In view of appellant's motion we have again examined his evidence and are confirmed in our views that it raises *Page 446 no affirmative issue. The charge and the State's case is one of rape by force. Appellant by his testimony does not even raise the issue of aggravated assault as a defense to the charge of rape. Whatever fondling may have been done by him, if any, was according to his evidence with the consent of prosecutrix, and this, if true, falls short of aggravated assault in this character of case. His defense was not affirmative, but purely negative, and covered fully we think in the charge given. Under the facts of the present case we do not perceive the application of Owens v. State, 39 Tex.Crim. Rep., 46 S.W. 240; Perez v. State, 48 Tex.Crim. Rep., 87 S.W. 350; Tucker v. State, 94 Tex.Crim. Rep., 249 S.W. 1063.
The motion for rehearing is overruled.
Overruled.