# Spencer v. State > Court of Criminal Appeals of Texas · February 1, 1950 · 154 Tex. Crim. 427 URL: https://www.frixlaw.com/law-library/cases/9648835 ## Case - **Full name:** Charles W. Spencer v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 1, 1950 - **Citations:** 154 Tex. Crim. 427; 227 S.W.2d 552; 1950 Tex. Crim. App. LEXIS 2091 - **Precedential status:** Published - **Opinion:** On rehearing by Graves - **Judges:** Woodley, Graves - **Cited by:** 10 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/9648835 ## Opinion text ON MOTION FOR REHEARING. GRAVES, Judge. Appellant complains in his motion because it is again alleged that his Bill No. 3 evidences repeated comments upon appellant’s failure to testify upon the part of Mr. Brummett, Assistant County Attorney. We are impressed with the correctness of our ruling in the original opinion that it is not shown in said bill that there were no other persons present at the time the officers entered appellant’s home and found the beer sitting on the floor. H. E. Harmon, one of the officers, testified that there was a lady present at the time of their entrance and at the time a statement was made by appellant, as testified to by the officers. Appellant’s wife also testified that her sister-in-law lived with them and was present at the house on the afternoon of that day. It is further complained that the state’s attorney alluded to the defendant’s failure to testify as shown in Bill No. 3, in his argument as follows: “Now, gentlemen of the jury, briefly that is the state’s case. There are three witnesses who have testified for the state to that effect. Nobody has denied any of that.” This was objected to by appellant’s attorney as an improper comment On the defendant’s failure to testify, and counsel moved for a mistrial. Thereupon the county attorney said: “Your Honor, what I meant by that statement was that there had been no evidence produced on behalf of the defendant to refute that.” “MR BURKS: All of which we say is in direct violation of the law and the instructions given in the charge and his repetition *433 of the statement only tends to intensify the error. And the defendant is now entitled to a mistrial on account of improper argument of counsel in improperly referring to the defendant’s failure to testify and alluding — .” After a further exchange of remarks between the attorneys, as well as the court, Mr. Burks further said: “Your Honor, in addition to the objections that we have heretofore made and while I was being interrupted, I intended to say to the Court that the argument that he made alluding to the fact that it had not been denied was in addition to a direct allusion to the defendant’s failure to testify an indirect allusion, because he has referred to something that no one but the defendant could deny or explain and we renew our motion that a mistrial be declared.” At this point the court overruled the exception and the bill proceeds as follows: “mr. brummett : I understand that much law, that we can’t refer to the defendant’s failure to take the stand. Notstanding what Mr. Burks might say, by my statement I did not intend to take any advantage or to leave that impression. I am just summarizing the evidence that the State has produced here in connection with the Court’s charge and along that line the Court has charged you that — “MR. BURKS: Your Honor, excuse me. May we have now an exception to the remarks that he has just made? He continues to refer to the matter and we want the record to show that we excepted to that, the remarks that he started out with just a while ago as he resumed this talk. We want an exception to that.” This bill is lengthy and seems to be concerned with a colloquy between the attorneys. We do find, however, that the opening statement of the county attorney herein found was justified by the presence of others than the appellant and the officers at the scene of the search. It will be seen from the above that appellant’s attorney was the first to mention an allusion to the defendant’s failure to testify, and no mention of such was made by the county attorney until he had been accused of making such allusion, whereupon he denied making such and asserted his knowledge that he could not refer to such failure. We think that under this record appellant cannot take advantage of his own statement to cause his opponent to deny *434 making the same statement or reference that appellant’s attorney had already made. We remain of the views expressed in our original opinion as to Bill No. 3. It is complained that the record fails to show that Lubbock County is a dry area. We find the following in the statement of facts: The witness, Louie F. Moore, County Clerk of Lubbock County, was placed on the stand, and after testifying that he had in his possession and under his control the Minutes of the Commissioners’ Court of such county, the following took place: “MR. BURKS: If the Court please, we dispense with any further proof of the dry status of the county, if they want to. “MR. brummett: And you will agree that it is a dry area, with the exception you mentioned a while ago? “MR. BURKS: (Nodding). “MR. brummett : The State rests, your Honor.” There is no objection to the court’s charge on the ground of a failure to prove the allegation relative to the dry status of Lubbock County. We think that appellant’s attorney, by his offer, waived the proof of such dry area, and that the state accepted such waiver, and excused the witness by whom such could have been proven on account of appellant’s offered waiver. We adhere to the views expressed in our original opinion, and the motion for rehearing will be overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648835. Public record. Not legal advice.