ON MOTION FOR REHEARING.
GRAVES, Judge.In appellant’s motion for a rehearing he merely reiterates the claim that in each of his points of error originally presented to us, we were in error in disposing of same.
The claimed misconduct of the jury consisted of a casual remark by one of the jurors while deliberating upon the amount of punishment, as to whether the appellant had ever been in the penitentiary, and if so, was that the probable reason for his failure to take the stand. It is shown that the foreman of the jury, as well as other jurors, immediately said that they were not to consider that, and the court’s charge was referred to as saying such; that no further conversation thereon was had and no consideration given to such statement.
“A bare allusion in the jury room to defendant’s failure to testify when immediately suppressed will not of itself cause the judgment of conviction to be set aside.” Branch’s Ann. Tex. P. C., p. 293, sec. 569, and cases cited, namely: Leslie v. State, 49 S. W. 73; Mason v. State, 81 S. W. 718; Parrish v. State, 48 Tex. Cr. R. 347, 88 S. W. 231; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726; Johnson v. State, 53 Tex. Cr. R. 340, 109 S. W. 936; Powers v. State 69 Tex. Cr. R. 494, 154 S. W. 1020; Pullen v. State, 70 Tex. Cr. R. 156, 156 S. W. 935; Veach v. State, 71 Tex. Cr. Rep. 181, 159 S. W. 1069; Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 364; Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939; Howard v. State, 76 Tex. Cr. R. 297, 174 S. W. 607.
We are of the opinion that this cause was properly disposed of in our original opinion, and the motion is therefore overruled.