# Lee v. State

> Court of Criminal Appeals of Texas · January 2, 1957 · 165 Tex. Crim. 113

URL: https://www.frixlaw.com/law-library/cases/9636042

## Case

- **Full name:** Elsie Mae Lee v. State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 2, 1957
- **Citations:** 165 Tex. Crim. 113; 303 S.W.2d 406; 1957 Tex. Crim. App. LEXIS 2262
- **Precedential status:** Published
- **Opinion:** On rehearing by Davidson
- **Judges:** Morrison, Davidson
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9636042

## Opinion text

ON APPELLANT’S MOTION FOR REHEARING
DAVIDSON, Judge.
With much earnestness, appellant insists that the cross-examination of the appellant by state’s counsel as to her failure to testify upon a former trial constitutes a violation of Art. 710, C.C.P., and renders mandatory a reversal of this conviction.
There is no question but that counsel for the state are prohibited by Art. 710, C.C.P., from referring to the failure of the accused to testify in the case.
This preclusion extends to and covers the failure to testify at other trials. Hare v. State, 56 Texas Cr. Rep. 6 , 118 S.W. 544 ; Brown v. State, 57 Texas Cr. Rep. 269 , 122 S.W. 565 ; White v. State, 83 Texas Cr. Rep. 252 , 202 S.W. 737 .
The facts show that state’s counsel, upon cross-examination of appellant, repeatedly referred to the fact that on a former trial of the case she did not testify, and that she admitted not having done so.
That a violation of the provisions of Art. 710, C.C.P., occurred is not subject to serious contradiction.
Whether such proof, under the facts of this case, constitutes reversible error presents quite another question.
Upon her direct examination, appellant was propounded the following question by her counsel:
“Q. Now, Mrs. Lee, you didn’t testify at the other trial, did you?”
Her reply was: “No, sir.”
The appellant placed before the jury, therefore, the fact that “at the other trial” she did not testify as a witness in her own behalf.
*120 Such was the sole fact that Art. 710, C.C.P., precluded from proof by the state.
It is true that the cross-examination of appellant was in much detail and included facts and circumstances to which she did not testify or contradict at the other trial.
It must be kept in mind that the only provision of the law which precluded state’s counsel from making the cross-examination was the reference to her failure to testify.
When the impediment was removed by proof of that fact by appellant, the right to object because thereof was eliminated.
We remain convinced that a correct conclusion was reached originally.
Appellant’s motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9636042. Public record. Not legal advice.