concurring.
I agree that there is no error requiring that the case be reversed, but write separately to express my disapproval of one aspect of the trial of this case. The trial court erred in allowing the State’s attorney to make a part of the State’s argument from the witness stand.5
There are four categories of active participants in a legal proceeding: the judge, the jurors, the attorneys, and the witnesses. The roles and purpose of each are distinct and unique.6 While the State’s attorney’s taking the witness stand does not amount to giving testimony, it may well lend a particular type of credibility or authority to statements made in argument.
Unfortunately, the Texas Code of Criminal Procedure fails to set forth basic rules concerning an attorney’s courtroom deco*757rum. The Texas Rules of Civil Procedure do provide that, during the trial of a case, an attorney should remain at his place at the bar. See Tex.R.Civ.P. 269(h). While the Texas Rules of Civil Procedure are not applicable in a criminal proceeding, the Texas Court of Criminal Appeals has recognized the applicability of a precursor to Rule 269(h) in a criminal case. See Ex Parte Crenshaw, 96 Tex.Crim. 654, 259 S.W. 587, 588 (1924). Furthermore, the common law governs in criminal cases where the Code is silent. Tex.Code Crim.Proc.Ann. art. 1.27 (Vernon 1977).7 Under the common law, too, an attorney’s conduct has been subject to restriction.8 Argument from the witness stand is no more proper than would be argument from behind the judge’s bench or from within the jury box.
The State’s attorney’s conduct in seating himself in the witness stand during the jury argument was manifestly improper and obviously was intended to be a nonverbal communication. The physical conduct of counsel, as opposed to verbal statements, may constitute nonverbal communication and thus be an independent basis for error.9 It has been posited that ten percent of spoken communication is by the words we say, thirty percent hy the sounds we make and sixty percent by body language, or nonverbal communication. See Stephen R. Covey, The Seven Habits of Highly Effective People 241 (1989). The State’s attorney intended to communicate to the jury something that would not be reviewable by looking to the words uttered. At oral argument, the State’s attorney conceded that his assumption of the witness stand was “theatrics,” designed to make a point to the jury.
As I have indicated, this conduct alone was improper, and the trial court erred in failing to sustain the objection to the conduct. The assumption of the witness stand by the State’s attorney, coupled with the utterance of words which the defendant had spoken to Dr. Goodman, appears to have been a communication emphasizing the fact that the defendant did not testify.
Only because the relevant part of the State’s attorney’s argument was based on testimony from a witness other than the defendant, I can agree with the majority *758that the communication, both verbal and nonverbal, was only an implied or indirect allusion to Skidmore’s failure to testify. Thus, I concur in the court's decision.
. Skidmore’s attorney objected to this conduct. However, the conduct is the type which should be corrected sua sponte as a contempt of court.
. It is no accident that judges, jurors and attorneys are all prohibited from testifying as a witness in a case in which they are involved. See Tex.R.Civ.P. 18b(2)(c) (judge cannot testify; once again, this is a civil rule and not directly applicable to criminal proceedings); Tex. Disciplinary R.Prof. Conduct 3.08 (1990), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. (Vernon Supp.1992) (attorney cannot testify; comment 4 to Rule 3.08 explains that the primary motivation behind restricting a lawyer from testifying as a witness is to prevent the confusion that such dual roles might cause for the finder of fact. Furthermore, if a lawyer’s testimony involves a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing party); Tex. Gov’t Code Ann. § 62.105(1) (Vernon Supp.1992) (jurors cannot testify).
. Judges are part of the legal order, that is, part of a society in which human conduct is governed by rules. See Lord Lloyd of Hampstead & M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence 1097 (5th ed. 1985). From the tracings to our earliest roots in the common law, the principals in trial proceedings have had special places from which they operate.
The Texas Court of Criminal Appeals, commenting on the distinction between the judiciary and the bar, observed:
The relationship of court and attorneys, bench and bar, are reciprocal, and each, in their proper sphere, is clothed with powers, rights, and privileges, which are to be recognized and respected by the other. These relations should be recognized and respected alike by the bench and bar, and, being carefully kept in view and followed as rules of action and conduct, will avoid friction.
Ex Parte Duncan, 42 Tex.Crim. 661, 62 S.W. 758, 762 (1901) (emphasis added).
Because of common sense, as well as the common law, an attorney should know not to argue from the witness stand, and a judge should know not to tolerate it.
. See generally Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 Cornell L.Rev. 497 (1990). Initially, professional attorneys were all but excluded from the courtroom. As the adversarial system evolved in the 1730’s, "courts appear to have reinterpreted these limits not as a total ban but simply as a prohibition of speeches, observations, or arguments about the facts." Id. at 534.
It is hard to imagine a barrister in the Old Bailey assuming the witness stand during the course of addressing the court without being swiftly taken into custody for such an act of contempt.
.See Thompson v. State, 651 S.W.2d 785, 787 (Tex.Crim.App.1983) (prosecutor’s language in conjunction with pointing to defendant during jury argument was harmful error); Bird v. State, 527 S.W.2d 891, 894-95 (Tex.Crim.App.1975) (harmful error for prosecutor to direct question to defendant during jury argument); Hicks v. State, 525 S.W.2d 177, 180 (Tex.Crim.App.1975) (prosecutor’s statements combined with physical language during jury argument were harmful error); but see Brown v. State, 477 S.W.2d 617, 622 (Tex.Crim.App.1972) (while improper, it was not harmful error for prosecutor to address remarks to defendant during jury argument); Wright v. State, 422 S.W.2d 184, 189 (Tex.Crim.App.1967) (prosecutor's repeated jumping on piece of paper during jury argument to demonstrate defendant’s conduct not harmful error absent request that jury be instructed to disregard), vacated in part, 408 U.S. 934, 92 S.Ct. 2850, 33 L.Ed.2d 746 (1972).