ON APPELLANT’S MOTION FOR REHEARING
WOODLEY, Judge.Appellant re-urges his contention that the court erred in allowing the introduction in evidence of items recovered in an illegal search of his home (Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Aguillar v. State, Tex.Cr.App., *203382 S.W.2d 480; Etchieson v. State, Tex.Cr.App., 382 S.W.2d 478; Mayfield v. State, Tex.Cr.App., 382 S.W.2d 940); his claim that the trial court erred in admitting appellant’s confession without first having a hearing on the issue of voluntariness (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908); his contention that the trial court erred in failing to withdraw the confession after all of the evidence had been introduced and his contention that the court erred in refusing to submit to the jury the issue as to the voluntariness of the confession (Lopez v. State, Tex.Cr.App., 384 S.W.2d 345).
Appellant points to the following as the total circumstances surrounding the taking of the confession: Confined for approximately 50 hours after arrest and before confession; a Negro; of low intelligence; little education; no experience in crime; under illegal arrest and not advised as to right to counsel.
Captain Fritz testified that he talked to appellant on October 15, and for a few minutes on October 16. He talked to him again on the 17th for something less than an hour, following which conversation he “asked him to go with Detective Dhority into an adjoining office, or another office near there, where he could reduce what he told me to writing. And he did, he went with Dhority in there. Q. And Officer Dhority reduced it to writing? A. Yes, sir.”
Dr. Holbrook, psychiatrist, testified that appellant’s I.Q. “would place him at the very extreme lower limits of normal in his functioning.”
Dr. Beavers, Assistant Professor of Psychiatry at the University of Texas Southwestern Medical School, Consultant at the Terrell State Hospital; on the staff of Parkland Hospital and in charge of the men’s ward of Woodlawn Psychiatric Hospital, saw appellant on November 7, November 11 and November 14, at the request of defense attorney, for evaluation. In addition to the testimony set out in our original opinion, he testified:
“This man, it became apparent, as I worked with him, is not bright. He has a very small amount of general information. And his ability to comprehend information and put it together is quite limited.
* * * I feel that I can make two diagnoses on this man, the first being a mild mental retardation, from the clinical evaluation and from the psychological testimony; the second diagnoses is one of inadequate personality based on his response to the clinical interview, and the other history of borderline adjustment.”
We do not agree with appellant’s contention that the trial court erred in admitting the confession to the jury or in failing to withdraw it at the conclusion of the evidence.
Neither do we agree with the state’s contention that the undisputed evidence shows that the confession was voluntarily made and was admissible.
We have concluded that the trial court should have responded to appellant’s objection and exception to the charge and submitted to the jury the issue of the volun-tariness of the confession. Lopez v. State, Tex.Cr.App., 384 S.W.2d 345.
While Jackson v. Denno does not support appellant’s contention that the trial court erred in admitting the confession and does not require that a jury rather than the court resolve disputed issues of fact concerning the voluntariness of the confession, it is authority for the proposition that it is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 915, cit*204ing Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760.
“A defensive theory when raised by the evidence should always be submitted to the jury. The defendant has a right to an affirmative instruction on every defensive issue raised by the evidence whether the evidence is produced by the state or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted, or whether it is conflicting.” 31 Tex.Jur. 2d p. 660, Sec. 110.
Though the evidence shows a cruel and brutal murder, appellant’s guilt is established only by the confession and corroborating evidence obtained as the result of a search of his home with his consent, while under arrest.
The omission of a charge requiring the jury to disregard the confession unless they found beyond a reasonable doubt that it was voluntarily made was calculated to injure the rights of appellant and requires reversal
Appellant’s motion for rehearing is granted, the affirmance is set aside and the judgment is reversed and the cause remanded.