(dissenting).
While I adhere completely to my original dissenting opinion in this case, I must again express my disagreement with the position of the majority.
The effect of the court’s holding on rehearing is to allow in evidence any extraneous assault in any murder case where the defendant takes the stand and states that she acted in self-defense. Not all such assaults “have a direct tendency to prove guilty knowledge or intent.” 23 Tex.Jur.2d 308, Evidence, Sec. 198. Therefore, only those which do have such a “direct tendency” should be considered relevant and admissible. This is why we have previously required extraneous offenses to bear a substantial similarity to the main offense. Newman v. State, 485 S.W.2d 576 (Tex.Cr.App.1972).
Now, however, the rule is changed by simple judicial fiat. The majority states that the presence or absence of similar characteristics is one factor to be considered in determining whether an extraneous offense will be admitted. However, the majority then makes clear that it is, in fact, no factor at all. The majority has created a balancing test with all weights on one side of the scale. Not considered is the right of the accused not to be tried as a criminal generally, Seay v. State, 395 S.W.2d 40 (Tex.Cr.App.1965), or his right to testify in his own behalf, Art. I, Sec. 10, Vernon’s Ann.Tex.Const.1
As it is, however, the majority is creating a rule — without guidelines or safeguards— which forces an accused to an unconstitutional choice between these two fundamental rights. If a defendant chooses to testify and urge that she acted in self-defense, as did the appellant here, she automatically waives her right to be free of evidence of her general criminal past. The converse is of course equally true: by choosing not to take the stand the accused prevents the State from using such evidence, but is thereby forced to forfeit the important right to put before the jury relevant, and perhaps exculpatory, facts.
I do not propose that an accused should never be forced to choose between these rights. There are many situations which allow the introduction of extraneous offenses. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).
In all of those situations, however, adequate guidelines and safeguards are present. This is not true in this case, or the ones which will inevitably follow its vague and prejudicial holding. Criminal defendants, clothed with the presumption of innocence, should not be required to make this unconstitutional choice between two fundamental rights. Compare Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
I would reverse and remand.
ODOM, J., joins in this dissent.
. Our former requirement of substantial similarity protects these important and valuable rights. E. g., Newman v. State, supra.