
    Marcelino E. Costilla v. State.
    No. 30,804.
    June 24, 1959.
    Motion for Rehearing Overruled October 14, 1959.
    
      
      B. L. Jeffery, Carrizo Springs, and Rufino Cabello, Crystal City, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 3 days in jail and a fine of $100.

The record contains no statement of facts.

There is one bill of exception. It complains of a remark of the attorney for the state in argument to the jury, objected to on the ground that it was a direct reference to the failure of the defendant to testify.

In the absence of a statement of facts, we are not prepared to hold that the remark to the effect that the evidence introduced “is uncontroverted and undenied” was a direct reference to appellant’s failure to testify or that such remark necessarily referred to his failure to testify, if he did, and not to the failure to produce the testimony of eye witnesses, if there were such.

Art. 710 C.C.P. is not transgressed by argument which the jury may reasonably apply to the absence of other testimony. Byers v. State, 166 Texas Cr. Rep. 34, 310 S.W. 2d 331.

The judgment is affirmed.  