The opinion
WOODLEY, Judge,
dissenting.
The order of reversal is predicated upon Bill of Exception No. 8 which “relates to the alleged improper argument of Mr. Hart, Assistant County Attorney.”
Under the procedural law of this state, adhered to by this court up to the present time, a bill of exception, in order to present for review to the Texas Court of Criminal Appeals a claimed error in the trial court, must be complete and in itself manifest the facts which show error. Resort to the record to complete the bill is not required.
It has also long been the rule that the statement of the ground of objection would not suffice and it was essential that the bill certify that the facts upon which the objection was predicated actually existed. Cox v. State, 157 Texas Cr. Rep. 51 , 246 S.W. 2d 474 ; Martinez v. State, 157 Texas Cr. Rep. 91 , 246 S.W. 2d 633 ; 4 Texas Jur., Sec. 206, p. 293.
These rules have been adhered to since the amendment of Art. 667 C.C.P. by the 53rd Legislature.
The decision in Musgrove v. State, 159 Texas Cr. Rep. 571 , 265 S.W. 2d 820 , was the result of a careful consideration, by all members of this court, of the theory now adopted by the majority opinion.
In the Musgrove case we construed the amendment of Art. 667 C.C.P. and held that the burden placed upon the trial judge, to show by qualification or otherwise that the argument was invited by or made in reply to argument of appellant or his counsel, or any other fact by which the argument complained of may have been authorized, did not alter the rule above stated, requiring the bill to be complete in itself. The effect of our holding was that the amendment placed no duty on the trial judge to complete a bill for the appellant by the addition of facts without which it was insufficient to show error. The writer believes that such holding is correct.
It was the settled law of this state at the time this case was tried, and at the time the bill of exception was approved, that a bill was deficient though it showed that counsel for the state *37 commented upon the defendant’s failure to testify, unless the bill disclosed as a fact that the defendant did not testify.
The holding in the Musgrove case has been consistently followed since the case was decided more than a year ago. It has been vigorously assailed (notably in McGill v. State, 159 Texas Cr. Rep. 658 , 269 S.W. 2d 398 ).
But able counsel who represent appellant on this appeal, in their brief, do not question our holding in Musgrove v. State, supra, nor seek to have it overruled. In fact the question of whether the assistant county attorney commented on the defendant’s failure to testify is not mentioned in the brief and is not therein relied upon for reversal.
If we were in error in our interpretation of the act of the 53rd Legislature amending Art. 667 C.C.P., the 54th Legislature is now in session, and has the undoubted authority to change the requirements for bills of exception so as to make a bill such as that before us sufficient to present the matter to this court.
The importance of fixed and written rules or laws regulating procedure in both civil and criminal cases is well recognized. Any changes in such procedure should be limited to future trials and preparation of appeals.
Believing that the Musgrove case should not be overruled but should control, and that the judgment should be affirmed and not reversed, I respectfully enter my dissent.