CONCURRING OPINION
WOODLEY, Judge.The writer concurs in the reversal of the conviction because of the court’s failure to change the venue and the admission in evidence of the testimony of the Witness Dean as to an oral statement of the appellant made while he was in jail, which statement, if made, was in the nature of a confession and inadmissible under Art. 727, Vernon’s Ann.C.C.P.
Though appellant’s counsel did not seek a continuance and there is sufficient evidence aside from Dean’s testimony to sustain the jury’s verdict, the errors mentioned were such as to deprive Jack Ruby of a fair trial on the issue of the punishment to be assessed by the jury.
For a better understanding of the delay in the submission of the appeal herein, and of the claim that Jack Ruby’s right to be represented by counsel of his choice was violated by the sanity hearing, the following orders, quotations and facts shown therein and elsewhere in the record are deemed pertinent.
The record on appeal was filed in this Court on January 14, 1965, and on February 24, 1965, the following order was entered:
“This appeal from a murder conviction, with punishment assessed at death, has been heretofore set for submission on March 10, 1965, briefs to be filed by March 3, 1965.
“Postponement is requested on behalf of appellant to allow new counsel time to-prepare their briefs and argument.
“Though the appellant occupies before this Court the position of an indigent, controversy has arisen as to which of several lawyers — none of them court appointed and some non-residents of Texas —should be recognized by this Court as his counsel on appeal entitled to use the time allowed for oral argument in his-behalf.
“The issue of insanity at the time of the killing and present insanity were raised at the trial and the jury found that appellant was sane.
“A principal, if not the controlling fact determinative of the question as to-which attorneys are to be recognized by this Court and be permitted to use the time allowed for oral argument upon submission of the appeal, is whether or not appellant has become insane since his trial. This is true because we have before us an affidavit of appellant asking that one of his trial counsel be dismissed and not permitted to argue his case before this Court and further requesting that an out-of-state firm of lawyers be permitted to participate and asking for a delay in order for such firm to prepare.
“Subsequent to the trial, affidavits were presented to the trial court to the effect that appellant is presently insane, together with a motion to postpone the hearing on question of his present sanity.
“Art. 932b V.A.C.C.P., Sections 4 and 5, provide:
“ ‘Sec. 4. If the question of the sanity of a person under death sentence is. raised and sufficient proof is shown to-satisfy the judge of the convicting court or the judge of the district court of the county in which the person is confined that reasonable doubt exists *800as to his sanity, the judge shall impanel a jury to determine whether the person is sane or insane. If the jury finds the person is insane, the court shall enter an order committing him to a State mental hospital to be confined therein as a person charged with a criminal offense until he becomes sane. If the jury finds the person is sane, the court shall remand him to the proper authority for disposition according to law.’
“ ‘Sec. 5. When a defendant is found to be insane and committed to a State mental hospital under this Chapter, all further proceedings in the case against him shall be suspended until he becomes sane, except that upon motion of a defendant’s counsel an appeal from a conviction may be prosecuted.’
“We have concluded that the submission of this appeal and decision on the question as to who will be recognized by this Court as appellant’s counsel on appeal should be postponed to allow time for the trial judge to judicially determine in the manner authorized by Art. 932b V. A.C.C.P. the question of appellant’s present sanity or insanity.”
In the Per Curiam opinion of this Court of May 18, 1966, in Ex parte Jack Ruby, No. 39,613 (motion for certiorari pending), we said:
“Jack Ruby is in the custody of the Sheriff of Dallas County, as the law requires him to be for this Court to have jurisdiction of his appeal from his conviction, with punishment assessed at death, which is pending before this Court in our Cause No. 37,900, styled Jack Rubenstein, Alias Jack Ruby vs. The State of Texas.
“This Court is and has been since February 24, 1965, ready, able and willing to hear, consider and decide the questions raised in said appeal in Cause No. 37,-900, including the question of the claim of denial of due process and the validity of the judgment of conviction. “Controversy continues as to whether Hon. Joe Tonahill, one of appellant’s trial counsel, should be permitted to represent him on appeal from his conviction for murder.
“Judge Holland has indicated his readiness to impanel a jury and determine the question of appellant’s present sanity or insanity. He is directed to do so without further delay and to certify to this Court the result of such hearing.
“At such hearing appellant’s trial attorney the Hon. Joe Tonahill as well as counsel representing appellant in this habeas corpus proceeding shall be given the opportunity to present any competent evidence relative to appellant’s present sanity.”
On June 3, 1966, this Court received a motion in the form of a telegram which read:
“Mr, William Kunstler and other Jack Ruby counsel have moved before Justice Hugo Black for a stay of the sanity trial you ordered May 18, 1966 for Appellant, Jack Ruby in Appeals #37,900 and 39,-613.
“I do not concur in such a motion nor did I participate therein because of my conscientious belief that Jack Ruby is insane and requires adequate psychiatric care which he cannot receive in the Dallas County Jail.
