The State contends that the argument reflected in bill of exception No. 9, and which is set out in the original opinion, should not be construed as a reference to the failure of the appellant to testify. In short, the State insists that in all the district attorney said he had reference only to the fact that, prior to the trial, appellant had said nothing and had made no explanation. In support of this contention the case of Weatherred v. State, 89 S.W.2d 212, is cited. We are unable to reach the conclusion that the language employed in the present case is substantially the same as that set forth in the opinion in Weatherred's Case. Delano testified as a witness for the State in the case at bar and when the district attorney stated to the jury that he elected to tell all it would seem that he necessarily referred to his testimony given upon the trial. Immediately following such declaration relative to the witness Delano, the district attorney said, in referring to appellant, "Washie says, 'I will say nothing." Looking to the argument in its entirety, we regard it as one whose necessary effect was a reference to appellant's failure to testify.
We remain of opinion that the court fell into error in permitting the State to introduce proof of extraneous offenses.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.