Barrera v. State , 165 Tex. Crim. 387 ( 1957 )

307 S.W.2d 948 (1957)

Pete BARRERA, Sr., Appellant,
v.
The STATE of Texas, Appellee.

No. 29482.

Court of Criminal Appeals of Texas.

December 18, 1957.

Reid & Reid by T. M. Reid, Abilene, W. E. Martin, Houston (on appeal only), for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is the sale of whiskey in a dry area; the punishment, 60 days in jail and a fine of $100.

In view of our disposition of this case, a recitation of the facts will not be necessary other than to observe that the State's witness testified that he bought a bottle of whiskey from the appellant and, according to the bill of exception, only he and the appellant were present at the time. The appellant did not testify or offer any evidence in his own behalf. In his closing argument, State's counsel said:

"You have heard the State's case and testimony of the witness Wilson, Mr. Reid (appellant's counsel), would you have believed that this is an unreasonable story and not true. Let me quote you from Mr. Reid's Statements to you, quote: ``You have a right to believe or not to believe that he bought the whiskey from the Defendant as he testified; His story is not reasonable, not logical, a fantastic story'. ``In answer, let me ask you if there has been one iota of evidence to refute what Mr. Wilson testified to?'"

Appellant moved for a mistrial on the grounds that this was an allusion to the failure of the defendant to testify. We agree that such was a violation of the mandatory provisions of Article 710, Vernon's Ann.C. C.P. See Royal v. State, 160 Tex. Crim. 598, 273 S.W.2d 426, and cases there cited.

The judgment is reversed and the cause remanded.