(dissenting).
In appellant’s motion for rehearing, reliance is had principally upon Lewis v. State, Tex.Cr.App., 463 S.W.2d 186, and Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875. In Lewis v. State, supra, we held it reversible error to exclude evidence of prior acts of violence by the deceased, though unknown to the appellant, because such acts were admissible to show that the deceased was the aggressor. Lewis was based entirely upon Dempsey v. State, supra, wherein we said:
“The defense may offer testimony as to any specific act of violence or misconduct which evidences the violent character of the deceased under the following conditions:
“If offered for the purpose of showing the reasonableness of defendant’s claim of apprehension of danger, it must further appear that the acts of violence or misconduct were known to the defendant at the time of the homicide.
“But if offered for the purpose of showing that the deceased was in fact the aggressor (not that the defendant thought the deceased was making or about to make an attack) the witness must know but it need not be shown that appellant had knowledge of the acts of violence of the deceased at the time of the homicide.”
*810In each case it was held that before such evidence would be admissible it must be shown that at the time of the shooting the deceased was manifesting an intention to inflict violence on the appellant.
I return to the record before this Court. The deceased had been drinking at one bar before he went to Susie’s Bar where he continued to drink. Appellant testified that she had received complaints and had difficulty with the deceased all evening and repeatedly offered to return his admission fee if he would leave. On one occasion the deceased got on the stage and tried to grab at a Go-Go dancer, and another time he tried to force his attention upon a young woman who was trying to go to the restroom. She stated that before the shooting, and just prior to the time that she armed herself, she asked the deceased to leave as it was closing time. The deceased replied, “You and nobody else is going to put me out of here.” This was corroborated by the witness Lorena Huitt, who testified that the deceased said he would leave when he “got damned good and ready to.”
The witness Betty Ann Kirkham testified that the deceased said, “There’s no one here big enough to make me leave.”
Appellant testified further that, also prior to arming herself, the deceased told her that he was going to “Kick the God damned f— out of me.” This statement was corroborated by Mrs. Huitt, who testified that the deceased said, "I’ll knock the_, you know, out of you.”
Appellant testified that she then went behind the bar and made a futile effort to reach the police by telephone, armed herself with a pistol and picked up the day’s receipts and went again to the table where the deceased was seated and again entreated him to leave. At this juncture, the deceased said, “I am going to knock the hell out of you.” Simultaneously with such statement, appellant testified, the deceased swung at her. “When he swung up at me like that, I threw my arm up to block his arm.” She further testified, “I was, you know, trying to block his arm off when he hit me, and I had the gun in my hand and when I swung my arm back like this, it went off.” Mrs. Huitt corroborated the appellant when she testified, “And he [deceased] swung at Nancy [the appellant] or when he swung at Nancy she went to hit him back or something and then I guess the gun went off.” Mrs. Kirkham further corroborated the appellant in these words: “He had come up to hit her, and she swung back and a shot went off.”
With this as a background, I now discuss the evidence which the Court excluded over appellant’s objection.
The witness Linda Stiles, deceased’s former wife, testified that when the deceased would get drunk he would tear up his mother’s bar, that he had a violent temper and he would beat her and her parents, that when he was drinking he had temper tantrums, and that the police frequently came to the home she had shared with the deceased.
Mrs. Louise Thyfault testified that the deceased was a nice, quiet person until he was drinking, that he had beaten her up and her husband when he was drinking, and that the deceased had been in jail in Amarillo numerous times for fighting in bars while he was drinking.
I have now concluded that the trial court fell into error in excluding this testimony. This Court has, prior to now, recognized two distinct instances in which evidence of specific acts of violence or misconduct which show the violent character of the deceased may be admitted; i. e., (1) to prove the reasonableness of the defendant’s claim of apprehension of danger, or (2) to prove the deceased was the aggressor. The testimony was clearly admissible for this latter purpose, in conformity with our recent opinion in Lewis v. State, supra.
The majority apparently fails to recognize this second theory and disposes of *811appellant’s contention as though it had been asserted under condition (1), to prove the reasonableness of the defendant’s claim of apprehension of danger. This is an incorrect application of a rule of evidence which has been clearly enunciated by this Court previously and which has heretofore been followed.
I respectfully dissent.
ONION, P. J., joins in this dissent.