OPINION
ON APPELLANTS’ MOTION FOR REHEARING
ONION, Presiding Judge.In their motion for rehearing appellants vigorously urge the reconsideration of their first two grounds of error contending the court sidestepped the issue of probable cause for arrest in the majority opinion on original submission.
The real difficulty in this case lies in the fact that appellants contend there was no probable cause for their arrest, and that their convictions ought to be reversed as a matter of law for this reason alone. By their brief they call attention to the trial court’s ruling on their motion to suppress heard before the trial on the merits.
They do not claim that incident to the arrest in question there was recovered evidence which was improperly admitted or that a confession was obtained, etc. It is really appellants’ argument that when the officers who were not in uniform and who were in an unmarked car attempted their apprehension of the appellants their actions under the circumstances, and when the appellants did not know they were officers, brought about the events out of which the alleged offense arose and gave to the appellants the right of self-defense and infected and tainted the whole proceedings.
Upon a reconsideration of the record, this writer is convinced that Judge Morrison put his finger on the real issue in his concurring opinion on original submission when he wrote:
“The question in this case is not whether the officers were acting within the scope of their authority in making the arrest. The sole question presented by this record is whether or not appellants were acting within their right of self-defense against the strangers who they thought were attacking them.
“This issue was properly submitted and answered adversely to them by the jury.”
The real issue concerns the appellants’ right of self-defense,1 and this goes to the heart of the sufficiency of the evidence to show an assault, for to use firearms defensively when attacked is not an assault under Texas law. White v. State, 29 Tex.App. 530, 16 S.W. 340 (1891).
The issue of self-defense was adequately presented to the jury in the court’s charge at the guilt stage of the trial and decided adversely by the jury — the triers of the facts.2
Appellants’ motion for rehearing is overruled.
. It might be said that the real issue is the appellants’ right to resist arrest, whether lawful or not (from a probable cause standpoint). However, the appellants did not testify that they knew the men pursuing them were officers and they were resisting an arrest in a manner to which they were entitled to resist but that they were being accosted by strangers in an unmarked car which was later shown to have an Arizona license. On appeal, no complaint is made concerning the failure of the court to charge on the right to resist arrest.
. From this cold record this writer would have concluded if I had been the trier of the facts that appellants acted in self-defense, but I am not the trier of the facts and cannot substitute myself for jurors who actually saw and heard the witnesses.