dissenting.
Though appellant testified during the first stage of trial, he did not during the punishment phase. Nevertheless, during his opening argument to the jury on punishment the prosecutor asserted: “[T]he defendant hasn’t indicated any remorse.” Counsel for appellant promptly objected; the trial judge sustained his objection. Counsel then requested an instruction to the jury; the judge instructed the jury not to consider the comment. Counsel moved for a mistrial; the judge denied his motion.
In my view neither the majority of this Court nor the court of appeals has focused on the only issue in the cause: whether the trial court erred in denying appellant’s motion for mistrial.
On direct appeal appellant contended in his first ground of error, according to the court of appeals, that the occurrence constituted “reversible error.” Looking beyond the assertion by the prosecutor, the objection and request by appellant and the rulings of the trial court, to remarks made by the prosecutor following them (quoted in the majority opinion herein), the court of appeals believed “the statement reasonably may be interpreted, not as a comment on one’s failure to testify at the punishment stage, but to his attitude while previously testifying.” 1 Accordingly, the court concluded, “That fact, together with the sustaining of the objection and the instruction to the jury, leads us to the conclusion that reversible error was not committed.”
We granted appellant’s petition for discretionary review to consider the reason for decision of the court of appeals to overrule the first ground of error. The majority says that his ground for review presents “the contention that the court erred by not finding the [prosecutor’s] remarks to be a comment on appellant’s failure to testify.” Actually the ground for review claims a conflict with applicable decisions of this Court in the holding below “that the prosecutor did not commit reversible error by commenting on the appellant’s failure to *410testifying [sic] in his own behalf.”2 In the event, in essence the majority comes to the similar conclusions as the court of appeals.
Both ignore rulings of the trial court, or at least do not give any effect to them. Having heard the assertion by the prosecutor and the objection by appellant, the judge obviously agreed that the prosecutor had commented on appellant’s failure to testify — during hearing on punishment, for appellant had testified at trial on the merits — and SUSTAINED the objection. Moreover, when requested to instruct the jury to disregard that assertion, the judge just as obviously believed that “the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify at punishment,” for he instructed jurors not to consider the comment of the prosecutor.3 Those judgments should not be rejected sub silentio by an appellate court in order to substitute its own “interpretation” of what an attentive trial judge heard and saw — and did.
Outlining the abstract law, at one place the majority opinion says “the language used must be looked at from the standpoint of the jury,” yet when it comes to look at the actual language the majority says, “The statement was intended to reflect upon what the appellant had testified about at the guilt or innocence portion of the trial.” The court of appeals saw it as a comment on appellant’s “attitude” while testifying. The prosecution itself has perceived it to be a reference to lack of remorse during commission of the offense, see unte; in its brief on the merits in this Court the prosecution still does, viz:
“The remark of the prosecutor when taken in the context in which it was made strongly suggests that the comment was ... a reference to the evidence concerning the facts and circumstances of the offense which was already properly before the jury.”
Indeed, the prosecution disavows the very “interpretation” made by the court of appeals and the majority of this Court, viz:
“... The reference to the defendant’s lack of remorse did not refer to his lack of remorse at trial but rather a lack of remorse which would necessarily have compelled the defendant to abandon his course of conduct of threatening and harassing his eventual victim. This lack of remorse was central to the State’s case in chief, and as such was properly the subject of consideration by the jury.”
None of those “interpretations” or explanations conceived in hindsight undertake to refute the judgments of the trial judge *411charged with looking at the prosecutor’s assertion from the standpoint of the jury.4
For the reasons given and because the majority fails to show any “distinction” in substance with Owen v. State, 656 S.W.2d 458 (Tex.Cr.App.1983), I respectfully dissent.
. All emphasis is mine unless otherwise indicated.
. In his brief on the merits appellant has rephrased the ground somewhat, but in the body of his argument he iterates much of what was set out in his petition, including inter alia:
"On appeal the Court of Appeals held that such argument made by the prosecutor was not reversible error. The Court of Appeals stated the statement was not a comment on Appellant’s failure to testify at the punishment hearing but on Appellant’s attitude while previously testifying.”
In his petition appellant points out that the interpretation of the court of appeals is “in direct conflict with the position of the prosecuting attorney," and therein and again in his brief appellant notes that the State had cited Johnson v. State, 651 S.W.2d 434 (Tex.App. Dallas 1983), “to support the contention that the prosecutor was referring to Appellant’s lack of remorse during the commission of the offense [emphasis by appellant] not Appellant's attitude." Accordingly, appellant submits that “the Court of Appeals erred in affirming the trial court’s failure to grant a mistrial,” and then proceeds to develop his claimed conflict with decisions of this Court.
. As an aside I note that the court of appeals relied on Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), and what is quoted above from the majority opinion in the case at bar comes almost word for word from Hawkins, supra, at 79. However, Hawkins says the rule is that “for such a comment to be error, it must be direct and not an indirect allusion which might refer to the accused’s failure to testify.” Ibid. On the other hand, in Lee v. State, 628 S.W.2d 70 (Tex.Cr.App.1982), the prosecutor had asserted, "The only person that knows the motive of what he was doing with this gun is that man,” and “the motive is known only in the mind of the defendant;” the Court said, "For an indirect allusion to or comment on a defendant's failure to testify to be reversible error, the prosecutor’s implication must be a necessary one as viewed by the jury." Analyzing the situation, the Lee Court concluded that the argument was "an improper allusion to and a comment on the appellant’s failure to testify.” Id., at 71.
. This is not to suggest that an appellate court is necessarily bound by a what amounts to a finding of a trial judge in sustaining an objection to and instructing a jury to disregard an assertion or comment made in jury argument; instead, it is to say that an appellate court at least ought to examine that finding for verity rather than disregard it completely in a rush to resort to and substitute its own “interpretation."