(dissenting).
The majority reverses this conviction because the trial court excluded the testimony by defense witness Oscar Antu on the ground “. . . that when a witness in a criminal case testifies about a specific fact or event, and that fact or event is more than a very minor detail of his testimony, then the opposing side may present evidence to rebut the testimony. Such impeachment goes directly to the credibility of the witness, a factor that in many cases may critically affect the outcome of the prosecution.”
Appellant was taken to jail because a federal warrant had been issued for his arrest. He was at the jail when he hit the officer. On cross-examination defense counsel asked Deputy Menchaca if he had beaten Antu. The court excluded Antu’s testimony on the basis that it was not relevant nor did it have any connection with the case at bar. Appellant, outside the presence of the jury, then developed the following bill of exception:
“Q. (Mr. Sames, Defense Counsel): I’ll start from the beginning. State your name.
“A. Oscar Antu.
“Q. Mr. Antu, have you ever been beaten in the Maverick County Jail?
“A. Yes, sir.
“Q. Have you ever been beaten by Deputy Sheriff Santoya in the Maverick County Jail?
“A. No, sir.
“Q. Was Deputy Santoya present when you were beaten by Deputy Sheriff Menchaca in the Maverick County Jail?
“A. Yes, sir.
“Q. Did you do anything to provoke this beating, that you know of?
“A. No, sir.
“MR. SAMES: No further questions.
“THE COURT: All right. The Court’s ruling will stand; this testimony will be excluded. You have your Bill. This is all you have from this witness?
“MR. SAMES: Yes.”
As pointed out in the majority’s opinion, appellant’s defense was predicated upon a theory of self-defense. The only evidence in this record to support this theory is the testimony of the appellant and his mother, Blanco Montemayor, and that of the mother is less than supportive of appellant’s theory. In fact, appellant’s own testimony disproves his own theory of self-defense as he admits that he struck Deputy Menchaca first and, from the evidence, without provocation. Deputy Menchaca did not threaten to hit nor hit the appellant. Appellant testified on direct examination:
“Q. All right. What was the nature of the conversation you had immediately after all of you got inside the jail?
“A. They said they had an order for arrest for me, and they were looking all in the drawers for it, I guess. I don’t know what they were looking for. Then they told me they didn’t have that order for arrest, and they had to call San Antonio. And at that time, that’s when Deputy Menchaca started yelling at me.
“Q. What was he yelling at you, Joe?
“A. I can’t remember. I heard him yelling at me, you know.
“Q. Did you say anything back to him, Joe?
“A. All I said was, you know I talked, but I didn’t finish saying anything when he came right at me. I don’t *96know if he was going to hit me, but he was charging me, and that's when I hit him. (Emphasis supplied)
“Q. You hit him?
“A. Once.
“Q. Did you feel he was going to attack • you at that time?
“A. Yes, sir. He did attack me. He was coming at me, and I don’t know for what other reason he was. He was not walking, he was charging at me.
“Q. Did your mother do anything about this?
“A. I don’t think she had time to react or anything.
“Q. Was Mr. Menchaca on the other side of your mother from you?
“A. Yes, sir.
“Q. In other words this is where you were; this is where your mother was, and this is where Mr. Mencha-ca was? (Indicating)
“A. Yes, sir.
“Q. And when you were in those positions there, would you describe again what happened?
“A. That’s when Menchaca came at me. I saw him coming and that’s when I hit him, because I thought he was ' going to hit me. After that, Cortez grabbed me and Menchaca was going for the hair, and my mother was trying to get Menchaca off me. Then they put me in the cell, and after that they told my mother she had to leave.”
He further testified that he was not injured during the first fracas that occurred:
“Q. Were you injured in that fracas, or that fight?
“A. No, sir.
“Q. You were not injured?
“A. No.”
With regard to the second fight, it is evident again that the appellant struck the first blow. As the appellant continued on direct as follows:
“Q. How long did you stay in that cell, Joe?
“A. For about 20 minutes.
“Q. Then what happened after this 20 minutes?
“A. Then they called me out and gave me the order of arrest, the number for the order of arrest, and told me what the bond was. This was Cortez. Cortez was telling me this; telling me to take everything out of my pockets. I took everything out of my pockets and put it on the table, the desk, and then Menchaca —well, after this I asked ‘What are the charges?’, and at the same time Menchaca asked me to take off my belt. I said ‘First, let Cortez tell me the charges’. That’s when he came at me and I hit him. I was going to hit him again, but Cortez grabbed me. He was hitting me there and —” (Emphasis supplied)
Nowhere does the appellant use the words “attacking manner”; he simply states that Menchaca was “charging” at him without clarification. When his attorney questioned him as to his reason for believing he might be attacked, the following transpired:
“Q. Joe, you mentioned you were trying to defend yourself. Did you have any reason to believe that Mr. Men-chaca might try to attack you while you were there?
“A. Yes, sir.
“Q. Could you tell me what that reason is?
