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OWEN v. STATE

No. 66973.

656 S.W.2d 458 (1983)

Lewis Edell OWEN, Appellant, v. The STATE of Texas, Appellee.

Court of Criminal Appeals of Texas, En Banc.

Rehearing Denied September 28, 1983.

Attorney(s) appearing for the Case

Dick DeGuerin, Houston, for appellant.

Hunter B. Brush, Dist. Atty. and Jim Walker, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for voluntary manslaughter. The jury assessed punishment at twenty years.

In a single ground of error appellant contends the court erred in overruling his motion for mistrial "following the prosecutor's comments on the failure of the defendant to testify."

At the punishment stage of the trial the prosecutor argued:

"He [deceased] was a living breathing human being that...

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