dissenting.
Trial counsel for appellant heard the words and observed the movements of the *691prosecutor as she argued, “I ask you also to recall the testimony of this man — not the testimony but the words that came out of this man’s own — .”1 His immediate reaction was to object “to the comment on the failure of the ... defendant to take the stand.” The trial judge also heard and presumably observed the prosecutor; he promptly sustained the objection. Moreover, for good measure, he instructed the jury to “disregard the prosecutor’s statement and her argument about the testimony of this man ...”
Reading the transcription of notes of the court reporter and considering the same statement and argument, three judges of the court of appeals concluded:
“[T]he prosecutor’s action in pointing to the accused is a strong factor in determining whether the jury would naturally take the argument as a comment on the failure of defendant to testify. [Citation omitted]. This action by the prosecutor with her request for the jury to consider appellant’s testimony when there was none, we think, was error ...”
Harris v. State (Tex.Cr.App., No. 09-83-094, delivered December 14, 1983.)
Now members of this Court, disregarding impressions clearly felt and acted on by a trial lawyer and an experienced trial judge, as well as careful reasoning of three appellate judges, say that “from the standpoint of the jury the prosecutor’s reference was made expressly to the defendant’s words as the police officer had related them in his testimony.” Naivete aside, they simply accept that which all others implicated in evaluating the matter have rejected — excepting of course the prosecution.
Today, there is no suggestion that “with only a ‘cold’ record before us,” this Court gives “due deference” to the determination of the trial judge “who is present to hear the tone of voice and observe the demean- or” of the prosecutor as she moved and spoke. Compare Hernandez v. State, 643 S.W.2d 397, 406 (Tex.Cr.App.1981) (“interpretation of the jury voir dire”). Indeed, to the contrary, there is no deference whatsoever to his interpretation of her conduct.
Nor is any deference given to the reasoning of the court of appeals. Rather, the majority denigrates it. By glossing over the obvious interpretation of her entire conduct made by the trial judge and then by focusing only on “use of the word ‘testimony’ ” in a restated “context,” the majority manages to substitute its judgement for that of the court of appeals.
Today, a majority demonstrates once again a determination to recast this Court in its former role of deciding grounds of error on direct appeal. Adhering to my understanding of its new role as reviewing court, I respectfully dissent.
. All emphasis is supplied by the writer of this opinion unless otherwise indicated.