(dissenting).
The prior dissenting opinion by this writer is withdrawn.
The majority overrules the State’s motion for rehearing even without discussing a decision to the contrary handed down some nine months before the original opinion was written. See McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974). That case should be distinguished or overruled. If both cases are allowed to stand, a different rule of procedure applies just because the offenses alleged bear a different name.
Thompson, the appellant, testified that his gun went off four times accidentally and that he had no intent to kill Officer Gary Fleming or injure anyone. This cause is reversed because the trial court did not give a requested charge on aggravated assault.
The court instructed the jurors, among other things, that before finding the appellant guilty of assault to murder a police officer they had to believe:
“(a) that the defendant, Freeman E. Thompson, made an assault upon Gary Fleming in Travis County, Texas on or about the 12th day of January, 1973, by shooting him with a gun, or attempting to shoot him with a gun;
“(b) that at the time of such assault, if any, the Defendant then and there had the specific intent to kill Gary Fleming;
“(c) . . .
“(d) . . . .”
The court further instructed that if the jury had a reasonable doubt that the State had established any of the foregoing elements to acquit.
The issue was joined. The State proved the assault upon the police officer. The appellant testified that there was no assault. Why should a trial court charge on matters not raised by the evidence ? There was no evidence by appellant or anyone else to mitigate the circumstances to make an issue of aggravated assault.
*627The cases relied upon for reversal show the defendants admitted the shooting but intent to injure was denied. They are not in point.
Here, in effect, the majority is providing appellant with evidence to make an issue of aggravated assault by saying that the jury could disbelieve his testimony that he did not intend to shoot and believe that part that he intended to shoot but did not intend to kill. The majority is providing testimony for a defendant and is reversing the trial court for not doing the same.
We should not overrule sound cases such as Fuller v. State, 409 S.W.2d 866 (Tex.Cr.App.1967), to reverse a conviction where no harm or error has been shown.
Apparently the main reason given by the majority that the jury should have been instructed on the lesser included offense of aggravated assault is that the jury might disbelieve part of a defendant’s testimony.
If this reasoning is good, then a court, in many if not most assault to murder cases, should charge on assault to murder with malice, without malice, aggravated assault, simple assault, because the jury might disbelieve part of the testimony offered by a defendant or the State. A jury could believe that a defendant committed any of the lesser included offenses and the trial court must charge on each.
Pity the trial judges who have to take all of the combinations in a defendant’s statement or testimony and charge on each theory that may be conceivably raised. For example, a defendant testifies and makes ten statements — does a court have to charge on the assumption that one is correct and the other nine might not be believed? Then he should charge on the theory that No. 1 and No. 2 could possibly be believed but not the other eight, and so on with all possible combinations.
The recent case of McBrayer v. State, supra, decided in 1974, is in conflict with the present case. The conviction was for assault with intent to commit rape. Mc-Brayer did not commit the act of rape. The complainant testified that the defendant stated that he was not going to rape her, but that he was going to “love” her and she was to cooperate. The evidence showed that he abducted her, threatened her life and fondled her. This Court held that the following was applicable:
“As stated in 4 Branch’s Ann.P.C., Sec. 1889, p. 219:
“ ‘If the case is either assault with intent to rape or that defendant is not guilty of any offense, it is not error to fail to refuse to charge on the issue of aggravated assault. Dorsey v. State, 1 [Tex.] App. 33; Long v. State, [Tex.Cr.App.] 46 S.W. 640; Ricks v. State, 48 [Tex.Cr.R.] Crim. 229, 87 S.W. 345; Herbert v. State, 49 [Tex.Cr.R.] Crim. 72, 90 S.W. 653; Fowler v. State, 66 [Tex.Cr.R.] Crim. 500, 148 S.W. 576; Hooper et al. v. State, 72 [Tex.Cr.R.] Crim. 82, 160 S.W. 1187; Rettig v. State, 90 [Tex.Cr.R.] Crim. 142, 233 S.W. 839.’
“See also Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973).
“Still further, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense. See Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75 (1957); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952).” (Emphasis supplied)
From the McBrayer opinion we find the correct rule, “A charge on the lesser offense is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense. . . . ”
It is surprising that the majority is overlooking this case and is not overruling or distinguishing it.
*628Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.), decided in 1973, also states the same rule. Neither is it distinguished nor overruled. Both cases cited the assault with intent to murder cases showing the same rule is applicable.
We now have one rule of procedure in an assault with intent to commit rape case which does not require a charge on the lesser offense of aggravated assault, because the evidence does not show the accused guilty of that lesser offense only. McBrayer v. State, supra.
Because of the decision in the present case, we have a new and different rule of procedure in an assault with intent to murder case because a charge on aggravated assault is required even though the evidence does not show the accused guilty of the lesser offense only.
The same rule of procedure should apply to all cases whenever possible. The decision today changes one rule into two rules without any reason.
More decisional points are being created. These two rules are unnecessary. Too many rules create confusion. The submission of unnecessary questions formerly plagued the trial of civil cases. We should not be going in the wrong direction, especially where the law is changed to get to that result.
Since the original opinion has been written, this Court has decided Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974). The reasoning in the present case was not followed, especially that part of the opinion which states that prior heretofore unheard of rule in connection with the court’s charge that any part of a witness’ testimony may be disregarded.
