The opinion
DISSENTING OPINION
ON APPELLANT’S MOTION FOR REHEARING
MORRISON and ONION, Judges.
The position Judge Onion and this writer took originally in our dissent has been fortified by the opinion of the United States Supreme Court in Washington v. State of Texas, 87 S.Ct. 1920 (June 12, 1967), wherein the Court held the petitioner to be denied his right to compulsory process by the application of Texas Statutes (Articles 82, P.C. and 711, C.C.P.), because the “State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.”
The majority opinion says the decision of the Supreme Court in Washington v. State of Texas, supra, delivered shortly after the original opinion herein, is not inconsistent with the holding of the majority in that the trial judge did nothing to deny petitioner the right “to put his witnesses on the stand,” or the “right to compel their attendance in court.”
The fallacy of this position is apparent when we read further from Washington v. State of Texas, supra, as follows:
“The testimony of Charles Fuller was denied to the defense not because the State refused to compel his attendance, but because a state statute made his testimony inadmissible whether he was present in the courtroom or not. We are thus called upon to decide whether the Sixth Amendment guarantees a defendant the right under any circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court.”
The identical situation exists in the case at bar and the only possible question relating to the applicability of the Washington holding is whether it is to be retrospectively applied. We need look no further than to the thinking of the Supreme Court of the United States as set out in Linkletter v. Walker, 381 U.S. 618 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 , in which the retrospective applications of Griffin v. People of State of Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 ; Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed. 2d 799 , and Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 , were discussed. There the Court said that “in each of the three areas in which we have applied our rule retrospectively the principle that we applied went to the fairness of the trial — the very integrity of the fact-finding process.” That the principle in the case at bar and in Washington is the very essence of the fact finding process and is of the nature deserving retrospective application can be readily seen from a reading of the majority opinion in Washington, wherein the Court said:
“The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States.”
and that:
“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present . the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.”
We do not agree with the assertion made by the District Attorney of Bexar County that to give the Washington rule retrospective application would result in countless *286 felons being turned loose on the streets or granted new trials, because we do not say that in all cases where the statutes have been applied, the defendants are entitled to relief. There must be a showing that the testimony of the witnesses who would have testified in their behalf is of such nature that it could have affected the outcome of the trial.
We respectfully dissent.