“Nevertheless, since Ruby’s other counsel are obviously opposed to the sanity trial, their attitude is such that they could not with the high degree of enthusiasm required in a sanity trial represent the best interest of Ruby. Their petition for a stay of the sanity trial is inconsistent with their duty and ability to prove him insane and obtain a jury finding of insanity. It appears that the best interest *801of justice indicates that their motion for stay action is grounds for you to immediately cancel the sanity hearing ordered May 18, 1966 and set the Ruby appeals down during this term for submission and oral argument. Joe H. Tonahill, Atty. of Record for Jack Ruby.”
The judgment entered upon the jury’s verdict at the sanity trial reads:
“On this the 13th day of June, A.D. 1966, this cause came on for trial as previously set and the State appeared by her Criminal District Attorney and the Defendant, Jack Ruby, appeared in person, his counsel consisting of Honorable Phil Burleson, Honorable Sam Houston Clinton, Jr., Honorable Sol Dann, Honorable Joe H. Tonahill and Honorable Emmett Colvin, also being present, and the question of the present sanity of Defendant, Jack Ruby, having been raised after his conviction, and while his appeal from that conviction was pending and the Honorable Court of Criminal Appeals of Texas having directed this Court to impanel a jury and determine the sanity or insanity of the Defendant, Jack Ruby, and the State announced ready for trial, but counsel for Defendant, Jack Ruby, refused to participate during the trial, but remained present in Court at the request of the Court, whereupon a jury of twelve (12) good and lawful men and women was duly selected, impaneled and sworn to try the issue of Defendant’s present sanity or insanity and after counsel for the Defendant declined to present any testimony with reference to the sanity or insanity of the Defendant, the State proceeded to present evidence thereon, after which the Defendant, Ruby, in person testified, at his own suggestion and request and over the objection of his counsel, and after having received the written charge of the Court as to the law applicable to the case, the jury retired in charge of the proper officer, and after deliberation returned into Court the following verdict:
“ ‘We, the jury, find the Defendant at the present time is sane.’
/s/ Aubrey Wayne Teer’
“It is therefore ordered, adjudged and decreed by the Court that the said Jack Ruby is presently sane.
/s/ Louis T. Holland
LOUIS T. HOLLAND, JUDGE
PRESIDING”
The affidavit of Jack Ruby dated June 13, 1966, reads:
“THE STATE OF TEXAS 1 “COUNTY OF DALLAS J
“I, Jack Ruby, having this day been declared legally sane, do hereby reaffirm that I have and do discharge Joe Tona-hill and, if I have not already done so, do discharge Emmett C. Colvin, Jr. Neither is authorized to represent me in any capacity in any court.
“The attorneys who I desire to represent me are Phil Burleson, Sam Houston Clinton, Jr., Sol Dann, William M. Kunst-ler, Elmer Gertz and their associates. They are hereby authorized to represent me in all proceedings and matters in which I am involved, particularly on appeal of my conviction and on the habeas corpus matter.”
On June 15, 1966, the following order was entered:
“The above entitled and numbered cause on appeal before this Court is set for submission on brief and oral argument for 9:30 A.M. on Friday, June 24, 1966.
“Prior to said submission appellant will designate in writing the attorneys authorized to represent him in this court and said counsel will designate which of them will use the time allowed for oral argument. A similar list of counsel who will argue for the state shall be filed.
*802“Pursuant to Rule VII of the Rules of this Court the time allowed for oral argument is extended to one hour and thirty-minutes opening and thirty minutes rejoinder.
“In addition to the above time allocated to appellant, all counsel appearing of record- after the giving of notice of appeal will be permitted to appear and present argument not to exceed thirty minutes as friends of the Court. The same additional time will be allotted to designated representatives of the State.
“Additional briefs may be filed at any time prior to August 1, 1966. The State will be allowed twenty days to reply to the last brief filed in behalf of appellant.
“It is so ordered.
/s/ W. T. McDonald, P. J.
/s/ W. A. Morrison, J.
"DISSENT
“To that portion of the order setting this appeal for submission and oral argument which provides that all counsel appearing of record after giving notice of appeal will be permitted to present oral argument, I respectfully dissent.
/s/ K. K. Woodley
Woodley, Judge.”
The Amicus Curiae Brief filed prior to March 10, 1965, by Counsel Melvin M. Belli of the California Bar, who was leading counsel for Jack Ruby at his trial, correctly states: “I have applied for, and have graciously been given permission by this Honorable Court to file an amicus curiae brief for Jack Ruby, defendant and appellant. I am specifically advised this does not include the right to appear and argue the cause upon its calling, since I am no longer counsel of record.”
While the writer sees no denial of appellant’s constitutional right to counsel of his choice, and does not agree with the contention that the sanity hearing was void or deprived appellant of any right, he remains convinced that there was no reasonable basis for inviting those who had been appellant’s trial counsel but had been dismissed after notice of appeal to appear and present oral argument as friends of the Court after having denied a like right to his other counsel who withdrew or were “fired” before notice of appeal.
In view of another trial and future trials, it should also be clearly understood that the majority does not hold that a juror who saw the shooting of the deceased on television is, for that reason alone, disqualified or subject to challenge for cause under Art. 616(6) C.C.P. (now Art. 35.16 C.C.P.1965) as being “a witness in the case.”