dissenting.
I respectfully dissent. I would sustain Point of Error No. One. The majority opinion quite properly recognizes that the quoted statement from the prosecutor’s argument is a clear and straightforward comment on the Defendant’s failure to testify.
In Owen v. State, 656 S.W.2d 458 (Tex. Crim.App.1983), the Court recognized that such a comment offends both our State and Federal Constitutions. The Court in that opinion also recognized that the adverse effect of any reference to the accused’s failure to testify is not generally cured by an instruction to the jury.
In Jones v. State, 693 S.W.2d 406 (Tex. Crim.App.1985), the Court again recognized the right of an accused party to be free from the fear of compelled self-incrimination and to remain silent, and that the prosecution may not comment upon the ex-fercise of that right. The Court said that the implication that counsel’s argument referred to the accused’s failure to testify must be clear. In this case, the majority opinion does recognize that the complained of argument is a clear comment upon the failure of the Defendant to testify. In the Jones case, the conviction was not reversed because the Court concluded that the argument which it quoted in its opinion was not intended to reflect upon what the Appellant had testified about at the guilt or innocence portion of the trial. The Court concluded: “[a]s such we cannot find that the language was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify at punishment.” That reasoning cannot be applied in the case at bar.
In Bird v. State, 527 S.W.2d 891 (Tex.Crim.App.1975), the improper argument was made at the guilt stage of the trial. But in determining whether the argument was harmless or not, the Court looked not only at the finding of guilt, but also at the punishment assessed by the jury. In that case, the jury assessed the death penalty, obviously, the maximum authorized by law. In the case at bar, the jury assessed ten years’ confinement and a fine of $2,500.00. That was the maximum confinement autho*940rized by law and one-half of the authorized fine. Like the court in Jackson v. State, 633 S.W.2d 598 (Tex.App. — Houston [14th Dist.] 1982, PDRR), I am unable to say beyond a reasonable doubt that the prosecutor’s direct comment in violation of one of the accused’s most fundamental rights was cured by the court’s instruction to disregard.