¶1On Appellants’ Motion for Rehearing
¶2Appellants insist that we were in error in our holding that the admission in evidence of that portion of the telephone conversation between the deceased and his wife at about 5 o’clock, p. m., on the day of the killing, in which the deceased told his wife “to figure on having dinner at 6 o’clock,” over the objection that the same was hearsay and prejudicial, did not constitute reversible error. Appellants insist that the admission of such evidence constituted reversible error because it presented to the jury statements made by the deceased which were unknown to appellants and which struck at the very heart of their defense that they went to the deceased’s office for the purpose of having a sexual date.
¶3In support of their contention, appellants rely upon the early case of Brumley v. State, 21 Tex.App. 222, 17 S.W. 140, where it was held that proof of the deceased’s undisclosed reason or motive in being where he was, or in going to the scene of the homicide, is not admissible against an accused where it tends to affect his defensive theory. Reliance is also had by appellants upon the recent case of Marshall v. State, 168 Tex.Cr.R. 569, 330 S.W.2d 625, where similar proof was condemned by this court under the holding in Brumley, supra. In their brief, appellants concede that under an exception to the rule, proof of movements of the deceased not known to a defendant which is merely explanatory of his presence at the scene of the killing is admissible where such proof does not affect a defensive theory. See: Bazanno v. State, 60 Tex.Cr.R. 507, 132 S.W. 777.
¶4While appellants’ objection to the telephone conversation as being hearsay was well taken, we remain convinced that, under the record presented, the admission of such evidence does not present reversible error. Proof that the deceased indicated in the telephone conversation with his wife at 5 o’clock, p. m., that he would be home around 6 o’clock, p. m., did not controvert appellants’ defensive theory that they went to the deceased’s office at 5 o’clock, p. m., to fulfill a prearranged sexual date. There is no proof that the sexual date would be of such duration that it could not have been completed and the deceased be at his home around 6 o’clock, p. m. Furthermore, the proof that the deceased indicated to his wife in the telephone conversation that he would be home around 6 o’clock, p. m., may have been beneficial to appellants and have supported their defensive theory that they went to his office to fulfill the prearranged sexual date, in that it could be construed as an effort on deceased’s part to keep his wife from coming to his office while the sexual date was being consummated.
¶5Appellants further insist that we were in error in holding that, under the facts, no probability of injury was shown as a result of the outcry of the deceased’s widow, made during the argument of appellants’ counsel. As shown in our original opinion, while appellants’ counsel was arguing that if it were not true that on Saturday night before the killing on Monday the deceased was with appellants, the members of the Tones family would have said he came home at 6 o’clock that evening, she stated: “And he certainly did; he was with me at the Ben Milam Hotel.” Appellants especially take us to task for the statement in our opinion: “The record in this case shows that the context of the widow’s statement did not contradict the appellants’ testimony relating to certain activities between them and the deceased at the time mentioned in the argument.” Appellants further point to certain testimony in the record *853to the effect that on the Saturday night in question the deceased was with them and on such occasion did go to their apartment to have sexual relations with Carolyn Lima.
¶6While such was the evidence adduced and the statement in our opinion is subject to correction, we remain convinced that the widow’s outcry, under the record, does not call for a reversal of the convictions. Whether the deceased was at the Ben Milam Hotel with his wife, or with the appellants on Saturday night before the killing, such had no direct bearing upon the actual killing and the issue of self-defense interposed by the appellants. Appellants admitted shooting the deceased and their only defense was that of self-defense. The widow’s outcry had no bearing upon such issue and, clearly, no probability of injury is shown.
¶7We again overrule appellants’ remaining contention that the court erred in refusing to admit testimony offered by them relating to a specific act of sexual aggressiveness by the deceased. As stated in our original opinion, there was no proof that the specific act inquired about was known to or influenced the appellants in killing the deceased. The case of Newchurch v. State, 135 Tex.Cr.R. 619, 121 S.W.2d 998, supports the trial court’s action in excluding such testimony.
¶8The authorities cited by appellant in support of their contention that such testimony was admissible to corroborate and support their theory and claim that the killing was because of the sexual aggressiveness of the deceased are not here controlling. In the cases cited it was shown that the accused either had knowledge of the prior similar act and was seeking to corroborate such knowledge, or there was a disputed issue as to whether the deceased committed the act or acts relied upon as a basis of the accused’s defense, at the time of the killing. Here, there was no proof that appellants had any knowledge of the prior act of sexual aggressiveness of the deceased and their testimony as to his sexual aggressiveness on the day of the killing was in no way disputed.
¶9Remaining convinced that a proper disposition was made of the case in our opinion on original submission, the motion for rehearing is overruled.
¶10Opinion approved by the Court.