concurring.
I concur in the majority’s holding that the appellant was not entitled to an affirmative instruction on the issue of mistaken identity. However, I would so hold because the rule that an accused is entitled to an affirmative submission of every defensive issue raised by the evidence 1 should not be applied under the facts of the present case.
A defensive issue is one that is exculpatory in nature and, if resolved in favor of the defendant, would entitle him to an acquittal. V.T.C.A., Penal Code, Section 2.03. Although mistaken identity may, in some instances, constitute a defensive issue, it is not such an issue in the present case.
In every criminal trial, there are a host of controverted issues and subissues which, if resolved in favor of the defendant, tend to create a reasonable doubt of guilt. Each element of a given offense has a potential for controversy and creation of doubt, yet we do not require a special charge on such issues as culpable mental state, consent, ownership, et cetera, when these issues are controverted by the defendant. Such issues are properly proven as part of the State’s main case. Only when evidence has been introduced which, if standing alone, would entitle him to an acquittal is it incumbent upon the court to submit an affirmative charge to the jury on such a defensive issue when it is properly requested by the defendant.
The State must always establish the identity of the accused as an element of its case in chief. The State’s evidence on this element may be rebutted by the defendant with evidence that the State’s identification witness previously failed to identify the defendant when given the opportunity to do so or that the State’s witness previously identified someone other than the defendant as the perpetrator of the offense. But rebuttal evidence of this nature affects the witness’s credibility and the weight to be given his testimony and in no wise casts upon the State an additional burden of proof to disprove this rebuttal evidence beyond a reasonable doubt.
A different situation is presented when the defendant seeks to raise the issue of mistaken identification by introducing evidence that someone else committed the offense in question. In such a case, once a defendant meets his production-of-evidence burden, the State would be obliged to disprove this issue beyond a reasonable doubt. Section 2.03, supra; Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166 (1909). By such evidence, a true defensive issue is presented by the defendant because a favorable jury finding would entitle him to an acquittal. Thus, when the issue of mistaken identity is raised in this manner, the defendant is entitled to have it affirmatively submitted by instruction to the jury. And a charge on the defense of alibi will not suffice because it does not fully cover the proposition that a person other than the defendant committed the offense. Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848 (1940) (Motion for Rehearing).
In Wheeler v. State, supra, one of the-defenses advanced by the defendant was that Powledge and not the defendant had committed the offense of murder as alleged. The court charged upon circumstantial evidence and alibi, but did not affirmatively instruct the jury pursuant to his properly requested charge that if the jury found that another party committed the homicide, or if there was a reasonable doubt of this, the jury should acquit him. This Court held that it was reversible error for the trial court to have refused the defendant’s properly requested charge on this defensive issue of mistaken identity.
In the case before us, the appellant attempted to rebut the State’s evidence on the identity issue by introducing evidence that the prosecutrix had previously failed to identify him as her assailant. In light of the foregoing observations, I cannot say that the appellant was entitled to an affirmative charge on mistaken identity because, under the facts of this case, no defensive issue on mistaken identity was presented.
For the reasons stated, I concur.
. Rodriguez v. State, 372 S.W.2d 541 (Tex.Cr. App.1963).