.Cr.App.1971); DeLeon v. State, 500 S.W.2d 862 (Tex.Cr.App.1973); Stockton v. State, 487 S.W.2d 69 (Tex.Cr.App.1972); Sheldon v. State, 510 S.W.2d 936 (Tex.Cr.App.1974); Mills v. State, 455 S.W.2d 296 (Tex.Cr.App.1970); Hall v. State, 466 S.W.2d 762 (Tex.Cr.App.1971); Jefferson v. State, 490 S.W.2d 855 (Tex.Cr.App.1973); Barber v. State, 477 S.W.2d 868 (Tex.Cr.App.1972); Nutt v. State, 144 Tex.Cr.R. 9, 161 S.W.2d 103 (1942); and Stephen v. State, 163 Tex.Cr.R. 505, 293 S.W.2d 789 (1956). This is the same rule that applies to allegations in various motions such as motions for continuance and motions for new trials. Such allegations do not prove themselves. Absent any proof, nothing is presented to this Court for review. Webb v. State, 460 S.W.2d 903 (Tex.Cr.App.1970); Hardin v. State, 453 S.W.2d 156 (Tex.Cr.App.1970); and Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570 (1953). Holding otherwise would be contra to Article 40.09, Subdivision 6, V.A.C.C.P. See Nash v. State, 486 S.W.2d 561 (Tex.Cr.App.1972).
In the case at bar we have no evidence to substantiate defense counsel’s unsworn allegations. There is no evidence to show how counsel and the appellant were seated. There was no testimony introduced, or even *185proffered, showing’ where Mr. Casey stood, how far he was from the appellant, exactly where he was looking, or his relationship with respect to the jury. Thus, there is nothing in the record presented to this Court to review other than the comments of Mr. Casey.
The trial judge heard the argument and the objection. He was in a better position to evaluate what occurred in his courtroom. We should not unseat the trial judge and substitute our opinion for his when we were not present in the courtroom. Who is in a better position to rule than the district judge? It is presumed that the trial judge ruled correctly until the contrary is shown.
It is difficult to understand the new holding by the majority that statements of counsel are verified as true. The statement in the concurring opinion that Article 40.-09(4), Y.A.C.C.P., is not authority for finding that counsel’s statement is an accurate statement of what occurred is correct. But it is hard to understand the next sentence, “. . . the statement itself must be taken as accurate because it was not qualified or disputed by the court or prosecutor.
It has always been the impression of this writer that the trial judge is not a litigant and is not representing a litigant. He is the judge. When he rules that ruling is presumed to be correct absent a showing to the contrary. In the present case, as in Ross v. State, Tex.Cr.App., 504 S.W.2d 862, the defense attorney could have asked the trial judge to certify to the correctness of his statement, if it were correct.
The judges concurring with the majority should review the statements of both attorneys. They are apparently in conflict. The judge settled the conflict when he ruled. Requiring the prosecutor to dispute an objection to defense counsel would be to detract from the decorum in the courtroom. This should not be encouraged.
To have the trial judge to dispute what defense counsel has stated would take away from the dignity of the court. Trial judges should not get into arguments with the attorneys. They should rule.
It has not been the practice before today for a trial judge to give reasons for his rulings. Reasons for a ruling may amount to a comment on the weight of the evidence or an opinion by the trial judge.
The new rale of today is that the trial judge must tell defense counsel his statement is not true or be reversed on appeal.
In this case, unlike Ross v. State, 504 S.W.2d 862 (Tex.Cr.App.1974), there were no statements by the trial judge ratifying the attorney’s allegations. In Ross, the trial judge said: “Yes, sir. . . . ” without
further clarifying remarks following a * statement by defense counsel. This Court held that to be a ratification by the trial judge of the facts alleged by the defense attorney. In the instant case there was no such ratification.
The trial court’s approval of the record when it is completed is not such a certification. It is certification only that all pages in the record “are true and correct copies of all proceedings, and of the court reporter’s notes; and of all exhibits, as the same appear and are of record and on file in the above entitled and numbered cause, and said record is hereby approved.” Article 40.09, V.A.C.C.P. See also Ticer v. State, 166 Tex.Cr.R. 334, 313 S.W.2d 301 (1958).
The approval of the record does not make the statements of the witnesses true even though the prosecutor or the court does not refute them.
