(dissenting).
On original submission, the majority held that proffered testimony of an alleged isolated attack by Officer Menchaca upon Oscar Antu at some undesignated time which had no connection with the present case was admissible to effect the credibility of the officer. The majority now, on motion for rehearing, in an attempt to justify that erroneous holding, relies heavily upon self-defense.
There was no self-defense in the case. There was no testimony that Officer Men-cliaea was striking at or attacking appellant. Appellant testified that he was not afraid of Menchaca.
In McFarlane v. State, 159 Tex.Cr.R. 658, 266 S.W.2d 138 (1954), the conviction was for aggravated assault and this Court held that there is no right of self-defense against a mere appearance of a lesser attack but only against an actual attack. There is no testimony by any witness that Menchaca used or attempted to use unlawful force.
A good rule of evidence works both ways. If the majority follows its holding in future assault cases, the prosecution will be allowed to introduce evidence that a testifying defendant assaulted another at some unknown time even if such an assault would be collateral and have nothing in connection with the case on trial. This has not been the rule until today. There is no proffered testimony that this alleged attack was unprovoked and not in self-defense or as some of the majority sometimes write, there is no showing how the attacks were similar in nature. There is no showing how remote the alleged attack was. It appears that the majority is allowing the defense to try Officer Menchaca as a criminal generally-
No error has been shown. The State’s motion for rehearing should be granted and the judgment should be affirmed.