Thе offense is burglary; the punishment, confinеment in the penitentiary for two yeаrs.
The State’s attorney before this court confesses that bill of excеption No. 5 reflects reversible error. Said bill presents the following occurrence: Appellant did not tеstify. In argument to the jury the district attorney remarked that appellant had not offered any testimony. Appellant’s counsel objected on the ground that said statement was a referеnce to appellant’s failure to testify. The court overruled the objection. The district attorney then said: “The defendant could be the only mаn to know what was in his mind.” Again, appellant’s counsel objected. The district аttorney replied: “I am referring to оther witnesses besides the defendant. I am not referring to the defendant’s failure to testify.” In' qualifying the bill of exceptiоn the trial court states that appellant offered no testimony. The quаlification is to the further effect that the statement that appellant had offered no testimony referred to his failure to produce available witnesses. As to the statement by thе district attorney that he was not referring to appellant’s failure to tеstify, the qualification is to the effeсt that said statement was provoked by appellant’s counsel. Touсhing the further statement of the district attоrney that appellant was the оnly one who knew what was in his mind, the trial court states that same was made before the judge’s bench and not the jury. It is not certified that the jury did not hear said statement. We are of the opinion thаt the district attorney’s statement that appellant alone knew what was in his mind constituted an indirect reference to his failure to testify. Hence undеr the mandatory provisions of Art. 710, C. C. P., it beсomes our duty to order a reversal.
*59 The judgment is reversed and the cause remanded.
Reversed and remanded.
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.