Do Mr. Casey’s statements in and of themselves amount to a comment on the appellant’s failure to testify? Garcia v. State, 513 S.W.2d 559 (Tex.Cr.App.1974), controls. The State has a right to comment on the failure of the appellant to call certain witnesses to support his defensive theory. Here, as in Garcia, the prosecutor stated that he was referring to another witness. Dr. Stockton was mentioned during the testimony of the defense witness Dr. Ander*186son, but Dr. Stockton was never called. Mr. Casey, following appellant’s objection, continued to discuss the testimony of Dr. Anderson and the failure of the defense to call Dr. Stockton. Thus, the argument refers to other witnesses and not the appellant and the language used was not manifestly intended or of such character that the jury would naturally and necessarily take it to be a comment on the appellant’s failure to testify. Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975); Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Anderson v. State, 504 S.W.2d 507 (Tex.Cr.App.1974).
Further, even if the statement could be construed as such a comment, defense counsel first commented on appellant’s failure to testify before the argument of the prosecutor. He argued concerning the presumption of insanity as follows:
“. . . Now, the contrary can appear — the only way it can appear is from” the evidence on that stand and by your observations of the defendant, whether he takes the stand or not, through your looking at him.”
Counsel asked the jurors to believe that appellant was insane from their observations of him “whether he takes the stand or not, through your looking at him.” He was in effect telling the jury that his client was silent and even though he did not take the stand, they could use his appearance to find him insane and not guilty.
It has always been the rule that where counsel for accused refers to his failure to testify, it was not error for the prosecutor to comment thereon. See Slater v. State, 166 Tex.Cr.R. 606, 317 S.W.2d 203 (1958); and Meador v. State, 113 Tex.Cr.R. 357, 23 S.W.2d 382 (1929), and 1 Branch’s Ann.P. C.2d, Section 395, page 414.
Following the majority of this Court, when a defendant represents himself, a statement, “Let the record reflect”, followed by his version of what happens in the courtroom will be taken as true. An example of what will be taken as true is found in State v. Townes, 522 S.W.2d 22 (Mo.Ct.App.1975). Townes, the defendant, questioned the jury panel personally. He informed the prospective jurors that he was a Black Muslim and, like other Muslims, felt that all white people were devils. After some discussion with the court, Townes stated:
“I’m saying you are [devils]. I would like to know if there is anyone here that believes he is not a Devil[?]
“The Court: Sit down. Just a minute. Mr. Sheriff, put the defendant in his chair.
“Mr. Townes: Let the record show that everyone in the room raised their hands to the question that they were Devils.
“Unidentified Juror: I didn’t raise my hand.
“Two Unidentified Jurors: I didn’t either.”
According to Townes, only three prospective jurors refuted the statement that they were devils. Under the reasoning of the majority, the statement that the other prospective jurors were devils would have to be taken as true.
In the trial of the Chicago Eight, the defendants apparently tried to take over the courtroom. See United States v. Seale, 461 F.2d 345 (7th Cir. 1972). Bobby Seale, one of the defendants who had previously informed the court that he was representing himself stated that he wanted to cross-examine a witness, William Frapolly, and the following occurred:
“Mr. Hayden (another defendant): Let the record show the Judge , was laughing.
“Mr. Seale: Yes, he is laughing.”
Under the opinion reversing the conviction a trial judge or prosecutor must refute such statements or they will be taken as true. It is a sad state of affairs when this Court requires a trial judge to get into a swearing match with litigants or attorneys.
Recently the Supreme Court of the United States held that a defendant has a right *187to represent himself and counsel cannot be forced upon him. See Faretta v. California,-U.S.-, 95 S.Ct. 2525, 45 L.Ed.2d 562. When some defendants, especially those who would like to destroy our system of government, defend themselves, every conceivable statement accusing the judge and prosecutor of misconduct will be made. Gutter-type tactics will be used. The majority would require the trial judge to answer them or get on their level.
We should not require trial judges to get into swearing matches with militant or other obstreperous defendants. This has never been the rule before and should not be now.
The defendant who claims something happened should ask the judge to certify to that fact. If it happened and the judge refuses to so certify, a defendant may prove the occurrence by a bystander’s bill of exception.
No reversible error has been shown. The judgment should be affirmed.