The evidence in the Jackson case includes that of the defendant. He testified that Barnes, the deceased, became violent and attacked him whereupon Jackson struck Barnes with a three-hole punch and then with a plastic satchel containing a length of pipe. He related that all of these blows were struck in self-defense.
If the Court had applied the new rule, a part of the testimony of Barnes could be disregarded and the jury could pass upon all parts of it. Then the Court should have charged on aggravated assault. Because first, the jury could have disbelieved all of the testimony of the witnesses that Barnes was dead and secondly, the jury could have believed only that part of the testimony of Jackson that he hit Barnes on the head with the punch but only caused serious bodily injury and not death.
Under the new rule announced in the original opinion of the present case, the trial court should have charged upon the question of aggravated assault as requested by Jackson because of the possibility of disbelief of part of his testimony. Although not stated in the Jackson opinion, the record in that case shows the following occurred:
“Q. (Defense Counsel) And did you at any time intend to kill Bill Barnes?
“A. (Jackson, Defendant) No, I didn’t.”
In the Jackson case no deadly weapon per se was used. In such a case the mode and manner of its use must be looked to to determine intent. In the present case a deadly weapon per se, a pistol, was used.
There can be no distinction where death was inflicted because under the new theory the jury could have disbelieved Jackson when he testified Barnes was dead. There was evidence of no intent to kill in the Jackson case; it was affirmed. Different results should not be reached on the same facts.
The new rule was not applied in Davis & Mitchell v. State, 516 S.W.2d 157 (Tex. *629Cr.App.1974), decided after the original opinion in the present case. Mitchell’s conviction was affirmed and his contention that error was committed for the failure to give a charge on aggravated assault was overruled.
In that case Mitchell, who was driving a Cadillac bearing Tennessee license plates, was stopped near Abilene for speeding. A highway patrolman instructed Mitchell to follow him to the office of a justice of the peace. Mitchell followed until the officer entered the exit ramp and then sped away on Interstate Highway 20 in a westerly direction. A high speed chase began. Other officers joined in the chase. A number of shots were fired at the Cadillac as it veered from lane to lane of the mul-ti-lane highway.
Boyd Baker, Chief of Police of Merkel, the complaining witness, testified that he parked his police car on Interstate 20 and turned on the car’s red lights. He was standing four feet into the outside lane. Moments later he saw the Cadillac and its pursuers bearing down upon his position. Baker raised his rifle in an effort to stop the Cadillac:
“ . . . As the Cadillac closed to within fifty to seventy-five yards of him, it suddenly swerved from the inside lane to the outside lane, causing Baker to jump four feet to a location in front of his vehicle. The Cadillac then hurtled past, missing Baker by about one foot. Baker fired once at the driver’s head and once at the back of the Cadillac as it sped by him.”
The intent had to be presumed in Mitchell’s case because an automobile is not a deadly weapon per se. Followers were shooting at Mitchell and under such circumstances many drivers would probably weave from one lane to another. Requiring a charge on aggravated assault in the Mitchell case would have been more appropriate than requiring such a charge in the present case. However, that case was affirmed.
The court decision, rule or language that if there is any evidence of lack of intent to kill a court must charge on aggravated assault has been previously mentioned. Usually those cases involve a deliberate shooting in the direction of another and there has been testimony by a defendant that he intended to alarm and did not intend to kill. Under the holding by the majority, when a defendant testifies to an alibi this would entitle him to a charge on aggravated assault because under such evidence he would have had no intent to kill at the time and place alleged since he was not present.
If a defendant puts on evidence of accident, self-defense, and perhaps other defenses in the same case, and then tells the jury on redirect and recross examination that he shot and killed the deceased because he found the deceased in bed with his wife, and he further testifies that his other testimony was false because he did not want to give the true reason earlier in consideration of his children, under the majority ruling a charge on aggravated assault must be submitted. This is so, according to the majority, since there is some evidence in the record to raise lack of intent to kill and the jury may believe or disbelieve any part of the testimony.
A case should be considered in its entirety. Some isolated inference that no intent to kill may be presumed or retracted testimony of no intent to kill would require a charge on aggravated assault would make trials a farce.
If this Court by its decision has made such a charge mandatory and reversible under all circumstances (as the majority is apparently thinking today), then the rule should be changed. Such a rule is not found in the Constitution or in our statutes.
*630We should not adopt the domino theory with regard to explanatory language in a case. Under the domino theory, all cases must fall because such literal explanatory language cannot be applied to later trials, even in wholly different situations.
Under the explanatory language of the majority that the jury could believe and disbelieve a part of appellant’s testimony as a basis for the charge, a trial court would be required to charge on regular assault to murder because the jury might not have believed the assaulted person was a police officer even though a defendant testified that he knew that the person was a police officer.
The jury judges the facts, but the testimony of the appellant as to the four accidental and unintentional shootings is so ridiculous that no jury of ordinary intelligence and integrity would reach a different result.
Assuming the court’s refusal to charge on aggravated assault was error, the Legislature provided the answer in Article 36.19, Vernon’s Ann.C.C.P., concerning errors in the court’s charge. The statute provides, in part, that “the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant or unless it appears from the record that the defendant has not had a fair and impartial trial.”
The Legislature provided that we should examine the charge and if there is error which is not calculated to injure the rights of a defendant, the case should not be reversed. It would be hard to imagine a better case for the application of the statute.
Cases should be decided on substance. This is not being done by the majority today.
No error has been shown. The judgment should be affirmed.