The opinion
ON APPELLANT’S motion for rehearing.
WOODLEY, Judge.
Appellant directs our attention to the fact that in her Bill of Exception No. 1 she complains of the remarks of the judge and not of the argument of counsel. She insists that we should *372 hold that reversible error is shown and relies upon the case of Ward v. State, 156 Tex. Cr. Rep. 472, 243 S.W. 2d 695 , as directly in point.
As stated in our original opinion, the county attorney was discussing the amount of alcohol required to effect intoxication. The argument was to the effect that maybe one person could drink a quart and be very sober, and do a good job of driving, while “maybe somebody else, due to their physical condition, due to some mental condition or whatever it may be, couldn’t drink very much, and be very intoxicated;---.” He further argued, “But this woman, and all of them, are charged with driving while intoxicated and that means, as you know, the lack of control of their bodily and mental faculties. It seems to me under all the evidence in this case she was not in control of her mental and bodily faculties, and those are the type of people we are trying to keep from driving.”
The objection was made to this argument, and the court having overruled the same, in explanation of his ruling remarked “On the basis that it was a logical conclusion from the evidence.”
We understand the conclusion drawn by the assistant county attorney to be that appellant, though she may have consumed only a small amount of intoxicating liquor, was nevertheless intoxicated. We understand the remarks as to “the type of people we are trying to keep from driving” as referring to intoxicated drivers, without regard to the amount of alcohol which may have caused the loss of their normal faculties.
So construing the argument we expressed the conclusion in our original opinion that the court did not err in overruling the objection to the argument.
• In view of appellant’s motion we will further discuss the contention regarding the remark of the trial judge.
Art. 707 C.C.P. provides in part that the judge shall not, at any stage of the proceedings previous to the return of a verdict, make any remark calculated to convey to the jury his opinion of the case.
In Ward v. State, supra, this court said that the provisions of Art. 707 C.C.P. are mandatory, and reached the conclusion *373 that the remark of the court violated the provisions of said article and constituted reversible error.
In Newton v. State, 150 Tex. Cr. Rep. 500, 202 S.W. 2d 921 , and in Green v. State, 154 Tex. Cr. Rep. 197, 226 S.W. 2d 454 , we said that a violation of Art. 707 C.C.P. ordinarily will result in a reversal. And in Hill v. State, 153 Tex. Cr. Rep. 105, 217 S.W. 2d 1009 , we said that the article is to be rigidly enforced.
We do not construe these decisions as in conflict with the many opinions of this court handed down prior to the Ward case wherein it was held that remarks of the trial judge in violation of Art. 707 C.C.P. are not ground for reversal unless such remarks operate to the prejudice of the defendant. Rodriguez v. State, 109 Tex. Cr. Rep. 190, 5 S.W. 255 ; Crane v. State, 91 Tex. Cr. Rep. 304, 240 S.W. 920 ; Dipple v. State, 109 Tex. Cr. Rep. 339, 4 S.W. 2d 565 ; Davis v. State, 114 Tex. Cr. Rep. 72, 24 S.W. 2d 417 ; Clay v. State, 40 Tex. Cr. Rep 593, 51 S.W. 2d 693 ; Welburn v. State, 129 Tex. Cr. Rep. 323, 87 S.W. 2d 259 ; Martin v. State, 154 Tex. Cr. Rep. 302, 227 S. W. 2d 213 .
The rule was recognized in Farmer v. State, 158 Tex. Cr. Rep. 397, 255 S.W. 2d 864 , decided after the Ward case.
The state’s witnesses testified as to the conduct and appearance of appellant and to the odor of alcohol on her breath. That she was in no condition to safely drive an automobile on the public highway is without dispute.
The state’s witnesses attributed her condition to drunkenness. According to the state’s evidence appellant denied, at the time of her arrest, that she had been drinking.
Appellant’s husband, who was in the car with her, did not question the description given by the officers,, of appellant’s statement, conduct, appearance or attitude.
Appellant did not testify. Her only witness was her husband, who expressed the opinion that her condition was not due to drink but to her physical and mental condition. He accounted for the smell of alcohol upon her breath by the fact of her having taken one or two drinks.
In the light of the testimony and the argument which was *374 made, we cannot agree that the remark of the trial judge contributed to cause the jury to accept the conclusion of the state’s witnesses that appellant was intoxicated and to reject the conclusion of her husband, that the emotional strain and nervous condition alone accounted for her behavior on the occasion in question.
Nor do we find any basis for believing that the remark of the court resulted in prejudice to appellant in the assessment by the jury of the $400 fine as punishment.
Unless there may be found in the remarks of the court a benefit to the state or an injury to the defendant which would not have been present had the court simply overruled the objection, we would not, under the rule stated, be authorized to reverse because such remark was made in violation of Art. 707 C.C.P.
We fail to find such injury and remain convinced that reversible error is not shown.
Appellant’s motion for rehearing is overruled.