dissenting.
On this dark Wednesday the majority effectively abolishes the right of the accused to a meaningful trial by jury on defensive issues raised by the evidence.
None of the cases cited by the majority are on point; nor do they conflict with the holding on original submission in this case, as asserted by the majority.
The majority admits that the evidence did not raise the issue of mistaken identification in Ward v. State, Tex.Cr.App., 505 S.W.2d 832, and Waller v. State, 581 S.W.2d 483 (1979). In Guzman v. State, Tex.Cr. App., 567 S.W.2d 188, it was not contended on appeal that the issue had been raised, but merely that the law of proof beyond a reasonable doubt was not adequately applied to identification of the accused. The Court there held, “Viewing the charge as a whole, it properly instructed the jury concerning reasonable doubt.” From the opinion in Jones v. State, Tex.Cr.App., 566 S.W.2d 628, it also appears that no evidence raised the issue of mistaken identity; the opinion merely recites, “The two State’s witnesses identified the appellant as the assailant.” Finally, the opinion in Laws v. State, Tex.Cr.App., 549 S.W.2d 738, also reflects that the defensive issue was not raised by the evidence. In that case, although one state witness had failed to identify the defendant in a line-up, two other *670witnesses were unimpeached in their identification testimony.1
Unlike the cases cited by the majority, the evidence in this case did raise the defensive issue of mistaken identification. Evidence was presented by the defense that the state’s only identifying witness had viewed appellant and two others for possible identification and had said that appellant was not one of the rapists.
The defensive issue was clearly raised and appellant was entitled to an affirmative submission of the issue. It is well established that an accused is entitled to an affirmative submission of every defensive issue raised by the evidence. Rodriguez v. State, Tex.Cr.App., 372 S.W.2d 541; Loftin v. State, Tex.Cr.App., 366 S.W.2d 940; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716. The majority today abolish that rule by holding, in effect, that if the jury is instructed on the presumption of innocence, and on the requirement that the jury must find beyond a reasonable doubt that the accused committed the offense, then no defensive charge need be given. It is the function of a jury charge to lead the jury as to the matters for its deliberation and to prevent confusion. See, Williams v. State, Tex.Cr.App., 547 S.W.2d 18. A jury charge that only presents the law regarding the state’s case, and that ignores the defensive issues raised by the evidence, is a state-biased charge that is one-sided in its guidance to the jury. See, Fennell v. State, Tex.Cr. App., 424 S.W.2d 631, in which the conviction was reversed for failure of the charge to apply the law to the facts on the issue of self-defense, even though there was no objection.
The majority opinion today is guilty of the same misreading of the panel majority as was the dissent on original submission, in which it was protested that failure to identify the accused in a line-up should not be an affirmative defense that would require an acquittal. The majority on original submission held that appellant was entitled to an affirmative submission of the issue, not an affirmative defense and not an acquittal if the jury found the victim had previously stated appellant did not commit the crime.
The simple issue is whether appellant was entitled to have the jury fairly instructed on the issue, and thereby fairly decide it. Previous decisions of this Court have recognized that mistaken identification is a defensive issue and that the accused is entitled to an affirmative submission of the matter. See, Wheeler v. State, 56 Tex. Cr.R. 547, 121 S.W. 166; Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573; Fite v. State, 139 Tex.Cr.R. 592, 140 S.W.2d 848, 853. Appellant was denied his right to have the jury adequately instructed on the defensive issue raised, and his constitutional right to a trial by jury was thereby impaired. The majority decision today endorses this injustice and leaves a dark cloud of uncertainty over the future of the right to a jury charge on any defensive issue.
I dissent.
. Laws is also cited for the proposition that a charge on mistaken identity would have singled out particular parts of the testimony. While such a charge in that case, where only one of three identification witnesses was impeached, and where no defensive issue of mistaken identification was raised by the evidence, would have improperly singled out particular parts of the testimony, the rule against singling out parts of the testimony cannot be applied to prevent an affirmative submission of defensive issue that is raised by the evidence. Such an overbroad application of the rule will eliminate all jury charges on defensive issues which by definition “single out” the evidence that raised the issue when the law is applied to the facts.