(dissenting).
I have reviewed the record in Thompson v. State, supra, to determine just exactly what was before this Court when we said on rehearing that in addition to the primary error another ground for reversal lay in permitting proof that appellant attempted to have intercourse with another woman on another and separate occasion. It was this statement which helped to father our opinion in Caldwell v. State, 477 S.W.2d 877. In the case at bar the primary offense was committed on the same day appellant met prosecutrix, no pistol or other instrument was used, but prosecutrix was choked until she could not breathe. At the conclusion of the attack appellant appeared calm and inquired what the prosecutrix intended to do.
Appellant then offered testimony that the act of intercourse was with prosecu-trix’ consent.
In rebuttal to this “consent” testimony the State was permitted to prove that on another occasion, not too remotely removed from the assault upon prosecutrix, appellant had intercourse with another woman, Mrs. C. This also took place on the day appellant met Mrs. C. No pistol or other instrument was used and Mrs. C. was choked until she could not breathe. Once again appellant appeared to be calm and asked Mrs. C. what she intended to do. At the time of the attacks both prosecutrix and Mrs. C. were single girls aged 20-21 with high school educations and both were raped by appellant on the first day he met them.
We return to Thompson v. State, supra. In that case the prosecutrix was a 19-year-old babysitter who spoke no English (and appellant spoke no Spanish). She was raped on her first encounter with Thompson who was armed with a pistol, whereas Mrs. Zabel, the “other woman” whom appellant “attempted to forcibly have intercourse with,” presented an entirely different picture. She was a widow with two children who first met Thompson socially, had two dates with appellant, the last being a dinner, and then without protest went to a tourist court with him and then apparently balked at the last minute. The record does not disclose the details of the rape attempt, but it is apparent that there was no similarity between her relationship with appellant and his relationship with the prosecutrix. Because of this dissimilarity in the respective facts bearing on the likelihood of consent, this Court was correct in suggesting that the evidence of appellant’s attempt on Mrs. Zabel should not have been permitted.
Caldwell v. State, supra, is not authority in this case, because no defensive theory was raised and, therefore, there was nothing for the State to rebut.
*233In the case at bar the similarity of the, attacks when taken with appellant’s testimony that his relationship with the prose-cutrix was with her consent clearly authorized proof that on another occasion appellant attempted to forcibly have intercourse with another woman in much the same manner as he had with the prosecutrix. This became admissible under the sixth exception set forth in Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. In that case "this Court laid down rules for the admissibility of extraneous offenses and the sixth exception authorizing the proof of such offenses appears as follows:
“(6) To refute a defensive theory raised by the accused.”
For the reasons stated I respectfully dissent to the reversal of this conviction.