“A. Because I had heard how he—
“THE COURT: No, now let’s not get into that—
“BY MR. SAMES:
“Q. Joe, were you afraid of Mr. Mencha-ca at that time?
“A. No, sir. (Emphasis Supplied)
“Q. Was there anything about the way he came after you that gave you reason to believe he might hurt you?
“A. Yes, sir. The first time he attacked me, so I thought he would do the same thing.
*97“Q. So then they let you sit down. Did you sit down in a chair there?
“A. Yes, sir.
“Q. Was there any more fighting after that?
“A. No, sir.”
From an analysis of the foregoing portions of the appellant’s testimony, it is apparent that appellant hit Deputy Menchaca without provocation during the first fight and then attempts to justify his hitting of the deputy during the second fight by stating that Deputy Menchaca had attacked him the first time and he expected the same the second time the deputy came toward him. A direct contradiction to his testimony concerning the first fight wherein he stated he was not afraid of Deputy Mencha-. ca at that time, but afraid only the second time.
Mrs. Montemayor, the appellant’s mother, was even less precise in her testimony. After drawing a diagram on the blackboard showing the location of Deputy Menchaca and Cortez and the appellant when she arrived at the jail, she testified:
“Q. (By Mr. Sames): Were the three people talking when you came into the office there?
“A. My son was asking questions.
“Q. What was he asking about?
“A. Why he was being placed under arrest.
“Q. Did anyone else say anything about that time?
“A. Not at that time. Mr. Cortez only opened a drawer.
“Q. What was Mr. Menchaca doing then?
“A. He was standing on one side.
“Q. What happened immediately after that time?
“A. Mr. Menchaca told my son that there was nothing he should be asking about.
“Q. What did you (sic) son say?
“A. Well, at the moment when Mr. Men-chaca said that, then he advanced toward my son.
“Q. Was your son talking at that time?
“A. No.
“Q. I want to know what happened before Mr. Menchaca charged at him, if he charged at him?
“A. Only why was he being held; why was he being placed under arrest.
“Q. Was anyone talking in a loud voice?
“A. No.
“Q. What did Mr. Menchaca do then?
“A. He went behind me, and over to my son.
“Q. Would you describe exactly what Mr. Menchaca did?
“A. Well, certain parts, because I got very nervous. When he said some bad words to my son that he didn’t have to say, and when he charged toward my son, then I got very nervous. Because he had made an attempt to reach for his gun too.
“Q. Did he draw his gun?
“A. No.
“Q. Did Joe hit Mr. Menchaca?
“A. I didn’t see that.
“Q. Were you facing in such a position that it is possible that Joe may have hit Mr. Menchaca without your seeing it?
“A. Yes, without seeing him.
“Q. Did Mr. Menchaca and Joe get into a fight?
“A. Yes, well, when he defended himself.
“Q. What did Mr. Menchaca do?
“A. By the time I realized it they were already, and then Mr. Cortez got up.
“Q. What did Mr. Cortez do?
“A. He grabbed him from right here with the arm.
“Q. Was anyone else in the room at this time?
“A. At that time, no.”
Then, on cross-examination, she stated that she watched Deputy Menchaca charge her son, did not see what happened when he reached her son, and then saw her son defend himself.
The record in this cause is lengthy; there is a lot of testimony, much of which is *98conflicting. Yet, there remains no justification for allowing the appellant to attempt to impeach Deputy Menchaca for prior acts of misconduct in the case at bar. It is well established that evidence of specific acts of misconduct against an accused or a witness is not admissible for impeachment purposes. 1 Branch’s Ann.P.C.2d, Section 190, page 209; Garcia v. State, 454 S.W.2d 400 (Tex.Cr.App.1970); Tomlinson v. State, 163 Tex.Cr.R. 44, 289 S.W.2d 267 (1956); Hunter v. State, 168 Tex.Cr.R. 160, 324 S.W.2d 17 (1959).
The Uniform Rules of Evidence, Rule 22(d), prohibit use of particular acts of misconduct for the purpose of impeachment as stated in Texas Practice, Evidence, McCormick & Ray, Section 656, page 497:
“The rule has long been established and is now universally recognized that such specific acts may not be proved by the testimony of other witnesses. This rule rests upon two reasons of policy: (1) The admission of such evidence would tend to confuse the issues; (2) It would unfairly surprise the witness. He cannot be expected to come prepared to disprove every act of his life which may be alleged by the opposing party.”
It should also be noted that appellant did not show by his Bill of Exception whether or not the alleged beatings of Antu occurred years before or sometime after the incident in question.
This was a collateral matter not in issue in the case. Does the majority intend to hold that this is a good rule of evidence for defense witnesses including the accused? A good rule of evidence applies to any witness. Under this rule a prosecutor on cross-examination may ask the accused in an assault case if he has beaten up another person without mentioning the time in an unrelated matter. If he answers that he has not, the State then can bring in the person asked about and offer testimony that he was beaten up by the defendant. This would apply to any witness either for the prosecution or the defense to show credibility.
No error is shown. The judgment should be affirmed.