Zorn v. State , 169 Tex. Crim. 571 ( 1960 )

ON APPELLANT’S motion for rehearing

WOODLEY, Judge.

We have re-examined appellant’s bills of exception in the light of his contention that reversible error was certified therein, and have reached the conclusion that this court is not in as favorable position as was the trial court to pass upon the matter and hence we are bound by the certification of the trial judge.

The bills certify: (1) “that the conditions existing in the court room at the time of such demonstration by the District Attorney were that said red dice were placed against a white background in a well lighted court room illuminated both by daylight as well as artificial light, that no obstruction blocked the view of said red dice by the jury or in any manner inter-ferred with or restricted the field of vision from the front or from either side of said dice, and that the distance between the jury and said dice was undetermined and unknown except for the unsworn testimony of the District Attorney in his argument to the jury that said distance was more than sixty feet.”

“ * * * the undisputed testimony upon the trial of this case showed that the conditions existing at the time the witness, Byron Currin, allegedly saw gaming in defendant’s house were that the witness, Byron Currin, was sitting in an automobile at night and looked across or over or behind L. T. Wilson who was sitting beside Currin in said Vehicle, and looked through a wire fence intervening between said witness and defendant’s house, and looked through a crack four or five inches wide in some drapes covering one of the windows in said house located some sixty to seventy feet away from the witness, Currin, and saw some red dice moving against a background of a green cloth covering a table in a dimly lighted room.”

(2) That the district attorney, in his closing argument “gave new and unsworn testimony in the presence and hearing of the jury which was urged by the defendant to be prejudicial to the rights of the defendant, and over the timely objection of defense counsel;”

(3) “ * * * that there was no evidence in the case to support the argument hereinbefore set forth.”

(4) “ * * * that such statements by the District Attorney in his closing argument to the jury that said red dice were located in the court room more than sixty feet away from the jury constituted new and unsworn testimony on the part of the District Attorney in an effort to corroborate the State’s witness, Byron Currin, upon the most vital issue in the case and were so highly prejudicial and manifestly improper that the effect of such argument could not have been cured by the Trial Court had the Court instructed the jury not to consider said argument as requested by the defendant.”

The trial judge witnessed the demonstration and heard the remarks in connection therewith and we are in no position to dispute his certification that such constituted unsworn testimony upon a vital issue, which was so highly prejudicial and manifestly improper that its effect could not have been cured by instruction.

The dissenting opinion on original submission is withdrawn.

Appellant’s motion for rehearing is granted, the order of affirmance is set aside and the judgment is reversed and the cause remanded.